48 Ala. 165 | Ala. | 1872
The defendant was indicted for stealing certain personal goods, charged to be the property of J.
On the trial, said Dargin was examined by the State, and deposed that he was the owner of the property described in the indictment; that his name was John H. Dargin; that he was frequently called J. H. Dargin, and signed his name J. H. Dargin.
This, the bill of exceptions states, was all the evidence on this point.
The court charged the jury, that if they believed that the prosecutor* J. H. Dargin and John, H. Dargin, was the same person,-that the variance between the name as proved, and the name as given in the indictment, was not material, to which charge the defendant excepted.
The defendant, in writing, asked the court to charge the jury that the variance between the name of the owner of the property, as alleged in the indictment, and as proved on the trial, was fatal to the indictment, and they must acquit the defendant. This charge the court refused to give, and the defendant excepted.
Defendant appeals, and insists-that the court erred, both in the charge given, and in refusing to give the charge asked.
"We think no error was committed, either in the charge given, or in refusing to give the charge asked. Although I do not approve of the practice, which prevails so generally in this State, of describing parties in judicial proceedings by the initials of their Christian names, and do not wish to be understood as encouraging it, it is too late to undertake to correct it now, as, to do so, would do more harm than good. I do not know that this question has ever been directly made in this court, but 1 find it has been decided in South Carolina, in the case of the State v. Silas Anderson, 3 Richardson, 172. It is there decided that in describing third persons in an indictment, certainty, to a common extent, is all'that is required; and if such persons are described by the initials of them Christian names, the indictment, on its face, is sufficiently certain.
A motion to quash the indictment for uncertainty was overruled. When the evidence was heard, it appeared that, although these letters were only initials of the true Christian names, yet, that by these letters, the persons designated were called and known: that they wrote these letters for names, answered to them, and were distinguished by them. This was held sufficient; and the court said: “ Under these circumstances, and in the general “use of initials, for names, which prevails, it would be “straining for the relief of the accused, to say that he “must be presumed incapable of knowing the persons “ mentioned, by the description which pointed them out “ without doubt to every body else.”
In this case J. H. Dargin is marked on the indictment as the prosecutor, and although his true name is John H. Dargin, yet, as he was frequently called J. H. Dargin, and wrote his name J. H. Dargin, and proved that he was the owner of the stolen goods, we think the variance, if it can properly be called a variance, is no ground for the acquittal of the defendant. If the indictment had charged the stolen goods to be the property of D. H. Dargin, and on the trial they had been proved to be the property of John H. Dargin, then the variance would have been substantial, and the defendant would have been entitled to an. acquittal.
Let the judgment be affirmed at the defendant’s costs.
