Ford v. State

129 Ala. 16 | Ala. | 1900

TYSON, J.

The order appearing in the record directing the sheriff to serve the defendant with a copy ■of the indictment and a copy of the list of the names of persons constituting the jurors for trial of the defendant, etc., is sufficient. — Code, § 5273, and authorities •cited under it.

The point was raised by charges requested by defendant, that there was a fatal variance between the.averment of the indictment and the proof as to the name-of the deceased. The name of the. deceased was averred to be Ad Smith alias Age Smith. The proof showed his name was Adger Smith but that he was generally called and known as Adge Smith. “The name is matter of description, or identity. * * * We apprehend the true rule (to be, that if the names may be sounded alike, without doing violence to the power of the letters found in the variant orthography, then the variance is immaterial.” — Ward v. The State, 28 Ala. 53.. Applying this rule to the names Age and Adge, it is. quite clear that they are idem sonans and that it may be so affirmed as a matter of law.—Gresham v. Walker, 10 Ala. 370; Rooks v. The State, 83 Ala. 79; Edmundson v. The State, 17 Ala. 179; Donnelly v. The State, 78. Ala. 453.

Charge 1 requested by defendant was erroneous, if' for no other reason, in that it required the acquittal of the defendant, notwithstanding he may have been guilty of murder in the second degree which was included in the charge preferred in the indictment.

Charges 5 and 9 pretermit all reference- to freedom of' fault in' provoking or bringing on the difficulty, and were misleading.

Charge 6 which is not insisted upon omits to characterize the demonstrations of the deceased as being such as were reasonably calculated to create the honest belief that his. life was in danger or that grievous bodily-harm was about to be inflicted upon him.

-Charge 7 is faulty in not including in it the element of retreat.—Gilmore v. The State, 126 Ala. 21.

Charge 8 is confused, and fails- to hypothesize that the-appearances were such as to impress him (the -defendant) with an honest belief that his life was in imminent peril, etc.

The evidence introduced by the State that defendant, in his flight -from the scene of the killing, “got behind Jim Suggs and that Jim Suggs had a Winchester rifle-aud drew the -same and stopped the crowd and held them at bay,” was entirely competent -as part of the res-gestae of bis flight Moreover, we perceive no injury that could have come to defendant from its introduction. It tended to show that lie was fleeing, not from a consciousness of guilt, but to escape the frenzy of ¡the mob who were after him.

There is no error in the record and the judgment must be affirmed.