McDaniels v. State

• Decision Date: 09 February 1948
• Docket Number: 36614.
• Citation: 33 So.2d 785,203 Miss. 239
• Court: Mississippi Supreme Court
• Parties: McDANIELS v. STATE.

33 So.2d 785

203 Miss. 239

McDANIELS v. STATE.

No. 36614.

Supreme Court of Mississippi

February 9, 1948

J Hoy Hathorn and W. A. Strong, Jr., both of Louisville, for appellant.

Greek L. Rice, Atty. Gen., and Geo H. Ethridge Asst. Atty. Gen., for appellee.

McGEHEE Justice.

The appellant, Virgil McDaniels, was indicted for the murder of James Gale, and was convicted of manslaughter and sentenced to serve a term of ten years in the State penitentiary. On this appeal he assigns several grounds as error but relies for a reversal primarily on the ground that in the main all of the witnesses at the trial referred to the deceased as 'Eugene Gale' or 'Gene Gale' or 'Old Man Gale', and the instructions for the State referred to the deceased only as 'Eugene Gale'. We recognize the rule announced in the cases of Clark v. State, 100 Miss 751, 57 So. 209, 38 L.R.A.,N.S., 187 Ann.Cas.1914A, 463; Woulard v. State, 137 Miss. 808, 102 So. 781; Johnson v. State, 186 Miss. 405, 191 So. 127; and the other decisions cited in the briefs to the effect that it is necessary for the proof to show that the person killed is the same person as the one charged in the indictment to have been killed. In other words, that an accused can not be convicted of having killed an entirely different person from the one he is charged in the indictment to have killed.

However we are of the opinion that notwithstanding the fact that in the main the witnesses referred to the deceased by the names hereinbefore mentioned, instead of James Gale, the record discloses that the doctor who attended the deceased prior to his death, and testified about the wound, was asking the following questions:

'Q. Doctor, along in October, 1946, did you know a Negro by the name of Eugene or James Gale? A. I did.

'Q. Did you have occasion to see him in October? A. Yes, sir.

'Q. What was he suffering with at that time? A. He was suffering from a concussion of the brain.' (Italics ours.)

It will, therefore, be readily seen that the doctor was not asked whether he knew one of two persons mentioned, but his answers disclosed that he was referring to one and the same person. For instance, he was further asked, 'Q. Did you have an opportunity to see that man Gale or James Gale after that? A. Yes, sir, I saw him several times.' (Italics ours.)

Another witness was asked,

'Q. What was Eugene or James Gale doing to Virgil McDaniels at the time he hit him? A. Wasn't doing anything.

'Q. Did he have any stick in his hand? A. No, sir.

'Q. Did Gale have any knives, guns or other weapons? A. No, sir, he didn't have anything as I knows of.'

The another witness was asked, 'Q. Did you know Eugene or James Gale during his life time?' And his...