165 S.W. 936 | Tex. Crim. App. | 1914
Erom a conviction for a misdemeanor for violating the prohibition law, with the lowest penalty prescribed by law affixed, appellant appeals.
While the evidence was contradictory it was amply sufficient to sustain the verdict. The only material question in the case is as to the sufficiency of the indictment, becaus'e of appellant’s name. The indictment properly charges every essential element to show, and does show, that the law prohibiting the sale of intoxicating liquor, making it a misdemeanor, was in force at the time this offense is alleged to have been committed. It then alleges that on May 15, 1913, “Cresen-cio, a Mexican, living at Kyle, a better description and name being to the grand jurors unknown, did,” etc., unlawfully sell a bottle of whisky, etc.
The case then went to trial before a jury. It was admitted that the prohibition law, as. alleged, was in force at and before the alleged sale was made. The state introduced, one witness who testified, showing fully and-eompletely that appellant committed the offense charged at the time and place alleged,, and rested. The defendant then testified, denying making the sale, he claiming that he-made a gift of the whisky and not a sale,, and received no money therefor. He introduced one witness, who, to some extent,, corroborated him. He alone testified that his name was Cresencio de la Cerda; that he lived at Kyle, in Hays county, and that-he had lived there, more or less, for the-past 16 years; that for a long time he run a "barber shop and restaurant on one of'the-main streets in the town; that he was well-, known to most all of the people in Kyle; and. that Mr. Sledge and all the merchants knew-him; “most everybody in that community knows my name.” This, in substance, was. the testimony on this subject in full.
Appellant then made a motion to perernp--torily instruct the jury to find him not guilty,, because no evidence had been adduced showing that due diligence was used to procure- and insert in the indictment his true name,, and that the evidence showed his true name-as alleged and testified by him, and that there was no sufficient description of him,, and that the indictment nowhere alleges any diligence was used by the grand jury to pro- • cure his surname or true name. The court-, overruled this motion, to which he excepted.. After his conviction, he made a motion in, arrest of the judgment, on the same grounds. This was overruled.
In our opinion, none of these matters show ■ any reversible error. Our decisions are conflicting on the subject. Decisions may be-found, and some are cited by appellant,.
The following articles of the Code of Criminal Procedure were also a part of the old Code:
“Art. 559. When the defendant is arraigned, his name, as stated in the indictment, shall be distinctly called; and, unless he suggest by himself or counsel that he is not indicted by his true name, it shall be taken that his name is truly set forth, and he shall not thereafter be allowed to deny the same by way of defense.
“Art. 560. If the defendant, or his counsel for him, suggest that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment corrected by inserting therein the name of the defendant as suggested by himself, the style of the cause changed so to give his true name, and the cause proceed as if the true name had been first recited in the indictment.
“Art. 561. If the defendant alleges that he is not indicted by his true name, and refuses to say what his real name is, the cause shall proceed as if the name stated in the indictment were true; and the defendant shall not be allowed to contradict the same by way of defense.
“Art. 562. Where a defendant is described as a person whose name is unknown, he may have the indictment so corrected as to give therein his true name.”
Also as a part of the old Code was article 458, which is:
“Art. 453. The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.”
Since all of these articles were originally enacted as a part of the Code, Act March 26, 1881, c. 57, p. 60, was enacted, whereby it was provided (article 460): “An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” And article 476 is a part of the same act, which is: “An indictment shall not be held insufficient, nor shall the trial, judgment or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.”
Taking all of these articles ■ together we think it is clear and certain: First, that the purpose and object in giving the name of an accused in the indictment is for identification; the name alone is sufficient for that, without any description whatever; second, that a wrong name or not the full name is a matter of form only, which an accused can readily and at his own suggestion completely have corrected at the time; third, that when part of the name is correctly given and a description of him such as given in this case is shown to be true, or, rather, when it is not shown that it is untrue is a sufficient description of him and establishes his identity; and, fourth, as said by article 476, an indictment shall not be' held insufficient, nor shall the trial, judgment, or other proceedings thereon be affected, by reason of any defect or imperfection of form in such indictment which does not prejudice the substantial rights of the defendant.
In this case it is an absolute certainty that appellant and no other was the identical per-dón who is alleged to have committed the offense charged herein. He so testified, and all of the evidence, without the slightest contradiction or uncertainty, shows that he is that person. That the portion of his name Cresencio is his name, and no other is shown to have had the same name, that he is a Mexican, and that he lived at Kyle is, without doubt, also shown. And it is without a shadow of doubt shown that his substantial rights have in no way been prejudiced by not giving his full name, and therefore the indictment should not be held insufficient, nor should the trial, judgment, or other proceeding thereon be affected, by reason of any defect or imperfection of form in the indictment.
Such being the case and the clear intent of the statute and law, the judgment herein will be affirmed.