Dinkins v. State

Alabama Court of Appeals

Dinkins v. State

106 So. 621, 21 Ala. App. 206, 1925 Ala. App. LEXIS 341

CourtAlabama Court of Appeals

DecidedDecember 15, 1925

Docket6 Div. 856.

StatusPublished

Cited by3 cases

This text of 106 So. 621 (Dinkins v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Dinkins v. State, 106 So. 621, 21 Ala. App. 206, 1925 Ala. App. LEXIS 341 (Ala. Ct. App. 1925).

Pincite

Opinion

BRICKEÍN, P. J.

But one exception was reserved to the ruling of the court upon the trial of this case, and there is no merit in the contention made in this connection. The exception referred to was reserved to the ruling of the court upon the motion of defendant to exclude the testimony of state witness Parker, “on the ground that the indictment read that Gese Parker was the one that was stabbed, and that the defendant here is charged with stabbing Gise Parker.” The motion, as stated, is barely intelligible. However, if it was intended to predicate the motion on the ground of a variance in the *207 allegation and proof as to the name of the alleged injured party, it cannot prevail, for the only testimony hearing upon this question is that given by Parker himself; and, while he stated that “I spell my name Gise, I have been called Gese plenty of times; practically all the people pronounce my name Gese; I am generally called by the name of Gese, and I answer by that name.” As stated, there was no conflict in this evidence, so without dispute it manifestly appears there was no variance in the proof and allegation. Nor was the question of the identity of the injured party in controversy. Cutcliff v. State, 17 Ala. App. 586, 87 So. 706; Clements v. State, 19 Ala. App. 640, 99 So. 832. Moreover, a mere error in spelling of a name, or the use of a nickname, is no variance. If .the names be idem sonans, it is sufficient. There are no set rules for spelling names, and if the letter “i” in the name here under discussion be given the sound of “i” as in machine, the result would be that the phonetic soundings of the name would be the same.

Refused charge 1 is not the law; therefore this charge was properly refused. The vice of the charge is that it fails to state that if you believe from the evidence that any witness vnllfwlVy testified falsely, etc. The other refused charges, being affirmative in their nature, were properly refused. The defendant was not entitled to the affirmative charge under the evidence in this case.

The motion for a new trial appears in the record only, and is therefore not presented for our consideration. Benton v. State, 16 Ala. App. 192, 76 So. 476.

The judgment of the lower court is affirmed.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

BRICKEÍN, P. J.

But one exception was reserved to the ruling of the court upon the trial of this case, and there is no merit in the contention made in this connection. The exception referred to was reserved to the ruling of the court upon the motion of defendant to exclude the testimony of state witness Parker, “on the ground that the indictment read that Gese Parker was the one that was stabbed, and that the defendant here is charged with stabbing Gise Parker.” The motion, as stated, is barely intelligible. However, if it was intended to predicate the motion on the ground of a variance in the *207 allegation and proof as to the name of the alleged injured party, it cannot prevail, for the only testimony hearing upon this question is that given by Parker himself; and, while he stated that “I spell my name Gise, I have been called Gese plenty of times; practically all the people pronounce my name Gese; I am generally called by the name of Gese, and I answer by that name.” As stated, there was no conflict in this evidence, so without dispute it manifestly appears there was no variance in the proof and allegation. Nor was the question of the identity of the injured party in controversy. Cutcliff v. State, 17 Ala. App. 586, 87 So. 706; Clements v. State, 19 Ala. App. 640, 99 So. 832. Moreover, a mere error in spelling of a name, or the use of a nickname, is no variance. If .the names be idem sonans, it is sufficient. There are no set rules for spelling names, and if the letter “i” in the name here under discussion be given the sound of “i” as in machine, the result would be that the phonetic soundings of the name would be the same.

Refused charge 1 is not the law; therefore this charge was properly refused. The vice of the charge is that it fails to state that if you believe from the evidence that any witness vnllfwlVy testified falsely, etc. The other refused charges, being affirmative in their nature, were properly refused. The defendant was not entitled to the affirmative charge under the evidence in this case.

The motion for a new trial appears in the record only, and is therefore not presented for our consideration. Benton v. State, 16 Ala. App. 192, 76 So. 476.

The judgment of the lower court is affirmed.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

106 So. 621, 21 Ala. App. 206, 1925 Ala. App. LEXIS 341, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinkins-v-state-alactapp-1925.

Opinion

Related

Cite This Page — Counsel Stack