#### STATE *vs.*BENJAMIN S. POWERS.

Where an indictment for a ¡ibe), charged that the defendant set up, in public, a board, on which was a painting or picture of a human head, with a nail driven through the ear and a pair oí shears hung on the nail, and the proof was, that a human head, shewing a side face with an ear, a nail ■driven through the ear and a pair of shears hung on the nail, was inscribed or out in the hoard, by means of some instrument, but was not painted ; *Held,*that there was a fatal variance between the allegation and the proof, and that the defendant must be acquitted.

Appeal from the Superior Court of Law of Stokes County, Spring Term, 1851, his Honor Judge Baxley presiding.

The defendant was charged, under an indictment, the material parts of which are as follows: That Benjamin F. Powers, the defendant, contriving and unlawfully, wickedly and maliciously intending to hurt, injure, vilify and prejudice one Samuel Fulton, and to deprive him of his good name, &c., and to bring him into great contempt, &c., on the 15th day of June, 1850, with force and arms in the county aforesaid, unlawfully, &c., did publish and cause and procure to be published, and exhibited in a certain public place in the county aforesaid, a certain wicked, libel-lous, malicious and scandalous painting and picture on a board or plank; meaning by said' board or plank a pillory, ■representing the head'of a man, (thereby meaning the head of the said Samuel Fulton,) with a picture, likeness or representation of a human ear thereon, (meaning thereby the ear of the said Samuel Fulton,) with an iron nail driven into the said painted likeness or representation of a ear, (meaning thereby to represent the ear of the said Samuel Fulton nailed to the pillory for the crime of perjury,) from *6which said nail driven into said painting or Iikness of a ear was suspended by him, the said Benjamin F. Powers, a pair of shears or large scissors, (thereby, to wit: by said board, painting, nail, shears and large scissors, meaning to indicate and represent that the ears of the said Samuel Fulton should.be nailed to the pillory or whipping post, and be cut ofl for the crime of perjury,) to the great damage, &c., &c.

The second count charged, that the said Benjamin F. Powers, being a person of wicked and malicious mind, &c., and unlawfully and maliciously contriving, <fcc., to injure, <fcc., the said Samuel Fulton, and to bring him into great scandal, &c., afterwards on the 15th day of June, 1850, did unlawfully, &c., make and cause to be made a certain effigy or figure intended to represent the said Samuel Fulton, and afterwards on the same day, &c., unlawfully, (fee., erected &c, on a certain public place, where the said Samuel Fulton was accustomed to pass in the way of his business, and kept and continued the said effigy or figure, so there erected, &c,, for a long space of time, to wit: for the space of ten days, and during that time cgid on divers other days and times, then next following, unlawfully, &c., hung up, &c., the. said effigy or figure, as and in manner aforesaid, with a painting and picture representing the head of a man, with a picture, likeness or representation of a human ear thereon, and with an iron nail driven into the said painted likeness or representation of a ear inscribed on a piece of .board or plank, on which was fixed and painted the said effigy or figure, and to which was attached a pair of shears, hung on a nail driven into the ear of said painting, and with divers other scandalous inscriptions, &c., &c., to the great damage, &c., and against the peace and dignity of the State.

Benjamin Pullam, a witness for the State, testified, that in the latter part of May, or the first part of June, 1850, he was at the defendant’s house in the county of Stokes: that the defendant took him to the side of his shop and showed him *7a board or piece of plank,, nailed up at the side of his said shop: that the defendant’s shop was situated on the side of the public road in Stokes County: that the defendant’s dwelling house was situated on the other side of said public road, some ten or fifteen steps from said board or plank: the door of the defendant’s dwelling house fronted the said road: that the defendant, with others, worked in said shop : that on said plank or board was inscribed, by means of some instrument, the form of a human head and face, anearon the side of the head, a nail driven through said ear, and a pair of shears hung on said nail: that the defendant pointed out this figure to him, said that he had put it up there, that that was Samuel Fulton, the prosecutor, that he had sworn to a damned lie, and he could prove it: that the said board or plank remained up for several months: that it was in a very public place: that on other occasions the defendant pointed out to him the figure aforesaid, still up at the same place, said that was the prosecutor, that all he had to do was to shut the shears down upon the ear; told the witness to tell theprosecutor, Sami. Fulton, that he, the detendant, intended to get him a gang of hound puppies and fatten them on the souse that his ears would make. He said the effigy was inscribed on the wood, but not painted.

The Court charged the jury, that, if they believed, from the testimony, that the defendant erected, caused to be erected, or kept up, after it was erected, by others, the said board with the said figure and devices upon it, thereby maliciously intending to represent the head and ear of Samuel Fulton, and this was made public for the purpose of provoking the said Samuel Fulton, and exposing him to public con tempt and ridicule, the offence was sufficiently charged in the second count, and they could find the defendant guilty.

Under this charge, the defendant was found guilty on the second count in the bill of indictment, and not guilty on the first count.

*8Rule for a new trial upon the ground of misdirection, and the sole question is, whether the proof sustained the indictment.

Rule discharged — motion in. arrest of judgment disallowed — judgment and appeal to the Supreme Court.

*Attorney General,*for the State.

*J. T. Morehead,*for the defendant.

Pearson, J.

It is charged that the defendant made a certain.effigy or figure, intended to represent Samuel Fulton, which he set up on a shop near a public road: “ That he unlawfully, wickedly and maliciously hung up and suspended the said effigy or figure, as and in manner aforesaid, with a *fainting*and *ficturé*representing the head of a man with the picture, likeness and representation of a human ear thereon, and with an iron nail driven into the said *fainted*likeness or representation of an ear inscribed on a piece of board or plank, on which *was fixed and fainted*the said *effigy or figure,*and to which were a pair of shears or scissors hung on a nail driven into the ear of said *fainting,"*with other scandalous inscriptions and devices upon and about the said “ effigy, figure and painting,” reflecting on the said Fulton.

By rejecting repetitions and general woids, we are enabled to extract a definite idea, and put a construction on the indictment, so as to make this to be the descriptive allegation : The defendant set up against the side of a house, near a public road, a board, on which was a *fainting or 'ficture of a human head*and ear, a nail was driven through the ear, and a pair of shears was hung on the nail.

It was proven that the defendant had set up on the side of a house, near a public road, a board, on which a human head was *inscribed,*shewing a side face with the ear, a nail was driven through the ear, and a pair shears was hung on the nail. The figure was *mscribed*or *cut in the board*by means of *some instrument,*but was not painted..

*9.The defendant’s counsel insisted, that the indictment was not sustained by the proof. His Honor held the proof sufficient. There is error. The variance between the allegation and proof is fatal in this. It is alleged, there was a painting or picture of a human head and ear on the board. The proof is, the head and ear were inscribed, engraved, or cut in the wood with an instrument, and there was no paint about it.

It is difficut to lay down a general rule on the subject of variance in particular terms, (and one in general terms would be oí no use.) It is almost impossible to mark out the dividing line between such a variance as is fatal and such as is not; for, like light and shade, they run into each other, and although it be easy to determine, “ this is light,” “ that is shade,” yet it is almost impossible to say, “ here the light ceases and the shade begins.” A general rule cannot be established, except by decisions in many particular cases. We shall, therefore, content ourselves by deciding in this case that an allegation, that a human head and ear were painted on a- board, is not sustained by provinguthat the head and ear were cut in the board with an instrument, no paint being used. This variance may be pronounced fatal without the aid of a general rule, because it does not approximate the “dividing line,”

It is suggested, as it is equally a libel, whether the head be engraved or painted, therefore the difference is not essential. It is true, it is’ equal! y a libel, but *non constat*that the difference is not essential. It is murder, whether death be caused by poisoning or shooting, yet an indictment charging the death in one way is not sustained by proving it was caused in the other.

The Attorney General urged, that, on account of the difficulty in setting out the particulars of a libel, effected by the means used in this case, the certainty of description, required in other cases, ought, in some degree, to be dispensed with. It'may be that the position is correct, but it cannot *10aid in the question now under our consideration. A general allegation, that the figure of a human head .and ear was made on a board, which board was set up, &c., probably would have béen sufficient; and then it would have been immaterial, whether the head and ear were painted or engraved on the board. But when particulars are set out *as apart of the*description, although it was not necessary to go into particulars, still it is thereby made necessary to stick to the truth, and the proof must correspond with the allegation.

The defendant’s counsel suggested a further variance in this: The indictment alleges, that there was a figure or effigy intended to represent the prosecutor, and *to this*was *hung*and suspended a painting or picture of a human head and ear, &c.

It is not necessary to inquire, whether the indictment, from the general terms used, will admit of tnis construction, nor is it necessary to consider the question made upon the motion to arrest.

Per Curiam. There must be a *venire de novo.*