Hughes v. State

Decision Date06 March 1928
Docket Number7 Div. 390
Citation115 So. 697,22 Ala.App. 344
PartiesHUGHES v. STATE.
CourtAlabama Court of Appeals

Appeal from County Court, De Kalb County; E.M. Baker, Judge.

Zode P. Hughes was convicted of keeping open store on Sunday, and he appeals. Affirmed.

John B. Isbell, of Ft. Payne, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

RICE, J.

Appellant was indicted, under the name "Zode P. Hughes, alias Zode Hughes, whose name is otherwise unknown to the grand jury than as stated," for the offense of keeping open store (not being a druggist) on Sunday. He was tried by the court without a jury and found guilty.

Defendant filed a plea of misnomer, and offered evidence to show his true name to be Zole P. Hughes, and that he had never been called by the name of Zode P. or Zode Hughes. There is no doubt, from the evidence "Zode" and "Zole" Hughes were one and the same man. There was no evidence impeaching the verity of the allegation that defendant's true name was unknown to the grand jury.

Under the form of indictment here considered, defendant's true name was immaterial, in the absence of proof that the grand jury did know his true name at the time of returning the indictment. The issue was whether the defendant's name was otherwise unknown to the grand jury, with the burden of proof on the defendant. The plea of misnomer is not proper in a case such as this. Oliveri v. State, 13 Ala.App. 348, 69 So. 359; Axelrod v. State, 7 Ala.App. 61, 60 So. 959.

No error appearing, the judgment is affirmed.

Affirmed.

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2 cases
  • State v. Savage, CR-06-0022.
    • United States
    • Alabama Court of Criminal Appeals
    • 20 Diciembre 2006
    ...the indictment."4 Oliveri v. State, 13 Ala.App. 348, 352, 69 So. 359, 361 (1915) (emphasis added). See also Hughes v. State, 22 Ala.App. 344, 344, 115 So. 697, 698 (1928) ("Under the form of indictment here considered, defendant's true name was immaterial, in the absence of proof that the g......
  • Morrow v. State
    • United States
    • Alabama Court of Appeals
    • 13 Agosto 1957
    ...that the defendant's name was to the grand jury otherwise unknown. There was no error in the trial court's ruling, Hughes v. State, 22 Ala.App. 344, 115 So. 697; Griffin v. State, 28 Ala.App. 581, 109 So. A defendant in Alabama who is misnamed in an indictment must sail (if he can) between ......

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