Under the statute the State had the burden of proving that there was a valid, subsisting prior marriage and that the second marriage had been contracted by accused while the lawful spouse was still living. Booker v. State, 24 Ala. App. 179, 132 So. 70. The undisputed evidence shows that the spouse of the first marriage was living at the time of defendant's second marriage, and it was incumbent on defendant to show that the first marriage had been legally dissolved. Gulledge v. State, 25 Ala. App. 461, 149 So. 106; Id., 227 Ala. 158, 149 So. 106. Marriage records, when properly certified, are presumptive evidence of facts stated therein.
Rather v. State, 24 Ala. App. 452, 136 So. 483; Geeter v. State, 35 Ala. App. 207, 45 So.2d 167; Valverdi v. State, 21 Ala. App. 606, 110 So. 594; Prentice v. State, 24 Ala. App. 587, 139 So. 437. Allegations in indictment and proof must correspond, and a material variance is fatal. May v. State, 22 Ala. App. 278, 114 So. 788; Hammett v. State, 25 Ala. App. 371, 146 So. 884; Booker v. State, 24 Ala. App. 179, 132 So. 70; Stone v. State, 115 Ala. 121, 22 So. 275. Variance between allegations and proof as to identity of victim of robbery requires reversal. Coffey v. State, 244 Ala. 514, 14 So.2d 122; Pace Cox v. State, 69 Ala. 231; Parks v. State, 21 Ala. App. 177, 106 So. 218; Johnson v. State, 111 Ala. 66, 20 So. 590; McCoy v. State, 232 Ala. 104, 166 So. 769.
There was a fatal variance between the indictment and the proof as to ownership of the property, and the conviction cannot stand. Morrow v. State, 23 Ala. App. 452, 126 So. 887; Booker v. State, 24 Ala. App. 179, 132 So. 70; Rather v. State, 24 Ala. App. 452, 136 So. 483; 42 C.J.S. Husband and Wife § 625, p. 267; Jetton v. State, 29 Ala. App. 134, 195 So. 283, Id., 239 Ala. 306, 195 So. 284; Buckley v. State, 19 Ala. App. 508, 98 So. 362. John Patterson, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.
The affirmative charge and other requested charges to the effect that the essential allegations of the complaint must be proved were erroneously refused. Stone v. State, 115 Ala. 121, 22 So. 275; May v. State, 22 Ala. App. 278, 114 So. 788; Booker v. State, 24 Ala. App. 179, 132 So. 70; Rather v. State, 24 Ala. App. 452, 136 So. 483; Hammett v. State, 25 Ala. App. 371, 146 So. 884; Cooper v. State, 26 Ala. App. 326, 159 So. 370; Christian v. State, 29 Ala. App. 497, 198 So. 366; Crump v. State, 30 Ala. App. 241, 4 So.2d 188. John Patterson, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.
The crime is not larceny. Code 1940, Tit. 14, § 363; Courtney v. State, 10 Ala. App. 141, 65 So. 433; Pate v. State, 29 Ala. App. 78, 191 So. 640; Id., 238 Ala. 440, 191 So. 641; Kent v. State, 34 Ala. App. 443, 41 So.2d 194; Dillahay v. State, 18 Ala. App. 271, 90 So. 332; Cobb v. State, 100 Ala. 19, 14 So. 362. A variance between the allegations of the indictment and the proof is fatal. Booker v. State, 24 Ala. App. 179, 132 So. 70; Stone v. State, 115 Ala. 121, 22 So. 275; Crump v. State, 30 Ala. App. 241, 4 So.2d 188; Geeter v. State, 35 Ala. App. 207, 45 So.2d 167; Brown v. State, 20 Ala. App. 39, 100 So. 116. Si Garrett, Atty. Gen. (Robt. Straub, Asst. Atty. Gen., Mary Tex Hurt, Montgomery, of counsel), for the State.
Material averments of an indictment must be sustained by proof to warrant a conviction. May v. State, 22 Ala. App. 278, 114 So. 788; Booker v. State, 24 Ala. App. 179, 132 So. 70; Williams v. State, 30 Ala. App. 395, 6 So.2d 525; Crump v. State, 30 Ala. App. 241, 4 So.2d 188. An essential averment in charging an offense against property is the negation of defendant's ownership or possessory right, so as to show the ownership or possessory right is in another. Wilson v. State, 247 Ala. 84, 22 So.2d 601. Title or ownership of land may not be proved by reputation or parol evidence.
The indictment here, for the reasons stated, was defective and bad, and a conviction upon such an indictment may not be sustained. Morningstar v. State, 52 Ala. 405; Russell v. State, 71 Ala. 348; Grattan v. State, 71 Ala. 344; Langston v. State, 8 Ala. App. 129, 63 So. 38; Crawford v. State, 112 Ala. 1, 21 So. 214; Booker v. State, 24 Ala. App. 179, 132 So. 70; Cooper v. State, 26 Ala. App. 326, 159 So. 370."
Claud H. Pipes and Griffin, Ford, Caldwell Ford, all of Huntsville, for appellant. Allegations in the indictment and the proof must correspond, and without proof to support such allegations, or proof that is contrary thereto, there can be no conviction. Brown v. State, 20 Ala. App. 39, 100 So. 616; May v. State, 22 Ala. App. 278, 114 So. 788; Gabriel v. State, 40 Ala. 357; Stone v. State, 115 Ala. 121, 22 So. 275; Booker v. State, 24 Ala. App. 179, 132 So. 70; Rather v. State, 24 Ala. App. 452, 136 So. 483; Carr v. State, 104 Ala. 43, 16 So. 155; Hammett v. State, 25 Ala. App. 371, 146 So. 884; Maudin v. State, 28 Ala. App. 30, 177 So. 309; Milan v. State, 29 Ala. App. 494, 198 So. 860; Wright v. State, 30 Ala. App. 196, 3 So.2d 321; Crump v. State, 30 Ala. App. 241, 4 So.2d 188; Underwood v. State, 33 Ala. App. 314, 33 So.2d 379; Weatherly v. State, 33 Ala. App. 127, 30 So.2d 484; Hayes v. State, 33 Ala. App. 178, 31 So.2d 306. Motion for new trial should have been sustained on the ground that the confession of defendant, which was not introduced in evidence was allowed to be delivered to and considered by the jury. It was error to overrule objection to the question what was existing there on the north side of the pavement near the north gate of the mill.
Mills v. State, 17 Ala. App. 493, 85 So. 867. Testimony of an expert giving his opinion on a matter of common knowledge is not admissible. Decatur Car Wheel Mfg. Co. v. Mehaffey, 128 Ala. 242, 29 So. 646; Colvin v. State, 247 Ala. 55, 22 So.2d 548. Allegations of the indictment and evidence in support thereof must correspond. Glenn v. State, 26 Ala. App. 264, 158 So. 198; Booker v. State, 24 Ala. App. 179, 132 So. 70; Walling v. State, 13 Ala. App. 253, 60 So. 236; Fannin v. State, 20 Ala. App. 122, 101 So. 95. A.A. Carmichael, Atty. Gen., and Alfred W. Goldthwaite, Asst. Atty. Gen., for the State.
Clements and Clemnts are not idem sonans, and where an indictment charges defendant assaulted one Clemnts but the evidence showed without conflict that the name of the party assaulted was Clements, defendant was entitled to have the evidence excluded on ground of a fatal variance, or the affirmative charge given in his favor. Clements v. State, 19 Ala. App. 640, 99 So. 832; Prince v. State, 20 Ala. App. 35, 101 So. 174; Hurt v. State, 23 Ala. App. 369, 125 So. 787; Booker v. State, 24 Ala. App. 179, 132 So. 70; Painter v. State, 24 Ala. App. 426, 136 So. 277. Where evidence showed without conflict that one of defendants on trial actually committed the assault and evidence for other defendant tended to show that he had nothing to do with the assault, though present, the latter defendant was entitled to have the jury charged that if the assault was committed by the other defendant without the knowledge, connivance or assent of this defendant, then the jury should find this defendant not guilty. Ferguson v. State, 141 Ala. 20, 37 So. 448; Jones v. State, 174 Ala. 53, 57 So. 31. Allowing the Solicitor to make a gruesome argument to the jury, not based on any evidence in the case, simply for the purpose of prejudicing the jury, and over objection of defendant's counsel, constitutes reversible error. Flowers v. State, 15 Ala. App. 220, 73 So. 126; West v. State, 17 Ala. App. 353, 85 So. 833; Taylor v. State, 22 Ala. App. 428, 116 So. 415; Pointer v. State, 24 Ala. App. 23, 129 So. 787; Moore v. S