Penrod v. People, 89 Ill. 150 (1878)

June 1878 · Illinois Supreme Court

89 Ill. 150

George E. Penrod v. The People of the State of Illinois.

Criminal law—variance in proof and allegation. Where one is indicted for the murder of one “Robert Kain,” and the evidence fails to show that the person killed was of that name, the witnesses calling him “ Kain,” without giving any Christian name, the variance is fatal, and judgment of conviction will be reversed.

Writ of Error to the Circuit Court of Lawrence county; the Hon. James C. Allen, Judge, presiding.

Messrs. Shaw, Bell & Green, for the plaintiff in error.

Mr. James K. Edsall, Attorney General, for the People.

Per Curiam:

The indictment under which the defendant was convicted charged him with murdering Robert Kain. There is no evidence in the record that the party killed was named “ Robert Kain.” He is called by the witnesses “ Kain ” only, without giving any Christian name. The case is undistinguishable in principle from Davis v. The People, 19 Ill. 74, where it was held that such variance between the averment in the indictment and the evidence is fatal.

In Shepherd v. The People, 72 Ill. 480, cited by the Attorney General, there was evidence describing the deceased by his vocation—that of barber—which unmistakably identified his name with that averred in the indictment. There is no such proof here.

The judgment is reversed and the cause remanded.

Judgment reversed.