White v. State

WALKER, P. J.

The defendant was prosecuted under a complaint charging the commission of a criminal offense by Bertha White. She interposed a plea in abatement which alleged that “her name is not ‘Bertha White,’ neither has she been known or called by that name; but that her name is ‘Bert White/ by which name she is known and called.” The court was in error in sustaining the demurrer interposed to this plea.

The first ground assigned in the demurrer was a misstatement of fact, as plainly the names “Bertha” and “Bert” do not have the same sound, nor are they so alike in sound that it can be said that there is no material difference between them. — Merlette v. State, 100 Ala. 42, 14 South. 562; Lawrence v. State, 59 Ala. 61.

As to its second ground, the demurrer is a speaking one in stating as a fact that which is not disclosed by the complaint, and which could not have been judicially known to the court. “The object and purpose of describing the accused by his name is to identify him.”— Washington v. State, 68 Ala. 85.

The defendant in a criminal case is entitled, if Ms right in this respect is seasonably asserted, to be prosecuted only under a name which identifies him, so that the judgment rendered in the. case, whether one of acquittal or one of conviction, -may be readily available to him as a defense to a subsequent prosecution for the same offense. When he is prosecuted under a name which is neither his true name nor one which identifies him, he is entitled to have the prosecution abated upon duly and seasonably pleading and proving the misnomer, and also a name by which he is known or called, thus enabling the prosecution to have “a better writ” by disclosing a name which identifies him.

There is no merit in the suggestion made in the argument of the Attorney General that the record shows that the plea in abatement and the demurrer to it were filed on the day after the trial of the case on the merits. While the indorsements made by the clerk on those two pleadings indicate that each of them was filed on October 10, 1912, yet the minutes of the court for October 9, 1912, show that the defendant had at that time already filed a plea of misnomer, to which the state demurred. It is not doubted that the indorsements of the clerk were mere clerical misprisions as to the dates of filing, the correction of which is furnished by the recitals of the court’s minute entry, which plainly show that the demurrer to.the defendant’s plea of misnomer was sustained by the court before the plea of not guilty was interposed, and the trial on the facts was entered upon.

Reversed and remanded.