Clark v. State , 21 Ala. App. 597 ( 1926 )

SAMFORD, J.

The court did not commit error in putting the defendant to trial before the same jury that passed upon the. plea of misnomer. Whitaker v. State, ante, p. 114, 105 So. 433.

The entire inquiry as to the plea of misnomer was useless. The defendant was indicted as “Ott Clark, whose name is- to the grand jury unknown than as stated.” Such an indictment is not subject to a plea of misnomer. Bryant v. State, 36 Ala. 270. This will dispose of the several exceptions reserved to the. admission of evidence on the trial of the issue on the plea in abatement.

Everything said and done by the parties at the time defendant was in bed with the girl is part of the res gestas and is admissible in evidence, and as a part of what was taking place, a witness who was in the bed with the girl, may testify, as a shorthand rendition of facts, that defendant was begging the girl to get up and go in another room with him, so that “he could get to her better.” Pate v. State, 29 Ala. App. 358, 102 So. 156.

That the witness Audrey Coker recognized defendant in the dark would have a bearing on the probative force of her testimony, but would not render such testimony inadmissible.

The fact that defendant knew the girl with whom he is charged with having intercourse would be at that certain place at that certain time, and that defendant would also be there, was relevant as tending to prove an assignation. For this purpose a note written by defendant to that effect was admissible.

There was evidence tending to substantiate the charge, and therefore the general charge was properly overruled. Lakey v. State, 20 Ala. App. 78, 101 So. 537.

Refused charges 2, 3, and 4 were invasive of the province of the jury. Refused charge 5 was covered by given charge 6, and refused charge 6 was covered by the oral charge of the court.

Other exceptions have been examined, but in no instance did the court by his rulings commit reversible error.

The motion for new trial was properly overruled. There is no prejudicial error in the record, and the judgment is affirmed.

Affirmed.