Helms v. State

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121 So. 2d 106 (1960)

Clyde HELMS v. STATE of Alabama.

8 Div. 41.

Supreme Court of Alabama.

May 26, 1960.

Smith & Moore, Montgomery, for petitioner.

MacDonald Gallion, Atty. Gen., and John C. Tyson, III, Asst. Atty. Gen., opposed.

LAWSON, Justice.

This cause is before us on petition for writ of certiorari to review and revise the opinion and judgment of the Court of Appeals in the case of Helms v. State.

The petition asserts error by the Court of Appeals in that it did not reverse the trial court for refusing to exclude the State's evidence after it had rested its case, on the ground that there was a variance between the indictment and the proof in that the indictment charged that the person robbed was Frank Teal, while the proof showed that the person robbed bore the name of James Franklin Teal.

When there is no dispute about the facts, we may examine the record for a more complete understanding of those features of the record which have been treated in the opinion of the Court of Appeals. Cranford v. National Surety Corporation, 231 Ala. 636, 166 So. 721.

In regard to the identity of the person robbed, the record shows as follows:

"The Court: Who is your first witness? "Mr. Wilkes [Solicitor]: Frank Teal."

*107 Frank Teal, being duly sworn, testified for the State as follows:

"Examined By Mr. Wilkes: "Q. State your name, please, sir. "A. James Franklin Teal."

The proceedings quoted from the record, in our opinion, show that the person robbed was described by a name by which he was known and called, although not by his true name. Hence, there was no material variance between the indictment and proof. Langston v. State, 8 Ala. App. 129, 63 So. 38; Vaughn v. State, 236 Ala. 442, 183 So. 428. See Hardie v. State, 260 Ala. 75, 68 So. 2d 35.

Writ denied.

STAKELY, GOODWYN and MERRILL, JJ., concur.