Rehearing having been granted in this case, it is now before the court for further consideration and determination on rehearing. *Page 437
The indictment charged murder in the first degree and described the act causing death as an act of shooting with a pistol committed by the defendant against the person of deceased.
At the trial the court, over objections of the defendant, gave to the jury a charge predicated on Section 7142 C. G. L., 5040 R. G. S., as follows:
"If you do not believe the defendant is guilty of murder in the second degree then you may consider whether he is guilty of manslaughter.
"The court charges you that every person who deliberately assists another in the commission of self murder shall be guilty of manslaughter. If you find from the testimony in this case beyond a reasonable doubt that the deceased, Evans, took his life by shooting himself with a pistol at the time alleged in the indictment in this case and the jury further believe from the testimony in this case beyond a reasonable doubt that the defendant, Patrick, was present and actively aiding and assisting the deceased to kill himself, with intent that the deceased should take his own life, then you will find the defendant guilty of manslaughter.
"If you find from the testimony in this case that the deceased, Evans, had determined to take his own life and had communicated that design or purpose to the defendant in this case and the defendant purposely met the deceased, with intent to assist and aid the deceased in killing himself, and further find that the defendant then and there did actively aid and render assistance in any manner to the deceased in taking his own life with intent on the part of the defendant that the deceased should take his own life then you will find the defendant guilty of manslaughter. On the other hand, if you find that the deceased took his own life but that the defendant, although present, rendered no assistance *Page 438 to the deceased in killing himself then the defendant would not be guilty."
Upon rehearing a majority of the Court are of the opinion that the giving of this charge was error. The allegation of the indictment is that the defendant shot the deceased, not that deceased shot himself with defendant's aid and assistance. So the unlawful act described in the indictment is not the description of a crime within the purview of Section 7142 C. G. L., 5040, R. G. S.
Where an indictment charges an unlawful homicide of one kind as having been committed by a particular means duly described in the indictment, a conviction of homicide of a different kind alleged to have been committed in a different manner and by a different means not described in the indictment, although based upon sufficient evidence to make out the latter offense, cannot be upheld, and it is error for a court to so charge the jury.
Reversed on rehearing and a new trial awarded.
DAVIS, C. J., and WHITFIELD, TERRELL and BUFORD, J. J., concur.