BROWN, Justice.
Section 240, Title
15, Code of 1940 first appeared in the Code of 1852 as §
563. It 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.' [Italics supplied.]
As observed in
Morningstar v. State, 52 Ala. 405, 407: 'There
are authorities at common law, that when the name of the
person charged is to the grand jurors unknown, a mere
averment that it is unknown is not sufficient. It must be
accompanied with some other mark of identification, as in one
case that he 'was personally brought before the jurors by
the keeper of the prison.' 1 Bish.Cr.Pr. § 119;
Wharton Cr. Law, § 242. The code now declares an
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 (R.C. § 4113 [Code 1940
Tit. 15, § 240]); thus rendering sufficient the mere
averment that the name of the person charged is unknown to
the grand jurors. The policy of this statute, it was held in
Bryant v. State, 36 Ala. 270, should be extended to
kindred questions, and was extended to an indictment for
murder averring the christian name of the person slain was
unknown. * * *.' (Italics supplied.)
The effect of the
statute is to preserve the strictness of the common law rule
as to the identity of the person charged, but to relax the
rule of pleading as to the name of the person charged, and by
judicial fiat in applying the statute, extend to the person
charged the right on his trial under a plea of not guilty to
prove his true name and that it was known to the grand jury
at the time the indictment was proffered and thus prevent his
conviction under such indictment, accomplishing the same
result as if the indictment had affirmed the name stated in
the indictment was defendant's
true name and he had interposed and sustained a plea of
misnomer. Gerrish v. State, 53 Ala. 476, 485-486;
Winter v. State, 90 Ala. 637, 8 So. 556; Wells
v. State, 88 Ala. 239, 7 So. 272; Oliveri v
State, 13 Ala.App. 348, 69 So. 359; Hughes v
State, 22 Ala.App. 344, 115 So. 697.
In Winter's
case, supra [90 Ala. 637, 8 So. 557], the effect of an
indictment following the statute was so clearly stated we
here reproduce the pertinent part of the court's opinion:
'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 criminal offense, by the
initial letters of his name, when his true name is known; and
that an indictment 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 designates appellant by the initial letters
of his Christian name, contains the requisite averment that
his true Christian name is otherwise unknown to the grand
jury, which renders it sufficient on its face--not subject to
plea in abatement--he may escape 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 grand
jury, a conviction cannot be had on the indictment. It was so
held in Duvall v. State, 63 Ala. , 13, where it is said
'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 averring such fact or name
is unknown. Such form of averment may be supposed to give
greater latitude of proof, but, when it appears on the trial
that the fact or name was known, a conviction on such
indictment should not be allowed.' This rule was
reasserted in respect to an averment that the name was
unknown in the case of Wells v. State, 88 Ala. 239,
7 So. 272, and it may be regarded as settled that, when the
defendant shows that his true name was known to the grand
jury, the indictment will not support a conviction.'
The
first paragraph of the opinion in Wells v. State, 88
Ala. 239, 7 So. 272, 273, is clearly dictum, the last
paragraph of which states the law as reaffirmed in
Winter's case, supra, and since.
'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, the 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...