No witness was examined by the State who testified to seeing the commission of the homicide, The evidence against defendant relied on by the State, to show that he was the guilty agent, is circumstantial. As proof tending to show his guilt, the State introduced evidence of a track leading from the scene of the homicide, which it claims was defendant’s track. Defendant did not deny that he went to and from the house, and told the way he went and the way he departed.
*84Treadway, for the State, swore to the trace of the track from the house where the homicide occurred to the house of defendant. He then testified: “I saw Major (the defendant) make a track and measured the track that he made. The track I saw Major make, which I measured, was made by him on the morning that he was arrested, and while on the way from his house to the house of Thomas, (the husband of deceased). I also measured the tracks hereinbefore referred to, which I had traced that same morning— the morning of the killing — from the Thomas place to the Major Terry place.”
The solicitor then asked the witness: “Was the track you saw Major make and measured, and the track you measured going to and coming from Thomas’ house, the same?” To this question the defendant objected on grounds in substance that it was not competent for the witness to testify as his conclusion or opinion that the tracks were the same, or made by the same person. The question is not new, but well settled in this court, that the witness should, not have, been allowed to testify to the identity of the tracks. -It was competent for him to testify that he measured the tracks coming and going from the place of the homicide, and compared them with the .track made by defendant the next day, and they corresponded in given particulars; but, it was not competent for him to say that the two were the same, nor to give his opinion on the subject at all. He should have stated the facts of identification, and it was for the jury to find, from all the facts deposed to, whether they were defendant’s tracks or not. — Hodge v. The State, 97 Ala. 37; Riley v. The State, 88 Ala. 193; Gilmore v. The State, 99 Ala. 154; James v. The State, 104 Ala. 20. In the first of the two cases last cited (Gilmore’s Case), the decision on the point at issue is correct on the facts of that case. The witness there testified, that the two tracks, about which he was' testifying, corresponded in length and breadth, and there were no peculiarities about any of the tracks. This court decided that this was competent evidence to go to the jury on the subject of identification. The third head-note is not a correct statement of the point decided, in so far as it is there stated, *85that “a witness may testify that he measured the two sets of tracks and they were the same.” This is an inadvertent statement of the principle actually decided in the case, and is misleading. In the last case above referred to (James’ Case), the court allowed the witness to describe the physical peculiarities of the tracks of defendants, which he had frequently seen, and of the tracks at the scene of the crime, which the witness did and nothing more, and to this the defendants objected. This court on appeal, very properly held that the ruling of the court below was not erroneous. But, in the opinion this further expression was indulged: “We think in cases of this kind, where many, and often indescribable peculiarities and characteristics are to he considered in ascertaining the identity of a thing, a witness who saw these peculiarities, and had the means of forming a correct conclusion, may testify to the identity, as a collective fact.” The expression here quoted is an incorrect statement of a principle as applicable to the question in hand, not in accord with our previous decisions; and while the question before the court was properly decided, on the facts of the case, we have referred to the above expression in order to correct it and remove its misleading effect.
2. The State examined Vennie Thomas, a daughter of deceased. She testified generally to the facts of defendant’s presence at her father’s house the evening her mother was killed. On the re-direct examination of this witness by the State, she testified that the defendant asked her in the morning of Tuesday, — the day her mother was killed, — where her father was, and she replied that he was on the railroad; that he asked her if her mother was going to the railroad, and she replied she was, and defendant said, “I bet she don’t;” that witness was in the kitchen when he was talking to her, and her mother was not there at the time, but was about three-fourths of a mile away. The solicitor then asked her what Major did, and she replied “that he went to the box and got something to eat.” The defendant separately objected to the question and answer, on the ground that the question called for immaterial, irrelevant evidence, and that the answer was immaterial, illegal and irrelevant. The objections were overruled. *86From auglit appearing in the case, it was certainly irrelevant, and foreign to the issue, that defendant went to a box in the house and got something to eat. He did it openly, and the fact did not tend to show that he committed the homicide. Relations between him and the deceased and her family were shown to have been friendly. The admission of illegal or irrelevant evidence in a criminal case, against the objection of defendant, as we have heretofore held, is a reversible error, unless it affirmatively appears that no injury resulted therefrom. — Fonville v. The State, 91 Ala. 39; Maxwell v. The State, 89 Ala. 150.
We are satisfied that no injury resulted to the defendant from the introduction of this evidence, and would not reverse on account of its admission. — ‘Code, 1896, §4333. It is far better, however, not to allow irrelevant and immaterial evidence to be introduced on such trials.
3. Mrs. Crumpler, for the State, who was among the first to arrive and see the body of deceased after death, testified that her skull was broken and her throat was purple. The solicitor asked her, against objection of defendant, if there were any other bruises on or about her, and the court allowed her to answer that she was so badly burned she could not tell whether there were any other bruises on her or not. In -this, even if the witness had been able to answer the question, there was no error. It was entirely competent and proper, to bring out all evidence as to the condition of deceased when found.
4. The defendant introduced a number of witnesses to prove his good character, and one of them on the cross by the State was allowed, against the defendant’s general objection, to testify, that he had heard of his having stolen some hogs. In this there was no error.— Smith v. The State, 103 Ala. 57; Thompson v. The State, 100 Ala. 70.
5. The defendant’s own evidence tended to show, that on his return to his own house from the Thomas house, the night of the homicide, he went to bed with his son Major, who had already retired. He was asked by the solicitor how long he had been sleeping with Major. The defendant interposed a general objection *87to this question, which was overruled, and he replied that he had been sleeping with him “a right smart while.” In this we discover, certainly, no reversible error. It was competent for the State to show what he did that night, if anything unusual, as bearing on his guilt or innocence. The answer, however, was in one respect favorable to him, as tending to show no unusual conduct on his part, and the objection to the question, being general, defendant has no right to complain.
6. The indictment charged that the defendant unlawfully and with malice aforethought killed Mary Thomas by striking her with some weapon to the grand jury unknown, etc.
The rule in reference to the averment in an indietr ment that a fact is unknoAvn, as declared in this State, is, that such an indictment will support a conviction unless it be shown that such fact was known to the grand jury. It is not enough that the fact be proved and made knoAvn to the petit jury, or that by proper diligence the grand jury could have learned the fact. It is a question of variance between the averments and the proof, and hence the proper inquiry is not Avhet'her the grand jury employed proper diligence or not. It was their duty to do so, and the law will presume they discharged this duty, and the inquiry is, did they falsely affirm a fact as unknown when it was known. — Duval v. Pelham, 63 Ala. 12. The defendant may escape conAdction by proAdng on the trial the falsity of the averment. The burden is on him to make this proof. — Winter v. The State, 90 Ala. 637.
Charges 1 and 2 requested by defendant and refused, invade the. principle above announced and were properly refused. Said charge 1, moreover, was argumentative, confused, and generally erroneous. That portion of the general charge given by the court on this subject, and excepted to, was free from error.
7. The deceased, as the evidence tends without conflict to show7, was named Mary Van Thomas, but Avas known and called by the name of Van Thomas. The indictment alleges her name as Mary. It was unnecessary to aver her- middle name, and if her name was Mary Van, and she Avas known and called Van* this constituted no variance between the allegations and proof, *88entitling defendant to an acquittal. Tbe 4th and 5th charges were properly refused.
Reversed and remanded.