Maughan v. StateMaughan v. State
- Reporters:
- , ,
- Before:
- Rice
Dеmurrer was properly sustained to appellant’s plea of “misnomer,” setting fоrth that his ■ name was “Maughon,” and not ‘.‘Maughan.” We are not sure .that we. know how to prоnounce either name, but we are sure that anybody would give each of them the same pronunciation.. Where “two proper names, as ordinarily pronоunced,’ sound alike, a difference in their spelling is immaterial. Weyms v. State, 13 Ala. App. 297, 69 So. 310; Coplon v. State, 16 Ala. App. 39, 75 So. 184.
To establish the crime, under section 4912 of the Code (of 1923), of which áppellamt was convicted, it was. necessary to show; (1) That the рroperty -alleged to have been bought, received, or concealed by defendant (■appellant) was in fact .stolen property; (2) that defendаnt (appellant) either bought it, received it, concealed it,, or aided in concealing it; (3) that he did’ so knowing at the time he either bought it, received it, concealed it, or aided in conceаling it that it *260 was stolen; (4) and that he did not have thе intent to restore it to the owner. Fulton v. State, 8 Ala. App. 257, 62 So. 959, and authorities therein cited.
We have carefully studied the evidence in this record. The first of the above-listed constituent elements of the offеnse is amply made out by it.
But we find an entire аbsence of evidence to support the last three of the said elements, the third and fourth naturally being -without such support because of the failure of the sеcond ,to have any evidence to sustain it.
The mere fact, as was indicated by the evidence, that defendant (appellant) was apprehended, several miles from his home, in company with thе thief who admitted stealing the goods in questiоn, as the two of them, with another, approached the place wherе said goods were concealеd in the woods, the defendant (appellant) remarking, as they came up to thе said goods, “Here is another grocеry store down here,” is not, vre think, any -evidence that he either “bought, received, сoncealed, or aided in concealing” the stolen property.
The general affirmative charge in his favor, duly requested, should have been given, and, for the error in its refusal, the judgment is reversed, and the cause remanded.
Reversed and remanded.