Alsup v. State

• Decision Date: 09 December 1896
• Parties: ALSUP v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W. 174

ALSUP v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1896.

Appeal from district court, Karnes county; S. F. Grimes, Judge.

John Alsup was convicted of murder, and appeals. Affirmed.

F. R. Graves, for appellant. Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of murder in the second degree, and given 25 years in the penitentiary.

The indictment charged that appellant murdered Robert Thomas. Upon the trial a number of witnesses swore that the deceased's name was Bob Thomas. There was no proof that he bore the name of Robert. Counsel for the appellant contends that the evidence fails to support the allegation that the defendant killed Robert Thomas,—that proof that his name was Bob will not suffice. Upon the trial the state introduced as a witness Hon. S. F. Grimes, the presiding judge, who swore that he was familiar with names of persons and contractions thereof; that the name Bob was usually and ordinarily an abbreviation or contraction of the name Robert, and persons who were called Bob were usually named Robert. The objections urged to this testimony were—First, that it came from the trial judge, and was calculated to influence the jury unduly against him; and, second, that the names of persons were not the subject of expert testimony, but a matter of general knowledge. "Jack is an abbreviation of John; Rich, of Richard." See Bish. Cr. Proc. § 689. If Jack is an abbreviation of John, evidently Bob is an abbreviation of Robert; and proof that the deceased's name was Bob Thomas meets the allegation that the appellant had killed Robert Thomas. In Walter v. State, 105 Ind. 589, 5 N. E. 737 et seq., Chief Justice Niblack, on this question, says: "The rule fairly deducible from the authorities is that, if two names are taken promiscuously to be the same name, in common use, though they differ in sound, there is no variance between them. Where two names are derived from the same source, or where one is an abbreviation or corruption of another, but both are taken by common use to be the same, though differing in sound, the use of the one for the other is not a misnomer. 1 Bish. Cr. Proc. § 689. Jack and Jock are ordinarily only diminutive names for John; and Jack, prima facie, at least, stands for John. See Webst. Dict." In the cited case the charge was a sale to Jack Murphy, and the proof showed that his name was John Murphy. Held, it did not constitute a variance. See, also, Wilkerson v. State, 13 Mo. 95. We...