Million v. People, 6 Ill. App. 537 (1880)

July 2, 1880 · Illinois Appellate Court

6 Ill. App. 537

William Million v. The People.

Criminal law — Indictment—Variance.—Where, upon an indictment for an assault with intent to murder, upon one “ Frank” Blackburn, the jury returned a verdict of guilty of assault upon “Edward" Blackburn, and there was judgment upon the verdict, the variance was held fatal.

Error. to the Circuit Court of Morgan county; the Hon Cyrus Epler, Judge, presiding.

Opinion filed July 2, 1880.

Messrs. Morrison, Whitlock & Lippincott, for plaintiff in error;

that the variance is fatal, cited Wharton on Homicide, 796; 2 Hawkins, 319; Wharton on Criminal Law, 250; 2 Russell on Crimes, 788.

The question whether the implement used was a deadly weapon is for the jury: Roach v. The People, 77 Ill. 25.

Mr. Edward L. McDonald, for defendant in error.

Per Curiam.

Plaintiff in error was indicted for an assault upon one Frank Blackburn with intent to commit murder. The jury returned a verdict finding him guilty of an assault with a deadly weapon upon the person of Edward Blackburn, when no considerable prevocation appeared. Hpon this verdict a judgment of conviction was entered and a fine inflicted upon plaintiff in error and he was ordered to stand committed until the fine and costs should be paid. We have examined the briefs filed on the part of The People under leave of the court this day granted, as well as those for plaintiff in error, and although numerous errors are assigned and discussed, we deem it unnecessary to notice any of them except that which asks a reversal on account of the variance between the indictment and the verdict in the name of the person assaulted.

This variance we regard as fatal to the judgment, and it must be reversed and a new trial awarded. 1 Whart. Crim. Law, 256-8.

Beversed and remanded.