Wells v. State

Decision Date30 January 1890
Citation88 Ala. 239,7 So. 272
PartiesWELLS v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Marshall county; JOHN B. TALLY, Judge.

Indictment for carrying concealed weapons. The indictment in this case charged that "Babe Wells, whose true Christian name is to the grand jury unknown, otherwise than as stated, carried a pistol concealed about his person." There was no demurrer to the indictment, and no plea in abatement, and issue was joined on the plea of not guilty. On the trial the prosecution introduced a single witness, who testified that the defendant, on proposing a visit to "the mountain," which the witness declined, lest they might get into some trouble, pulled a pistol out of his pocket showed it to witness, and then replaced it in his pocket; and he further testified, on cross-examination, "that he was before the grand jury, and they did not ask him if the defendant had any other name, but did not recollect if they asked him the name of the defendant." The defendant then introduced one William Wells as a witness, who testified "that he was before the grand jury by which the indictment was found, and they did not ask him anything about the defendant's name; that he was well acquainted with the defendant at the time, and knew that his name was Pinckney Wells." On this evidence the defendant asked the following charge in writing, and excepted to its refusal "If the jury believe from the evidence that the defendant's true Christian name at the finding of the indictment was Pinckney Wells, and that the grand jury knew his name was Pinckney, or by the exercise of due diligence could have found out the fact, and failed to do so, then they must acquit the defendant." After conviction the defendant moved in arrest of judgment, on the ground that the averments of the indictment as to his name "are inconsistent and self-repugnant," which motion the court overruled.

Atty. Gen. Martin, for the State.


The plea of not guilty was an admission that the name by which the defendant was indicted was his true name, and a waiver of the misnomer, if in fact the indictment was originally open to that objection, whether advantage is sought to be taken of it on the trial, as by a request for an instruction on the point, or after verdict by a motion in arrest of judgment. Miller v. State, 54 Ala. 155. There was no self-repugnance or inconsistency in the allegations of the indictment...

To continue reading

Request your trial
22 cases
  • Enson v. State
    • United States
    • Florida Supreme Court
    • November 30, 1909
    ...(Mass.) 41; Commonwealth v. Stoddard, 9 Allen (Mass.) 280, text 282, 283; Commonwealth v. Noble, 165 Mass. 13, 42 N.E. 328; Wells v. State, 88 Ala. 239, 7 So. 272; v. State, 63 Ala. 12; Terry v. State, 118 Ala. 79, 23 So. 776; Winter v. State, 90 Ala. 637, 8 So. 556; White v. People, 32 N.Y......
  • McKinnon v. State
    • United States
    • Alabama Supreme Court
    • December 15, 1949
    ... ... result as if the indictment had affirmed the name stated in ... 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 ... ...
  • McKinnon v. State
    • United States
    • Alabama Court of Appeals
    • June 21, 1949
    ...whose Christian name is to the grand jury unknown,' and is sufficient on its face. Winter v. State, 90 Ala. 637, 8 So. 556; Wells v. State, 88 Ala. 239, 7 So. 272; O'Brien v. State, 91 Ala. 25, 8 So. 560; James v. State, 115 Ala. 83, 22 So. 'However, though the indictment does allege that t......
  • Crow v. State
    • United States
    • Alabama Court of Appeals
    • May 25, 1937
    ...undertook in every possible manner to assume and carry out said burden, but, as stated, was denied the right to do so. In Wells v. State, 88 Ala. 239, 7 So. 272, the Court of Alabama (speaking through Mr. Justice McClellan) said: "If, on the other hand, the language quoted be held the equiv......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT