43 So. 966 | Ala. | 1907
-The defendant was convicted of an assault with intent to murder.
The indictment was'filed in court on the 19th of November, 1906.
The prosecutor, Davis, testified that the difficulty occurred some time in February, 1904. The defendant testified that the difficulty occurred some time about February 18, 1903. The offense might thus appear to
It became necessary for the state to prove- that the offense occurred within three years before the indictment was found. To do this, the prosecutor, introduced by the state, testified that he was married shortlj after he was cut, and he was sure he was married in February, 1904, and he thought it was February 21st of that year.
The.state offered in rebuttal what purported to be the marriage record from the probate office of Jefferson couniy. The defendant objected to the introduction of the book, on the ground that it contained nothing that was admissible as evidence in rebuttal, and on the further ground, that the identity of the party named as James Davis, in the book sought to be introduced, liad not been established as the James Davis who had testified in the case, — which objections were overruled.
The solicitor then introduced from the book the record of a license from the judge of probate of Jefferson county, authorizing certain officers, qualified under the statute to solemnize marriages, including a licensed minister of the gospel, to solemnize marriage between James Davis (22), who was over 21 years of age, and Frances White, who was 18 years of age, and to join them in marriage as required by law,- — which license was dated February 4, 1904. At the foot of the license was a certificate, signed by Rev. W. M. McGill,- that he had solemnized marriage between James Davis and Frances White, according to law, at Birmingham, in Jefferson county, Alabama, on the 14th of February. 1904. No objection was made, that Rev. McGill was not a licensed minister of the gospel.
It thus appears that the final record of the marriage had been made up, and the record, book was not improp
It was discretionary with the court to allow the evidence in rebuttal. — Braham v. State, 143 Ala. 30, 38 South. 919.
It -did not appear, from the face of the indictment or otherwise, that there was any other person bearing the name of James Davis. The identity of names was presumptive evidence of the identity of the person.— Woods v. State, 133 Ala. 163, 31 South. 984; Garrett v. State, 76 Ala. 18.
Affirmed.
