Washington v. State

68 Ala. 85 | Ala. | 1880

BRIOKELL, 0. J.

The court is asked to reverse the judgment and sentence of conviction, upon two grounds; the first of which, as we understand it, is that the plea of misnomer, disclosing the real Christian and surname of the accused, and that George Washington is his Christian, and no part of his surname, the replication that he was as well known by the name of George Washington, as by the name of George Washington Iiolmes, his real Christian and surname, as averred in the plea, is not an answer to the plea; because there is no answer to the legal implication from the plea, that the indictment discloses only the Christian, and omits the ■surname of the accused.

The existing statute is, so far as this question is concerned, a mere affirmation of the common law. The indictment “ must be certain as to the person charged.”—Code of 1876, § 4786. Uncertainty in this respect was never tolerated; and the statute does not enlarge, while it may be that it diminishes the degree of certainty the common law required. Morningstar v. State, 52 Ala. 405.

The object and purpose of describing the accused by his name is to identify him. By reputation he may acquire a name which would as certainly identify him as his right or real name. Hence, it has long been settled tha.t in such case, the use of either name in an indictment is sufficient. The right name is sufficient because he cannot by-plea deny that it is his name. The name assumed by him, or acquired by reputation, is sufficient because it identifies him.—1 Bish. Cr. Pr. § 686; 1 Chit. Cr. Law, 449. A plea of misnomer avers the true name, and that by it accused has always been called or known, with a protestation that he has not been called or known by the name employed in the indictment. It follows necessarily that a replication, that at the time of pre.-ferring the indictment, he was as well known by the one name as the other, puts in issue the material averments of the plea. A misnomer of either Christian or surname is the matter of such plea ; and that the accused was as well known by the surname employed as by that he avers to be his true name is an answer to it. There is no reason for any distinction between a misnomer of a Christian and of a surname. As now framed, the indictment avers the Christian and the surname. If, originally, the accused had another surname, and Washington was his middle name only, he may have lost it by having long answered to, or assumed the middle name as a surname.

The other ground upon which a reversal is claimed, is, that there is a misjoinder of counts in the indictment — the first count charging a felony — the second a misdemeanor. The objection proceeds upon a misapprehension of the statute under which the indictment is framed, (Code of 1876, § 4347,) which declares the burning of a cotton-house, whether it contains cotton or other thing or not, and the burning of a cotton-pen containing cotton, arson in the second degree. As published, the statute reads cotton-house, or cotton-pen containing cotton. The word or is not found in the original statute, is a typographical error, as may be seen by an examination of the original statute on file in the office of the Secretary of State. The statute must, therefore, be read and construed as if that word had not been inserted. So reading it, the burning of a cotton-house, though it may not contain cotton, is arson in the second degree. While the burning of a cotton-pen is that offense only when it contains cotton.

Affirmed.