Page:North Dakota Reports (vol. 2).pdf/540

 asked him for the price of a drink, which was refused. After passing, Curfman noticed plaintiff in error following him. Just before reaching the bridge Howard, coming from the opposite direction, met Curfman, and ordered him to halt, and presented a revolver in his face. At the same time plaintiff in error ordered him to throw up his hands. They exchanged a few words, when plaintiff in error grabbed Curfman’s watch chain, and said, “Give us your money.” At that instant footsteps were heard approaching, and the assailants started to run. When fifteen or twenty feet distant from Curfman they wheeled, and Howard fired the pistol, hitting Curfman in the jaw. The assailants then immediately disappeared in the darkness in some woods south of the bridge. At the proper times counsel for the plaintiff in error raised the point that there was a fatal variance between the allegations in the information and the proofs, and asked the court to advise an acquittal for that cause. The request was denied.

Counsel contends that, while the information charges that the shooting was done with intent to commit robbery, yet the evidence shows that the assault with intent to rob was a completed event before the shooting was done, and that the shooting was done for the purpose of facilitating the escape of the assailants, and, without claiming the evidence insufficient in the absence of proof of the shooting to establish the charge of an assault with a dangerous weapon with intent to commit robbery, it is urged that, as the pleader saw fit to allege the particular circumstance and acts descriptive of the assault, the assault must be proven in the manner and by the means alleged, or the variance will be fatal. This proposition is supported by the following authorities, among others: Greer v. State, 50 Ind. 267; Dennis y. State, 91 Ind. 291; Gray v. State, 11 Tex. App. 411; Withers y. State, 21 Tex. App. 210; State v. Newland, 7 Iowa, 242; State v. Vorey, 41 Minn. 134, 43 N. W. Rep. 324; Com. v. Richardson, 126 Mass. 34—and is undoubtedly among the elementary principles of criminal procedure. The learned counsel for the state frankly admits the proposition, but seeks to avoid its force by claiming that the jury were warranted in finding that when the shot was fired the assailants