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juries, if any is shown by the evidence, as was the natural and proximate result of defendant's act."

These instructions are pointed to as being on a theory at variance with the allegations of the complaint. In support of it, it is urged that in the complaint it is alleged that the agents of the defendant "refused to carry plaintiff further," that they, "in a rude and uncivil manner, accosted her," and that they, "with a high hand and reckless disregard of her rights, ejected her," and that the court, instead of submitting the case to the jury on such allegations, submitted it to the jury on the theory of whether the plaintiff, "before reaching her station, was caused to alight from the train" by the defendant's agents, "as she claims," whether she was a passenger on the train, as alleged, and as explained by the instructions, and whether, "before her destination. was reached, she was caused to leave the train by the defendant's agents or servants." Hence we are told that the expressions in the charge, "was caused to alight from" and "leave the train," were not equivalent to the allegations of ejectment, and that they constitute a variance. Then we are referred to a long list of cases holding that a "recovery cannot be had on proof of other acts of negligence than the specific acts alleged in the complaint." The expressions and statements of the charge refer to and describe the same, not different, acts and conduct alleged in the complaint, and are consistent, not inconsistent, with the material and essential allegations thereof. The allegations that the agents of the defendant "accosted" the plaintiff and ejected her in an "uncivil manner," and "with a high hand and a reckless disregard of her rights," are mere verbiage and non-essentials, to which counsel attach too much importance.

The judgment of the court below should be, and therefore is, affirmed, with costs.

FRICK, C. J., and MCCARTY, J., concur.

STATE v. VANCE.

No. 2248. Decided November 16, 1911 (119 Pac. 309).

1. HOMICIDE-INSTRUCTIONS-EVIDENCE-OBJECTIONS.

A conviction for assault with intent to murder under an information charging murder will not be set aside on the ground that the court erred in submitting the issue of murder because of insufficiency of the evidence to present the question. (Page 605.)

2. INDICTMENT AND INFORMATION-CONVICTION OF OFFENSES INCLUDED IN OFFENSES CHARGED. Under Comp. Laws 1907, sec. 4893, authorizing the jury to find accused guilty of any offense the commission of which is necessarily included in the offense charged, or of an attempt to commit the offense, one charged with murder by the combined effects of kicking, beating, and bruising decedent, and from the administration of poison, may be convicted of assault with intent to murder, though in a charge of murder by poison without violence an assault is not included. (Page 605.)

3. CRIMINAL LAW-LAW OF THE CASE. A decision of the Supreme Court on appeal in a criminal case is the law of the case on a subsequent trial. (Page 608.)

APPEAL from District Court, Third District; Hon. T. D. Lewis, Judge.

Thomas Vance was convicted of assault with intent to murder and he appeals.

AFFIRMED.

J. F. Tobin, F. T. McGurrin, A. J. Weber and S. A. Maginnis for appellant.

A. R. Barnes, Attorney General, for the State.

FRICK, C. J.

Appellant was charged with the crime of murder in the first degree, and upon a trial the jury found him guilty of "an assault with intent to murder." Judgment was duly entered upon the verdict, and the appellant asks us to re

verse the judgment upon the following assignments of error: (1) That the court erred in refusing the request of appellant to direct a verdict of not guilty; (2) that the verdict "is against the evidence;" (3) that "the verdict of the jury is contrary to law;" and (4) that the court erred in submitting the case to the jury upon the charge of murder "because there was insufficient evidence in the case to present that question to the jury."

This is the second appeal of this case. Our opinion on the former appeal is found in 38 Utah, 1, 110 Pac. 434. The information filed against the appellant is set forth in our first opinion. Barring the fact that appellant's children who testified against him at the former trial changed their testimony at the present one, and testified that their former testimony with respect to what they said about appellant kicking and beating their mother was not true, the evidence upon the part of the state at the last trial, with unimportant exceptions, was substantially the same as upon the former one. For this reason we shall not refer to the evidence in detail, but refer to the opinion aforesaid for a complete statement of facts.

As appears from our first opinion in this case, the information contained three counts. The state elected to try the appellant upon the third count, in which it was, in substance, charged that he on the 26th day of November, 1907, did make an assault upon one Mary Vance, and he did then and there "wilfully, unlawfully, deliberately, premeditatedly, feloniously, and of his malice aforethought, and with the specific intent to take the life of the said Mary Vance," strike, kick, beat, and bruise her, and that on the 27th day of November appellant "wilfully, unlawfully, deliberately, premeditatedly, feloniously, and of his malice aforethought, and with the specific intent to take the life of the said Mary Vance," did mix and mingle a fatal quantity of a deadly poison with a certain quantity of water which the said Mary Vance was then and there about to drink, and did drink, and that by reason of "the striking, kicking, beating, and bruising of the said Mary Vance by the said Thomas Vance as afore

said, and the drinking of the water and poison as aforesaid, the said Mary Vance became mortally sick and distempered in her body, and the said Mary Vance of the beating, kicking, and bruising aforesaid, and of the poison aforesaid so by her taken, drank, and swallowed as aforesaid, and of the mortal sickness and distemper occasioned thereby, from the 27th day of November, A. D. 1907, until the 8th day of December, 1907, continually languished, and so languishing on the 8th day of December, 1907, of said mortal sickness occasioned by the said beating, kicking, bruising and poisoning aforesaid died, and so the said Thomas Vance the said Mary Vance, in the manner and form aforesaid, wilfully

did kill and murder." On the former appeal we held that in the third count upon which the appellant was tried he was charged with causing the death of his wife by a combination of two causes operating jointly. In other words, that the means described in the information which, it was alleged, produced death was the effects of the kicking, beating, and bruising inflicted upon the body of the deceased on the 26th day of November, and that such effects, operating in conjunction with the effects of the poison which it was alleged appellant administered to her on the following day, and nothing else, caused her death. Under the foregoing charge, we accordingly held that, in order to find the appellant guilty of murder, the jury had to find that both causes operated together to produce death, and that the court erred in charging the jury that they could find the appellant guilty of murder, although they found that the deceased died from the effects of the kicking and beating alone, or from the effects of the poison alone. We also held that, for the reasons just stated, the third count charged but one offense.

We will now proceed to consider the assignments of error. In answer to the first assignment, it is sufficient to say that for the reasons hereafter appearing the court did not err in refusing to take the case from the jury upon appellant's request.

The fourth assignment is sufficiently answered by the verdict of the jury. In view that the jury failed to find the ap

pellant guilty of murder, they must have found that the evidence in their judgment was insufficient to sustain that charge. The only other assignment is to the effect that the verdict and judgment are contrary to law. As already stated, the jury found the appellant guilty of 1 having assaulted the deceased with the intent to murder her. No exception was taken to the court's charge in which the jury were directed that, under the information they might find the appellant guilty of an assault as aforesaid, if the evidence warranted such a finding beyond a reasonable doubt. For the purposes of this decision, we shall assume that the question now to be considered is properly presented for review, either under the first or the third assignment or under both.

2

Upon the question raised by the foregoing assignments, we think, that the provisions of Comp. Laws 1907, section 4893, are material. That section reads as follows: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment, or of an attempt to commit the offense."

Nothwithstanding the foregoing provision, counsel for appellant strenuously argue that the offense of which appellant was found guilty by the jury is not included within the offense with which he was charged in the third count of the information, the material parts of which we have already set forth. This squarely presents the question of what offense, if any, is necessarily included within the charge of murder as contained in the third count of the information. As we understand counsel for appellant, they contend that, if the appellant had been charged with having committed the alleged murder by kicking, beating, and bruising alone, then an assault with intent to murder might be said to be included within the charge, but, inasmuch as appellant stands charged with having committed the murder by the combined effects of the kicking, beating, and bruising and from the administration of poison, therefore an assault with intent to murder is not included. This conclusion is based upon two

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