Johnson v. State , 126 Tex. Crim. 356 ( 1934 )

Appellant sets up two grounds in his motion for rehearing. He first urges that his motion to quash the indictment should have been sustained because of a variance between the name of the alleged injured party as set out in the indictment, and as made by the proof. It is plain that this would be a matter of which appellant could only take advantage, by objections to testimony and a claim of the insufficiency thereof. Appellant did object, — as is manifested by his second bill of exceptions, — to the testimony of the State on the ground of variance.

The rule seems to be in this State that if the injured party be known or sometimes called by the name alleged, this would suffice. See Williams v. State, 53 S.W. 859; Betts v. State, 57 Tex.Crim. Rep.; Stokes v. State, 46 Tex. Crim. 358. The wife of deceased swore "My husband was known as Manuel. He received mail in that name." Other witnesses referred to deceased as Manuel. Many witnesses said his given name was Mangrum. The claimed variance was between the first name of deceased, which was alleged to be Manuel, and the proof which appellant urges to have shown that said first name was Mangrum. Inasmuch as there was proof before the jury that the deceased was known as Manuel, this was enough. The matter of whether deceased was commonly known by the name attributed to him in the indictment is not the test. Our statute says: "When a person is known by two or more names, it shall be sufficient to state either name." Article 401, C. C. P. The matter is discussed and authorities cited in section 460 of Mr. Branch's Annotated P. C. We further observe that the question of whether deceased was known by the name of Manuel, was submitted to the jury appropriately by the trial court, and they evidently found affirmatively for the State on this issue. We are not able to hold that the record is without testimony supporting this conclusion.

We have again reviewed the other questions raised in appellant's motion and are still of opinion that the court below did not err in allowing proof of what deceased said to Mr. Johnson about fifteen minutes after the shooting. Deceased was fatally shot and died within a short time. The facts very pertinently support the theory advanced by the State, that appellant took deceased from where he was with his wife at night, to where Landers was, and that as appellant and deceased walked up to Landers appellant said "Here he is; I got him," and that Landers at once shot deceased. The statement made by deceased, which forms the subject of this objection, might well be deemed admissible either as a dying declaration, or as part of the res gestae. It bore directly on the question of appellant's guilt as a principal.

Not being able to agree with either of the contentions made in the motion for rehearing, same will be overruled.

Overruled.