Donnelly v. State , 78 Ala. 453 ( 1885 )

SOMERVILLE, J.

1. We can not say that the demurrer to the defendant’s plea of misnomer was improperly sustained. It does not appear, as matter of law, that the names of Ponly and Donnelly can not be correctly pronounced so as to be idem sonans. The rapid pronunciation of the second of these names may render the letter e silent, so as to make the alleged variance immaterial. This court has decided many supposed variances, quite as material, to be insufficient to support a plea in abatement. — Edmundson’s Case, 17 Ala. 179; Gresham v. Walker, 10 Ala. 370; Block v. The State, 66 Ala. 493 ; Aaron v. The State, 37 Ala. 106 ; Ward v. The State, 28 Ala. 53; Wharton’s Cr. Ev. (8th Ed.) § 96.

2. The wife of the defendant was not-a competent witness for him on the trial. The precise point was decided at the present term in Birge v. The State (ante, p. 435), where we held that her inadmissibility was based upon reasons of public and social policy, and was not affected in any manner by the recent statute authorizing defendants in criminal cases to be examined as witnesses in their own behalf. — See, also, Woods v. The State, 76 Ala. 35 ; Wharton’s Cr.Ev. (8th Ed.) §,400.

3. The questions raised in this case as to the alleged irregularities in the organization of the grand jury which found the indictment, and the supposed unconstitutionality of the act of February 17, 1885 (Acts 1884-85, p. 181), under which this body was organized,' are the same as those raised in the case of Abernathy v. The State, at the present term; ante, p. 411. They were there decided adversely to the views urged by the appellant’s counsel.

We have examined the rulings of the court on the evidence, and are of opinion that they are free from error.

Affirmed.