Bennett v. State

104 S.W. 928, 84 Ark. 97, 1907 Ark. LEXIS 156

• Court: Supreme Court of Arkansas
• Decided: October 7, 1907
• Status: Published

Opinion

Hire, C. J.

Bennett was indicted for the murder of Mooney Thomas, was convicted of murder in the second degree, and appealed.

1. There was testimony tending to prove that the deceased was known as Mooney Thomas, and on the other hand there was testimony tending to' prove that he was known as Monte Thomas, and that Monte was his true name, and that he was known by no other.

The appellant asked the court to charge the jury as follows: “The court instructs the jury that if they believe beyond a reasonable doubt that Monte Thomas was the party killed by Wes Bennett, and not Mooney Thomas, as alleged in the indictment, said allegation is material, and they should find the defendant not guilty.”

Where the name of a party is necessary to the description of the offense, proof of a different person than the one named in the indictment makes a variance. Formerly, there was a strict application of this rule, and even slight variances, if the names were not idem sonans, were held fatal. But the modern rule is that it is a question of identity; and where the identity of the party in the evidence with the one named in the indictment is established, or where the inaccuracy is not misleading, the variance is not fatal. 14 Ency. of Plead. & Prac., 286-7.

The question of identity of the person described in the indictment with the one mentioned in the evidence is one of fact, to be established, like any other fact, to the satisfaction of the •jury. Commonwealth v. Gould, 158 Mass. 499; State v. Williams, 68 Ark. 241. Hence the instruction in question should not have been given without qualifying it to fit the conflict in the evidence as to whether Monte Thomas was the identical person named in the indictment as Mooney Thomas and known by that name.

The instruction is erroneous in yet another particular; it instructs that the name of the party assaulted is a material allegation, whereas the Criminal Code expressly makes such allegations not material where the offense is otherwise described with sufficient certainty to identify the act. Section 2233, Kirby’s Digest. See construction of said section in State v. Seely, 30 Ark. 162; State v. Jourdan, 32 Ark. 203; Edmonds v. State, 34 Ark; 720; Boardman v. State, 66 Ark. 65.

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. 2. The State was permitted, in rebuttal, to show that a certain witness had testified differently in the examining court from what he testified in the trial. The witness by whom this was proved was present, in the examining court, and testified from his recollection of the testimony given. The defendant showed that the evidence in the examining court was taken down in writing and signed by the witness after it was read over to him, and then moved the court to exclude the impeaching testimony on the ground that the written evidence was the best.

It was entirely proper for the State to prove by a witness who recollected the testimony in the examining court what it was, after the proper foundation had been laid for the introduction of it, notwithstanding the substance of the evidence may have been taken down by the magistrate, pursuant to section 2148. This subject has been fully considered in Shackelford v. State, 33 Ark. 539; Payne v. State, 66 Ark. 545; Wilkins v. State, 68 Ark. 441; Petty v. State, 76 Ark. 515; Butler v. State, 83 Ark. 272.

The other assignments of error in the motion for new trial have been examined, and the court fails to find any reversible error. The instructions given fairly presented all questions of law which the defendant was entitled to have presented. While some of the refused instructions might well have been given, they were sufficiently covered in those given to prevent it be-' ing error to have refused any of them.

Judgment is affirmed.

See, also, Blankenship v. State, 55 Ark. 244. (Rep.)