Wells v. State, 88 Ala. 239

Wells v. State

88 Ala. 239 | Ala. | 1889

McCLELLAN, J.

The plea of not guilty was an admission that the name by which the defendant was indicted was his true name, and a waiver of the misnomer, if in fact the indictment was originally open to that objection, whether that advantage is sought to be taken of it on the trial, as by a request for an instruction on the point, or after verdict, by a motion in arrest of judgment. — Miller v. State, 54 Ala. 155. There was no self-repugnance, or inconsistency, in the allegations of the indictment as to the Christian name of the defendant. The most that can be affirmed of the language employed in this connection, to-wit, “ Babe Wells (whose true Christian name is to the grand jury unknown otherwise than as stated),” is, that the grand jury were in doubt whether the name “ Babe ” was the baptismal name of the defendant, but that if his name was other than as stated, the fact was unknown to them; or, in other words, that they knew this was a name by which the defendant was known, and if he had another, they neither knew that other, nor the fact that he had any other. Moreover, the matter embraced in the parenthesis, as shown above, was mere surplusage, not essential to a full averment of the offense and identification of the offender, and may be entirely disregarded. — 1 Bish. Cr. Pl. §487; Heard’s Cr. Pl. §§135, 136.

If, on the other hand, the language quoted be held the equivalent of an averment that the first name of the defendant was unknown to the grand jury, the result to the appellant is the same. He might have impeached the finding by disproof of the fact thus alleged: that is, it was open to him to show that his true name was known, and showing which *241the indictment would not have supported a conviction. But he did not do this. What he did was to show, not that the jury knew, but that with reasonable inquiry-they might have known, his true name. This was insufficient, and the charge requested, which predicated his right to an acquittal on the failure of the jury to make diligent inquiry in this behalf, was properly refused. — Duvall v. State, 63 Ala, 12.

The judgment of the Circuit Court, is affirmed.