DocketNumber: 6 Div. 618.
Judges: Rice
Filed Date: 3/17/1925
Status: Precedential
Modified Date: 10/19/2024
The defendant was convicted of the offense of burglary, and he appeals.
The indictment is laid against "Nelson McCulla, alias Nelson McCullough," and the undisputed evidence in the case shows that defendant's true name is "Nelson McCullar." Appropriate plea in abatement was filed by defendant, setting up the facts above, to which plea apt demurrers, interposed by the state, were sustained. This, as consistently held by this court, presents a question of law as to whether or not the names by which appellant was charged, or either of them, were idem sonans with, or to, his true name.
"In applying the doctrine of idem sonans, it is universally accepted that, if two proper names, as commonly and ordinarily pronounced in the English language, sound alike, a difference in their spelling is immaterial; and that much latitude is permissible in pronunciation, slight differences being unimportant, if the attentive ear finds difficulty in distinguishing between the pronunciation of the two names. It has been held and cited with approval in this state that: `The proper rule in such cases is that, if two names, according to the ordinary rules of pronouncing the English language, may be sounded alike, without doing violence to the letters found in the variant orthography, then the variance is, prima facie at least immaterial, and may be so decided by the court." Burton v. State,
10 Ala. App. 214 ,65 So. 91 .
The above rule is amply supported by the decisions of our Supreme Court. Rooks v. State,
Neither did the court err in refusing to give at defendant's request the general affirmative *Page 587 charge in his favor. Authorities cited supra.
Appellant complains of the admission over his timely objection of testimony of the witness Cockrell (whose store it was alleged had been broken into) to the general effect that some two days after the store had been burglarized, and, after the defendant had been arrested, accused of the crime, and had made bond, the defendant came to the witness and stated to him, in substance, "that if he [witness] testified against him [defendant] he would never testify against any one else," etc.
Under the authority of the cases of Bufford v. State,
The case of Cobb v. State,
The defendant, in writing, requested the court to give to the jury the following charge:
(12) "The court charges the jury that each and every one of you are entitled to have his own conception of what constitutes a reasonable doubt of the guilt of this defendant; that before you can convict him the evidence of his guilt must be so strong that it convinces each juror of his guilt beyond all reasonable doubt, and if, after consideration of all the evidence, a single juror has a reasonable doubt of the defendant's guilt, then you cannot convict him"
— and assigns as error the court's refusal to give same.
The court, in its very full and accurate, oral charge to the jury used this language:
"Gentlemen of the jury, I want to call your attention to one other thing, and that is that, under our system of laws, it takes twelve men to reach a verdict. If one man was firmly convinced beyond a reasonable doubt, after considering all the evidence, that the defendant is guilty as charged, although others were not convinced beyond a reasonable doubt, why you could not render a verdict at all, and there would be a mistrial.If on the other hand (italics supplied) eleven of youbelieve beyond a reasonable doubt that the defendant isguilty as charged, and one man had a reasonable doubtof his guilt, arising from the evidence or from a lackof evidence, why then there would not be any verdict;you couldn't convict."
While this court, after perhaps some slight confusion, has recently reaffirmed its former repeated holdings to the effect that a written charge, similar in substance to the one set out above, stated a correct proposition of law, and should be given (Alonzo Jones v. State,
Appellant can take nothing from his assignment of error No. 6, for the reason that the testimony on cross-examination, admitted over his objection, was but of matters about which the same witness had already testified fully, and without objection, on his direct examination. Manifestly the defendant suffered no injury by the rulings complained of.
We are of the opinion that it was proper to allow the questions put to the witness Mrs. Nelson McCullar made the basis of appellant's assignment of error No. 7; also those to the witnesses Andy Davis and Dr. Robinson made the basis of assignments Nos. 8 and 9. The witness Mrs. Nelson McCullar having undertaken to testify fully as to the whereabouts of the defendant, her husband, on the night of the alleged burglary, and of the absence of Newton Taylor, whom the evidence tended to link up with the defendant in the commission of the offense, and the evidence being circumstantial, we think any circumstance having to do with the actions and whereabouts of the defendant in connection with the said Newton Taylor, and tending in any way to explain or give color to his said actions, was relevant and admissible. And the witness Mrs. Nelson McCullar having testified concerning the matters in question, it was entirely competent to ask her if she had not made contradictory statements regarding the same matter.
The written charges refused the defendant have all been examined, and in the action of the court we find no error. In each instance, where the proposition of law is sound, we find the matter contained therein was covered by the court's oral charge.
All the exceptions reserved by the defendant have been considered, as well as the record in the case, and we are of the opinion that no prejudicial error intervened in any of the trial court's rulings.
Let the case be affirmed.
Affirmed.