Oliveri v. State

Citation69 So. 359,13 Ala.App. 348
Decision Date20 May 1915
Docket Number821
PartiesOLIVERI v. STATE.
CourtAlabama Court of Appeals

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

Rich Oliveri was convicted of violating the prohibition law, and he appeals. Affirmed.

The plea of misnomer is as follows:

The defendant avers and says that he is indicted in this case by the name of "Rich Olivere," and says that his name is not "Rich Olivere," and he was never known or called by that name, but that his name is and always was "Richard Oliveri," and that he has always been known and called by that name.

The demurrers interposed were:

(1) Same does not constitute a good plea.
(2) "Rich" is mere abbreviation for "Richard."
(3) His name in the indictment is "Rich Olivere," and that the surname "Oliveri" is one and the same in pronunciation and sound.

The following charges were refused to the defendant:

(2) If you find from the evidence that the correct name of the defendant is and always was "Rich or Richard Oliveri," and that proof was made before the grand jury as to what his correct name is and was at the time, and you further believe that the grand jury indicted in the case by the name "Rich Olivere," then you must find the defendant not guilty.
(5) If the state has failed to prove to your satisfaction every essential averment of the indictment in this case, you must find the defendant not guilty.

Bowman & Vaughan, of Birmingham, for appellant.

William L. Martin, Atty. Gen., and Joseph B. Mudd, Asst. Atty. Gen for the State.

BROWN J.

The indictment avers that "Rich Olivere, whose name is otherwise unknown to the grand jury," sold spirituous vinous, or malt liquors without a license and contrary to law. To this indictment the defendant filed a plea of misnomer, averring "that his name is not 'Rich Olivere,' and he was never known or called by that name but that his name is and always was 'Richard Oliveri,' and he has always been known and called by that name." The defendant, testifying in his own behalf, testified that his name was "Rich or Richard Oliveri," and that he had never spelled his name "Olivere." The evidence also shows without dispute that the defendant was known and called by the name "Rich," and that he was also known and called by the name of "Richard," and also shows without dispute that his surname was pronounced "Olivere." There was no proof offered that the grand jury that returned the indictment had any evidence before it that the defendant's name was otherwise than averred in the indictment.

The court sustained a demurrer to the defendant's plea on the ground, among others, "that same does not constitute a good plea," and he now insists that the sustaining of this demurrer was prejudicial error.

The statute (Code 1907, § 5340) providing, "No demurrer in pleading can be allowed but to matter of substance, which the party demurring specifies; and no objection can be *** allowed which is not directly stated in the demurrer," has no application to criminal prosecutions. This is manifest from the fact that it is in a chapter of the Code dealing with pleadings in civil cases.

The rule here applicable is thus stated:

"To the objection that the demurrer should have been overruled because it did not sufficiently specify the particulars in which the pleas were insufficient we answer: Although the court might for that cause have refused to examine the pleas for defects therein, and have properly overruled the demurrer, yet, if the pleas are manifestly insufficient, and no answer to the indictment, and the court properly so decided, we will not reverse its judgment sustaining the demurrer." James v. State, 53 Ala. 380; Turk v. State, 140 Ala. 112, 37 So. 234.

On the other hand, where no demurrer at all is filed, or where the grounds assigned are not general, but specific, and the specific grounds assigned are inapt, it is error to hold the plea bad. Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann.Cas. 249; Palmer v. State, 3 Ala. App. 127, 57 So. 507.

It is true the statute was held applicable in Pomeroy v. State, 40 Ala. 63, but that was a civil proceeding against a defaulting witness.

Applying the rule announced in James v. State, supra, we hold that the plea was defective, and the demurrer was properly sustained for the reason that the indictment did not purport to charge the defendant by his true name, but it, in legal effect, alleged that his true name was unknown to the grand jury, and that he was only known to the grand jury by the name of "Rich Olivere." This was a sufficient description of the defendant under our statute (Code, § 7142), and it was wholly immaterial what his true name was, unless the proof on the trial showed that the grand jury knew his true name at the time it returned the indictment....

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16 cases
  • Doss v. State
    • United States
    • Alabama Supreme Court
    • June 27, 1929
    ...the plea does not aver that the grand jury was not drawn by officers required by law to draw same," was sustained. In Oliveri v. State, 13 Ala. App. 348, 69 So. 359, was ruled that the statute, Code 1923, § 9479, which provides that "no demurrer in pleading can be allowed but to matter of s......
  • Gober v. City of Birmingham
    • United States
    • Alabama Court of Appeals
    • May 30, 1961
    ...court was justified in refusing to examine the complaint for defects therein, and could properly overrule the demurrer, Oliveri v. State, 13 Ala.App. 348, 69 So. 359, and a trial court will not be put in error for overruling a demurrer based on general grounds which are not sufficiently spe......
  • McKinnon v. State
    • United States
    • Alabama Supreme Court
    • December 15, 1949
    ... ... the indictment was defendant's ... [43 So.2d 420] ... 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 ... ...
  • Savage v. State
    • United States
    • Alabama Court of Appeals
    • June 21, 1921
    ... ... manifestly insufficient, and no answer to the indictment, and ... the court properly so decided, we will not reverse its ... judgment sustaining the demurrer. James v. State, 53 ... Ala. 380; Whitten v. Graves, 40 Ala. 578; Norman ... v. State, 13 Ala. App. 337, 69 So. 362; Oliveri v ... State, 13 Ala. App. 348, 69 So. 359 ... We find ... no error in the record, and the judgment is affirmed ... Affirmed ... On ... Rehearing ... After ... a more careful examination of defendant's plea of former ... jeopardy, we are of the ... ...
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