Cutcliff v. State

^* Certiorari denied 87 So. 708. The indictment, omitting the formal parts thereof, charged that William H. Cutcliff unlawfully and with malice aforethought did assault Mrs. W.H. Cutcliff, with the intent to murder her, etc.

That the assault by this defendant upon his wife was committed within the period covered by the indictment is not denied, nor is the serious character or nature of the assault in dispute. The defendant, however, insists that no conviction can be had in this case because of a variance between the allegation in the indictment as to the name or identity of the injured party and the proof adduced thereto on the trial of this case, and raises this question in several different ways.

There is much merit and sound reasoning contained in the well-prepared brief of the able counsel for appellant on this question. We are, however, constrained to hold adversely to their contention in this connection by virtue of the authority of Jones v. State, 181 Ala. 63, 75, 61 So. 434, and cases there cited. See, also, Will Montgomery v. State, ante, p. 469,86 So. 132.

In the instant case the name of the injured party is alleged as "Mrs. W.H. Cutcliff," and when this witness was on the stand she testified that her name was "Mrs. W.H. Cutcliff," which testimony, of itself, tends to substantiate the averment of the indictment in this respect. It is true that on cross-examination of this witness she testified that her maiden name was Julia Giles, and that her Christian name was Julia, and during the progress of the trial there was other evidence to the same effect. But the evidence is without dispute that she was the wife of W.H. Cutcliff, and that she was generally known and called by that name. Nor was there any question as to the actual identity of the injured party. In view of this evidence, we are of the opinion that the rulings of the court upon the several questions in connection with this matter were free from error. It cannot be doubted, however, that the better practice would have been for this allegation of the indictment to have contained the Christian name of the injured party, which, of course, could easily have been obtained by the grand jury while engaged in the investigation of this case.

The most vital question upon the trial of this cause was upon the issue formed under defendant's plea of "not guilty by reason of insanity." This plea was interposed in addition to the plea of "not guilty" upon the arraignment of the defendant. The general rule is: Where it is clearly proven that the offense has been committed by the defendant, the law presumes he was sane at the time of its commission; in other words, the burden is upon the state, under the plea of not guilty, to prove beyond a reasonable doubt and to a moral certainty that the defendant committed the crime; and the law presumes every man to be sane. Williams v. State, 13 Ala. App. 133, 69 So. 376. The law imposes upon the defendant the burden of proving his special plea by a preponderance of the evidence to the reasonable satisfaction of the jury. McGhee v. State, 178 Ala. 4,59 So. 573; Code 1907, § 7175.

A reasonable doubt of the defendant's sanity raised by all the evidence does not authorize an acquittal. Martin v. State,119 Ala. 1, 25 So. 255; Boswell v. State, 63 Ala. 307, 35 Am. Rep. 20. While it is possible that this rule may be criticised as not being sound and of being stare decisis in its nature, it nevertheless has been laid down as the rule prevailing in this state in the cases of Boswell v. State, supra; Ford v. State, 71 Ala. 385; Parsons v. State, 81 Ala. 577,2 So. 854; Gunter v. State, 83 Ala. 96, 3 So. 600; Maxwell v. State, 89 Ala. 150, 7 So. 824; Fonville v. State,91 Ala. 39, 8 So. 688; Walker v. State, 91 Ala. 76, 9 So. 87; Georgia Russell v. State, ante, p. 436, 87 So. 221; as well as in many other cases unnecessary to cite.

During the trial of this case, under the issue formed by defendant's special plea, much evidence was offered pro and con upon this question, and the court's rulings upon this evidence in numerous instances are complained of as being error. We refrain from dealing specifically with each of these rulings, for no good purpose can be thus subserved. However, the entire court has taken up and given the most careful consideration to each and every exception reserved to the rulings of the court in this connection, and we are of the opinion that no error appears in any of these rulings which injuriously affected the substantial rights of the defendant. On this question, the insanity of the defendant, the evidence was in sharp and material conflict, and it therefore became a question for the determination of the jury.

As no error of a reversible nature appears in any of the rulings of the court complained of, and as the record is free from error also, it follows that the judgment of the lower court must be affirmed.

Affirmed.