
    Cask 12 — INDICTMENT
    October 22.
    Helmerking v. Commonwealth.
    APPEAL FROM JEFFERSON CIRCUIT COURT. CRIMINAL DIVISION.
    1. Criminal. Law — Variance.—Upon the trial of a defendant under an indictment charging him with murder by “striking, beating, bruising and mortally wounding” the deceased, he can not be convicted upon evidence that he knocked deceased down, and that in falling deceased struck his head against some hard substance which caused his death.
    PHELPS & THUM for appellant.
    1. There was a fatal variance between the allegations of the indictment as to the manner in which deceased was killed,-and the evidence disclosed upon the trial, and the peremptory instruction to find the defendant not guilty should have been given. Guedol v. TliePoople of the State of Illinois, 43d 111., p. 226, et seq.; Rex v. Kelly, 1 Moody C. C., page 113; Rex y. Thompson, 1 Moody O. C., page 139; Greenleaf on Evidence, vol. 1, sec. 65; Greenleaf on Evidence, vol. 3, sec. 140; Penrod v. People of the State of 111., vol. 89, page 150; Davis v. The People, 19 111., page 74; Wharton on Criminal Law, sec. 1059; 4 Blackstone (note Cooley); 1 Russell on Crimes, 557; 4 Russell on Crimes, 793; 1 Greenleaf on Evidence 65; 3 Greenleaf on Evidence, 140; 16 B. Monroe, 207; 1 Metcalfe, 368; 3 Mecalfe; 3 Bush, 178; 13 Bush, 720; Am. & Eng. Ency. of Law, vol. 10, page 556; Com. v. Dean, 109 Mass., 352; Penrod v. State, 89 111., 150; Com. v. McCarty, 145 Mass.; Thomas v. Com., 14 Ky. L. R„ 288.
    W. S. TAYLOR for appellee.
    1. Under the instructions of the Court the jury was compelled t.o believe before they could convict defendant, that deceased came to his death from the striking, beating, bruising and wounding inflicted by defendant, and its finding of fact is conclusive and can not be disturbed.
   JUDGE GUFFY

DELIVERED THE OPINION OF THE COURT:

The appellant, Henry Helmerking, was indicted, tried and convicted in the Jefferson Circuit Court upon an indictment charging him with the murder of Joseph Graf, and his punishment fixed at a fine of $200 and ninety days’ imprisonment in the county jail. His motion for a new trial having been overruled, he has appealed from the jud gment.

Several grounds for a new trial were relied on, but the one most earnestly urged here is the variance of the proof from the allegation in the indictment. We quote from the indictment as follows:

“Did unlawfully, willfully, maliciously, feloniously and of his malice aforethought, kill, slay and murder Joseph Graf, by striking, beating, bruising and mortally wounding him, the said Joseph Graf, with his hands and fists, in and upon the head, body and person of him, the said Joseph Graf, from which said striking, beating, bruising and mortally wounding as aforesaid the said Joseph Graf did then and there die.”

The evidence seems to clearly establish the fact that, prior to the time of the difficulty, the defendant and deceased were friends, and, but a few minutes before the difficulty, drank together; and there is proof conducing to show that appellant had left the saloon and gone out in the street or upon the sidewalk, with intent to go home, and that deceased followed out and, going towards appellant, asked him if he (appellant) said he owed him, and appellant said yes; and deceased then called appellant a d — d liar, and that appellant struck him and knocked him partly down, and after he got up and possibly started towards appellant and perhaps used insulting or threatening words', appellant again struck him and knocked him down, deceased falling on his back towards the house, on a cellar door or something. Soon thereafter appellant went home. Deceased was assisted to his home and died before nest morning.

The proof seems to clearly show that deceased head struck some hard substance and fractured his skull and thereby caused' his death. The jury evidently thought that appellant was not acting in his own necessary defense; but did not think he was either guilty of murder or voluntary manslaughter.

The contention of appellant is that there is no proof that the blows indicted produced the death of deceased; that death was the result o-f the head striking some hard substance, and it seems clear that that contention is sustained by tbe evidence. It is further contended by appellant that tbe proof as to tbe manner of tbe killing was so variant from tbe allegations made in tbe indictment that tbe peremptory instruction asked by appellant should have been given and that tbe motion to dismiss tbe indictment 'Should have been sustained.

Section 122 of tbe Criminal Code requires a statement of tbe acts constituting tbe offense, and tbe rule is well settled that tbe evidence must substantially sustain tbe allegations of tbe indictment as to tbe acts constituting tbe offense, and tbe authorities go so far as to bold that if tbe description given might be omitted, yet tbe main facts alleged must be proven as laid.

In the case of Clark v. Commonwealth, 16 B. Mon., 207, indicted for having counterfeit bills payable at certain named banks, with intent to pass tbe same, tbe proof showed that be bad counterfeit bills with intent to pass tbe same which was an offense; but tbe proof failed to show that any of them were payable by any of tbe banks named, or purported to be issued by such banks. At tbe conclusion of tbe evidence tbe defendant asked tbe court to instruct tbe jury that, unless tbe jury should believe from tbe evidence, to tbe • exclusion of a reasonable doubt, that tbe defendant bad, before tbe finding of the indictment, in bis possession a counterfeit bank bill of tbe denomination and description mentioned, with tbe intention of passing tbe same, they should acquit him; which, instruction wasi refused by the trial court. Upon appeal to this court it was held that the instruction should have been given, although the evidence showed the possession of counterfeit bills with intent to pass the same.

In the case of Guedel v. The People, 13 Ills., 226, the court discusses at length the same question and holds that an indictment for murder committed by shooting from a gun can not be sustained by evidence of the killing by striking on the head with a gun, and that an acquittal under such an indictment does not bar another trial charging that the murder was committed by striking deceased on the head with a gun. The court also quotes with approval from Greenleaf on Evidence, volume 3, section 110. We quote as follows from the section supra:

“But if the evidence be of death in a manner essentially different from that which is alleged, as if the allegation of stabbing or shooting, and the evidence be of death by poisoning, or the allegation be of death by blows inflicted by the prisoner, and proof be that the deceased was knocked down by him and killed by falling on a stone, the indictment is not supported.”

It is suggested by the Commonwealth that the question as tO'the killing in this case, as alleged in the indictment, was submitted to the jury and a verdict of guilty rendered.

If there was any proof at all to authorize or sustain that verdict this court could not set it aside unless other errors of law hhd occurred, but we are satisfied that the jury was of opinion that, as the blows caused deceased to fall and thereby meet his death, that this' proof sustained the allegations of the indictment; but such is not the legal effect of such evidence. There was, in fact, no proof that the blows killed the deceased; but, on the contrary, it is pretty clear that, if his head had not struck some hard or sharp object, that he would have sustained but a slight injury.

While it may be true that appellant could have been legally convicted and punished for the killing, if he did it, yet the acts constituting the killing would have to be alleged in the indictment.

It results from the foregoing that the court below erred in refusing the peremptory instruction asked by appellant.

The judgment appealed from is, therefore, reversed and the cause remanded, with directions to set aside the verdict and judgment and award >a new trial, and for proceedings consistent with this opinion.  