25 Tex. 574 | Tex. | 1860
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
Reversed and remanded.