Davis v. State

106 So. 874, 21 Ala. App. 231, 1926 Ala. App. LEXIS 32

• Court: Alabama Court of Appeals
• Decided: January 19, 1926
• Docket: 5 Div. 580.
• Status: Published

Opinion

SAMFORD, J.

The defendant was charged with having assaulted Olio Godfrey, and the proof showed that, if the assault took place as alleged, the name of the assaulted party was Oleo Godfrey. Clio is the name well known in history as being that of an ancient goddess, while Cleo is a contraction of Cleopatra. These names are entirely different and have no such similarity as commonly pronounced in this country as that they may be said to be idem sonans. Clements v. State, 19 Ala. App. 640, 99 So. 832. The evidence, as it appears in the bill of exceptions, discloses a material variance, and is fatal to a conviction. 8 Mich. Dig. 656, par. 102.

The name of. the assaulted party is matter of description or identity, and, if the names may he sounded alike without doing violence to the power of the letters found in the variant orthography, and on another trial it should be made to appear that Cleo was the identical person named in the indictment as the assaulted party, then the variance in the spelling would be immaterial. 8 Mich. Dig. 657, par. 103.

The remark attributed to defendant on the day previous to the alleged assault, expressive of a sensual desire with respect to prosecutrix, while reprehensible in the extreme, was not of the res gestae, and is not admissible in evidence, either as an admission of guilt or as a threat. Powe v. State, 19 Ala. App. 215, 96 So. 370. On account of its character its admission in evidence was injurious to defendant’s rights.

As to whether the facts made out a case of assault to rape was one of fact for the jury.

For the errors pointed out, the judgment is reversed, and the cause is remanded.

Reversed and remanded.