Sanderson v. State, 6 Div. 175.

Decision Date14 December 1937
Docket Number6 Div. 175.
Citation28 Ala.App. 216,181 So. 506
PartiesSANDERSON v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Jan. 11, 1938.

Affirmed on Mandate May 17, 1938.

Appeal from Circuit Court, Walker County; R. B. Carr, Judge.

Adam Sanderson was convicted of first-degree manslaughter, and he appeals.

Reversed and remanded.

Certiorari granted by Supreme Court in Sanderson v. State, 6 Div. 272, 181 So. 508.

J. B Powell, of Jasper, for appellant.

A. A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen for the State.

SAMFORD Judge.

The indictment charged the defendant with murder in the second degree, in that, he unlawfully, and with malice aforethought killed William Holloway by shooting him with a gun, etc. The evidence, without conflict, disclosed that the dead man's true name was Woodie Holloway, but that he was sometimes called, and answered to the name of Will Holloway. The insistence is here made of a variance between the allagata and probata. The court ruled that Will and William were one and the same name. The evidence left no doubt as to the identity of the dead man.

The general rule, supported by almost unanimous authority, is to the effect that where two names have the same original derivation, or where one of such names is a contraction or a corruption of the other, and in common usage, they are considered one and the same, although differing in sound. The use of one name for the other is entirely immaterial. For instance: Alex and Alexander, Patterson v. State, 63 Tex. Cr.R. 297, 140 S.W. 1128; Arch and Archibald, Rupert v. Penner, 35 Neb. 587, 53 N.W. 598, 17 L.R.A. 824; Barnie and Barnabus, McGregor v. Balch, 17 Vt. 562; Bella and Belle, Reid v. State, 168 Ala. 118, 53 So. 254; Bess, Bessie, Bettie, and Elizabeth, Thomas v. Desney, 57 Iowa, 58, 10 N.W. 315; Bill and William, Burley v. Griffith, 8 Leigh (Va.) 442; Bob and Robert, Alsup v. State, 36 Tex.Cr.R. 535, 38 S.W. 174; and many other authorities from courts of last resort all over the United States. The above rule has been adopted by this court where it was held that Willie and William, where the individual is a male person, are one and the same. Walling v. State, 13 Ala.App. 253, 69 So. 236. From the above, we conclude that in an indictment alleging the name of a deceased person to be William, proof that he was generally known and called Will, presents no variance. The court was without error in so holding.

Charge 3 requested by the court asserts a correct proposition of law, but in the case at bar is abstract. There is no evidence appearing in this record indicating, either directly or indirectly, instructions from the court bearing on the sufficiency of the testimony, or the credence to be given to the testimony of witnesses which would, in the least, affect the substantial rights of the defendant. The oral charge of the court, and the written charges, given at the request of the defendant, upon this objection is a fair and able presentation of the law, without any indication of a leaning by the court against the defendant's contention. There was no error in refusing this charge.

The defendant requested the court, in writing, to give the following charge, to wit: The court charges the jury that if the witness, "Boots Brown," has been impeached, his entire testimony may be disregarded, unless corroborated by the testimony not so impeached. This charge finds support in the case of Churchwell v. State, 117 Ala. 124, 23 So. 72. But, we have examined this record, and nowhere do we find that "Boots Brown" testified. This would render the charge abstract.

In the trial of a homicide case where there is evidence tending to support the plea of self-defense, the general character of the deceased as being a dangerous and blood-thirsty man, may be given in evidence to be considered with all the other evidence in the case. And, in such a case, where the character of the deceased has been shown to be that of a dangerous and blood-thirsty man, a charge substantially as charge 14 refused to the defendant would be proper. Smith v. State, 88 Ala. 73, 7 So. 52. But, in the instant case there is no evidence that the deceased bore such a character in the community in which he lived. And while there is some evidence tending to prove that on the night of the fatal difficulty, the...

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6 cases
  • Stockard v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 20, 1979
    ...43 Ala.App. 412, 191 So.2d 251, 254 (1966): "Refused Charge 8 has been held good when it refers to a specified witness. Sanderson v. State, 28 Ala.App. 216, 181 So. 506, a witness, Davis v. State, 2 Ala.App. 200, 56 So. 844, Any witness, Churchwell v. State, 117 Ala. 124, 23 So. 72. A witne......
  • Tate v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 31, 1976
    ...on an occasion shot at appellant, this is not such evidence that the deceased bore a violent character, generally. Sanderson v. State, 28 Ala.App. 216, 181 So. 506 (1938). The charge was properly refused as abstract and misleading under the Charge 14 was refused without prejudicial error fo......
  • Russo v. State
    • United States
    • Alabama Supreme Court
    • May 19, 1938
    ...181 So. 502 236 Ala. 155 RUSSO v. STATE. 6 Div. 333.Supreme Court of AlabamaMay 19, 1938 ... Appeal ... ...
  • Brooks v. State, 5 Div. 621
    • United States
    • Alabama Supreme Court
    • September 22, 1955
    ...therefore, had the right to consider the character of the deceased in determining the degree of the defendant's guilt. Sanderson v. State, 28 Ala.App. 216, 181 So. 506. Such evidence was in addition admissible to show the quo animo of the attack. McGuff v. State, 248 Ala. 259, 27 So.2d 241;......
  • Request a trial to view additional results

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