Falkner v. State

• Court: Alabama Supreme Court
• Writing for the Court: McCLELLAN, J.
• Citation: Falkner v. State, 151 Ala. 77, 44 So. 409 (Ala. 1907)
• Decision Date: 13 June 1907
• Parties: FALKNER v. STATE.

44 So. 409

151 Ala. 77

FALKNER v. STATE.

Supreme Court of Alabama

June 13, 1907

Appeal from Montgomery County Court; W. H. Thomas, Judge.

Fred Falkner was convicted of crime, and he appeals. Affirmed.

Hill Hill & Whiting, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

The defendant was indicted for the murder of one "Asaria Simmons, alias Dummy." The point taken by demurrer, that the Christian name of "Dummy" should have been averred, or that it was unknown to the grand jury, cannot be sustained. Of course, one may have a name by which he is known and called, without bearing as well any Christian name. We do not construe this indictment as averring the name of the victim to be "Asaria Dummy," nor that "Dummy" was the given name, with "Simmons" as a surname. In the proof it affirmatively appears that the deceased was "generally known and called by the name of 'Dummy.' " There was no variance in the respect indicated. Proof of the alias met all the requirements. Evans' Case, 62 Ala. 6.

The question, propounded to the witness Williams, with regard to any statement made by the codefendant or defendant the night of the tragedy, elicited testimony clearly within the res gestæ of the event--a statement uttered by this defendant immediately upon the fatal shooting--and hence no prejudicial error was committed.

The defendant seeks to predicate an exception to reversal, upon the allowance by the court of a question to the witness Williams with reference to the habit of deceased in visiting Mary Powell. It appears from the bill that the substance of the testimony sought to be elicited by the question mentioned, as well as the answer thereto, were already without objection, before the jury, in that this witness testified "that Dummy was often there at Mary Powell's house, visiting her," and so no injury resulted to the defendant.

The impeachment of the witness Williams was undertaken by defendant by testimony offered tending to show that the witness had testified, in the particular specified, on the committing trial, at variance with her testimony given on the main trial. As tending to refutation of this testimony looking to impeachment, the state offered the written synopsis, signed and verified by the witness, of her testimony on the preliminary hearing, which was shown to be true and correct. The court permitted its introduction, but limited the jury to the...