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In Carter v. State, 21 Ala. App. 406, 108 So. 642, this court on a similar point, said: "It will therefore be seen that the defendant's plea of misnomer was in form and properly before the court, to be disposed of as in such cases made and provided.
Summary of this case from Evans v. StateOpinion
4 Div. 177.
April 6, 1926. Rehearing Denied May 25, 1926.
Appeal from Circuit Court, Pike County; W. L. Parks, Judge.
J. B. Carter was convicted of violating the prohibition laws, and he appeals. Reversed and remanded.
Ballard Brassell, of Troy, for appellant.
Appellant's plea of misnomer should have been sustained. Gerrish v. State, 53 Ala. 476; Lyon v. State, 61 Ala. 229; Winter v. State, 90 Ala. 637, 8 So. 556; O'Brien v. State, 91 Ala. 27, 8 So. 560.
Harwell G. Davis, Atty. Gen., and Robt. G. Tate, Asst. Atty. Gen., for the State.
The defendant's plea is not in proper form, failing to aver the true name of defendant. Wren v. State, 70 Ala. 1; Bright v. State, 76 Ala. 96.
We have examined this record and find only one question presented. The defendant filed his plea of misnomer as follows:
"Comes the defendant in his own proper person and for plea of misnomer says: That his true name is Quince, or Sug, Carter, and not J. B. Carter, as alleged in the indictment, and that he has never been known or called by the name of J. B. Carter, which he hereby verifies, and prays judgment that the indictment be quashed.
Quince Carter.
"Sworn to and subscribed before me this the 17th day of December, 1924.
"J. H. Jinright, Clerk.
"Filed this the 17th day of December, 1924.
"J. H. Jinright, Clerk."
This plea follows the form laid down in the Code, § 5205, form 4. If this plea was proven the prosecution could not have proceeded upon the indictment as returned by the grand jury. Butler v. State, 17 Ala. App. 511, 85 So. 864.
According to the return of the clerk to the certiorari issued from this court, the original indictment charged that "J. B. Carter did buy," etc., whereas after trial the indictment had been altered or changed by some party unknown so as to add to the indictment the words, "whose name is otherwise to the grand jury unknown." Acting upon the return of the clerk duly certified, we must pass upon the indictment without the words, "whose name is otherwise to the grand jury unknown." It will therefore be seen that the defendant's plea of misnomer was in form and properly before the court, to be disposed of as in such cases made and provided. The trial judge did not do this, but without motion, demurrer, or issue joined, overruled the defendant's plea. This is shown by the judgment and was error to a reversal.
The judgment is reversed, and the cause is remanded.
Reversed and remanded.