
    No. 11,777.
    Duncan v. The People.
    Decided December 27, 1927.
    Plaintiff in error was convicted of second degree murder.
    
      Affirmed.
    
    1. Criminal Law — Variance Between Information ami Proof. A variance of two days between information and proof of the date of an offense held immaterial.
    2. New Trial — Court Discretion. In the absence of a showing of abuse of discretion, the ruling of a trial court in denying a motion for a new trial will not be disturbed on review.
    
      Error to the District Court of Las Ammas County, Hon. A. F. Hollenbeck, Judge.
    
    Mr. Earl Cooley, Mr. John N. Mabry, Mr. James E. Jewel, for plaintiff in error.
    Mr. William L. Boatright, Attorney General, Mr. William W. Gaunt, Assistant, for the people.
    
      En Banc.
    
   Mr. Justice Adams

delivered the opinion of the court.

The defendant, a practicing physician, was convicted of second degree murder, hy procuring a criminal abortion, resulting in the death of the woman upon whom he operated. Defendant was sentenced to a term in the penitentiary, and brings the case here for review.

Counsel for defendant argue generally about the instructions. All instructions commonly used in the trial of criminal cases were voluntarily given by the trial judge. No objections were made to them; no other instructions were requested; there is no assignment of error based on the instructions as given, nor for failure to give others. The rights of the accused were fully protected, and there was no mistake in such instructions.

Counsel speak of the evidence. No error is assigned on the admission or rejection of evidence, nor have counsel pointed out any error. The preponderance of the evidence fully sustains the conviction.

Counsel claim that there was a variance of two days between the information and the proof, in that the charge was of an act committed on January 14,1926, but that the proof was January 12,1926. This was immaterial. Laycock v. People, 66 Colo. 441, 444, 182 Pac. 880.

Error is assigned because of the refusal of the trial court to grant a new trial. It does not appear that there was any abuse of discretion. In the absence of such showing, the ruling will not be interfered with. Eachus v. People, 77 Colo. 445, 448, 236 Pac. 1009. Counsel for defendant have not cited any precedent for any proposition advanced.

This case has had the thorough consideration of every Justice of this court, and has been the subject of repeated conferences. Defendant’s present counsel did not represent him at the trial, and in their briefs they indiscriminately attack the trial judge, the district attorney and defendant’s trial attorney in general charges of improper conduct. The accusations are gratuitous and unwarranted. The defendant had a fair and impartial trial; the verdict was just, and the record shows no error.

Judgment affirmed.  