Sexton v. State
| Decision Date | 21 April 1938 |
| Docket Number | 4 Div. 2. |
| Parties | SEXTON v. STATE. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Levon Sexton was convicted of second degree murder, and he appealed to the Court of Appeals. To review and revive a judgment and decision of the Court of Appeals, 180 So. 729, the State of Alabama, by and through its Attorney General, brings certiorari.
Writ denied.
A. A Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen for the State.
W. H Stoddard, of Luverne, for respondent.
The Court of Appeals in holding the name Levon and Lavaughn are not, as a matter of law, idem sonans, was endeavoring to follow the rule of our cases by which that court is bound and the analogies furnished by our own authorities. Particular stress is laid upon Munkers v. State, 87 Ala. 94, 6 So. 357. But many others are noted as having been previously reviewed by that court in Campbell v. State, 18 Ala.App. 219, 90 So. 43, among them, Jacobs v. State, 61 Ala. 448; Wells v. State, 187 Ala. 1, 65 So. 950 (Sagar and Sagars, Segar and Segars); Merlette v. State, 100 Ala. 42, 14 So. 562 (Mulette and Merlette); Adams v. State, 67 Ala. 89 (Mincher and Minchen); Noble v. State, 139 Ala. 90, 36 So. 19 (Noble and Nobles); Nutt v. State, 63 Ala. 180 (Luke Hadnett and Hodnett); Humphrey v. Whitten, 17 Ala. 30 (Humphreys and Humphrey); Tarpley v. State, 79 Ala. 271 (Tarpley and Tapley). Many of these cases were cited in the comparatively recent case of Nettles v. State, 222 Ala. 236, 132 So. 41.
In Patterson v. First National Bank, 229 Ala. 406, 157 So. 446, 448, we observed that: In that case, the proof disclosed, undisputedly, the two names Goins and Gowens were pronounced alike, and, therefore, no question of law as to idem sonans was presented.
45 Corpus Juris 387 and 389.
That part of the opinion of the court in Munkers v. State, supra, quoted by the Court of Appeals, states no different rule, and also discloses a regard to the holding in our other cases by way of analogy.
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... ... case at bar no evidence was introduced to support the plea of ... misnomer. The burden was on appellant to sustain the plea ... For aught appearing the appellant may have been known by both ... names. In fact, one of the State's witnesses testified ... that this was true. Sexton v. State, 236 Ala. 20, ... 180 So. 731; Noble v. State, 139 Ala. 90, 36 So. 19; ... State, ... 168 Ala. 118, 53 So. 254; Donnelly v. State, 78 Ala ... 453; Nettles v. State, 222 Ala. 236, 132 So. 41 ... During ... the progress of the trial in the circuit court numerous ... ...
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Alberson v. State, 4 Div. 542
...with a pair of scissors and made a threat. In Sexton v. State, 28 Ala.App. 59, 180 So. 729, certiorari denied by this Court in 236 Ala. 20, 180 So. 731, it was held that the rule excluding details of a prior difficulty did not apply, 'where the facts testified to consist of connected action......
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...222 Ala. 236, 132 So. 41, consider the question of a variance where the subject was the statement of the defendant's name. In the Sexton case, supra, the decisions are collected and perhaps, to some extent, qualified. The evidence in the instant case conforms to the indictment as to the sur......
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Hutchinson v. State, 5 Div. 547
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