dissenting.
I regret that I am unable to join in today’s opinion. Whenever a heinous crime has been committed, there is a strong temptation to affirm the judgment of conviction despite troubling questions. In this case, such questions exist with respect to the state’s pleading and proof of the murder charge and with respect to the separate convictions of battery and kidnapping. For reasons set forth below, I would vacate the judgment and remand the case for a new trial.
Prefatorily I must observe, with due respect to my colleagues, that the Court’s opinion suffers from a fundamental inconsistency. When it discusses the murder conviction, the opinion adopts a broad, undifferentiated view of the evidence. It treats the homicide as the result of injuries inflicted over a prolonged, loosely defined period of time. However, when the opinion discusses the separate convictions for kidnapping and battery — and the corroboration of accomplice testimony regarding those offenses — it adopts a segmented view of the evidence. It draws facts from a continuous flow of events and artificially groups them under the headings of separate criminal charges.
In the analysis which follows, I submit that the segmented approach fails in its attempt to achieve a meaningful distinction between the alleged battery and kidnapping on one hand, and the alleged murder on the other. I then turn to the issues arising from the state’s pleading and proof of murder, explaining why a new trial should be granted on that charge.
I
In the prosecutor’s information, the state has alleged that Campbell committed an aggravated battery by “willfully and unlawfully [using] force upon the person of Mac Ray Atwood, causing great bodily harm, to-wit: broken ribs, bruises and abrasions____” This conduct occurred at Campbell’s house and was witnessed only by the two alleged accomplices. In order to satisfy the accomplice corroboration requirement, today’s opinion declares that the battery charge was substantiated by the autopsy’s finding of broken ribs. Of course, as the opinion itself acknowledges, this merely shows the commission of the offense, not Campbell’s participation in it. To corroborate Campbell’s participation, the opinion turns to his inculpatory statements about a body in the river. I fail to see how these statements corroborate a battery as distinguished from the homicide.
Similarly, I question whether the evidence, taken as a whole, shows particular acts by Campbell which constitute battery as distinguished from homicide. As I will explain in a moment, the state failed to prove its contention that the homicide was committed by inflicting hammer blows upon the victim at the edge of the Payette River. Implicitly acknowledging this lack of proof, the Court today broadens the murder charge to include the beating at the house. The Court then attempts to distinguish this redefined murder from a battery by suggesting that there was an initial outburst of violence at the house, followed by a pause and later followed by a decision to take the victim to the river where he would be killed. I find little support in the record for this “pause” scenario. Moreover, the state’s pathologist testified that death occurred very near the time when the ribs were fractured. In fact, his written report suggested that death already had occurred by that time. These facts leave virtually no room to postulate the existence of a “battery beating” separated by a significant time from the “murder beating.”
The Court also uses Campbell’s statements about a body in the river to furnish *375the requisite corroboration on the kidnapping charge. These statements would be corroborative only if the kidnapping consisted of taking the victim against his will from the house to the river. But the prosecutor’s information described the kidnapping as “willfully seizing [Atwood] and detaining him for the purpose of committing serious bodily injury.” The Court today follows the same approach, asserting that the kidnapping consisted of detaining the victim at the house while he was beaten. When the kidnapping is so characterized, the statements about a body in the river are not corroborative. Moreover, there is no genuine distinction between the acts constituting such a kidnapping and the acts constituting a battery.
Accordingly, I would hold that I.C. § 18-301 precludes a separate conviction for kidnapping as distinguished from battery, and for battery as distinguished from the redefined murder. The case is narrowed to the degree of Campbell’s criminal responsibility for Atwood’s death.1
II
I now turn to the state’s pleadings and proof on the charge of murder.
A
In the prosecutor’s information, the state alleged that Jerry Wayne Campbell had committed murder by “hitting Mac Ray Atwood on or about the head with a hammer from which he died____” The state’s proof of the cause of death rested upon an opinion offered by a pathologist who had conducted an autopsy after Atwood’s body was retrieved from the Payette River. The autopsy was recorded on video tape and the pathologist’s objective findings were set forth in a written report. Those objective findings did not support the theory that death had been caused by hammer blows to the head. The skull exhibited no fractures. The cranial cavity was found to contain no evidence of hemorrhaging which would have been produced by trauma sufficient to cause death. Moreover, as mentioned earlier, the pathologist’s report noted that lung lacerations produced by rib fractures (which, according to the state’s evidence, had occurred at Campbell’s house) resulted in little hemorrhaging. According to the pathologist’s written report, this indicated that death had occurred very near, perhaps before, the point in time when the rib fractures were sustained.
Despite these objective findings, the pathologist concluded, by what he described as a process of exclusion, that death was caused by head trauma inflicted with a hammer or other blunt instrument. This conclusion was vigorously disputed by a defense expert, a pathologist with extensive experience in forensic medicine. Having reviewed the autopsy and the examining pathologist’s notes, the defense expert cogently argued that no logical link existed between the objective findings and the conclusion that death had resulted from hammer blows. He thoroughly rebutted the examining pathologist’s suggested reasons for a lack of skull fractures or evidence of cranial hemorrhaging. He also explained how an incomplete examination, coupled with a process of exclusion, could lead to an unreliable determination of the cause of death.
Ordinarily, a doctor’s opinion constitutes substantial evidence upon which a jury verdict'may be upheld. It is rare that such an opinion is so thoroughly discredited by another expert that it cannot be deemed substantial evidence. However, after carefully reading and re-reading the record before us, I am convinced that this is such a case.2 The testimony of the state’s pathologist did not constitute substantial evidence that *376Mac Atwood died as alleged in the prosecutor’s information.
B
Although the evidence was insufficient to prove the state’s pleaded theory regarding the cause of death, a possibility remained that death may have resulted from an accumulation of injuries sustained during the beating administered at Campbell’s house. The Court today invokes this possibility in upholding the murder conviction. However, this poses a nettlesome question —whether it is permissible to charge Campbell with murder on one factual premise but to uphold his conviction on a different premise.
The question, essentially, is one of variance between the state’s pleading and its proof. The Sixth Amendment to the United States Constitution provides that an accused must be “informed of the nature and cause of the accusation” against him. The state’s pleading must give sufficient notice of the factual basis of the charge to enable the accused to prepare an adequate defense and to protect him against a second prosecution for the same offense. See generally C. TORCIA, WHARTON’S CRIMINAL PROCEDURE § 504 (12th ed. 1975). Accordingly, Rule 7(b), of the Idaho Criminal Rules requires a prosecutor’s information to contain a “plain, concise and definite written statement of the essential facts constituting the offense charged.”
Of course, not every variance between pleading and proof raises a constitutional issue. For example, if the state alleges that the defendant has used an instrument to commit a crime, there is no constitutionally impermissible variance if the state later proves that the crime was committed with another object of the same generic description. E.g., People v. Carter, 57 Ill. App.3d 84, 14 Ill.Dec. 814, 372 N.E.2d 1093 (1978); Patton v. State, 696 S.W.2d 249 (Tex.App.1985). Neither is there an impermissible variance where the state pleads and proves a specific cause of death but the evidence also shows a concurrent and virtually contemporaneous cause. E.g., Jones v. State, 644 S.W.2d 530 (Tex.App.1982).
The present case falls in neither of these categories. The beating at Campbell’s house was not accomplished with any instrument generically identical to a hammer. Neither can the beating at the house be regarded as a cause of death concurrent and contemporaneous with the infliction of hammer blows at the Payette River. The variance here relates directly to the conduct which the state has charged as the commission of the crime. A material variance as to the alleged conduct infringes upon the defendant’s constitutional right to be apprised of the factual basis of the charge against him. See, e.g., Patrick v. State, 117 Fla. 432, 158 So. 101 (1934) (state alleged that defendant shot victim, but proof showed that defendant assisted victim in shooting himself); Murphy v. Commonwealth, 226 Ky. 169, 10 S.W.2d 626 (1928) (state alleged that defendant committed murder by striking victim in head with hard object, but proof showed that fatal injury was caused by hard substance on earth after victim was knocked down); People v. Roberts, 135 A.D.2d 1026, 523 N.Y.S.2d 182 (1987) (state alleged that defendant murdered victim by striking her, but proof showed that victim died of strangulation).
In this case the variance between the state’s pleading and proof may have been obscured by the state’s charging of multiple offenses. When the state adduced its evidence at trial regarding Campbell’s participation in the beating at the house, Campbell had no basis to object to a variance between pleading and proof of murder. The evidence arguably was relevant to the separate charge of battery, or even to the charge of kidnapping as the state had characterized it. Compare Ridgeway v. State, 251 Ark. 157, 472 S.W.2d 108 (1971) (holding that defendant accused of a single offense waived any variance between pleading and proof by failing to object when the variant evidence was introduced at trial). By charging multiple offenses, and by presenting evidence undifferentiated as to the offenses charged, the prosecutor opened the door for the jury to *377find Campbell guilty of murder upon a factual theory not alleged.
C
Because there is a substantial likelihood that Campbell was convicted of murder upon a factual theory materially at variance with the prosecutor’s information, the next question is whether a new trial would be “in the interest of justice” as provided in Rule 34, I.C.R. Campbell moved for a new trial, but the motion was denied. The judge expressed much disquietude about the evidence on the murder charge, but he finally concluded that it was the jury’s function to weigh evidence upon which reasonable minds could disagree. The judge also commented that, in his view, Campbell and the two accomplices were all guilty of “first degree murder.”
The judge's ruling was thoughtfully considered, but it contained three shortcomings. First, it failed to take account of the apparent variance between pleading and proof on the murder conviction. Second, the judge’s stated misgivings about the evidence could not be reconciled with his flat declaration that all three individuals were guilty of first degree murder. Even the jury was not willing to go that far. Third, the judge did not apply the legal standard by which motions for new trials in criminal cases are to be decided.
As noted above, Rule 34, I.C.R., provides that the court may grant a new trial “in the interest of justice.” This rule, as we explained in State v. Palin, 106 Idaho 70, 675 P.2d 49 (Ct.App.1983), embraces — and is broader than — the statute it superseded, I.C. § 19-2406. Under the current rule, a new trial may be granted where the judge, acting as a “thirteenth juror,” finds the evidence in support of the verdict to be doubtful and conflicting. In this respect, a clear distinction exists between the standard governing a motion for a new trial under Rule 34 and the standard governing a motion for judgment of acquittal under I.C.R. 29. See 3 C. WRIGHT, FEDERAL PRACTICE AND PROCEDURE (CRIMINAL) § 553 (1982) (discussing comparable federal rules). A motion for judgment of acquittal must be denied when there is substantial, albeit disputed, evidence of guilt. E.g., State v. Mata, 107 Idaho 863, 693 P.2d 1065 (Ct.App.1984). The judge in this case erroneously applied the judgment of acquittal standard when he denied Campbell’s motion for a new trial because reasonable persons could disagree over the conflicting evidence.
When the correct standard is applied, I conclude that a new trial on the murder charge should be granted “in the interest of justice.” The evidence in support of the verdict was unusually doubtful and conflicting. Indeed, as I have stated, it did not even reach the threshold of substantial evidence unless the homicide was broadened to include acts not alleged in the murder count of the prosecutor’s information.
I entertain no doubt that Campbell bears some criminal responsibility in this tragic case. But whether the level of his responsibility rises to second degree murder is a question that should be answered by a jury upon a charge properly pleaded and upon evidence adduced within the scope of that pleading.
. Although the acts comprising a battery cannot be distinguished from the redefined murder, this does not mean that the issue of battery is wholly displaced. Upon a retrial, the jury still could be instructed on battery as a lesser included offense of murder.
. In reaching this conclusion, I have not relied upon juror affidavits submitted to the district court by Campbell in support of his motion for a new trial. Those affidavits indicated that the jury was unable to find the specific time or cause of death. However, such affidavits are inadmissible under I.R.E. 606(b).