Johnson v. State

46 Ga. 269

• Court: Supreme Court of Georgia
• Decided: July 15, 1872
• Status: Published

Opinion

McCay, Judge.

A large discretion must be allowed to the Circuit Judge in his direction of the business before him, and we see no abuse of his discretion in permitting the State to supply this defect in its testimony. It was, as the case stood, purely formal. The indent!fieation was complete, and the proof was only to make the description of the person assaulted conform to the description in the indictment. As to the remarks of the Judge, they could have done the accused no harm. There was nothing in his case, as it finally stood, that made the remarks of the Judge pertinent to the matter before the jury. The Judge, too, took special pains to say to the jury that they were to pay no heed to them. It seems to us that to give importance to this matter, under the circumstances, is to suppose the jury to be net only very foolish, but very unworthy, and we are not disposed to do so. The only question in this case that we have felt any doubt upon, is whether the proof advanced was competent, without an allegation in the indictment that the person assaulted was known by the two or three names. After consideration, however, we are of the opinion that it was competent without the allegation. Were the variance in the name of the defendant, there are authorities that it was necessai-y the indictment should contain the charge that he was known by both names. But this is a mere misdescription, and in such cases it is not necessary. The name is only one means of identification, like the color of a horse. True, an indictment for stealing a black horse would not be supported by proof of stealing a white horse. But if the charge were for stealing a cream-colored horse, and the proof showed a dun color, the variance might be met by showing that it was sometimes called eream and sometimes dun.

Judgment affirmed.