Smith v. State

• Decision Date: 08 April 1913
• Citation: 62 So. 575,8 Ala.App. 187
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

62 So. 575

8 Ala.App. 187

SMITH v. STATE.

Court of Appeals of Alabama

April 8, 1913

Appeal from Clay County Court; E.J. Garrison, Judge.

J. Van Smith was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

The facts are sufficiently stated in the opinion. The following written charges were refused the defendant: (10) "The court charges the jury that, unless the defendant fired upon the parties in the wagon with the intention to murder some one by the shot, they cannot find the defendant guilty." (11) "The court charges the jury that they cannot find the defendant guilty unless they believe from the evidence beyond a reasonable doubt that he fired one of the shots testified to in the evidence." (12) "The court charges the jury that if they believe from the evidence beyond a reasonable doubt that Bud Smith, and not J. Van Smith, they cannot find defendant guilty." (16) "The court charges the jury that, if the weapon used in this case was not a weapon ordinarily calculated to produce death at the distance from which it was fired, then defendant cannot be found guilty of assault with intent to murder." (34) "If it would not be possible to kill a person at the distance which separated the persons fired upon from the assailant as sworn to in this case, then the defendant cannot be found guilty of assault with intent to murder."

R.G Rowland, of Ashland, and Knox, Acker, Dixon & Sterne and Blackwell & Agee, all of Anniston, for appellant.

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

THOMAS, J.

The defendant was indicted under the name J. Van Smith, and he pleaded in abatement that his correct name was Javan J Smith. The state demurred to the plea, which was sustained on the ground, among others, that the name set up in the plea is idem sonans with that stated in the indictment.

In considering the plea we are to ignore the middle initial "J." given therein, since the criminal law regards a middle name as entirely immaterial. Rooks v State, 83 Ala. 80, 3 So. 720; Pace v. State, 69 Ala. 231, 44 Am.Rep. 513; Kimbrell v. State, 130 Ala. 40, 30 So. 454. So the plea in abatement can be properly regarded as alleging that the defendant's true name is Javan Smith, whereas he was indicted as J. Van Smith. Clearly the two sound alike, but when we treat the letter J, in the indictment, as only an initial of another name, which it purports only to be (Diggs v. State, 49 Ala. 311; Gerrish v. State, 53 Ala. 477), we have as the only given name of the defendant stated in the indictment that of Van Smith, which is not idem sonans with that of Javan Smith given in the plea. The doctrine of idem sonans applies only to names that are spelled differently, but are pronounced alike, and was adopted for the reason that orthography provides no rule or standard for the correct spelling of proper names. A person may spell his name as he pleases, and violate no rule of English; other persons may likewise spell it differently, and so long as it sounds the same the law will treat it as the same. 21 Am. & Eng.Ency.Law, p. 313 et seq.; Rooks v. State, 83 Ala. 80, 3 So. 720.

We find, however, nowhere such a statement or application of the doctrine of idem sonans as would warrant its extension to a case like this, and the reasons underlying the rule would forbid. If Javan Smith can be properly indicted as J. Van Smith, then Eurah Jones could be property tried under an indictment against U.R. Jones, although the letters U.R. may be the real given name of another Jones actually intended to be indicted, or the initials of Uriah Rhodes Jones. The latter two instances are not cases of a different spelling of the same name, but a case of different names; and we are of opinion that the doctrine of idem sonans is not applicable to either instance. Gerrish v. State, 53 Ala. 477.

At common law a person may be connected with a felony either as a principal in the first degree, as a principal in the second degree, or aider or abettor, as an accessory before the fact, or as an accessory after the fact. A principal in the first degree is he that is the actor or absolute perpetrator of the crime. A principal in the second degree is one who, at the time of the commission of the felony, is present, either actually or constructively--that is, either on the spot or near enough to render assistance to the main design should the need arise--and aids or abets in its commission in any way that these words are defined in Raiford v. State, 59 Ala. 106; Amos v. State, 83 Ala. 1, 3 So. 749, 3 Am.St.Rep. 682; State v. Tally, 102 Ala. 63, 15 So. 722. An "accessory" is one who is not the chief actor in the felonious offense, nor present at its perpetration, but is in some way concerned therein either before or after the act is committed. If one be absent at the time a felony is committed, yet procures, counsels, or commands another to commit it, he is an accessory before the fact. Griffith v. State, 90 Ala. 583, 8 So. 812. If, knowing a felony to have been committed, he receives, relieves, comforts, or assists the felon, he is an accessory after the fact. 8 Am. & Eng.Ency.Law, p. 292; 1 Am. & Eng.Ency.Law. p. 260.

This distinction and difference between the several offenders was drawn at common law and applicable only in cases of felony. In misdemeanors every person so connected with the offense was treated as a principal and could be indicted and tried as such--except that a participation in the misdemeanor after the fact was hardly noticed by the law. 1 Am. & Eng.Ency.Law, p. 261, note 1. Section 6219 of the Code of Alabama abolishes the distinction existing at common law between the several prime offenders in cases of felony, and makes every person criminally connected with the act a principal, as in misdemeanors, except accessories after the fact. It declares: "The distinction between an accessory before the fact and a principal, and between principals in the first and second degrees in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter be indicted, tried, and punished as principals, as in the case of misdemeanors." Accessories after the fact are dealt with in section 6220.

The defendant, J. Van Smith, and his son, Bud Smith, were in pursuance of the statute separately indicted and tried as principals for an assault with intent to murder John Perry, Mrs. E.F. Perry, Henry Wilkes, and Ernest McCarley--all of them in one count and each of them in separate counts. Bud Smith was first tried and convicted, and it is contended by the state, which is admitted by defendant, that Bud Smith is the person who actually fired the gun in the alleged assault. In order, therefore, to convict the defendant for the act of Bud Smith, whether it amounted to only an assault and battery or the graver offense of an assault with the intent to murder, it must be established that the defendant was connected with the offense to such an extent as would make him either what was known at common law as a principal in the second degree or an accessory before the fact, each of which terms has been hereinbefore defined.

It was therefore competent for the state to offer evidence tending to show either or both, and if the jury believed either beyond a reasonable doubt--either that he was present, actually or constructively, at the time Bud Smith fired the gun, and aided or abetted him in the doing of the act ( Raiford v. State, 59 Ala. 106; Amos v. State, 83 Ala. 1, 3 So. 749, 3 Am.St.Rep. 682; State v. Tally, 102 Ala. 63, 15 So. 722), or, if absent at the time, that he beforehand had procured or counseled or conspired with Bud Smith to do the act (Griffith v. State, 90 Ala. 583, 8 So. 812; Hughes v. State, 75 Ala. 31)--they would be justified in convicting him, of an assault with the intent to murder, if the jury further believed beyond a reasonable doubt that there was such an intent (McCormack v. State, 102 Ala. 156, 15 So. 438; Meredith v. State, 60 Ala. 441), and, if not, of an assault and battery, since there is no question but what Bud Smith was guilty of at least the latter.

A "conspiracy" in general is defined to be "the confederating together of two or more persons to accomplish some unlawful purpose, or a lawful purpose by unlawful means." 2 Bish. New Crim.Law, §§ 171, 175; 6 Am. &amp Eng.Ency.Law, p. 832; 1 Mayf.Dig. p. 214. Sections 6470 and 6471 of the Code, respectively, fix the punishment for criminal conspiracies to commit felonies and misdemeanors. A criminal conspiracy is a distinct, substantive offense, complete when the corrupt agreement is entered into. Such agreement is the very gist of the offense, and it is not necessary to a conviction for a conspiracy alone that any act should be done in pursuance of it. Thompson v. State, 106 Ala. 76, 17 So. 512. When an act, however, has been committed by one of the conspirators in furtherance of the common design, if the act amounts only to a misdemeanor, then all of the conspirators may be indicted and tried either for the conspiracy to commit the act or for the act itself; but, when the act done in such furtherance amounts to a felony, then the lesser offense of the conspiracy to do the act is merged into the higher crime of the act itself, and the conspirators can only be indicted for and convicted of the latter--all as principals under the statute. 6 Am. & Eng.Ency.Law, p. 863. The rules of evidence, however, applicable to the establishment of a conspiracy, are the same, of course, whether the parties are charged and being tried for the conspiracy itself or for the crime committed in execution or attempted...