Hornsby v. State

• Decision Date: 15 May 1917
• Docket Number: 4 Div. 429
• Citation: 16 Ala.App. 89,75 So. 637
• Parties: HORNSBY v. STATE.
• Court: Alabama Court of Appeals

75 So. 637

16 Ala.App. 89

HORNSBY v. STATE.

4 Div. 429

Court of Appeals of Alabama

May 15, 1917

Appeal from Circuit Court, Houston County; H.A. Pearce, Judge.

Ross Hornsby was convicted of manslaughter, and he appeals. Affirmed.

T.M Espy and Farmer & Farmer, all of Dothan, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

BRICKEN J.

The defendant was indicted for the offense of murder in the second degree, and was convicted of manslaughter in the first degree. The indictment averred that defendant unlawfully and with malice aforethought killed Williams, a man, whose other name was to the grand jury unknown, by shooting him with a pistol, but without premeditation or deliberation, against etc. There was but one count in the indictment. No demurrers appear to have been filed to the indictment; but it is here insisted for the first time on appeal that the indictment insufficiently described the deceased.

Murder is the unlawful killing of a human being with malice aforethought. 21 Cyc. 270. The indictment in this case charges every constituent element of murder; that is, that there was an unlawful killing of a human being with malice aforethought, and, this being true, any defect in substance is waived unless taken advantage of by demurrer. Gaines v. State, 146 Ala. 16, 41 So. 865; Welsh v. State, 96 Ala. 92, 11 So. 450.

The same rule of particularity in stating the name of a defendant in an indictment does not apply to individuals who are only collaterally concerned, as for instance, those whose persons or property have been affected thereby. Jones v. State, 181 Ala. 75, 61 So. 434; Knight v. State, 152 Ala. 56, 44 So. 585; Knight v. State, 147 Ala. 104, 41 So. 911.

It is further insisted that the court erred in overruling the defendant's objection to the question propounded by the state to witness John Hilson, "Did you hear anybody call him [deceased] by a name, or call his name?" There is no merit in this contention, the objection thereto being a general objection, and, unless the question was obviously or patently illegal or called for evidence which was obviously or patently illegal, immaterial, and irrelevant, it was properly overruled, as all other grounds of objection are deemed to be waived, as courts are not required to cast about in search of grounds to sustain an objection, and, unless the evidence is obviously illegal, immaterial, and irrelevant, the objection will not be sustained. Fuller v. State, 117 Ala. 36, 23 So. 688.

"A person's name is the title by which he calls himself and others call him. To know a person's name, therefore, is to have heard him so called by himself or by others. In strictness, such an utterance is not hearsay, except where it is made as an assertion of fact. But, though hearsay, as a source of information, yet it is universally relied upon as a source of knowledge. Courts have commonly accepted the testimony founded upon it." Wigmore on Evidence, vol. 1, § 667, p. 764.

The motion to exclude the answer of the witness, "I heard Mr. Ross Hornsby call his name Williams," was properly overruled under above authority; besides this evidence was admissible on the ground that it was a declaration of the defendant himself.

Furthermore there was no dispute as to the identity of the party killed, and this court is satisfied that no injury resulted therefrom to the defendant. Knight v. State, 147 Ala. 104, 41 So. 911.

There was no error in the ruling...