#### STATE *vs.*DANIEL ANGEL & AL.

Where on the trial of an indictment for murder, the prisoner’s counsel objected, that the name of the deceased as mentioned in the indictment wa3 not his true name, that was a fact to be tried by the jury.

The purpose of setting ferth the name of the person, on whom an offence ha* been committed, is to identify the particular fact or transaction, on which the indictment is founded, so that the accused may have the benefit of an acquittal or conviction, if accused a second time. The name is generally required as the best mode of describing the person; but he may be described otherwise, as by his calling or the like,.if he be identified thereby as the individual and distinguished from all others, and if the name be .not.known, that fact may be stated as an excuse for omitting it altogether.

The Act of Assembly restraining Judges from expressing to the jury an opinion as to the “ facts,’ of the ease, only applies to those “ facts,”-respecting which the parties take issue .or dispute, and on which, as having occurred or not oceured, the imputed liability of the defendant depends.

Appeal from the Superior Court of Law of Yancy County, at the Fall Term, ‘1846, his Honor Judge Cald-weli. presiding»

The prisoner was indicted, with another, for the murder of Robert B. Roberts, by stabbing with a knife, and found guilty. Upon the trial, witnesses for the State testified, that the prisoner gave the mortal wound without any previous provocation from the deceased. Witnesses for the prisoner, however, stated, that the deceased was in the act of striking at the prisoner, when the stab was' given; and other witnesses for the prisoner testified, that the deceased had struck the prisoner one slight blow on the head or hat, and was in the act of striking another, when he received the stab.

In the course of the charge to the jury, the presiding Judge remarked, “ that the witnesses differed in their accounts of the transaction,'” and then recapitulated their testimony as to the manner in which the rencounter took place ; and after some instructions upon matters of law, he remarked further, that, *“*according to the testimony of the prisoner’s witnesses, the mortal blow *was given*at or about the commencement of the rencounter.” The Judge *28informed the jury, that they were the judges of the truth and weight of the testimony of the witnesses.

The Judge subsequently remarked to the jury, that the counsel for the prisoner had not, in his argument, contended, that the law touching the degree of the homicide was otherwise than it had been laid down by the Judge, “but that they had argued the facts with much ingenuity and therefore, his Honor reminded the jury as to the importance of the matter in hand, and that it was their duty to weigh the evidence deliberately and give a verdict according to the facts, and to the law as it had been expounded by the Court.

During the examination of the witnesses, the prisoner’s Counsel made the point, that the deceased was not properly named in the indictment, “ Robert B. Roberts,” and requested the Court to reserve the question. But the Court declined doing so, and said that it was a question of fact for the decision of the jury, whether that was the name of the deceased. Witnesses then stated, that “Robert Burton Roberts” was supposed to be his full name, but that he was commonly known as “Robert B. Roberts,” and often called for short, “ Burt Roberts.” Upon that evidence, the counsel for the prisoner in- the argument before the jury did not deny, that the deceased was described by his proper name in the indictment, or raise any question thereon.

After the verdict against the prisoner, his counsel moved for a new trial upon the ground, that the deceased was not properly named in the indictment; 'and it was refused by the Court.

The prisoner’s counsel then moved for a *venire de novo,*upon the ground that, in making the remarks to the jury before mentioned, the presiding Judge had given an opinion upon the facts. That was also refused, and sentence of death pronounced ; and the prisoner appealed.

*Attorney General,*for the Stale.

*29
      *Baxter and*Alexander, for the defendant.

Ruffin, C. J.

The Court is of opinion, that there is no error in the judgment.

On the point respecting the name of the deceased, his Honor was certainly right in saying, that it was the province ofthe jury to determine what the name was. We do not understand what was meant by the request, that the Court would reserve that question. If the prisoner meant to insist that the name of the deceased was not that given to him in the indictment, but another, and wished the aid ofthe Judge in getting the lawful advantage of the defect in the description, the proper method would have been to ask an instruction to the jury, that if they found that the deceased was not named “ Robert B. Roberts,” but something else, they should acquit the prisoner for that variance. But the Court could not assume that the variance in the names existed, so as to reserve or withdraw the whole matter from the jury, according to the motion on behalf of the prisoner.

With the decision of the jury on that question, whether right or wrong, this Court cannot interfere, as has often been declared. But if we could interfere, it is not improper to say, that there does not appear to be any ground for doing so here. The purpose of setting forth the name of the person, who is the subject on which an offence is committed, is to identify the particular fact or transaction, on which the indictment is founded, so that the accused may have the benefit of one acquittal or conviction, if accused a second time. The name is generally required as the best mode of describing the person ; but he may be described otherwise, as by his calling or the like* if he be identified thereby, as the individual, and distinguished from all others ; and if the name be not known, that fact may be stated as an excuse'for omitting it altogether. But here the description of the deceased is by a name, and the objection is, that it is not his true name. Now, there is no *30evidence what the true name was, that is to say, in the sense of being the name by baptism ; for it does not appear that this person was ever baptized. He could, therefore, have had a name by reputation only; and it seems that by reputation he was known, as well by the one, as the others of three appellations, namely, “ Robert Barton,” “ Robert B.” and “ Burtand the probability, from the common usage of the country, is, that, in formal and serious transactions, he was more generally called “Robert B.” than otherwise, though on familiar occasions he was oftener by contraction called “ Burt.” The jury might therefore be well warranted in treating these, not as different names, but as different modes of calling the same name. There could be no difficulty imposed on the prisoner in *pleading former*acquittal or conviction; for, by proper averments, that the “Robert B. Roberts,” mentioned in one indictment is one and the same person as the “ Robert Burton Roberts,” or “ Burt Roberts” mentioned in the other, he could readily shew the truth of the case. It must be a sufficient designation of a person, in such a case, to give the name by which he is generally known.

His Honor, undoubtedly, did not transcend his powers and duty, under the act of 1796, in delivering his charge to the jury. The “ facts,” on which the act restrains him from expressing an opinion to the jury, are those, respecting which the parties take issue, or dispute, and on which, as having occurred or not occurred, the imputed liability of the defendant depends. But the act does not prohibit the Judge from drawing attention to things that occur in Court and speaking of them, as having actually occurred there. Thus, the Court could not tell the jury, that it had been sufficiently proved, that the stab was given without any provocation, or that it was after the prisoner had received a blow ; because that was a fact involved in the past transaction, that was then the subject of investigation, and in respect to which the parties *31differed, and it was the province of the jury to enquire of the truth. But that the State’s witnesses gave one narrative of that transaction, and the prisoner’s witnesses gave another, and, of course, that “ the witnesses differed in their accounts,” the Judge might not only state to the jury, but it was his duty, by the act of 1796 itself, to state to them: for that act, *“*declares it to be the duty of the Judge to state, in a full and correct manner, the facts given in evidence, and explain the law arising on them.” He was bound, therefore, in summing up the evidence, to draw the attention of the jury to the conflict in the testimony, and explain the importance of it, so as to advise them, what, in law, should be their verdict, according as they should believe that the one or the ether set of witnesses told the truth.

With respect to that part of the exception, which refers to the words of the Judge, that “ the mortal blow *was given"*and that it was given “at or about the commencement of the rencounter,” the argument is, that the Judge assumed those facts to exist. He had a right to assume them as against the prisoner; because they were stated by witnesses brought by him to support his defence» and are to be treated as his own account of the transaction, to this purpose. It is obvious, that the prisoner did not deny the death of the party, nor that he gave the blow which caused it; and that he was insisting by way of defence on an extenuation from the circumstances, under which, as he said, it was given, This pre-supposes that the mortal blow was actually given, and the prisoner’s own witnesses proved the fact; and that amounts to an admission by the prisoner himself, that the blow *was*given by him, and the prisoner cannot complain, that the Judge so treated it. Then with respect to the remark, as to the period at which the blow was given ; his Honor but repeated the substance of what the prisoner’s witnesses themselves had stated, and the prisoner had acquiesced in. Their account was that the stab was *32given, as tbe deceased was about giving his first blow, or immediately after having given a slight one, and while attempting to give another, and there was no evidence even of any preceding altercation. It was surely then, given at or about the commencement of the affray ; and, as that appeared upon the prisoner’s own defence, the Court could not err, as against him, in treating as facts, what the prisoner alleged, and his witnesses proved to be the facts.

Judgment of death was therefore properly given, and the Superior Court will further proceed thereon according to law.

Per Curiam, Certificate ordered accordingly.