Langston v. State

63 So. 38 | Ala. Ct. App. | 1913

WALKER, P. J.:

The. indictment' charged that the defendant “.unlawfully, and with malice - aforethought killed Wiley -Hill by shooting hita with, á gun,” ' etc. .'After-the state had introduced evidence tending to Support -the charge made in the indictment the defendant introduced testimony which tended to' prove that' the name of the person who was killed was: Wiley -Sill Goulsby. He excepted to the action of the court in permitting the introduction by the state'of testimony tending to prove that the deceased was known and called by the name of Wiley Hill, moved to exclude the evidence offered .by thé' state on the ground that there was a variance' between the allegation of the indictment and the evidence offered as to the name of the person who was killed, and requested written charges to the effect that, if the family . or surname: of the person who was killed was Goulsby and not Hill, then the jury should find' the defendant hot guilty. We are not of opinion that the court was in error in its rulings in this cohnec1 tion. It is not doubted that a.material averment of an indictment for homicide is the one which is descriptive of the person charged to have been killed. The aver: ment on this point must be such as to identify that person.. As to this fact, as with regard to other facts constituting the offense, the requirement of the statute (Code, § 7134) is met by averring it “in such a manner as to enable a person of common understanding to know what is intended.” “An indictment for murder must be so certain as to the party against whom the offense was committed that the prisoner will know and understand who it is he is charged with having killed.” — Page v. State, 61 Ala. 16. It cannot be said, as a matter of law, that this is always best accomplished by stating such person’s true name. He may be as well, if not better, identified by a name by which he was generally known and called, though that was not his true name. The truth of' this statement is illustrated by the testimony in this case. The witnesses who testified as to the facts of the killing spoke of the deceased as Wiley Hill. The deceased’s widow testified that she never knew him by any other name. . It may be inferred from the testimony of the defendant himself that the deceased was known to him only by that name, and not at all by. the name of Goulsby, though: it turned out that the latter was his real surname.: Throughout the defendant’s testimony he. :spoke.: of: the deceased as Wiléy Hill or Mr. Hill. If the deceased was generally known and called by that name, and was known to the defendant by that name, the indictment, in averring that Wiley Hill was the person who was killed, enabled the defendant to know and understand who it was he was charged with having killed. The charge in the indictment being that the defendant “unlawfully and with malice aforethought killed Wiley Hill by shooting him with a gun,"’ and there being evidence in the case tending to prove that the person who was killed was known and called by the name by which he was called in the indictment, and that the defendant knew him by that name, it cannot be said that there was an absence of evidence to support the averment of the indictment, which was descriptive of the person who was charged to have been killed, or that as to this feature of the charge as made there v as a variance between the allegation and the proof. The court would not have been justified in deciding that the averment in the indictment of the name of the person charged to have been killed imported anything more than that that was a name which identified the person referred to, or that that averment required for its support evidence to the etect that the alleged name was the true name of the deceased.

A statement indorsed by the presiding judge on written charge 11, requested by the defendant, shows that it was refused upon the ground that it was substantially the same as written charge 25, given at the request of the defendant. The court was mistaken in treating the two charges as substantially the same. The one which was given stated, as a part of its predicate for a verdict of acquittal, a finding by the jury that the killing was under such circumstances as to justify a reasonable man in believing that he could not have retreated without increasing his peril, while a finding to that effect was omitted from the predicate for such a verdict which was stated in the charge which was refused. The court, by giving the one charge and refusing the other, in effect ruled that a statement of the defendant’s observance of the duty to retreat was an essential part of a predicate for a verdict of acquittal. A ruling to this effect was not justifiable under the evidence in the case. That evidence was without conflict to the effect that the defendant fired the fatal shot when he was in his own residence or within the curtilage thereof. That was a place from wlr'cli he was not under a duty to retreat. This being true, a statement of his performance of that duty did not constitute an essential part of a predicate for a verdict of acquittal. — Harris v. State, 96 Ala. 24, 11 South. 255. Refused charge 11, except in so far as it fails to hypothesize the defendant’s observance of the duty of retreating to avoid taking the life of another, is one which it has several times been held should be given when requested. — McCutcheon v. State, 5 Ala. App. 96, 59 South. 714; Bluitt v. State, 161 Ala. 14, 49 South. 854; Bluett v. State, 151 Ala. 41, 44 South. 84. Following these rulings, it must be held that in such a case as the present one it is error to refuse a charge which, with the exception stated, is of the same import. The record does not show that this error was cured by the same or substantially the same proposition which was asserted in the refused charge, being covered by other instructions given at the request of the defendant. ’Hie result is that, because of the error committed in refusing to give the charge mentioned, the judgment must be reversed.

Reversed and remanded.