Winter v. StateWinter v. State
- Reporters:
- Before:
- Olopton
In Gerrish v. State, 53 Ala. 476, it was-ruled, that it is not allowable to’ designate in an indictment the person charged therein with the commission of a сriminal offense, by the initial letters of his name, when his true name is known; and that an indiсtment so designating him is subject to plea in abatement, unless it also avers that the true name is otherwise unknown to the grand jury. But, notwithstanding the indictment, which designatеs appellant by the initial letters оf his Christian name, contains the requisite aver*638ment that his true Christian name is otherwisе’ unknown to the grand jury, which renders it sufficient оn its face — not subject to pleа in abatement. — he may escaрe conviction by proving on the trial the falsity of the averment. It becomes a question of variance between averment and proof; and if the evidence adduced shows that his true name was in fact known to the grand jury, a conviction can not be hаd on the indictment. It was so held in Duvall v. State, 63 Ala. 13, where.it is sаid: “One rule is clearly declared in all the cases; that when a fact or name is known or proved to the grand jury, there is no warrant in the law for avеrring such fact or name is unknown. Such form оf averment may be supposed tо give greater latitude of proof; but, when it appears on the trial that the fact or name was known, a сonviction on such indictment should not be allowed.” This rule was re-asserted, in rеspect to an averment that thе name was unknown, in the case of Wells v. State, 88 Ala. 239; and it may be regarded as settled, that whеn the defendant shows that his true name wаs known to the grand jury, the indictment will not supрort a conviction.
The evidence of the witness introduced by the Statе to prove the commission of thе olfense, shows that the Christian name of defendant was proved and known to the grand jury. Such being the evidence, thе court erred in giving the general affirmative charge in favor of the State. It is unnecessary to consider the question raised as to the organization of the grand jury-
Reversed and remanded.