Madison v. State

Concurring Opinion

Arterburn, J.

\I concur with Chief Justice Emmert in the granting of a new trial in this appeal on the ground the jury was erroneously instructed. I further concur with respect to all questions considered in his opinion except that of variance between the proof and the indictment. In my opinion, the variance is immaterial and I further think the error, if any, must be raised by an objection specifically pointed out to the trial court at the time it arises.

The indictment alleged that one, Trigg, was killed by *542the defendant with a hand grenade “loaded with nitroglycerine.”…