Adams v. State , 67 Ala. 89 ( 1880 )

SOMEEYILLE, J.

— The indictment in this case charges the appellant, Adams, and one William Mincher, his co-defendant, with an affray, for fighting together in a public place. Mincher filed a plea in abatement alleging a misnomer, and averring his name to be William Minshen, and that he was known and called by that name. The court sustained this plea and quashed the indictment as to him ; Adams, however, was put to trial upon the plea of not guilty.

Under this iudictment evidence was allowed to be introduced, against appellant’s objection, showing that he and one William Minshen fought together in a public place in the county of Cherokee within twelve months before tbe finding of the indictment.

We think this was error, for tbe reason that tbe names Mincher and Minshen are not idem sonans, and there was a clear variance between tbe name proved and that alleged in the indictment, which is fatal. Iu contemplation of law they were two different and distinct persons. The plea of misnomer was properly sustained, and the evidence objected to should have been excluded.. — Whart. Cr. Ev. (8th Ed.) §§ 94, 6; Lawrence v. State, 59 Ala. 61; 1 Brickell’s Digest, p. 6, §§ 84-89.

Reversed and remanded.