Citation Numbers: 9 Ala. App. 27, 64 So. 193
Judges: Pelham
Filed Date: 12/18/1913
Status: Precedential
Modified Date: 7/19/2022
The affidavit charged the defendant with an assault and battery, was sworn out by the assaulted party, one R. B. Stewart, and stated the defendant’s name to be “George Hinktom, whose name is to
The proper and sufficient designation of a party charged with crime, that there may be the proper record evidence of the identity of the person, is a substantial right guaranteed by the law.— Axelrod v. State, 7 Ala. App. 61, 60 South. 959; White v. State, 7 Ala. App. 69, 61 South. 463. The rule is clearly declared and well settled that, when the name of the person charged with crime is known, there is no warrant in law for averring the name as unknoAvn, and that Avhen so averred, and the proof shows that it Avas in fact known, there is a fatal variance, and the information will not, on such evidence, support a conviction. — Duvall v. State, 63 Ala. 12; Wells v. State, 88 Ala. 239, 7 South. 272; Winter v. State, 90 Ala. 637, 8 South. 556; James v. State, 115 Ala. 83, 22 South. 565; Johnson v. State, 1 Ala. App. 63, 58 South. 754. The evidence presented a clear case of a variance in this particular of a material matter, and the finding of the court, sitting as judge and jury, adjudging the defendant guilty, was unauthorized, and, being properly presented for review, the judgment of conviction must be reversed.
Reversed and remanded.