Green v. State , 37 Ala. App. 652 ( 1954 )

PRICE, Judge.

The indictment, omitting the formal parts, charges: “Will Sanders and Dowling Green unlawfully, and with malice aforethought, killed J. C. Williams, Junior, alias Junior Williams, by shooting him with a pistol.”

A severance was granted and Will Sanders was first put to trial. He was convicted of murder in the second degree and was sentenced to imprisonment in the penitentiary for twenty-five years. Sanders v. State, 259 Ala. 520, 67 So.2d 2.

Appellant’s trial resulted in a conviction for the offense of manslaughter in the first degree and his punishment was fixed at imprisonment in the penitentiary for a term of five years.

The evidence shows that J. C. Williams, Jr., and Shelley Williams were shot and killed in defendant’s store on a night in January, 1952. The evidence was directed toward proving that Will Sanders killed J. C. Williams, Jr., and the evidence was undisputed that defendant, if he killed either of these men, killed Shelley Williams.

In a prosecution for homicide the name of the deceased must be proved as laid in the indictment and a variance between the allegation and proof as to such name is fatal. See Ala.Dig.Homicide, ^ 142 (5) for numerous citations of authority.

There was an entire absence of any facts in this case tending to show a conspiracy between defendant and Will Sanders in the killing of J. C. Williams, Jr.; nor was there proof that defendant was guilty of aiding and abetting the said Sanders in the commission of such offense.

For the refusal of the court to give the general affirmative charge, requested by the defendant in writing, the judgment of the circuit court is reversed and the cause remanded.

Reversed and remanded.