Opinion
4 Div. 675.
April 14, 1931.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Jerry Griffin was convicted of assault and battery, and he appeals.
Affirmed.
Guy W. Winn, of Clayton, for appellant.
When the indictment charges that an offense has been committed upon or against a certain named person and the proof shows a person of a different name than that alleged, there is a fatal variance, excepting only where the names are idem sonans. Ward v. State, 28 Ala. 53; Walker v. State, 96 Ala. 55, 11 So. 401; Agee v. State, 113 Ala. 52, 21 So. 207; Coplon v. State, 16 Ala. App. 40, 75 So. 184.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The character and verity of a bill of exceptions come from the fact of its approval by the trial judge, which can be evidenced in no other way than by his signature. Padgett v. Gulfport Fert. Co., 11 Ala. App. 366, 66 So. 866; Grace v. Scott, 16 Ala. App. 366, 77 So. 978. In absence of a bill of exceptions properly signed, review of the ruling cannot be had. Southern Exp. Co. v. State, 10 Ala. App. 656, 65 So. 844. The alleged variance between the indictment and the proof was not fatal; it affirmatively appearing that the party assaulted was known by the name set out in the indictment. 31 C. J. 847; Langston v. State, 8 Ala. App. 129, 63 So. 38.
This appeal, taken with the full sanction of, and in accordance with, our laws, is from a judgment of conviction of the offense of assault and battery, where the fine imposed was $5. And the defendant (appellant) had a trial before a jury, in the court below.
There is no bill of exceptions, what purports to be one, bearing not the prerequisite indorsement by the trial judge. Code 1923, § 6432.
In such situation the questions raised — not being ones concerning matters growing out of the record proper — are not before us for consideration. Grace v. State, 16 Ala. App. 366, 77 So. 978.
We might say, however, for the comfort of appellant's counsel, that, the evidence showing that the assaulted party was commonly known by the name given in the indictment, there would be no fatal variance between the allegata and probata, even if said party's true name was something else. Langston v. State, 8 Ala. App. 129, 63 So. 38.
We discover no prejudicial error, and the judgment is affirmed.
Affirmed.