Habersham v. State , 79 Ga. App. 244 ( 1949 )

Proof that the deceased, in a criminal homicide case, met his death in a manner vastly different from that alleged in the indictment, and that the weapon shown to have been used was in no way similar to the one alleged, results in a fatal variance between the pleading and the proof. Accordingly, a charge of the court, authorizing the jury to return a verdict of guilty upon finding that the deceased met his death in the manner vastly different from that alleged, is error.

DECIDED MAY 13, 1949. The plaintiff in error, Allen Habersham, herein referred to as the defendant, was tried for murder and convicted, in the Superior Court of Jefferson County, of involuntary manslaughter and sentenced to serve from one to two years in the penitentiary. He filed a motion for a new trial on the general grounds, which was later amended by adding 6 special grounds. The trial judge overruled his motion for a new trial as amended, and this judgment is assigned as error.

One of the special grounds of the amended motion for a new trial contends that the court erred — after having charged the jury to find the defendant guilty or involuntary manslaughter if they should believe that the defendant killed the deceased without intention to do so while engaged in the commission of an unlawful act — in continuing to charge the jury as follows: "If the defendant unlawfully struck him [deceased] with his fist or committed an unjustifiable battery on the deceased, and that such act contributed to the death of the deceased, and that the death would not have resulted but for such unlawful act, or battery, the jury would be authorized to convict of involuntary manslaughter in the commission of an unlawful act.

The indictment charges the defendant with murder, alleging that the defendant did kill and murder Willie Williams "by hitting and beating the said Willie Williams with a certain pair of metal knuckles, and other blunt instruments to the grand jury unknown which the said Allen Habersham then and there held, and giving to the said Willie Williams then and there a mortal wound, of which mortal wound the said Willie Williams died."

Without passing upon the question of whether or not the evidence is sufficient to show that the defendant struck the deceased "with a certain pair of metal knuckles, and other blunt instruments to the grand jury unknown," the evidence was certainly sufficient to authorize the jury to find that the defendant struck the deceased with his bare fist and knocked him down, and that death resulted from a wound suffered by the deceased upon his head striking the concrete floor, fracturing his skull.

Counsel for the defendant contends that his client was not charged with bringing about the death of the deceased in this manner, and that therefore the instruction complained of is error.

The rule of this State is that no fatal variance between the pleading and the proof exists where one weapon is charged in the indictment and a weapon of a similar nature capable of inflicting the same character of injury is shown by the evidence. See, in this connection, Trowbridge v. State, 74 Ga. 431; Hill v.State, 147 Ga. 650 (95 S.E. 213); Burney v. State,22 Ga. App. 622 (97 S.E. 85); Watson v. State, 21 Ga. App. 637 (94 S.E. 857). This rule does not apply, however, where the evidence shows that the deceased met his death at the hands of the defendant in a manner vastly different from that alleged in the indictment. In this connection see Jones v. State,147 Ga. 356 (94 S.E. 248), in which it is held that, where the indictment for murder charged the defendant with shooting the deceased with a pistol, it would not have been proper for the court to charge that the defendant could be convicted of involuntary manslaughter if they should find that the deceased met his death by being unintentionally thrown from a railroad train. See also Lanier v. State, 141 Ga. 17 (4) (80 S.E. 5), wherein it was held to be error to charge the jury that a conviction would be authorized upon finding that the defendant or either of them "smothered" the deceased, the indictment alleging that the deceased met death "by choking, strangling, and by beating and striking . . to the grand jury unknown." See Mays v. State, 39 Ga. App. 498 (147 S.E. 403); also many cases annotated under Code, § 27-701, catchword "Variance."

Since the indictment in the instant case charges the defendant with having killed the deceased by "striking him with a certain pair of metal knuckles and other blunt instruments to the grand jury unknown," a conviction of the defendant for striking the deceased with his fist and knocking him to the concrete floor and fracturing his skull, resulting in his death in this manner, would be unauthorized. There would be fatal variance between the pleading and the proof. It follows that the charge authorizing the jury to convict the defendant, if they should find that the death of the deceased resulted in the manner last mentioned, is error.

The remaining grounds of the amended motion for a new trial are either not likely to recur on another trial, or are such that a decision of the questions raised by them would require this court to pass on the sufficiency of the evidence, which question, of course, is raised by the general grounds; and in keeping with the policy of this court, the general grounds are not considered where the case is being reversed on a special ground. The reason for this policy is that it is not known what the evidence may be on another trial.

Judgment reversed. Sutton C. J., and Felton, Gardner, andParker, JJ., concur. MacIntyre, P. J., dissents.