Axelrod v. State , 7 Ala. App. 61 ( 1913 )

THOMAS, J.

An indictment must name the defendant whom it is intended to charge with the offense therein alleged, and an omission in this regard will make the indictment bad. Initials are not sufficient.— Gerrish v. State, 53 Ala. 476; Haley v. State, 63 Ala. 83; Washington v. State, 68 Ala. 85. The object of the re quirement of the law in this particular is to safeguard what with us has risen to the dignity of a constitutional right — “that no person shall for the same offense be twice put in jeopardy of life or limb.”- — Const, of Ala. 1901, § 9. A compliance in the indictment with the requirement mentioned provides definite record evidence of the identity of the person charged, and thereby affords him protection against future prosecutions for the same offense, or, if, perchance, he should be so prosecuted again, affords him easy, definite, and ample proof to support a plea of autrefois acquit or autrefois convict in assertion of the constitutional right. HoAvever, when the name of the defendant is unknown to the grand jury, the regard of the law for the future convenience of the defendant in desiring to furnish him ready proof of a former conviction or acquittal of the same offense, should he be subsequently prosecuted therefor, is not so tender that to afford that convenience it is willing to permit the ends of justice to be defeated and the criminal to go unpunished. In such case he may still be indicted and tried; and his right to plead his acquittal or conviction of the offense in defense' of a subsequent prosecution therefor is not thereby denied or destroyed, though his conveniences for establishing the fact are lessened, yielding, as the law wisely makes them do, to the larger interests of socity in general, and as the necessities of the case demand. — Reese v. State, 90 Ala. 627, 8 South. 818.

Section 7142 of the Code thus provides: “The indictment must be certain as to the person charged; but when his name is unknown to the grand jury, it may be so alleged without further identification.” The indictment in the present case describes the defendant as “A. Axelrod, alias E. Axelrod, whose Christian name is to the grand jury unknown,” and is sufficient on its face. — Winter v. State, 90 Ala. 637, 8 South. 556; Wells v. State, 88 Ala. 239, 7 South. 272; O’Brien v. State, 91 Ala. 25, 8 South. 560; James v. State, 115 Ala. 83, 22 South. 565.

However, though the indictment does allege that the “Christian name is unknown,” yet, if it be shown on the trial that it was in fact known to the grand jury, there is a fatal variance between the allegation and the proof, and defendant Avould be, in such case, entitled to an acquittal. — Authorities supra. But in the absence of testimony impeaching the verity of the allegation the presumption is that the allegation is true; the burden of proof being upon the defendant to rebut it. — Terry v. State, 118 Ala. 87, 23 South. 776; Childress v. State, 86 Ala. 84, 5 South. 775.

In the present case the evidence is conflicting as to whether or not the grand jury knew the defendant’s Christian name; and it was therefore a question for the jury to determine from all the evidence. Hence the affirmative charge requested by the defendant upon this iheory was properly refused.

Charge No. 22, refused to the defendant, thus reads: “If the jury believe from the evidence -that the grand jury, by the exercise of reasonable diligence, could have ascertained the Christian name of the defendant, you cannot convict the defendant.” Whatever be the rule in other states, one contrary to that assumed by the charge prevails here. Long ago, in the case of Duvall v. State, 63 Ala. 18, Judge Stone, on this subject, pronounced the following: “When the averment in the indictment is that a name or fact is unknown, such indictment will support a conviction, unless it be shown that such name or fact was known to the grand jury. It is not enough that such name or fact is proved, and therefore made known to the petit jury, or that, by proper diligence, the grand jury could have learned the true name or fact. It is a question of variance between the averments and the proof; and hence the proper inquiry is not whether that important arm of the law’s administration employed dne diligence. It was a part of their sworn duty to “diligently inquire” and true presentment make; and the law presumes that sworn officials do their duty. The only inquiry is: “Did they falsely affirm a name or fact as unknown to them, when it was known?” This case has ever since been followed by our courts, so far as we find. — Terry v. State, 120 Ala. 293, 25 South. 176; Wells v. State, 88 Ala. 240, 7 South. 272; Childress v. State, 86 Ala. 84, 5 South. 775; Terry v. State, 118 Ala. 87, 23 South. 776.

The only other insistence is that the court erred in refusing charges 17, 18, 20, and 21, requested by defendant, all of which deal with the question of defendant’s good character, and each of Avhich is faulty for several reasons. The first two mentioned (17 and 18) are clearly so, pretermitting the discussion of other defects, because they each assume the defendant’s good character, when this was a matter for the jury to determine from the evidence, depending upon their belief of the testimony offered to that end. The last two (20 and 21) were objectionable, in that both ignored the question of the jury’s belief of the evidence of good character; and one sought to require the jury to give to the mere evidence of good character the same consideration, and the other to allow it the same function or office in their deliberations, that the law requires them to give and allow only to the good character itself, when found by the jury. If the jury do not believe such evidence of good character, such evidence should cease to be considered, or to play any part, favorable to defendant, in the jury’s deliberations ; and if they do not believe such evidence certainly they should not be required to permit it to generate in their minds a reasonable doubt of defendant’s guilt. The charges (20 and 21), respectively, impliedly assert the contrary; for in the one the jury is required to consider suck' evidence in determining the defendant’s guilt, ignoring whether they believe it or not, and in the other it is asserted that such evidence may generate a reasonable doubt of guilt; likeivise ignoring whether the jury believe it or not. Charge 21 is further faulty for the reason pointed out in the case of Pate v. State, 150 Ala. 17, 43 South. 343.

We find no error in the record, and the case is affirmed.

Affirmed.