Opinion
6 Div. 777.
December 17, 1935. Rehearing Denied January 14, 1936.
Appeal from Circuit Court, Jefferson County; J. Q. Smith, Judge.
Grant McCoy was convicted of assault with a weapon, and he appeals.
Affirmed.
See, also, post, p. 18, 165 So. 263.
Morel Montgomery, of Birmingham, for appellant.
Demurrer, not motion to strike, was the appropriate method of testing the plea of misnomer. 18 C.J. 484; 42 C.J. 464; Rooks v. State, 83 Ala. 79, 3 So. 720; Sherrod v. State, 197 Ala. 286, 72 So. 540; Campbell v. State, 18 Ala. App. 219, 90 So. 43; Kingery v. State, 26 Ala. App. 283, 158 So. 768; Palmer v. State, 3 Ala. App. 127, 57 So. 507; Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann.Cas. 249; Nettles v. State, 222 Ala. 236, 132 So. 41. The plea was not subject to being stricken because not filed in the inferior court. Denham v. State, 18 Ala. App. 145, 90 So. 129; Code 1923, § 3859; Worthington v. Jasper, 197 Ala. 589, 73 So. 116. Criminal process must be certain as to the person charged. Campbell v. State, supra; Munkers v. State, 87 Ala. 94, 6 So. 357; Glenn v. State, 26 Ala. App. 264, 158 So. 198.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The action of the trial court in striking the plea of misnomer will be sustained if for any reason the ruling was justified under the law. Nettles v. State, 222 Ala. 236, 132 So. 41; Weeks v. State, 24 Ala. App. 160, 132 So. 867; Weeks v. State, 222 Ala. 409, 132 So. 868. A plea of misnomer, being a plea in abatement, comes too late after a plea in bar. Nettles v. State, supra; Wallace v. State, 23 Ala. App. 397, 126 So. 180; McBride v. State, 19 Ala. App. 471, 98 So. 135; Verberg v. State, 137 Ala. 73, 34 So. 848, 97 Am. St. Rep. 17; Wells v. State, 88 Ala. 239, 7 So. 272; Edmunds v. State, 199 Ala. 555, 74 So. 905; Vinson v. State, 26 Ala. App. 48, 152 So. 259; Vinson v. State, 228 Ala. 105, 152 So. 260; Com. v. Darcey, 12 Allen (Mass.) 539; 16 C.J. 384. Such plea would not lie to an indictment alleging that the accused's name was otherwise unknown. Glenn v. State, 26 Ala. App. 264, 158 So. 198; Hughes v. State, 22 Ala. App. 344, 115 So. 697. This would justify the ruling striking the plea, though not assigned in the state's motion. Nettles v. State, supra.
The record exhibited here shows that appellant was duly charged by affidavit with an offense, the one for the commission of which he was convicted, in a court inferior to the one from which this appeal comes. He was charged by the name of "Grant McCoy, whose name was otherwise unknown to affiant"; and, so far as appears, made no objection in said inferior court to the way he was thus designated.
In the circuit court, after appeal taken from his judgment of conviction in the said inferior court, he filed a plea of misnomer, setting up that his name was not "Grant McCoy," but that it was "Grant McCall."
This plea, upon motion by the state, was stricken, and the action of the court in so striking it is the only matter apparent which seems to call for discussion by us.
Under the authority of the decision and opinion of the Supreme Court in the case of Nettles v. State, 222 Ala. 236, 132 So. 41, 42 (Code 1923, § 7318), there seems more than one reason why this action of the court will not cause the judgment of conviction to be reversed, but we will rest our decision upon the statement in the said opinion, that "the action of the court in granting the motion to strike the plea will be sustained, if for any reason [italics ours] the ruling was justified under the law," and by stating that the reason that occurs to us is, that said plea came too late; being filed for the first time in the circuit court. 16 C.J. 384; Edmunds v. State ex rel. Dedge, 199 Ala. 555, 74 So. 965.
There appearing nowhere any prejudicially erroneous ruling or action by the lower court to have been made or taken, the judgment appealed from is affirmed.
Affirmed.