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88 Ala. 239

Wells v. State

Supreme Court of Alabama

Decided November 15, 1889

Supreme Court of Alabama · decided 1889-11-15

From the Circuit Court of Marshall. Tried before the Hon. John B. Tally. 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.

Key passage — most relied on by later courts

““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 a charge requested, which predicated his right to an acquittal on the failure of the jury to make diligent inquiry in this behalf, was properly refused.””

quoted by 1 later decision, including 21 Ala. App. 517 - Hendrix v. 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 that 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” (citing Miller v. State, 54 Ala. 155).”

quoted by 1 later decision, including 21 Ala. App. 517 - Hendrix v. State

Relies on Miller v. State

Good law ✅— No negative treatment on recordhow we know

Decided 1889-11-15

How this case has been cited

Cited by 23 later decisions — most recently March 1950

23 state decisions

5018891890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

McCLELLAN, J.

¶1The 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 that 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 as to the Christian name of the defendant. The most that can be affirmed of the language employed in this connection, to-wit, “ Babe Wells (whose true Christian name is to the grand jury unknown otherwise than as stated),” is, that the grand jury were in doubt whether the name “ Babe ” was the baptismal name of the defendant, but that if his name was other than as stated, the fact was unknown to them; or, in other words, that they knew this was a name by which the defendant was known, and if he had another, they neither knew that other, nor the fact that he had any other. Moreover, the matter embraced in the parenthesis, as shown above, was mere surplusage, not essential to a full averment of the offense and identification of the offender, and may be entirely disregarded. — 1 Bish. Cr. Pl. §487; Heard’s Cr. Pl. §§135, 136.

¶2If, 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 *241the 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 predicated his right to an acquittal on the failure of the jury to make diligent inquiry in this behalf, was properly refused. — Duvall v. State, 63 Ala, 12.

¶3The judgment of the Circuit Court, is affirmed.

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