McLean, J.,
delivered the opinion of the court.
The appellant was tried, convicted of murder, and sentenced to be hanged for the killing of one Tobe Wallace. The evidence in the record clearly and unequivocally, beyond question or cavil, shows that he killed Tobe Hollis. When the attention of the attorney general was called to the discrepancy between the indictment and the proof, a motion for a certiorari was made in, and sustained by, this court, and in pursuance thereof the original indictment and the original transcribed notes of the stenographer were sent up to this court; and the original indictment and the original transcribed notes of the stenographer show that the transcript in this court is correct. In other words, not only the tranr script, but the original indictment and the original transcribed notes of the stenographer, show that appellant was indicted for the murder of Tobe Wallace, and that he killed Tobe Hollis.
There is not one single instruction, either for the state or defendant, which directly or indirectly refers to the deceased as Tobe Hollis; but, upon the other hand, the party killed, in each and every instruction is referred to as “the deceased.” There is no effort made on the part of the state to show by any sort or kind of evidence that there is any error in the record to the effect that the name of the deceased was Tobe Wallace, instead of Tobe Hollis. Only record evidence would be admissible to show this, and there is no record evidence in existence’; and, of course, parol evidence is clearly inadmissible to contradict the record. Jones, Receiver, [753]*753v. Williams, 62 Miss. 183. A motion in the lower court for a new trial was made upon the ground that the verdict was contrary to the law and the evidence, and such is one of the assignments of error.
The sole and single question, therefore, is: Can this: court afford to permit this appellant to be punished in the face of the record, which shows conclusively that he is not guilty of the crime charged? It is insisted that, notwithstanding the record shows that if was Tobe Hollis who was killed, it must be assumed that there is some mistake in the -record; that surely, if upon the trial in the court below the evidence showed that it was Tobe Hollis, and not Tobe Wallace, who was killed, the defendant would have objected to the evidence as to the killing of Tobe Hollis; and, further, that if he failed to object he waived his right, and that the objection cannot be made for the first time in this court.
In answer we say that, when a person is upon trial for his life, he stands at every stage of the trial objecting to all- illegal proceedings; and it is only in instances specified by the statute that he waives those things which the statute makes him waive in the event he fails to object. Section 4936 of the Code of 1906 is as follows: “A judgment in a criminal case shall not be reversed because the transcript of the record does not show á proper organization of the court below or of the grand jury, or where the court was held, or that the prisoner was present in court during the trial of any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record shows that the errors complained of were made ground of special exception in that court.” This court, in Bryant v. State, 65 Miss. 435, 4 South. 343, says this: “The motion for a new [754]*754trial, alleging that the verdict was contrary to the law and the evidence, should have been sustained. Section 1433 (which is now section 4936), to the effect that no judgment shall be reversed because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made the ground of special exception in such court, does not operate in any case, so as to supply the proof necessary to show that the offense charged had been committed.” The failure of the state to make out its case was the neglect to show that the county, in which the offense was charged to have been committed, was operating under the local option law.
It seems to ns to be just as necessary to prove that the party killed was the party alleged in the indictment to have been killed, as it was to show that the local option law was in force in the Bryant case. It will be a sad, sad day in the jurisprudence of any country when the courts will permit one of its citizens to be hung for the commission of a crime of which the record made by the state completely and fully acquits him of the charge. The standing aside from the beaten path of immemorial usage, worn hard and bare by the footsteps of our forefathers in the law, in order to make way for the passing of the funeral cortege, brought about by a too liberal construction of a criminal statute enacted in derogation of the common law, is the recognition and enforcement of too dangerous a doctrine to comport with the humane and beneficien! conduct of a civilized court. To permit the conviction to stand in a case where the party is charged with killing one person, and where the record shows conclusively that he killed an entirely different person, is akin to the'court joining in the mob and executing the party under the form, hut without the authority, of law.
This court held in Matthis v. State, 80 Miss. 491, 32 South. 6, that it would decline to pass on objections to [755]*755evidence not made in the court below. There is a broad distinction between a failure to object to competent testimony, and where the record conclusively shows that the accused is innocent of the crime charged against him. In Hunt v. State, 61 Miss. 577, this court construed the record in that case to mean that the appellant was tried hy a jury of eleven men. No objection was made to this in the lower court, no exceptions whatsoever were taken to it, and the matter for the first time noticed or observed when the case reached this court. After a full consideration of the question, it was the unanimous opinion of all the judges composing the court that the conviction was unlawful; the court stating there cannot be a valid jury trial by less than twelve men, and that a consent to that effect by a criminal is absolutely void. The court then proceeds to draw a distinction between merely an omission to show that there were twelve men on the jury, and where the record affirmatively shows that there were eleven only. Section 4936 passed under review by this court, and it was held that there was nothing in that section which alters the rule referred to and announced, and because the record affirmatively showed that the accused was tried by less, than twelve men the case was reversed.
It may be urged that under section 1508 of the Code the lower court had the right to cause the indictment in this case to be amended, so as to' charge the defendant with having killed Tobe Hollis. Section 1508 is as follows: “Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof ... in the name or description of any person or body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offense, or in the Christian name or surname, or both, or other description whatever of any person whomsoever, there[756]
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McLean, J.,
delivered the opinion of the court.
The appellant was tried, convicted of murder, and sentenced to be hanged for the killing of one Tobe Wallace. The evidence in the record clearly and unequivocally, beyond question or cavil, shows that he killed Tobe Hollis. When the attention of the attorney general was called to the discrepancy between the indictment and the proof, a motion for a certiorari was made in, and sustained by, this court, and in pursuance thereof the original indictment and the original transcribed notes of the stenographer were sent up to this court; and the original indictment and the original transcribed notes of the stenographer show that the transcript in this court is correct. In other words, not only the tranr script, but the original indictment and the original transcribed notes of the stenographer, show that appellant was indicted for the murder of Tobe Wallace, and that he killed Tobe Hollis.
There is not one single instruction, either for the state or defendant, which directly or indirectly refers to the deceased as Tobe Hollis; but, upon the other hand, the party killed, in each and every instruction is referred to as “the deceased.” There is no effort made on the part of the state to show by any sort or kind of evidence that there is any error in the record to the effect that the name of the deceased was Tobe Wallace, instead of Tobe Hollis. Only record evidence would be admissible to show this, and there is no record evidence in existence’; and, of course, parol evidence is clearly inadmissible to contradict the record. Jones, Receiver, [753]*753v. Williams, 62 Miss. 183. A motion in the lower court for a new trial was made upon the ground that the verdict was contrary to the law and the evidence, and such is one of the assignments of error.
The sole and single question, therefore, is: Can this: court afford to permit this appellant to be punished in the face of the record, which shows conclusively that he is not guilty of the crime charged? It is insisted that, notwithstanding the record shows that if was Tobe Hollis who was killed, it must be assumed that there is some mistake in the -record; that surely, if upon the trial in the court below the evidence showed that it was Tobe Hollis, and not Tobe Wallace, who was killed, the defendant would have objected to the evidence as to the killing of Tobe Hollis; and, further, that if he failed to object he waived his right, and that the objection cannot be made for the first time in this court.
In answer we say that, when a person is upon trial for his life, he stands at every stage of the trial objecting to all- illegal proceedings; and it is only in instances specified by the statute that he waives those things which the statute makes him waive in the event he fails to object. Section 4936 of the Code of 1906 is as follows: “A judgment in a criminal case shall not be reversed because the transcript of the record does not show á proper organization of the court below or of the grand jury, or where the court was held, or that the prisoner was present in court during the trial of any part of it, or that the court asked him if he had anything to say why judgment should not be pronounced against him upon the verdict, or because of any error or omission in the case in the court below, except where the errors or omissions are jurisdictional in their character, unless the record shows that the errors complained of were made ground of special exception in that court.” This court, in Bryant v. State, 65 Miss. 435, 4 South. 343, says this: “The motion for a new [754]*754trial, alleging that the verdict was contrary to the law and the evidence, should have been sustained. Section 1433 (which is now section 4936), to the effect that no judgment shall be reversed because of any error or omission in the case in the court below, unless the record shows that the errors complained of were made the ground of special exception in such court, does not operate in any case, so as to supply the proof necessary to show that the offense charged had been committed.” The failure of the state to make out its case was the neglect to show that the county, in which the offense was charged to have been committed, was operating under the local option law.
It seems to ns to be just as necessary to prove that the party killed was the party alleged in the indictment to have been killed, as it was to show that the local option law was in force in the Bryant case. It will be a sad, sad day in the jurisprudence of any country when the courts will permit one of its citizens to be hung for the commission of a crime of which the record made by the state completely and fully acquits him of the charge. The standing aside from the beaten path of immemorial usage, worn hard and bare by the footsteps of our forefathers in the law, in order to make way for the passing of the funeral cortege, brought about by a too liberal construction of a criminal statute enacted in derogation of the common law, is the recognition and enforcement of too dangerous a doctrine to comport with the humane and beneficien! conduct of a civilized court. To permit the conviction to stand in a case where the party is charged with killing one person, and where the record shows conclusively that he killed an entirely different person, is akin to the'court joining in the mob and executing the party under the form, hut without the authority, of law.
This court held in Matthis v. State, 80 Miss. 491, 32 South. 6, that it would decline to pass on objections to [755]*755evidence not made in the court below. There is a broad distinction between a failure to object to competent testimony, and where the record conclusively shows that the accused is innocent of the crime charged against him. In Hunt v. State, 61 Miss. 577, this court construed the record in that case to mean that the appellant was tried hy a jury of eleven men. No objection was made to this in the lower court, no exceptions whatsoever were taken to it, and the matter for the first time noticed or observed when the case reached this court. After a full consideration of the question, it was the unanimous opinion of all the judges composing the court that the conviction was unlawful; the court stating there cannot be a valid jury trial by less than twelve men, and that a consent to that effect by a criminal is absolutely void. The court then proceeds to draw a distinction between merely an omission to show that there were twelve men on the jury, and where the record affirmatively shows that there were eleven only. Section 4936 passed under review by this court, and it was held that there was nothing in that section which alters the rule referred to and announced, and because the record affirmatively showed that the accused was tried by less, than twelve men the case was reversed.
It may be urged that under section 1508 of the Code the lower court had the right to cause the indictment in this case to be amended, so as to' charge the defendant with having killed Tobe Hollis. Section 1508 is as follows: “Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof ... in the name or description of any person or body politic or corporate, therein stated or alleged to be injured or damaged, or intended to be injured or damaged by the commission of such offense, or in the Christian name or surname, or both, or other description whatever of any person whomsoever, there[756]*756in named or described, ... it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof, whenever it may be deemed necessary by the court to amend such indictment,” etc. In Miller v. State, 53 Miss. 403, the defendant was indicted for an assault with a deadly weapon. The indictment alleged that the assault was made upon one Blackman. The evidence disclosed that the real name was Blackburn. The court ordered the indictment to be amended so as to correspond with the proof. This court held that it was not error for this amendment to be made. In Wood v. State, 64 Miss. 761, 2 South. 247, the indictment charged that the defendant made an assault upon one Socratus Scott. It appeared in evidence that the name of the injured party was Marion Socratus Scott, and that he was generally known and called by the name of Crate Scott. In this court an objection was made for the first time that there was a fatal variance between the allegation in the indictment. and the evidence, as to the name of the party. This court held that there was no such fatal variance. In Miller v. State, 68 Miss. 221, 8 South. 273, the defendant was indicted for the murder of one James Bowman. The evidence showed that the true name was Junius Bowman. The lower court permitted the indictment to be amended so as to correspond with the proof, and this court held that such was not error.
All of these cases present an entirely different question from the one which is now presented by this record. If the court in the trial of the case at bar had amended the indictment in the lower court before the jury had returned the verdict, the question would have been a very different one from what it is now. The [757]*757question now before the court is not whether an amendment to the indictment was competent,, so as to make the allegations in the indictment correspond with the proof. Upon the other hand, the record.as now before the court shows that appellant was indicted for the murder of one person, and the evidence shows that he killed an entirely different person.- We are left to conjecture •entirely what the defendant would have done, had the state attempted to correct the indictment by changing the name in the indictment from Tobe Wallace to Tobe Hollis.
The question which this record presents is not what may be termed a technicality in any sense of the term. It is a matter of substantive right. To permit a person to be hanged when the evidence shows that he was convicted for the murder of a person different from the •one charged in the indictment is absolutely shocking in the extreme. Our conscience recoils with absolute horror from such a proposition.
Reversed and remanded, and a new trial granted.