Helmerking v. Commonwealth
Court of Appeals of Kentucky
Cask 12 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. CRIMINAL DIVISION. 1. There was a fatal variance between the allegations of the indictment as to the manner in which deceased was killed,-and the evidence disclosed upon the trial, and the peremptory instruction to find the defendant not guilty should have been given. Guedol v. TliePoople of the State of Illinois, 43d 111., p. 226, et seq.; Rex v. Kelly, 1 Moody C. C., page 113; Rex y.
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Cask 12 — INDICTMENT APPEAL FROM JEFFERSON CIRCUIT COURT. CRIMINAL DIVISION. 1. There was a fatal variance between the allegations of the indictment as to the manner in which deceased was killed,-and the evidence disclosed upon the trial, and the peremptory instruction to find the defendant not guilty should have been given. Guedol v. TliePoople of the State of Illinois, 43d 111., p. 226, et seq.; Rex v. Kelly, 1 Moody C. C., page 113; Rex y. Thompson, 1 Moody O. C., page 139; Greenleaf on Evidence, vol. 1, sec. 65; Greenleaf on Evidence, vol. 3, sec. 140; Penrod v. People of the State of…
1Opinion of the Court
JUDGE GUFFY
DELIVERED THE OPINION OF THE COURT:
The appellant, Henry Helmerking, was indicted, tried and convicted in the Jefferson Circuit Court upon an indictment charging him with the murder of Joseph Graf, and his punishment fixed at a fine of $200 and ninety days’ imprisonment in the county jail. His motion for a new trial having been overruled, he has appealed from the jud gment.
Several grounds for a new trial were relied on, but the one most earnestly urged here is the variance of the proof from the allegation in the indictment. We quote from the indictment as follows:
“Did unlawfully,…
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