where an indictment for murder was sufficient to charge manslaughter, for which the defendant was convicted, its failure to sufficiently charge murder was not material
How later courts described this case
- where an indictment for murder was sufficient to charge manslaughter, for which the defendant was convicted, its failure to sufficiently charge murder was not material
- improperly pleaded murder charge does not require reversal of conviction for lesser included offense.of manslaughter where indictment properly alleged manslaughter
Written by the judges who cited it.
The opinion
On Petition for Rehearing.
33. Both parties have petitioned for a rehearing. Plaintiff has questioned the correctness of the ruling made on *449 the admissibility of that part of the deposition of John Ritchie touching the relationship of John Morrison to Catherine France. The question propounded to the witness was:
“State what relationship existed between Catherine France and John Morrison, if any, and, if you say they are related, state fully the character of that relationship, and how you know the same.”
At the submission, by plaintiff, of interrogatories, defendants’ counsel interposed written objections, to the effect that the question was incompetent, irrelevant, and immaterial, and that the witness was not shown to be competent, on the theory that before he could testify it must be shown that he was related to decedent. These objections were renewed at the trial, but were overruled. Afterwards defendants moved to strike out the answer for the same reasons previously assigned, and also because it was not responsive to the question. The response of the witness was:
“John Morrison was Catherine France’s son. I lived in Green Square, where the Morrison’s lived, and it was common knowledge that John Morrison was the son of Catherine France.”
The court struck out.that part of the answer beginning with “it was common knowledge,” etc. The defendant excepted to the refusal of the court to strike out all the answer. We held that the answer indicated the witness was testifying, not from personal knowledge, but from common reputation of the neighborhood, and, for that reason, was not competent. In this we were in error. Common reputation, existing previous to the controversy, is made competent by the statute as evidence of pedigree. Section 718, subd. 11, B. & C. Comp. The whole of the answer in question was admissible for the purpose for which it was offered, and it was error to reject a part of it.
*450 34. We have carefully reviewed the record upon the other question raised by plaintiff’s motion, viz., that there' was sufficient evidénce to establish a relationship of McDonald to the Morrison family, by proof of his marriage to a granddaughter of James Morrison. It is claimed that the establishment of this relationship renders competent his declarations as to a tradition having existed in the family, that John Morrison was' the illegitimate son of James Morrison. But we are satisfied that the evidence alluded to in the motion falls short of identifying McDonald’s wife with the Morrison family. Moreover, if it did, still, to render his declarations competent it must also be shown either that declarant was dead, or was absent from the State at the time of the trial (Section 700,4 B. & C. Comp.), neither of which was shown. This constitutes reversible error, and therefore plaintiff’s motion must be denied; but the motion heretofore rendered will be modified in respect to the admissibility of Ritchie’s evidence, and made' to conform to what is now stated upon that question.
The defendant’s motion has also been carefully reviewed by us; but, not finding anything therein not previously considered by us, it will also be denied.
Modified: Reversed: Rehearing Denied.