Martin v. State , 144 Ala. 8 ( 1906 )

DENSON, J.

When the case ivas called for trial the defendant moved that the venire be quashed. The grounds for the motion were that a copy of the venire and the indictment had not been served upon him as required by law, and that he was deprived bf the possession of the papers purporting to be copies of the venire and indictment by the sheriff between the time the same was placed in his hands by the sheriff and the time when his case was called for trial, and while he was in custody of the sheriff. In support of the motion it was shown, without conflict in the evidence, that on the morning of the day the cause was called for trial the deputy sheriff, acting under instructions of the sheriff, applied to the defendant in the jail to lend him the paper the sheriff had given him, stating to the defendant at the time that he Avanted to make a copy of the names of the venire. The defendant granted the request, and the sheriff kept the papers a little over a half hour, and on request of defendant’s counsel, Avhen the case Avas called for trial, promptly delivered the papers to them. On this state of the case Ave fail to see that any Avrong-doing can be attributed to the sheriff, or that the defendant Avas deprived of any light. Whether or not he Avould accommodate the sheriff by lending the copies served on him was a matter entirely optional Avith him. The court properly overruled this motion.

In organizing the jury to try the case the name of H. Dudley Prickett, mechanic, beat 1, Avas drawn from the box. The man AAdio had been summoned as H. Dudley . Prickett appeared to qualify, and stated to the court that his name was not H. Dudley Prickett, but H. W. Prickett. Under oath he testified that his name was Iiiram Warner Prickett and that he was called by the name of Hiram; that he was a mechanic, and resided in beat 1; and that there was no person in said beat by the name of H. Dudley Prickett. The juror was accepted by the state. The defendant objected to the juror Prickett being put upon him upon the ground “that he was not the man whose name had been drawn from the jury box, and whose name had been upon the list served upon the defendant as a venireman, and upon the further ground that the name drawn from the jury box and the name on the venire served'on the defendant was H. Dudley Prickett, whereas the name of the venireman presently put on defendant was H. W. Prickett.” The court overruled the objection and defendant excepted. Mr. Bishop says: “There is no reason w]hy a man should not be as well known by a single letter for his name as by many letters. Hence, if one is commonly designated by initials for his Christian and middle name, so that their use indicates plainly who is meant, it is the doctrine to which the tribunals have been tending, and most of them have reached, that such initials are adequate in the indictment.” But in the same connection the same eminent law writer said: “To render this doctrine available, the man must be known by the initials.” — 1 Bishop’s Criminal Procedure (3d Ed.) § 685; Sewell’s Case, 82 Ala. 57, 2 South. 622; Diggs’ Case, 49 Ala. 311; U. S. v. Winter, 13 Blatchf. 276, Fed. Cas. No. 16,743; Vandermark v. People, 47 Ill. 122. The doctrine above announced has been applied by this court to indictments with respect to the averment of the name of a third person, as, for example, in an indictment for obtaining goods by false pretenses, the name of the person defrauded. — Franklin’s Case, 52 Ala. 414; Sewell’s Case, supra. But the doctrine does not apply in this court to indictments with respect to the name of the defendant, unless it be averred that the name of the defendant is otherwise to the grand jury unknown.— Gerrish’s Case, 53 Ala. 476. The doctrine is applicable to the names of jurors when the juror has been designated by his correct initials, or when he has been designated by initials the first of which has been correctly stated, though the second initial is a mistake. This goes upon the principle that the middle initial is immaterial. —Sewell’s Case, supra; Kimbrell’s Case, 130 Ala. 40, 30 South. 454. So, if the juror had been designated by his correct initials, H. W., or if by the initials H. D., there would have been no error in putting the juror on the defendant; but designated as he was, as H. Dudley Prickett, and the undisputed proof being that his name was Hiram Warner Prickett, and that he was called Hiram, we cannot say, nor do we think the circuit court should have held, that he was the same man whose name was drawn -from the box and placed on the venire as H. Dudley Prickett. The conclusion is that the court erred in putting the juror on the defendant against his objection. The error is not cured by section 5007 of the Code of 1896. Under the terms of this statute it was the duty of the court, on the objection made by the defendant, to have directed that the name of the juror be discarded.

The court committed no error in sustaining the state’s objection to the offer by defendant to prove by witness James threats made by deceased. So far as the bill of exceptions shows, there ivas no pretense that the deceased was about to carry the threats into execution, or that the defendant was not the aggressor. — Payne’s Case, 60 Ala. 80; Rutledge’s Case, 88 Ala. 85, 7 South. 335; Green’s Case, 69 Ala. 6; Jones’ Case, 116 Ala. 468, 23 South. 135; Poe’s Case, 87 Ala. 65, 6 South. 378; Karr’s Case, 100 Ala. 4, 14 South. 851, 46 Am. St. Rep. 17; Teague’s Case, 120 Ala. 309, 25 South. 209.

Whether the proper predicate was laid for the dying declaration of the deceased is immaterial to be determined, as the defendant did not state to the court what the declaration was, nor what answer was expected from the witness. To have' put the court in error the defendant should have made known to the court the evidence desired, and the record here should have shown it. — Tolbert’s Case, 87 Ala. 27, 6 South. 284; Ross’ Case, 139 Ala. 144, 36 South. 718; 3 Brick. Dig. 444, §§ 577 to 579.

For the single error pointed out, the judgment of conviction must be reversed, and the cause remanded.

Reversed and remanded.

Haralson, Dowdell, and Anderson, JJ., concur.