[Linnehan v. The State.] Oakley was from Lillich's saloon door when shot. The witness first stated he did not know. The solicitor then asked him to give his best judgment as to the distance, and being allowed to answer, he said, "in his best judgment, it was about ten feet." The defendant objected to the last question when asked, because the witness had previously stated he did not know. The objection was properly overruled. When the witness stated he did not know the distance he evidently understood the solicitor to inquire for the exact distance, which he did not know. It was entirely proper for him to give his best judgment as to the distance, without being exact. A. G. S. R. R. Co. v. Hill, 93 Ala. 515. 5. On the cross-examination of defendant's witness, Tipper, the solicitor asked him, "Who he had heard talking of Oakley's reputation as a dangerous man?" The witness, it is to be presumed, had testified that such was the character of Oakley. He replied to the question that he had heard several. This answer was not responsive to the question propounded to the witness by the solicitor. In the bill of exceptions it is then stated, "The solicitor said to the witness in a very loud voice, 'You answer my question.'" The witness replied by giving the names of several persons whom he had heard speaking of Oakley's reputation. Before the witness answered, the defendant objected to the manner of counsel. The court overruled the objection, and the defendant excepted. A witness who testifies in a proper manner is certainly entitled to respectful treatment by the opposing solicitor, and it is the duty of the court, always, not to allow such a witness to be treated with unnecessary disrespect. It would be a reproach to the administration of justice to do so. The good discretion of the presiding judge, however, must be largely trusted in such matters. No one can discover better than he, nor, perhaps, so well, whether counsel in any given case has violated his obligation in this respect or not. What would not be disrespectful demeanor by counsel towards an unwilling and contumacious witness might be very improper towards a witness whose conduct was proper, and who appeared willing to disclose all he knew about the case, when the only excuse counsel could have for treating him with disrespect, was that the witness did not know enough, or anything, to be of service to counsel and his case. [Linnehan v. The State.] We are unable, from the statement made, to hold that the judge improperly overruled the objection of the defendant to the manner of the solicitor in propounding the question. 6. On cross-examination by the solicitor of defendant's witness, Robinson, he was allowed, against defendant's proper objection, to ask him if he knew Warren Tipper's business, and to state that Tipper was a hoisting engineer at one of the mines. Warren Tipper was the witness who had just deposed to Oakley's reputation. We are unable to perceive the materiality or relevancy of this evidence. 7. The objection to questions by the solicitor to the witness, Mrs. Little, "If she heard Linnehan, just before the shooting, call Oakley hard names? Was Linnehan very angry? and if Linnehan cursed Oakley in her presence?" on the ground that such questions called for the conclusion of the witness-was not tenable. The questions called for the statement of collective facts, subject to the cross-examination as to the facts on which the statement or inference was based.-Thornton v. The State, 113 Ala. 43; Ray v. The State, 50 Ala. 107. The first of these questions, and the answer to it, however, should have been excluded, since the witness, in answer to the further question of the solicitor, what Linnehan had said in calling Oakley hard names, replied she did not know. The solicitor, when she said she did not know what hard names he used, said to the witness, "Didn't you tell me right here what he said?" This was objected to, but the objection was properly overruled. The solicitor had a right thus to refresh the memory of his own witness. But, the solicitor went further and asked his witness, "Did you not tell me that Linnehan said he would put a hole through Oakley's carcass?" and the witness was allowed to answer, "Yes, sir." This was not refreshing her memory as to hard names employed by Linnehan towards Oakley, for the answer had no reference to hard names. Moreover, the witness did not testify that what she said to the solicitor was true in fact, and yet the answer was allowed to go to the jury. It was purely unsworn hearsay, and ought to have been excluded.-Sanders v. The State, 105 Ala. 4. 8. In the general charge, the presiding judge in [Reeves v. The State.] structed the jury: "If you believe the evidence beyond a reasonable doubt, you will find that within this county and before the finding of this indictment, a homicide has been committed, and that Allen Oakley was the victim and John Linnehan was the perpetrator. There was no dispute at all that Oakley had been killed, and that Linnehan killed him; and, if the judge had thus stated it, the charge would not be subject to criticism; but we apprehend that the latter part of the charge which we have italicized, from the words victim and perpetrator, as therein employed, tended to make an unfavorable impression on the minds of the jury as to the character of the homicide, and should have been avoided. 9. The other part of the oral charge excepted to should have been accompanied with the qualification that it was defendant's duty to retreat, unless the circumstances justified the reasonable belief that he could not do so, with apparent safety, or that he could not escape without apparently increasing his peril.-Stoball v. The State, ante p. 454; Gibson v. The State, 89 Ala. 121; Cleveland v. The State, 86 Ala. 1; Ex parte Brown, 65 Ala. 446. For the errors indicated, the judgment of the court below is reversed and the cause remanded. Reversed and remanded. 1. Reeves v. The State. Indictment for Adultery. Warrant of arrest; by whom issued; when properly returnable to other court than that of the justice of the peace.-Under the provisions of the act of the General Assembly, establishing the Criminal Court of Pike county, as under the statute regulating the proceedings in county courts (Acts of 1888-89, p. 631, § 3; Code of 1886, § 4404), a warrant of arrest returnable before that court may be issued by a justice of the peace; and when the complaint made before the justice of the peace charges an offense of which the justice has not final jurisdiction, the warrant of arrest is properly made returnable to the criminal court of Pike county. 2. Affidavit or complaint; immaterial difference in spelling name of complainant.—Where it is manifest from the complaint made before a [Reeves v. The State.] justice of the peace, charging the commission of a criminal offense, that the person who verified and subscribed it was identical with the person who appeared before the justice of the peace and made it, a difference in the spelling of the name of such person, resulting from a mere clerical mistake on the part of the person who wrote it, is immaterial. APPEAL from the Criminal Court of Pike County. The prosecution in this case was commenced by a complaint being made before a justice of the peace of Pike county, charging the appellant, Mary Reeves, with living in adultery with one Henry Myhan. The complaint was signed by "Hattie Patterson." In the body of the complaint and in the warrant which was issued thereon, the person making the complaint is described · as "Hattie Patison." Upon the making of the complaint the justice of the peace issued the warrant setting forth therein the offense charged, as contained in the complaint, and made the warrant returnable to the criminal court of Pike county. There was a plea to the jurisdiction of the court and a motion in arrest of judg ment, upon the ground that the warrant was not made returnable to the proper tribunal. This motion was overruled. The defendant interposed a plea in abatement and a motion to quash the complaint, upon the ground that there was a variance between the person alleged in the complaint and in the warrant of arrest to have made the complaint, and the person who signed the complaint. This plea and motion were overruled. These rulings constitute the only questions presented for review on the present appeal. D. A. BAKER and T. L. BORUM, for appellant, cited Merlette v. State, 100 Ala. 42; Munkers v. State, 87 Ala. 94. WILLIAM C. FITTS, Attorney-General, for the State.The warrant of arrest was properly issued by the justice of the peace and made returnable before the criminal court of Pike county.-Walker v. State, 89 Ala. 74. The warrant was sufficient and the alleged variance was immaterial.-Wilson v. State, 99 Ala. 194; McLeod v. McLeod, 75 Ala. 483. [Glenn v. The State.] MCCLELLAN, J.-The warrant of arrest issued by a justice of the peace was properly made returnable to the criminal court of Pike county.-Walker v. State, 89 Ala. 74. The names Patison and Patterson are, it would seem, idem sonans.-16 Am. & Eng. Encyc. of Law, p. 122, note, p. 124; Taylor v. Rogers, 1 Ala. 197; Jackson v. Cody, 9 Cow. (N. Y.) 140; Petrie v. Woodworth, 3 Caine, (N. Y.), 219; Page v. State, 61 Ala. 16; Aaron v. State, 37 Ala. 106; Edmundson v. State, 17 Ala. 179; Gresham v. Walker, 10 Ala. 370. But whether so or not, it is manifest from the complaint in this case that the Hattie Patterson, who verified and subscribed it, was identical with the Hattie Patison who appeared before the officer and made it, and that the difference in the spelling of the name resulted from a mere clerical mistake of the person who wrote it. There is no error in the record, and the judgment must be affirmed. Affirmed. Glenn v. The State. Indictment for Forgery. 1. Forgery; sufficiency of indictment.-An indictment which avers that the defendant, "with intent to defraud, did falsely make or forge an instrument in writing, purporting to be the act of" a certain named person, "in words and figures as follows: 'Mr. Jones,' meaning thereby William W. Jones, 'please let this man have a two dollar check on 57 east side,'" signed by said designated person, and then sets up extraneous facts to show that said instrument alleged to have been forged was a check on a commissary store of an iron and steel company, of which said Jones was the manager, for two dollars worth of goods, and that the man whose name was forged to said instrument was an employé of the company and entitled to receive such check, such indictment shows sufficiently that the instrument was the subject of forgery, and is not demurrable. APPEAL from the Criminal Court of Jefferson. The appellant was tried and convicted under the fol 116 483 1118 658 |