186 Ind. 589 | Ind. | 1917
Appellee was tried and acquitted on an indictment which charges him with the murder of one Arrel Littler by striking said Littler with a shovel. Some of the evidence introduced at the trial tended to sustain the allegations of the indictment, but appellee testified that he struck the deceased with a brick or a stone. In view- of that conflict in the evidence-the following instruction was given at the request of appellee : “It is charged in the indictment that the defendant killed the deceased with a shovel. The weapon used is
On appeal from the judgment of acquittal, under the provisions of §2162 Burns 1914, Acts 1905 p. 584, 647, the State assigns error in the' giving of the above instruction and earnestly insists that the rule requiring strict proof of descriptive averments in criminal trials finds qualification in cases of homicide and felonious assault.
In general, it may be said that although an indictment for murder alleges that the act was done with a specified instrument, it is not necessary to prove that the act was done with that particular instrument. If the proof shows that the crime was committed through other means, it is sufficient if the nature of the violence and the kind of injury resulting in death is the same. In the present case, the indictment charges that appellee killed Littler by striking him with a shovel but some of the evidence tended to show that he struck him with
Note. — Reported in 117 N. E. 648. Sufficiency of an indictment for homicide with respect to description of instrument used, 18 Ann. Cas. 314. See under (1) 12 Cyc 806; (2) 21 Cyc 872.