Turney v. State, 8 Div. 902.

8 Div. 902. | Ala. Ct. App. | May 9, 1922

The defendant was indicted as "A.D. Turney, whose Christian name is to the grand jury unknown." On the trial it appeared that his Christian name was "Almond," and it therefore became a question as to whether the grand jury knew this fact; the burden of proof as to such knowledge resting on the defendant. It was the duty of the grand jury to use proper diligence to ascertain the true Christian name of the defendant, and to so allege it in the indictment, if they can do so. The law presumes that they discharged this duty, and the inquiry is, Did they falsely affirm a fact as unknown when it was known? Terry v. State, 118 Ala. 79" court="Ala." date_filed="1897-11-15" href="https://app.midpage.ai/document/terry-v-state-6517544?utm_source=webapp" opinion_id="6517544">118 Ala. 79, 23 So. 776. If they have done this, and it is so proven on the trial, the probata and allegata do not correspond, and the defendant may escape conviction. Terry v. State, supra; Winter v. State,90 Ala. 637" court="Ala." date_filed="1891-11-15" href="https://app.midpage.ai/document/winter-v-state-6514054?utm_source=webapp" opinion_id="6514054">90 Ala. 637, 8 So. 556; Butler v. State, 17 Ala. App. 511" court="Ala. Ct. App." date_filed="1920-06-22" href="https://app.midpage.ai/document/butler-v-state-3252517?utm_source=webapp" opinion_id="3252517">17 Ala. App. 511,85 So. 864" court="Ala. Ct. App." date_filed="1920-06-22" href="https://app.midpage.ai/document/butler-v-state-3252517?utm_source=webapp" opinion_id="3252517">85 So. 864. But this is a question for the jury, under the evidence and charge of the court. It was not competent for the defendant to testify that the individual grand jurors, or that the grand jury, knew his name; this was a conclusion of the witness, to which he would not be allowed to testify.

The state's objection to the question propounded the witness Wright, "Don't the sheriff get a reward of $50 if defendant is convicted?" was properly sustained. The sheriff was not a witness, and therefore the answer called for is irrelevant.

There was no evidence that the grand jury knew that defendant's name was other than as alleged, and therefore charge No. 2 was property refused.

The other exceptions are without merit. We find no error in the record, and the judgment is affirmed.

Affirmed.