BRICKELL, C. J.
1. The opinions of medical men as to the cause of death, or of disease, or as to the consequence of wounds, though not founded on observation of the person afflicted, or who may have died, but on the facts as proved by other witnesses, it is the constant practice to receive in evidence. If the facts are disputed, they are not allowed to express an opinion upon the case on trial, for the case as they determine it, might not be the case the jury would find from the evidence. Then, they may be examined hypothetically— the counsel on each side may put to them such states of fact, as the evidence warrants, and ask an opinion thereon. The opinion on the state of facts the jury regard as proved, then becomes evidence. — 1 Green. § 440; 1 Whart. Ev. § 452; U. S. v. McGlue, 1 Curt. C. C. 9; Dexter v. Hall, 15 Wall. 9; Wilkinson v. Mosely, 30 Ala. 572. From the meagre statement of the^bill of exceptions it is fair to infer this was the course pursued in the examination of Dr. Baker.
2. An indictment for murder “must be so certain as to the party against whom the offense was committed that the prisoner will know and understand who it is he is charged with having killed. A variance in the name of the party slain, at common law, entitled the prisoner to an acquittal, though it was not a bar to a second indictment identifying the slain by his true name. — Whart. Horn. §§ 796, 804. The statute auihorizes an amendment correcting the misdescription, with [19]*19the consent of the prisoner, or if he refuses to consent, the prosecution may before the jury retire, be dismissed, and the court may order a new indictment preferred. — Code of 1876, §§ 4816-17. The indictment avers the name of the deceased was Tobin Preyer. The evidence on the trial not showing the true spelling of his name, did show that it was pronounced as if written Pryor, or Prior. The mere misspelling of the name of the party injured, will not vitiate, or produce a fatal variance. The test is whether the pronunciation of the name proved, is satisfied by the manner in which it is written. — Wharf. Horn. § 796; Ward v. State, 28 Ala. 53. Greater latitude is allowed in the pronunciation of proper names than in any other description of words. Numerous cases in which the name proved has been pronounced idem sonans, -with that averred, though differing in spelling, are collected in 1 Whart. Cr. Law, § 597. Precedents afford however but little aid in determining the question. Whether the name as written, would be pronounced as it is shown the name of the deceased was pronounced, depends upon whether the letter e would be sounded, and the sound -which would be given it. It is most probable that it would not be separately sounded, and the pronunciation of the two names would be generally identical. There was not a substantial variance between the name written and the name proved, and the charge requested was properly refused.
Judgment affirmed.
Free access — add to your briefcase to read the full text and ask questions with AI