Oliveri v. State

May 20, 1915

Reporters:: , ,
Before:: Brown

BROWN, J.

The indictment avers that “Rich Olivere, whose name is otherwise unknown to the grand jury,” sold spirituous, vinous, or malt liquors without a license and contrary to law. To this indictment the defendant filed a plea of misnomer, averring “that his name is not ‘Rich Olivere/ and that he Avas never known or called by that name, but that his name is and always was ‘Richard Oliveri/ and he has always been knoAvn and called by that name.”

The defendant, testifying in his own behalf, testified that his name was “Rich or Richard Oliveri,” and that he had never spelled his name “Olivere.” The evidence also- shows without dispute that the defendant was known and called by the name of “Richard,”- and also *351shows without dispute that his surname was pronounced “Olivere.” There was no’ proof offered that the grand jury that returned the indictment had any evidence before it that the defendant’s name ivas otherwise than averred in the indictment.

The court sustained a demurrer to. the defendant’s plea on the ground, among others, “that same does not constitute a good plea,” and he now insists that the sustaining of this demurrer was prejudicial error.

(1) The statute (Code 1907, § 5340) providing, “No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be * * * allowed which is not directly stated in the demurrer,” has no application to criminal prosecutions. This is manifest from the fact that it is in a chapter of the Code dealing with pleadings in civil cases.

(2) The rule here applicable is thus stated: “To the objection that the demurrer should have been overruled because it did not sufficiently specify the particulars in which the pleas were insufficient we answer: Although the court might for that cause have .refused to examine the pleas for defects therein, and have properly overruled the demurrer, yet, if the pleas are manifestly insufficient, and no answer to the indictment, and the court properly so decided, we Avill not reverse its judgment sustaining the demurrer.”—James v. State, 53 Ala. 380; Turk v. State, 140 Ala. 112, 37 South. 234.

(3) On the other hand, where no demurrer at all is filed, or where the grounds assigned are not general, but specific, and the specific grounds assigned are inapt, it is error to hold the plea bad.—Coburn v. State, 151 Ala. 100, 44 South. 58, 15 Am. Cas. 249; Palmer v. State, 3 Ala. App. 127, 57 South. 507.

*352It is true the statute was held applicable in Pomeroy v. State, 40 Ala. 63, but that was a civil proceeding against a defaulting witness.

(4, 5) Applying the rule announced in James v. State, supra, we hold that the plea was defective, and the demurrer was properly sustained, for the reason that the indictment did not purport to charge the defendant by his true name, but it, in legal effect, alleged that his true name was unknown to the grand jury, and that he was only known to the grand jury by the name of “Rich Olivere.” This was a sufficient description of the defendant under our statute (Code, § 7142), and it was wholly immaterial what his true name was, unless the proof on the trial showed that the grand jury knew his true name at the time it returned the indictment. Under the indictment in this form it was an issue in the case as to whether the defendant’s name ivas otherwise unknown to the grand jury than as charged in the indictment, with the burden of proof on the defendant on that issue.—Lacy v. State, infra, 69 South. 244; Childress v. State, 86 Ala. 77, 5 South. 775; Axelrod v. State, 7 Ala. App. 61, 60 South. 959.

(6) Furthermore, it is apparent from the evidence in the case that the defendant could not have sustained his plea. He testified himself that his name was “Rich,” and, while the proof showed that he spelled his name “Oliveri,” it also showed without dispute that it was pronounced “Olivere.” And hence the court holds that the names “Olivere” and “Oliveri” are idem sonans.—Donnelly v. State, 78 Ala. 453; Rooks v. State, 83 Ala. 79, 3 South. 720; Caldwell v. State, 146 Ala. 141, 41 South. 473.

Therefore, conceding that the ruling of the court was erroneous, it is not probable that the error injuriously *353affected the defendant’s substantial rights. — Supreme Court Buie 45 (175 Ala. xxi, 61 South, ix).

(7) The only evidence given on the trial as to what proof was made before the grand jury as to the defendant’s name was that of the witness Be Jarnette, who testified:.“I have heard people call him ‘Olivere.’ The name was pronounced ‘Olivere.’ I don’t know whether his name is spelled ‘Olivere’ or ‘Oliveri’ or ‘Olivera,’ but ‘Olivere’ and ‘Oliveri’ could certainly be pronounced alike if the final ‘e’ and the final ‘i’ both had a short sound. I told the grand jury when I testified before them how I pronounced the name and how I had heard it pronounced, but didn’t spell it to them.”

This evidence sustained the averments of the indictment, and, in the absence of proof showing that the averments as to the defendant’s name were untrue, charge 2, refused to defendant, Avas abstract and well refused.

(5) As we have stated, in the absence of some proof tending to show that ‘the defendant’s true name was known to the grand jury Avhen it preferred the indictment, it was not incumbent upon the state to offer proof that his name was otherwise unknown to the grand jury as charged.—Childress v. State, supra. Nevertheless the averment that his name was otherwise unknown was “an essential averment of the indictment,” which under the facts of this case it was not necessary for the state to sustain by proof, and therefore charge 5 refused to defendant was calculated to mislead, if not otherwise bad, and was therefore properly refused.

We find no error in the record, and the judgment must be affirmed.

Affirmed.