The sole complaint of defendant, and which has been sustained by the majority opinion as reversible error, is that there was a variance between the allegation of the indictment and the evidence introduced on the trial with respect to the name of the party alleged to have been killed.
It is conceded that the state could have amended the indictment and that, if such amendment had been made, the defendant would have had no legal cause for complaint.
It appears that the deceased was a stranger in the community where he was killed and had but few acquaintances and among whom he was known as Willis W. Black.
This was the name given by the defendant to the coroner who held the inquest over the dead body of the deceased. It developed on the trial that the real name of the deceased was Whitlock.
Through some error or inadvertence, or perhaps because the deceased's name had been so given to the grand jury, that body caused the name of the party killed to be inserted in the indictment as Willis B. Blake. *Page 514
The deceased was arrested without a warrant as a supposed fugitive from justice from the state of Mississippi.
While endeavoring to break away from the officers and to make his escape, he was shot in the back by the defendant, and killed.
There was no question as to the identity of the party killed. The corpus delicti was fully established. The defendant admitted at the coroner's inquest that he had killed the man over whose body the inquest was held. There was no attempt by the state in questioning the witnesses as to the name of the deceased to substitute a different and distinct person from the one who was actually killed by the defendant. That would not have been permissible either by amendment to the indictment or by proof, as was held in State v. Morgan, 35 La. Ann. 1139.
It perhaps would have been the better practice to have amended the indictment, when the state learned from the evidence on the trial that the deceased was sometimes called Black or Whitlock instead of Blake; such an amendment being allowable under section 1047, Revised Statutes.
I am of the opinion, however, that this was not essential under the facts of this case nor absolutely required under the statute referred to.
The statute says that, where there is a variance in the name, the court may, if it shall consider such variance not material to the merits, have the indictment amended.
And in section 1063, R.S., it is provided that no indictment shall be held insufficient because of the fact that a person mentioned in the indictment is designated by a name of office, or other descriptive appellation, instead of his proper name.
This court is not justified in holding the language of the statute mandatory when the language itself clearly leaves the question of amending the indictment to the discretion of the trial judge where the subject of the *Page 515 amendment is immaterial and does not go to the essence of the crime charged.
That the error or mistake in the name of the deceased is a mere formal defect has been frequently decided by this court. The name of the person killed is not an essential ingredient of the crime charged against the defendant, and, as we have already stated in this case, it was not the naming of the wrong person, but the giving of the wrong name to the right person.
The evidence brought up with the bills of exception shows that the defendant, better than any one else, knew the deceased and the name by which he was known.
He was therefore called upon to demur to the indictment and give to the state the benefit of his knowledge in that respect, when he found that the indictment served upon him in advance of the trial gave the wrong name of the deceased.
Section 18 of Act 123 of 1855, now section 1064, R.S., provides that every objection to any indictment for any formal defect apparent on the face thereof shall be taken by demurrer or motion to quash such indictment, before the jury shall be sworn, and not afterwards.
Here, it is true, the defect was not apparent on the face of the indictment, but that it was a mere formal defect upon a matter not material is unquestioned.
That the defendant knew of such defect before going to trial can hardly be disputed.
Having gone to trial without making the objection to the indictment; having concealed from the state the knowledge which he possessed, that the indictment did not contain the correct name of the deceased, he ought not now be heard to complain and to get the benefit of an error, if error there be, which he could have avoided by speaking at the proper time.
No injury has resulted to the defendant, and it is idle to argue that, if this conviction is maintained, the defendant can be prosecuted *Page 516 again for killing the same person under the name of Black or of any other name.
The accused has had a fair trial. A jury which alone has the power of passing upon the facts and determining the guilt or innocence of the accused has adjudged that he was guilty of unlawfully killing a particular human being.
That verdict ought not to be set aside simply because the state gave the wrong name of the deceased in the indictment, when, as a matter of fact, he was known by different names in the community where the killing occurred, and when his real name was not then known to the public prosecutor, but was known to the defendant. I therefore dissent.