Madison v. State

130 N.E.2d 35, 234 Ind. 517, 1955 Ind. LEXIS 169

• Court: Indiana Supreme Court
• Decided: November 4, 1955
• Docket: 29,188
• Status: Published

Opinions

Emmert, C. J.

This is an appeal from a judgment sentencing appellant to imprisonment for life, entered on a verdict finding him guilty of murder in the second degree under an indictment charging murder in the first degree. The assignment of errors charges the trial court erred (1) in overruling appellant’s motion to quash the indictment, and (2) in overruling appellant’s motion for a new trial. The motion for a new trial, among other things, alleged the verdict was not sustained by sufficient evidence, and was contrary to law.

The indictment was returned by the Grand Jury of Vanderburgh County on October 2, 1953, and is as follows:

“The Grand Jurors for the County of Vander-burgh and State of Indiana, upon their Oaths, present and charge that JAMES B. MADISON on or about the 1st day of August A.D., 1953 at said County unlawfully, feloniously, purposely and with premeditated malice, did kill and murder one Jesse Clarence Trigg by then and there unlawfully, fe-loniously, purposely and with premeditated malice wounding the said Jesse Clarence Trigg with a • certain deadly weapon called a hand grenade, then and there loaded with nitroglycerin, the said hand grenade being thrown by the said James B. Madison in the direction and in the vicinity of the said Jesse Clarence Trigg, after the trigger mechanism on said hand grenade had been released by the said James B. Madison and the said hand grenade thereby exploding, fragments of said exploded hand grenade being thrown by said explosion at and against the said Jesse Clarence Trigg, thereby inflicting a mortal wound on the said Jesse Clarence Trigg of which mortal wound the said Jesse Clarence Trigg then and there died. . . .” (Italics supplied.)

The motion to quash charged (1) the facts stated in said indictment did not constitute a public offense, and (2) said indictment does not state the offense charged with sufficient certainty.

It is well settled that an offense need not be charged in the exact language of the statute. Wilson v. State (1953), 232 Ind. 495, 498, 112 N. E. 2d 449. Words which import the same meaning will be sufficient. Peltz v. State (1953), 232 Ind. 518, 522, 112 N. E. 2d 853. The language was not uncertain or ambiguous and every fact necessary to constitute the crime of murder in the first degree, as defined by §10-3401, Burns’ 1942 Replacement, was directly and positively alleged. There was no merit in the motion to quash or the motion in arrest of judgment. Each was properly overruled.

The state’s contention is frivolous that appellant’s original bill of exceptions No. 1 and his special bill of exceptions No. 2 are not properly in the record. It is sufficient to note that Rule 2-3 was fully satisfied, and both bills are properly in the record.

The appellant did not take the witness stand in his own behalf, nor did he introduce any evidence in defense of the charge. The State introduced the confession of the appellant and produced a number of witnesses, some of whom were soldiers who had been stationed at Camp Breckinridge. Some of the evidence is conflicting, as would be inevitable when the homicide grew out of a free for all fight involving from 50 to 100 men and women, but the general picture appears too plain to be ignored.

Appellant was a Negro paratrooper, nicknamed “Trooper” or “Big Trooper,” just returned from the Korean War, and stationed at Camp Breckenridge. The evening of July 31, 1953, he and other soldiers went to Evansville. He visited various drinking places including one where gambling was openly conducted, and about 2:00 A.M., August 1st, he arrived at Ted Cole’s Barbecue, which was operated as a dance hall, barbecue and an after hours liquor rendezvous. Appellant bought a ticket to the dance floor and danced for about fifteen minutes, went outside, bought a barbecue sandwich, which he sat down to eat. A fight had started in the dance hall and moved to the outside. It was a free swinging, free for all, drunken brawl, with about everybody involved using fists, knives and clubs. One Amazon was stabbing with a coke bottle with a broken neck. Somebody knocked the sandwich out of appellant’s hand as he was eating it. Appellant attempted to act as a peacemaker, and as often happens, his peaceful efforts only brought further trouble upon himself. One of his soldier friends, Eddie Wright, under the influence of liquor, was trying to fight, while appellant was trying to get him away in a car. Appellant hit him three times in order to quiet him and had knocked Eddie down, and as he bent over to pick him up and take him to a car someone hit the appellant over the back with a long board, generally described as a 2 by 4 or larger, which was broken by the force of the blow.

Another soldier by the name of Boxx had an Oldsmobile which had some hand grenades in the trunk. Appellant obtained one, and pulled the safety pin with his teeth. This held the crowd back. Boxx backed out towards State Road 41 and started to drive away. Some of the crowd shouted, “there they go in the green Oldsmobile, shoot at the Oldsmobile.” Appellant put his hand out of the car and dropped or threw the hand grenade, which alighted at the feet of one Frank Couch, an ex-convict who had been selling tickets at the dance floor early that evening. Couch kicked the grenade, and it exploded near Jesse Clarence Trigg, killing him as he held an open knife in his hand. Appellant was arrested later that morning in Evansville.

Appellant challenged the array of the regular panel of the petit jury of the Vanderburgh Circuit Court, alleging that one of the jury commissioners, Harry Fitzgerald, had not resigned when his successor,

Henry Brink, was appointed “to act for the time being” as jury commissioner. However, it developed on the hearing on the challenge that the commissioner Fitzgerald was away on a vacation and became ill and was in the hospital two days before his successor was appointed. Section 4-3303, Burns’ 1946 Replacement, provides for the appointment of a jury commissioner “to act for the time being” if a jury commissioner fails “to act when required or because of illness or for any other cause” he should be “unable to act.” The jury commissioner was duly sworn, but the record fails to show he was instructed concerning his legal duties. The jury commissioner in our opinion was a de jure jury commissioner, and the presumption on collateral attack is the court did its duty unless the record shows to the contrary. There is no suggestion that any members of the regular panel were not chosen pursuant to law or that fraud or corruption entered into their selection in any manner. The situation is entirely different from that disclosed in Rudd v. State (1952), 231 Ind. 105, 107 N. E. 2d 168. The challenge to the array was properly overruled.

“Malice may be presumed from the intentional use of a deadly weapon in such a manner as is likely to cause death. Stice v. State (1950), 228 Ind. 144, 89 N. E. 2d 915; Mosier v. State (1942), 219 Ind. 669, 40 N. E. 2d 698; Perkins v. State (1934), 207 Ind. 119, 191 N. E. 136; Ewbank’s Indiana Criminal Law (2d Ed.) §889, p. 672, and authorities cited therein.” Myles v. State (1955), 234 Ind. 129, 124 N. E. 2d 205. The jury had the right to find that when the grenade was thrown or dropped appellant had the felonious intent to injure or to kill any member of the crowd within its potential range. Noelke v. State (1938), 214 Ind. 427, 431, 15 N. E. 2d 950; Lloyd v. State (1934), 206 Ind. 359, 189 N. E. 406; Brown v. State (1897), 147 Ind. 28, 46 N. E. 34. The fact that Couch kicked the grenade did not break the line of causation. Scott v. Shepherd (1773), 3 Wils. K. B. 403, 95 Eng. Reports (Full Reprint) 525. (Squibb Case.) There was no variance in the proof as to malice and intent.

Appellant insists the court erred in giving its instruction No. 10, which is as follows:

“Where there is a doubt existing as to which of two or more degrees of an offense the defendant may be guilty, he must be convicted of the lower degree only.”

In compliance with Rule 1-7, appellant made specific objections to the giving of this instruction on the grounds that there was an inference arising from the instruction that he was guilty of some offense, that it did not state the various degrees of included offenses in the indictment, and that if there was a reasonable doubt that he was guilty of manslaughter, he should be found not guilty, and that it made no provision for a finding of not guilty.

It should be noted that the instruction did not cover all of §9-1806, Burns’ 1942 Replacement, which is as follows:

“A defendant is presumed to be innocent until the contrary is proved. When there is a reasonable doubt whether his guilt is satisfactorily shown, he must be acquitted. When there is a reasonable doubt in which of two [2] or more degrees of an offense he is guilty, he must be convicted of the lowest degree only.”¹

Instruction No. 10 was complete within itself, and certainly left the inference that he might be convicted of an included offense without having been proved guilty thereof beyond a reasonable doubt. This inference was not discussed in Newport v. State (1895), 140 Ind. 299, 302, 39 N. E. 926² The instruction contains the clause “he must be convicted of the lower degree only.” It is therefore mandatory in character and must contain all the elements necessary for conviction. The instruction omits the most necessary element—that the defendant was in fact guilty of an offense charged. Failing to do so, the instruction is fatally defective.

Since the decision in Beneks v. State (1935), 208 Ind. 317, 196 N. E. 73, this court has followed the rule that an erroneous instruction is not cured by other instructions which may correctly state the principles involved. There, this court speaking by Chief Justice Fansler, said:

“It is error to give an instruction which incorrectly states the law. Definitions fixing a high standard in one case and a lower standard in another are not conducive to equal justice. Cases

cannot be affirmed in the face of admittedly erroneous instructions, which, if correctly understood by the jury, permit conviction upon evidence of lesser weight than contemplated by law, since it cannot be said that a correct instruction would not have resulted in a different verdict. Justice requires that the guilt of all defendants shall be determined by the same standard. It is true that the statute provides that, ‘in consideration of the questions which are presented upon an appeal, the court shall not regard technical errors or defects, or exceptions to any decision or action of the trial court, which did not, in the opinion of the court to which the appeal is taken, prejudice the substantial rights of the defendant.’ Section 2394, Burns 1926, §9-2320, Burns 1933, §2384, Baldwin’s 1934. This statute must be construed as having preference only to matters of practice and procedure, and to questions which do not go to the merits of the case. It was not intended to authorize this court to weigh the evidence and determine therefrom whether the jury would have reached the same verdict under proper instruction. A defendant is entitled to have the jury correctly instructed concerning the law. Any expression in the decisions which_ would seem to indicate that this court will consider the evidence in determining whether an erroneous instruction, involving the merits of the case, prejudiced the substantial rights of the defendant must be disregarded.” (Pages 328, 329.)

This rule has been consistently followed since the Beneks Case. O’Neil v. State (1939), 216 Ind. 21, 22 N. E. 2d 825; Brannin v. State (1943), 221 Ind. 123, 46 N. E. 2d 599; Steinbarger v. State (1948), 226 Ind. 598, 82 N. E. 2d 519; Todd v. State (1951), 229 Ind. 664, 101 N. E. 2d 45; Johnston v. State (1952), 230 Ind. 571, 575, 105 N. E. 2d 820.

We fail to find any error in the giving of other instructions discussed in appellant’s original brief.

Appellant contends that there is a fatal variance between the allegation of the indictment concerning the manner and means used to kill the decedent, and the proof. The indictment charged that appellant purposely and with premeditated malice did kill and murder Trigg “by then and there unlawfully, felon-iously, purposely and with premeditated malice wounding the said Jesse Clarence Trigg with a certain deadly weapon called a hand grenade, then and there loaded with nitroglycerin, the said hand grenade being thrown by the said James B. Madison . . . .”

Lieutenant Donald I. Reed of Camp Breckenridge testified that the hand grenade contained one-fourth pound of granulated TNT and that “TNT stand for tri nitro troluene, which is a nitrating process similar to nitroglycerine. Both are derived from nitro process, both are highly explosives. TNT is a treating of troluene with nitroglycerine.”

We take judicial notice of the nature and characteristics of common explosives. Jamieson v. Indiana Natural Gas & Oil Co. (1891), 128 Ind. 555, 28 N. E. 76, 12 L. R. A. 652; 1 Jones, Evidence (2d Ed.), §455, p. 809. Nitroglycerine is made by treating glycerol with nitric and sulphuric acids. It explodes by percussion or heating in a closed vessel, and produces ten thousand times its own volume of gas. It is eight times as powerful as gunpowder weight for weight or thirteen times volume for volume. Webster’s New International Dictionary (2d Ed.). “Nitroglycerine is very sensitive to shock, and its sensitivity is greater if it is warm.” Yol. II, Dr. Tenney L. Davis, The Chemistry of Powder and Explosives (1943), p. 209. “Trinitrotoluene, commonly known as T. N. T. is obtained by the nitration of toluene by a mixture of sulfuric and nitric acids.” Vol. 1, G. D. Clift and Dr. B. T. Fedoroff, A Manual for Explosives Laboratories (1942), Ch. V, p. 1. See also Yol. 1, Davis, The Chemistry of Powder and Explosives (1941), p. 141, et seq. There is no nitroglycerine in TNT, the only similarity being that the manufacture of each requires a nitrating process. The power generated by the explosion of nitroglycerine is approximately twice that generated by the explosion of an equal amount of TNT. Clift and Fedoroff, A Manual for Explosives Laboratories (1941), Ch. XI, p. 17. Nitroglycerine is so dangerous to handle it would have been impossible to have used nitroglycerine in an Army hand grenade. A very small amount will blow the strongest of safes, and it is popularly regarded as the most dangerous and powerful explosive for special use, exceeded only by an A-bomb or an H-bomb. The very fact that the term was used in the indictment was calculated to and did prejudice the appellant in his defense. The false testimony of the so-called Army expert was intended to prejudice the jury against the accused and create in their minds the opinion that he was a reckless and dangerous person to be at large.

“The Bill of Rights in our Constitution gives the accused the right ‘to demand the nature and cause of the accusation against him, and to have a copy thereof.’ [Section 13, Art. I, Ind. Const.] This provision of our Bill of Rights arises from the English charters of liberty and from judicial decisions in England prior to the adoption of our Constitution, and the language used in the Bill of Rights had a meaning that had then been defined by the courts of England, and one phase of it was, that as to each material allegation the accused might be sufficiently informed to prepare his defense. It would be idle to have such a provision and then permit the state to misdescribe the place of a material occurrence, or to fail to describe the place with reasonable certainty.” Townsend, J., in Brockway v. State (1923), 192 Ind. 656, 657, 138 N. E. 88, 26 A. L. R. 1338. This constitutional right was violated by Chapter 62 of the 1915 Acts, §2-1005, Burns’ 1946 Replacement, which purported to permit the pleading of conclusions and participial expressions in criminal cases, which might then be subject to a motion to make more specific, so the act has been limited to civil pleadings. Hinshaw v. State (1919), 188 Ind. 147, 153, 154, 122 N. E. 418; Bowen v. State (1920), 189 Ind. 644, 128 N. E. 926.

“The legislature has not the power to dispense with such allegations in an indictment, etc., as are essential to reasonable particularity and certainty in the description of the offense.” McLaughlin v. State (1873), 45 Ind. 338, 347.³ See also Riley v. State (1907), 168 Ind. 657, 660, 81 N. E. 726; Kimmel v. State (1926), 198 Ind. 444, 154 N. E. 16.

The constitutional right to be prosecuted of record on a specific charge is intended to give warning to an accused of the evidence that may be introduced against him so that he may be in a position to defend against it. “The defendant has a right to require that any crime alleged against him must be charged with sufficient certainty as will enable him to distinguish it from any other violations of the same statute, and to know that he is charged, not only with a public offense, but also such particulars in relation thereto as will put it in his power to anticipate the proof which shall be adduced against him, and prepare to meet it.” Mayhew v. State (1920), 189 Ind. 545, 553, 128 N. E. 599.

It is error for any court to reason that a charge of crime need only be sufficiently definite to protect the accused from double jeopardy. The state may prosecute X for reckless homicide in the killing of Y by an affidavit which charges merely negligence with no proximate cause. If the trial court should erroneously overrule a proper motion to quash, and the jury acquit X, he would still be protected from double jeopardy although by all the Indiana cases the affidavit did not state a public offense. All crimes are provided by statute in Indiana, and a failure to charge an essential and material allegation of the statutory offense constitutes a failure to charge an offense, and the attachment of jeopardy on such a charge is not the acid test for determining the sufficiency of the charge.

The constitutional rights to protect the life and liberty of an accused were to protect the innocent under the Anglo-Saxon concept of justice as expressed by Blackstone that “the law holds it better that ten guilty persons escape, than that one innocent party suffer.” (Blackstone, Commentaries on The Law (Gavit’s Ed.), p. 909.) But we do not have one kind of a constitution for the innocent, and another for the guilty. “Our law is no respecter of persons. The rights of just and upright citizens are not more sacred in the eyes of the law than the rights of the poorest and meanest citizens of the state. The safeguards erected by the Constitution are intended to protect the rights of all citizens alike. They protect the rights of the guilty as well as those of the innocent.” Lairy, J., in Batchelor v. State (1920), 189 Ind. 69, 84, 125 N. E. 773.

“A variance is an essential difference between the pleading and the proof.” Mulligan v. U. S. (1903), 120 . “Thus where it is charged that the defendant stole a white horse, proof that a black horse was stolen will not suffice.” McCallister v. State (1940), 217 Ind. 65, 68, 26 N. E. 2d 391.⁴ If the state fails to prove any horse was stolen it is a failure of proof, but if the state proves a horse different from that charged was stolen it is a variance, but logically it is still a failure to prove the charge made. In either case it is cause for a motion for new trial because the verdict or finding of the court would not be sustained by sufficient evidence. Section 9-1903, Burns’ 1942 Replacement (9th cause). Many of the decisions of this court have decided an issue of variance as being merely a failure of proof without discussing the fact that technically there was a variance. In some of the decisions the charge is not set forth and the decision is rested upon a failure to prove an essential element of the statute' creating the offense. The cases on variance and failure of proof have been difficult to find in the digests and texts and the task of endeavoring to discover and examine all of them has resulted in a considerable expenditure of time. Not all of the reasoning can be reconciled with the well established rules under our Bill of Rights and the better reasoned cases, but the general rule has been well recognized from the first that “a failure to prove a material allegation descriptive of the offense is fatal.” Couch v. State (1951), 229 Ind. 326, 335, 97 N. E. 2d 860. It would unduly extend this opinion to discuss many of the cases, but for the benefit of the profession the following have discussed or decided the question:

McCormick v. State (1955), 234 Ind. 393, 127 N. E. (fraudulent check) ; Redmon v. State (1955), 234 Ind. 306, 126 N. E. 2d 485 (embezzlement by warehouseman) ; LaMar v. State (1953), 231 Ind. 508, 109 N. E. 2d 614 (procuring inmate for house of prostitution) ; Tullis v. State (1952), 230 Ind. 311, 103 N. E. 2d 353 (obtaining money by fraudulent check) ; Gardner v. State (1951), 229 Ind. 368, 97 N. E. 2d 921 (perjury) ; Crouch v. State (1951), 229 Ind. 326, 97 N. E. 2d 860 (obtaining money by false pretense) ; Shelby v. State (1951), 229 Ind. 186, 96 N. E. 2d 340 (vehicle taking) ; Gentry v. State (1945), 223 Ind. 459, 61 N. E. 2d 641 (receiving stolen goods) ; Rogers v. State (1942), 220 Ind. 443, 44 N. E. 2d 343, 143 A. L. R. 1074 (issuing fraudulent check) ; McCallister v. State (1940), 217 Ind. 65, 26 N. E. 2d 391 (buying stolen goods); Hicks v. State (1937), 213 Ind. 277, 11 N. E. 2d 171, 12 N. E. 2d 501 (murder first degree) ; Shelton v. State (1936), 209 Ind. 534, 199 N. E. 148 (involuntary manslaughter) ; Sullivan v. State (1928), 200 Ind. 43, 161 N. E. 265 (keeping house of ill fame); Nedderman v. State (1926), 198 Ind. 187, 152 N. E. 800 (fraudulent check) ; Davis v. State (1923), 193 Ind. 650, 141 N. E. 458 (perjury) ; Culley v. State (1923), 192 Ind. 687, 138 N. E. 260 (grand larceny); Brockway v. State (1923), 192 Ind. 656, 657, 138 N. E. 88, 26 A. L. R. 1338 (involuntary manslaughter—place of death); Gavalis v. State (1922), 192 Ind. 42, 135 N. E. 147 (possession of liquor with intent to sell) ; State v. Spahr (1917), 186 Ind. 589, 117 N. E. 648 (murder) ; State v. Gross (1911), 175 Ind. 597, 95 N. E. 117 (perjury) ; State v. Ferris (1909), 171 Ind. 562, 86 N. E. 993 (false pretense) ; Brown v. State (1906), 166 Ind. 85, 76 N. E. 881 (obtaining goods by false pretense) ; Taylor v. State (1891), 130 Ind. 66, 29 N. E. 415 (robbery) ; Schilling v. State (1888), 116 Ind. 200, 18 N. E. 682 (selling liquor) ; Lewis v. State (1887), 113 Ind. 59, 14 N. E. 892 (larceny); Dennis v. State (1883), 91 Ind. 291 (public nuisance); State v. Wingo (1883), 89 Ind. 204 (larceny) ; State v. Pease (1881), 74 Ind. 263 (forgery) ; Sumner v. State (1881), 74 Ind. 52 (keeping pool table for gaming) ; McCrillis v. State (1879), 69 Ind. 159 (burglary) ; Squier v. State (1879), 66 Ind. 317 (minor playing billiards) ; Rooker v. State (1878), 65 Ind. 86 (forgery) ; Morgan v. State (1878), 61 Ind. 447 (larceny); Hart v. State (1877), 55 Ind. 599 (larceny) ; Sharley v. State (1876), 54 Ind. 168 (forgery); Robb v. State (1875), 52 Ind. 216 (horse racing); Keller v. State (1875), 51 Ind. 111 (false pretenses) ; Bartender v. State (1875), 51 Ind. 73 (suffering minor to play game of pigeon-hole) ; Greer v. State (1875), 50 Ind. 267 (assault and battery with intent to rape) ; Carr v. State (1875), 50 Ind. 178 (keeping gaming house); McLaughlin v. State (1873), 45 Ind. 338, 347 (intoxicating liquor) ; Wertz v. State (1873), 42 Ind. 161 (nuisance) ; Ball v. State (1866), 26 Ind. 155 (forcible entry and detainer) ; Widner v. State (1865), 25 Ind. 234 (larceny); Porter v. State (1860), 15 Ind. 433 (forgery); Swinney v. State (1860), 14 Ind. 315 (usury); Whitney v. State (1858), 10 Ind. 404 (sale of lottery tickets) ; Wilkinson v. State (1858), 10 Ind. 372 (forgery) ; Wilcox v. State (1845), 7 Blackf. 456 (gaming); Tate v. State (1839), 5 Blackf. 174 (betting on election); State v. Tincher (1898), 21 Ind. App. 142, 51 N. E. 943 (public intoxication) ; Fulk v. State (1898), 19 Ind. App. 356, 49 N. E. 465 (nuisance).

In State v. Spahr (1917), 186 Ind. 589, 117 N. E. 648, the appellee was indicted for murder. The opinion is so carelessly written that it is not disclosed whether it was murder in the first or second degree. The ap-pellee was acquitted by a jury. Instruction No. 9% stated that if the deceased was killed by a brick or stone instead of a shovel, as charged in the indictment, he should be found not guilty. This court, without noticing the provisions of our Bill of Rights, and without reviewing the many Indiana cases on variance, held the instruction erroneous. This case has never been cited a single time since it was filed, but it has been avoided as an anomalous interloper in the cases on homicide. Not one of the many distinguished jurists who have been members of this court since that time ever used it to decide an issue on variance, and we cannot assume they were not aware of its reasoning or result.

The Spahr case, supra, treated the allegation as to the manner and means of'death as an unessential allegation. But in Alderson v. State (1924), 196 Ind. 22, 28, 29, 145 N. E. 572, where the indictment was for murder in the first degree, this court emphatically repudiated that position, and said:

“The rules of criminal pleading contemplate the innocence of the accused and are assumed to contain enough to inform an innocent man of the facts to be shown against him . . .

“In an indictment for murder, a statement of the manner of the death and the means by which it was effected, is indispensable.”

If the Legislature thought the rule should be different, it would have said so as it did in the requirements of a charge of murder in the second degree and manslaughter. Section 9-1115, Burns’ 1942 Replacement.⁵

In Crickmore v. State (1938), 213 Ind. 586, 12 N. E. 2d 266, Peats v. State (1938), 213 Ind. 560, 12 N. E. 2d 270, and Hicks v. State (1937), 213 Ind. 277, 11 N. E. 2d 171, this court was concerned with issues of variance. If the Spahr case, supra, had been considered as well decided, it would have been cited. In the Hicks, case, supra, this court was very careful to prove there was no variance between the proof and the manner and means of death charged, by correctly holding that if one of the acts charged be proved to be a proximate cause of death, that was sufficient.

All the case of McCallister v. State (1940), 217 Ind. 65, 26 N. E. 2d 391, decided was there was no variance in failure to prove a nonessential and immaterial allegation as to where the property had been stolen. The Indiana cases have always been uniform on this rule. But strangely enough, even the dicta of this case fails to refer to the Spahr case, supra. Nor does Lucas v. State (1918), 187 Ind. 709, 121 N. E. 274, furnish any help in deciding the appeal at bar. All it decided was that proof of possession was sufficient evidence of ownership in a charge of larceny, and “ordinarily proof of possession or control in the party from whom the property is taken will sustain an allegation of ownership.” Page 711. Larceny involves a trespass to possession, so if the goods be embezzled, there is no larceny.

The English cases after the adoption of our Bill of Rights are not persuasive in deciding what is a material allegation of a criminal charge. There the acts of Parliament become the supreme law of the land, and since one session cannot bind a succeeding session, Parliament is legally free to change the law of the British Bill of Rights, the Petition of Rights, or even the Magna Charta. But our Bill of Rights is not subject to such legislative tinkering. Section 13 contemplates that the state must make a specific charge of crime, whether the accused be proved guilty or not. It would be futile to require the specific charge, and then not compel the state to prove what it charged. Nor is it any reproach to the law or administration of justice to compel the state to allege what it expects to prove, and then prove what it represents it will prove. To reason that the accused was not harmed, because there may be probative evidence of guilt, begs the question, for it ignores the mandate of the constitution as well as the presumption of innocence. Any accused is harmed when he has been deprived of a constitutional or legal right for his protection. The concept of justice embodied-in our Bill of Rights gives the guilty the same protection as the innocent. “Society is more interested that the guilty should be punished according to law than that they should be merely punished.” Sage v. State (1889), 120 Ind. 201, 204, 22 N. E. 338, 339. Whenever we clip a constitutional right to fit the facts of a particular appeal, and relieve the prosecuting officials from their duty to use reasonable care in investigating the facts and drafting a proper indictment, we sanction decisions by judges and not by courts, and government by men and not by laws.⁶

We cannot countenance a rule that the law does not require greater certainty in indictments and affidavits than the law requires in civil pleadings. The loose talk in too many opinions that this is the rule ignores Section 13 of the Bill of Rights. We already noted that Hinshaw v. State (1919), 188 Ind. 147, 122 N. E. 418, supra, followed in Bowen v. State (1920), 189 Ind. 644, 128 N. E. 926, supra, held unconstitutional §2-1005, Burns’ 1946 Replacement, permitting the pleading of conclusions and participial expressions in criminal cases.⁷ When a civil complaint is tested by demurrer, all presumptions are in favor of the complaint. 1 Lowe’s Work’s Ind. Practice, §14.39 and authorities cited. In criminal prosecutions, the charge is construed against the state. Bruce v. State (1952), 230 Ind. 413, 104 N. E. 2d 129, and authorities cited.

If the state had charged the decedent was killed by a gun loaded with gunpowder and metal bullets, it would be a fatal variance to permit. a conviction to stand when the evidence showed he was killed by a blow-gun, or an air rifle, or a bow and arrow, although each weapon throws missiles that could cause death. Hand grenades can be made of any material from tin cans filled with firecrackers to bottles filled with nitroglycerine. It could hardly be contended that the state could allege murder in the first degree was committed by throwing a bottle of nitroglycerine and sustain the charge by proving the bottle contained a firecracker. In this appeal, the state deliberately chose to prejudice and inflame the minds of the jurymen against the accused by making a false charge that the grenade was loaded with nitroglycerine, and then bolster the charge by a willing witness who falsely represented there was nitroglycerine in the explosive. When the state failed to prove this essential allegation, the verdict was not sustained by sufficient evidence.

It has been argued that the appellant did not properly raise the question of variance in the trial court. Cause nine (9) of §9-1903, Burns’ 1942 Replacement, grants a new trial “When the verdict of the jury or the finding of the court is contrary to law or is not sustained by sufficient evidence.” This statute says nothing about setting forth a variance, and the ninth cause covers such a case. It is conceded there are many Indiana cases holding that a defendant must object to a variance at the time the evidence is offered, or it is waived. The rule was borrowed from the practice in civil cases. Graves v. State (1889), 121 Ind. 357, 23 N. E. 155, and the writer followed the rule without question in Utley v. State (1950), 228 Ind. 210, 91 N. E. 2d 355. It is now time to question the rule to see if there ever was any reason for it in the first place.

The late decisions on fraudulent checks furnish good examples to illustrate there is no logic in requiring an objection to evidence of variance. In Tullis v. State (1952), 230 Ind. 311, 103 N. E. 2d 353, appellant was charged with obtaining $200 in money by issuing a fraudulent check. Obviously, under a plea of not guilty appellant had the right to defend on the ground either that he never gave any check at all, or if he did, that it was given in payment of an obligation. If the state’s evidence discloses the check was given in payment of an obligation, why should appellant be compelled to object to the introduction of such evidence when he has the undoubted right to introduce the same evidence in his own behalf? In this case we did note that a variance was a failure of proof by the following language by Chief Justice Gilkison:

“The evidence heretofore noted is definitely to the effect that the check, which is the basis of the prosecution, was given in payment of an obligation and not for the purpose of obtaining money. This evidence is not sufficient to sustain a conviction of a charge of issuing a fraudulent check to obtain money. There is a fatal variance amounting to a failure of proof between the averments of the charging affidavit and the evidence produced at the trial. Rogers v. State, supra. See also: McGuire V. State (1875), 50 Ind. 284, 286; Thetge v. State (1882), 83 Ind. 126.” Page 314.

In Rogers V. State (1942), 220 Ind. 443, 44 N. E. 2d 343, 143 A. L. R. 1074, evidence that a check was delivered in cash payment for a steer did not prove the check was given in payment of an obligation. The opinion by Judge Fansler correctly held “the cases clearly hold that the giving of a check to obtain property and the giving of a check in payment of an obligation are separate and distinct offenses, and it necessarily follows that evidence of one is not sufficient to sustain a conviction of the other.” Page 445. In McCormick v. State (1955), 234 Ind. 393, 127 N. E. 2d 341, the appellant was charged with obtaining credit in the sum of $125 by a fraudulent check, but the evidence disclosed the check was given as cash payment for a used car. We decided this was a failure of proof, and reasoned “ ‘This court has held that a failure to prove a material allegation descriptive of the offense is fatal. Foreman v. State (1929), 201 Ind. 224, 167 N. E. 12., Crouch v. State (1951), 229 Ind. 326, 335, 97 N. E. 2nd 860, 863. ‘If any essential allegation of the offense charged is not proved, the verdict is not sustained by sufficient evidence and is contrary to law. Price v. State (1933), 204 Ind. 316, 184 N. E. 181; Chapman v. State (1901), 157 Ind. 300, 61 N. E. 670," Carrier v. State (1949), 227 Ind. 726, 730, 89 N. E. 2nd 74, 75.”

The rule in civil cases requiring an objection to evidence of a variance permits the proponent to amend his pleading, but there is no such liberal rule permitting amendments of an indictment or affidavit. Sections

9-1124 and 9-1133, Burns’ 1942 Replacement, do not permit the state to amend a charge as to a matter of substance after a defendant has pleaded thereto. Gullett v. State (1953), 233 Ind. 6, 116 N. E. 2d 234; State ex rel. Kaufman v. Gould (1951), 229 Ind. 288, 291, 98 N. E. 2d 184; Rogers v. State (1948), 226 Ind. 539, 82 N. E. 2d 89; Way v. State (1946), 224 Ind. 280, 66 N. E. 2d 608. Since the state cannot amend as to a matter of substance after the defendant pleads in bar, there can be no reason for requiring the defendant to object to evidence by the state which proves the defendant not guilty of the offense charged. Under §9-1132, Burns’ 1942 Replacement, the defendant can offer any defense, except insanity, under the general issue. If the state proves what the defendant may prove in his defense, it is wholly absurd to require the defendant to object to such evidence, and then compel him to introduce such evidence in his own behalf. Appellant’s motion for new trial questioned the sufficiency of the evidence, and that is all that was required of him.

Judgment reversed, a new trial granted.

Bobbitt, Landis, Achor and Arterburn, JJ., concur in the reversal for the giving of Instruction No. 10, but disagree with the reasoning on variance.

1 . Section 9-1816, Burns’ 1942 Replacement, clearly contemplates the jury should be instructed that the defendant may be found not guilty of all the offenses charged. “Upon an indictment or affidavit for an offense consisting of different degrees, the jury may find the defendant not guilty of the degree charged in the indictment or affidavit, and guilty of any degree inferior thereto or of an attempt to commit the offense.” (Italics added.) The next section states: “In all other eases, the defendant may be found guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or affidavit.” Section 9-1817, Burns’ 1942 Replacement.

2 . Coolman v. State (1904), 163 Ind. 503, 72 N. E. 568, is not a precedent to sustain the trial court’s action, for instruction No. 5 in this case was tendered by the defendant, and embodied a statement concerning the law on reasonable doubt.

3 . “Under the Bill of Rights, appellant was entitled to know the character of the charge against him. In this case, two specific acts, made unlawful by specific statutes, were charged as the unlawful acts, responsible for the death, in two separate counts. Proof that other or different unlawful acts were responsible for the death will not sustain the charge, notwithstanding they may be similar to the unlawful acts charged.” Shelton v. State (1936), 209 Ind. 534, 539, 199 N. E. 148.

“This general rule, in criminal pleading, requiring the material facts constituting the offense to be postively alleged, is nothing more or less than a constitutional right of the accused ‘to demand the nature and cause of the accusation against him, and to have a copy thereof.’” Gavalis v. State (1922), 192 Ind. 42, 45, 135 N. E. 147.

4 . “If the thing charged to have been stolen is described in the indictment with greater particularity than the law requires, the unnecessary descriptive averments cannot be rejected as sur-plusage, but must be proved as alleged.” 36 C. J. 852, §372.

5 . “In an indictment for murder in the second degree, or in an indictment or affidavit for manslaughter, it shall not be necessary to set forth the manner in which, or the means by which, the death was caused. . . .” Section 9-1115, Burns’ 1942 Replacement.

6 . “And if this court, for the sake of sustaining the conviction in this case [murder] construes away some of the requirements of the statute, the true test by which to determine the validity of an indictment is destroyed, and in each succeeding case we shall be expected to depart further and further from the statute, till the only rule left will be the mere discretion of the court in each particular case.” Perkins, J., in Shepherd v. State (1876), 54 Ind. 25, 29.

7 . Nor do we have any procedure whereby a defendant can move to require the state to furnish a bill of particulars as is provided in federal prosecutions. Rule 7f Fed. Rules of Criminal Procedure.