Bell v. State, 25 Tex. 574

Bell v. State

25 Tex. 574 | Tex. | 1860

Bell. J.

The court below instructed the jury as follows: “ If George W. Bell is the name of the defendant, you are instructed that his Avife is correctly named and described when called Mrs. George W. Bell.” We are of opinion that there Avas error in this instruction. By it the judge decided, as matter of law) Avhat was the name of the defendant’s wife, whereas, it ought to have been submitted to the jury, as matter of fact, to be decided by them upon the evidence. It is true that in polite society, it is fashionable to designate a married woman by her husband's name; and not unfrequently she is honored with some sounding title, in Avhich her lord may happen to rejoice. Thus we not only hear of Mrs. John Smith, and Mrs. George Washington Jones, but we hear also of Mrs. Colonel 0, of Mrs. General P, and of Mrs. Professor Q. But this fashion does not extend to the great mass of the people throughout the country. It is necessary in an indictment for an assault and battery that the name of the person injured should be set forth, and proved precisely as alleged. (3 Greenl. on Evid., sec. 22.) Where it is pleaded in abatement that the name of the person accused "is not properly set forth in the indictment, the true name is given in the plea, and the name used in the indictment is traversed. To this plea it may be replied that the party was and is as well known and called by the one name as by the other. But it is said not to be sufficient, in support of this replication, to show that the party has been once or twice called by the name used in the indictment. (3 Greenl. Ev., sec. 22.) Where any question arises concerning the name of the person upon, whom the indictment alleges that the injury was inflicted, the practice should be analogous to the practice in the case of a plea of misnomer by the prisoner. The fact should be submitted to the jury, and it would be competent to show in support of the allegation in the indictment, that the person was as well known by the name used in the indictment as by any other. By this it is not meant that the indictment could not be sustained without showing that the person was as exclusively or as familiarly known by the name used in the indictment as by *576any other; for this would not he necessary. It would be enough to show that the person was as certainly known to friends and acquaintances of the vicinity, by the name used in the indictment as by any other. It seems that in the case before us, there were two families of- the name of Bell in the neighborhood, and two of the witnesses say that the defendant’s wife was sometimes called Mrs. George W. Bell to distinguish her from another lady in the neighborhood of the same family name. If the heads of these two families had each been named George W. Bell, then the defendant’s wife would most probably have been called only by her name of Sally Bell, by which name the majority of the witnesses say she was commonly known to her neighbors. Because we are of opinion that the judge erred in not leaving it to the jury to be determined as matter of fact, from the evidence, whether or not the assault and battery was committed on the person named in the indictment, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.