Jones v. State

• Decision Date: 17 April 1941
• Docket Number: 2 Div. 168.
• Citation: 2 So.2d 422,241 Ala. 337
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

2 So.2d 422

241 Ala. 337

JONES v. STATE.

2 Div. 168.

Supreme Court of Alabama

April 17, 1941

Rehearing Denied June 5, 1941.

E. F. Hildreth and Jas. S. Coleman, Jr., both of Eutaw, for appellant.

Thos S. Lawson, Atty. Gen., and Jas. F. Matthews, Asst. Atty Gen., for the State.

THOMAS Justice.

The appeal is from a judgment for murder in the first degree with imposition of the death penalty. The indictment charged "The Grand Jury of said County charge that before the finding of this Indictment Robert Jones alias Robert Barnes unlawfully and with malice aforethought killed Mellie Jones alias Mellie Barnes by striking her or beating her with an axe handle, against the peace and dignity of the State of Alabama."

The proof was without conflict that the appellant killed his wife Nellie Jones alias Nellie Barnes by striking her with an axe handle. The court read the indictment to the jury as follows "State of Alabama, Greene County, Circuit Court, Fall Term, 1940, the grand jury of said County charge that before the finding of this indictment Robert Jones, alias Robert Barnes, unlawfully and with malice aforethought, killed Nellie Jones, alias nellie Barnes, by striking her or beating her with an axe handle, against the peace and dignity of the State of Alabama."

The defendant's counsel did not call to the attention of the court that he had misread the indictment as to the given name of the wife who was killed by the defendant,-he merely asked for the general affirmative charge. As to this it is stated by the record that "upon completion of the Court's oral charge, and before the jury retired to consider its verdict, the defendant, in writing in open court, requested the court, in the presence of the jury, to give to the jury the following charge, which was in writing, written on a piece of paper, and presented to the court." The charge thus requested was: "I charge you, gentlemen of the jury, that if you believe the evidence in this case, you cannot convict the defendant."

The court refused to give said charge to the jury and to this action of the court, in refusing to give this charge, the defendant then and there in open court duly and legally excepted.

The bill of exceptions presents for review the refusing of the general affirmative charge, as requested and as required by statute, and in accordance with the decisions of this court. Code of 1923, § 9509, Code 1940, Tit. 7, § 273; Batson v. State, 216 Ala. 275, 113 So. 300; Little v. State, 58 Ala. 265; Freeland v. State, 28 Ala. App. 268, 182 So. 414, and authorities cited by Judge Samford. See, also, Russell v. State, 201 Ala. 572, 78 So. 916.

We may observe that a variance is not fatal, if the name of the deceased, or person injured, as indicated in an indictment and as shown by the evidence, is slight or immaterial and such as to leave no doubt as to the identity of the deceased or person injured named. Such is the instant case. In such case the trial court will not be put in error for refusing a defendant's requested affirmative charge.

The foregoing is the effect of our decisions, some of which are cited by the respective counsel.

The rule of an immaterial variance between the indictment and the proof, as we have above stated, is illustrated by a long line of decisions in this court extending from Ward v. State, 28 Ala. 53, 60, and Aaron (A Slave) v. The State, 37 Ala. 106, to McCoy v. State, 232 Ala. 104, 166 So. 769, where the name of the person assaulted or killed as charged in the indictment and the subject of the proof was considered.

It may be further...