Plumley v. State

Court of Appeals of Texas

Plumley v. State

8 Tex. Ct. App. 529

DecidedJuly 1, 1880

StatusPublished

This text of 8 Tex. Ct. App. 529 (Plumley v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Plumley v. State, 8 Tex. Ct. App. 529 (Tex. Ct. App. 1880).

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Opinion

White, P. J.

No bill of exceptions having been saved to the overruling of defendant’s application for continuance, the same is not a subject for revision in this court. Harris v. The State, 6 Texas Ct. App. 97.

Defendant had been indicted under the name of Bud Plumley. He suggested that his name was Perry B. Plumley, and the court on motion of the county attorney ordered and. permitted the indictment to be corrected and [531]*531the style of the cause changed so as to give his true name. This practice is expressly provided by statute, and the court did not err. Code Cr. Proc., art. 513; Morris v. The State, 4 Texas Ct. App. 589.

Defendant pleaded in abatement that the indictment charged the crime to have been committed by Bud Plumley, Jacob Brown, and A. J. Bhodes, and that his name was not Bud Plumley, Jacob Brown, nor A. J. Bhodes. A similar plea of abatement, it is true, was held good in The State v. Toney, 13 Texas, 74, but that was before the adoption of the Penal Code, and when there was no statute providing for amendments, as in art. 513 supra.

The verdict of the jury was, “ We, the jury in this case, find the defendant, Bud Plumley, guilty, and fix the penalty at confinem ent in the penitentiary for two years. ” It is insisted that this verdict does not sustain the judgment, which is against Perry B. Plumley, and not Bud Plumley : that after the indictment was amended and the style of the cause corrected at the instance of defendant, the question and issue before the court was the guilt or innocence of Perry B. and not of Bud Plumley. The evidence showed that defendant was known by the name of and generally called “ Bud Plumley.” His mother, who testified, called him “ Bud,” as did other witnesses. There is no mistake as to the identity of the real defendant; the record shows with indubitable certainty who was tried and convicted, and the judgment is properly entitled and pronounced against the defendant by the name Perry B. Plumley. The insertion by the jury of the name “ Bud Plumley” after “ defendant” in the verdict, is of no consequence. The case of The People v. Ah Kim, 34 Cal. 189, is in point.

Complaint is made of the general charge of the court to the jury, but in the particulars pointed out is without just ground. In the only particular in which the charge was defective it was fully supplied by the special instruction given at the instance of defendant, in which the main issue [532]*532relied oil in the defence, viz., hired hand acting in good faith, was plainly and fairly submitted to the jury.

We see no error in the judgment, and it is therefore affirmed.

Affirmed.

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White, P. J.

No bill of exceptions having been saved to the overruling of defendant’s application for continuance, the same is not a subject for revision in this court. Harris v. The State, 6 Texas Ct. App. 97.

Defendant had been indicted under the name of Bud Plumley. He suggested that his name was Perry B. Plumley, and the court on motion of the county attorney ordered and. permitted the indictment to be corrected and [531]*531the style of the cause changed so as to give his true name. This practice is expressly provided by statute, and the court did not err. Code Cr. Proc., art. 513; Morris v. The State, 4 Texas Ct. App. 589.

Defendant pleaded in abatement that the indictment charged the crime to have been committed by Bud Plumley, Jacob Brown, and A. J. Bhodes, and that his name was not Bud Plumley, Jacob Brown, nor A. J. Bhodes. A similar plea of abatement, it is true, was held good in The State v. Toney, 13 Texas, 74, but that was before the adoption of the Penal Code, and when there was no statute providing for amendments, as in art. 513 supra.

The verdict of the jury was, “ We, the jury in this case, find the defendant, Bud Plumley, guilty, and fix the penalty at confinem ent in the penitentiary for two years. ” It is insisted that this verdict does not sustain the judgment, which is against Perry B. Plumley, and not Bud Plumley : that after the indictment was amended and the style of the cause corrected at the instance of defendant, the question and issue before the court was the guilt or innocence of Perry B. and not of Bud Plumley. The evidence showed that defendant was known by the name of and generally called “ Bud Plumley.” His mother, who testified, called him “ Bud,” as did other witnesses. There is no mistake as to the identity of the real defendant; the record shows with indubitable certainty who was tried and convicted, and the judgment is properly entitled and pronounced against the defendant by the name Perry B. Plumley. The insertion by the jury of the name “ Bud Plumley” after “ defendant” in the verdict, is of no consequence. The case of The People v. Ah Kim, 34 Cal. 189, is in point.

Complaint is made of the general charge of the court to the jury, but in the particulars pointed out is without just ground. In the only particular in which the charge was defective it was fully supplied by the special instruction given at the instance of defendant, in which the main issue [532]*532relied oil in the defence, viz., hired hand acting in good faith, was plainly and fairly submitted to the jury.

We see no error in the judgment, and it is therefore affirmed.

Affirmed.

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8 Tex. Ct. App. 529, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plumley-v-state-texapp-1880.

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