Axelrod v. State

• Citation: 60 So. 959,7 Ala.App. 61
• Parties: AXELROD v. STATE.
• Decision Date: 16 January 1913
• Court: Alabama Court of Appeals

60 So. 959

7 Ala.App. 61

AXELROD v. STATE.

Court of Appeals of Alabama

January 16, 1913

Appeal from City Court of Montgomery; Armstead Brown, Judge.

A Axelrod, etc., was convicted of assault with a weapon, and he appeals. Affirmed.

The indictment charges that "A. Axelrod, alias E. Axelrod whose Christian name is to the grand jury unknown unlawfully, and with malice aforethought, assaulted Walter Berry," etc.

The following charges were refused to the defendant:

(17) "The good character of defendant remains with you until you find him guilty beyond all reasonable doubt, or acquit him, as the case may be."

(18) "The good character of defendant must be considered by you until you find him guilty beyond all reasonable doubt."

(20) "The evidence of defendant's good character must be considered by you, in connection with the other evidence in the case, to determine the defendant's guilt or innocence."

(21) "Evidence of good character of defendant may generate in your mind a reasonable doubt of defendant's guilt."

Letcher McCord & Harold, of Montgomery, for appellant.

R. C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

THOMAS J.

An indictment must name the defendant whom it is intended to charge with the offense therein alleged, and an omission in this regard will make the indictment bad. Initials are not sufficient. Gerrish v. State, 53 Ala. 476; Haley v. State, 63 Ala. 83; Washington v. State, 68 Ala. 85. The object of the requirement of the law in this particular is to safeguard what with us has risen to the dignity of a constitutional right--"that no person shall for the same offense be twice put in jeopardy of life or limb." Const. of Ala. 1901, § 9. A compliance in the indictment with the requirement mentioned provides definite record evidence of the identity of the person charged, and thereby affords him protection against future prosecutions for the same offense, or, if, perchance, he should be so prosecuted again, affords him easy, definite, and ample proof to support a plea of autrefois acquit or autrefois convict in assertion of the constitutional right. However, when the name of the defendant is unknown to the grand jury, the regard of the law for the future convenience of the defendant in desiring to furnish him ready proof of a former conviction or acquittal of the same offense, should he be subsequently prosecuted therefor, is not so tender that to afford that convenience it is willing to permit the ends of justice to be defeated and the criminal to go unpunished. In such case he may still be indicted and tried; and his right to plead his acquittal or conviction of the offense in defense of a subsequent prosecution therefor is not thereby denied or destroyed, though his conveniences for establishing the fact are lessened, yielding, as the law wisely makes them do, to the larger interests of society in general, and as the necessities of the case demand. Reese v. State, 90 Ala. 627, 8 So. 818.

Section 7142 of the Code thus provides: "The indictment must be certain as to the person charged; but when his name is unknown to the grand jury, it may be so alleged without further identification." The indictment in the present case describes the defendant as "A. Axelrod, alias E. Axelrod, whose Christian name is to the grand jury unknown," and is sufficient on its face. Winter v. State, 90 Ala. 637, 8 So. 556; Wells v. State, 88 Ala. 239, 7 So. 272; O'Brien v. State, 91 Ala. 25, 8 So. 560; James v. State, 115 Ala. 83, 22 So. 565.

However, though the indictment does allege that the "Christian name is unknown," yet, if it be shown on the trial that it was in fact known to the grand jury, there is a fatal variance between the allegation and the proof; and defendant would be, in such case, entitled to an acquittal. Authorities supra. But in the absence of testimony impeaching the verity of the allegation the presumption is that the allegation is true; the burden of proof being upon the defendant to rebut it. Terry v. State, 118 Ala. 87, 23 So. 776; Childress v. State, 86 Ala. 84, 5 So. 775.

In the present case the evidence is conflicting as to whether or not the grand jury knew the defendant's Christian name; and it was therefore a question for the jury to determine from all the evidence. Hence the affirmative charge requested by the defendant upon this theory was properly refused.

Charge No. 22, refused to the defendant, thus reads: "If the jury believe from the evidence that the grand jury, by the exercise of reasonable diligence, could have ascertained the Christian name of the...