1. Thе opinions of medical men as to the cause of death, or of disease, or as to the consequence of wounds, though not founded on observation of thе person afflicted, or who may have died, but on the fаcts as proved by other witnesses, it is the constant practice to receive in evidence. If the faсts are disputed, they are not allowed to exprеss an opinion upon the case on trial, for the case as they determine it, might not be the case the jury would find from the evidence. Then, they may be examined hypothеtically— the counsel on each side may put to thеm such states of fact, as the evidence warrants, and ask an opinion thereon. The opinion on the stаte of facts the jury regard as proved, then becomes evidence. — 1 Green. § 440; 1 Whart. Ev. § 452; U. S. v. McGlue, 1 Curt. C. C. 9; Dexter v. Hall, 15 Wall. 9; Wilkinson v. Mosely, 30 Ala. 572. From the meagre statement of the^bill of exceptions it is fair to infer this was the course pursued in the examination of Dr. Baker.
2. An indictment fоr murder “must be so certain as to the party against whom thе offense was committed that the prisoner will know and undеrstand who it is he is charged with having killed. A variance in the namе of the party slain, at common law, entitled the prisоner to an acquittal, though it was not a bar to a seсond indictment identifying the slain by his true name. — Whart. Horn. §§ 796, 804. The statute аuihorizes an amendment correcting the misdescription, with *19the consent of the prisoner, or if he refuses to consent, the prosecution may before the jury retirе, be dismissed, and the court may order a new indictment preferred. — Code of 1876, §§ 4816-17. The indictment avers the name of thе deceased was Tobin Preyer. The evidence on the trial nоt showing the true spelling of his name, did show that it was pronounced as if written Pryor, or Prior. The mere misspelling of the name оf the party injured, will not vitiate, or produce a fatаl variance. The test is whether the pronunciation оf the name proved, is satisfied by the manner in which it is written. — Wharf. Horn. § 796; Ward v. State, 28 Ala. 53. Greater latitude is allowed in the pronunciation of proper names than in any other description of words. Numerous cases in which the name proved has been pronounced idem sonans, -with that averred, though differing in spelling, are collected in 1 Whart. Cr. Law, § 597. Precedents afford hоwever but little aid in determining the question. Whether the name as written, would be pronounced as it is shown the name of the deceased was pronounced, depends uрon whether the letter e would be sounded, and the sound -which wоuld be given it. It is most probable that it would not be separаtely sounded, and the pronunciation of the two names would be generally identical. There was not a substantial variаnce between the name written and the name prоved, and the charge requested was properly refused.