¶1on motion for rehearing. The only question presented for our consideration by this motion is one of identity. Did the evidence identify the murdered man with the one described in the indictment as “ one certain Sam Black,” and elsewhere as * the said Sam Black ? ” it being averred in the motion that ‘ there was no proof that the man for whose murder defendants were tried in this case was Sam Black, or that he called himself Sam Black, or that any one else ever called him Sam Black, or stated that he so called himself.” In considering the subject here presented, it must be borne in mind that these appellants were charged in another indictment for the murder of an unknown man, and that it was shown on both trials that the defendants *170had in their custody at the same time two persons, who were afterwards found together, bearing evidence of their having been murdered by hanging on the same tree, and deposited in the same hole made by the uprooting of a tree by the wind. These are facts known to the court by its own records.
¶2In looking into the evidence in the present case as found in the statement of facts, we find the following in the testimony of the State’s' witness Pinckard: “I knew all the parties that night at Mrs. Griffin’s, except the prisoners defendants at bar had with them. I heard some one call one of.the prisoners Sam Black.” Wiggins, another State’s witness, said: “I know the defendants ; saw them in January or February, 1877, at my house. My house is five or six miles from Mrs. Griffin’s, in the direction of Liberty. Defendants had two young men ; one had a little mustache. … We got breakfast for them. I was sick, but kindled a fire for them to warm by. I asked old man Rye, Sr., one of the defendants at the bar, what were the names of the two prisoners they had in custody ; he said one of the prisoners called himself Sam Black. … The next time I saw those two young men they were in the Big Thicket, dead, … lying in front of a big clay-root. … There were ropes around the necks of the dead bodies.” On his cross-examination this witness said, speaking of Rye, Sr.: “ He said one of the two prisoners said his name was Sam Black, but did not point out which one said so. The men I saw dead in the Big Thicket was the one Rye said was Sam Black.” George Wiggins, another witness, says: “ I heard old man Rye, one of the defendants, tell my uncle that one of the persons called himself Sam Black.” We have not noticed other evidence as to the age, the personal appearance of the deceased, and the like, tending to identify him as one of the persons seen by a number of witnesses at different places on their route from where the testimony first finds them, at Woodville in Tyler *171County, and afterwards found murdered in Polk County, but have confined ourselves strictly to the question raised by the motion for rehearing,—the evidence on the subject of the name of the person for whose murder the defendants were convicted.
¶3The judge who presided at the trial submitted to the jury the question of the name of the deceased in the charge on murder generally, as for instance the following: “ If from the evidence and the circumstances detailed to you by the witnesses in this case you believe that the defendants, [naming them] acting together, did, in Polk County, in January or February, 1877, or at any time prior to April 19, 1877, take the life of Sam Black, as alleged in the indictment, by hanging Sam Black with a rope, and that the defendants did so take the life of said Black and with implied malice,” etc.; and again: “But if you do not so believe that defendants did, as alleged in the indictment, take the life of said Black and upon implied malice as that term has been explained to you in this charge, you will find the defendants not guilty.” But more particularly in the eighth paragraph of the charge the attention of the jury was specially called to the necessity of proving the name of the deceased, in the following language: “ The defendants are presumed to be innocent until their guilt is established by legal evidence, and in case of a reasonable doubt as to their guilt they are entitled to be acquitted. This reasonable doubt' applies to all the material averments in the indictment, including the name of the party alleged to have been killed; but this doubt should be a reasonable one, arising out of the evidence before you, — not a fanciful doubt, arising from something else than the evidence in the case.”
¶4It does not appear from the statement of facts that any one of the witnesses who testified concerning the dead bodies, as they lay upon the ground by the clay-root near the leaning holly-tree, placed his finger upon either one of the dead bodies and said in so many words “ This is Sam *172Black, or the man who was called Sam Black,” or that he was the man named in the indictment; nor can we deem it important, under the peculiar circumstances, that this should be made thus to appear. The true question is, did the testimony identify the deceased with the person described in the indictment, so as to require of the court to submit to the jury the question of identity. To our minds the testimony was confined as nearly as was practicable to the proofs as to one of the dead men; hence questions as to his personal appearance, age, and the like. It is not a question of conflict of testimony; there is no decided testimony that the deceased was named anything other than • as described in the indictment. Nor is it a question of variance; no witness knew the deceased by any other name than that stated in the indictment, except one witness, who had an indistinct impression that he had claimed another name; but even this witness does not pretend to know his true name. The testimony was meagre, it is true; but it is equally true that all the testimony tends in one direction, namely, that the murdered man was called by the name given him in the indictment. There is nothing in the evidence to create an impression that these defendants were charged with the murder of one man and convicted on proof of having murdered another. On the contrary, the proof, what there was of it, supported the averment in the indictment as to the name of the deceased, and shows conclusively that he was one of the persons held in custody by the defendants when last seen alive. There was no variance between the allegations and the evidence. We are unable to say that there was not sufficient evidence adduced to warrant the jury in finding that the name of the deceased was that stated in the indictment. The motion for rehearing is overruled.
¶5Rehearing refused.