Ward v. State

• Decision Date: 12 February 1942
• Docket Number: 4 Div. 217.
• Citation: 242 Ala. 307,6 So.2d 394
• Parties: WARD v. STATE.
• Court: Alabama Supreme Court

6 So.2d 394

242 Ala. 307

WARD v. STATE.

4 Div. 217.

Supreme Court of Alabama

February 12, 1942

Appeal from Circuit Court, Pike County; C. C. Brannen, Judge.

The following charges were refused to defendant:

"No 2. The court charges the jury that they may take into their consideration the testimony of the witnesses as to statements made by the deceased, Fonza Rainey, tending to contradict the dying declarations, in determining what weight the jury will give to the statements introduced in evidence as the dying declaration of the deceased."

"No 32. But it is not necessary that the danger to life or limb or great bodily harm must be real. It need not be actual; but if it should present itself to a reasonable man that the danger was apparent to him, as a reasonable man, that he would suffer great bodily harm or danger to life or limb, he would be entitled to act on that apparent danger, and not as if he was in real danger."

"No 34. The burden is on the State to convince the jury that by the evidence, beyond a reasonable doubt, that the defendant is guilty as charged, and this burden is never discharged until after a consideration of the whole evidence, including the evidence offered by defendant as to intent, and the jury is so convinced."

This charge was given at defendant's request: "No. 35. The court charges the jury that if, after looking at all the evidence in this case, your minds are left in such a state of doubt or uncertainty that you cannot say, beyond a reasonable doubt, whether the defendant acted upon a well-founded and reasonable belief that it was necessary to take the life of the deceased to save herself from great bodily harm or death, or that she shot before such impending necessity arose, then this is such a doubt as will entitle this defendant to an acquittal, and you should so find."

Oliver W. Brantley, of Birmingham, and John C. Walters, of Troy, for appellant.

Thos. S. Lawson, Atty. Gen., and L. L. Mooneyham, Asst. Atty. Gen., for the State.

BOULDIN Justice.

Appellant was indicted, tried, and convicted of murder in second degree, and punishment fixed at imprisonment for twenty-five years.

The indictment charged: "That Katherine Ward, whose name otherwise to the grand jury is unknown, unlawfully and with malice aforethought, killed Fonza Rainey," &c.

The defendant pleaded not guilty, and entered upon the trial on such plea. In course of the trial Louie H. Phillips, a witness for the state, testified on cross-examination: "I know her (defendant's) name was Katherine Veech or Katherine Ward." Question: "Did you testify before the grand jury and tell the grand jury that that was her name?" Objection to this question was sustained, and exception reserved.

Defendant then offered to prove the witness told the grand jury he knew her name as Katherine Veech and Katherine Ward. Objection sustained.

There was no error in these rulings.

A misnomer of a defendant in an indictment is matter for plea in abatement. A plea of not guilty, and entry upon the trial on such plea, is an admission that defendant is indicted by his or her true name, and is a waiver of misnomer, if any. Miller v. State, 54 Ala. 155; Wells v. State, 88 Ala. 239, 7 So. 272; Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am.St.Rep. 17; Nettles v. State, 222 Ala. 236, 132 So. 41; Gerrish v. State, 53 Ala. 476; Bryant v. State, 28 Ala.App. 363, 184 So. 288; 1 Bishop Crim. Practice, § 677; 27 Am.Juris, p. 733, § 187; Tit. 15, §§ 279, 280, 288 (Form 4) Code of 1940.

We have a line of cases holding that an indictment in the form here presented, designating the name of defendant, followed by the precautionary averment that the true name is to the grand jury otherwise unknown, if it develops on the trial upon a plea of not guilty that the name alleged is not the true name and the grand jury did, in fact, know the true name, a conviction should not be allowed on such indictment, because of variance between averment and proof. Winter v. State, 90 Ala. 637, 8 So. 556; Wells v. State, supra.

These cases seem to apply the same rule as to variance applicable to misnomer of a third person, or misdescription of an object, required to be averred in an indictment, proof of which becomes part of the State's case.

In Gerrish v. State, 53 Ala. 476, cited in Winter v. State, supra, there was a plea in abatement. Duvall and Pelham v. State, 63 Ala. 12; Terry v. State, 118 Ala. 79, 23 So. 776; Canty v. State, 238 Ala. 384, 191 So. 260, and many others dealt with variance between allegation and proof as to names of third persons, or in the description of articles &c.

Mr. Bishop draws a distinction between these cases and cases involving a misnomer of the defendant. 1 Bishop on Crim. Practice, § 667. Obviously, the accused has full knowledge of his true name. Whether the holding of Winter v. State, supra, is in conflict with the rule that the plea of not guilty is an admission that defendant is indicted by his true name, and the rule as to variance should be limited to names of third persons, &c., is not necessary to the decision of this case. Such inquiry is not involved.

The proffered evidence did not go to the question of misnomer in the indictment. The purpose of alleging the name is for identification. The true name is any name by which the person is commonly known and called. The plea of misnomer must allege the name alleged is not one by which defendant is known and called.

The proffered evidence merely tended to show defendant had an alias. There was no need to aver an alias, if known. Defendant, as a witness, identified herself as "Mrs Katherine Ward," and testified further: "Katherine...