Plain v. City of Birmingham

Alabama Court of Appeals

Plain v. City of Birmingham

79 So. 142, 16 Ala. App. 468, 1918 Ala. App. LEXIS 152

CourtAlabama Court of Appeals

DecidedMay 28, 1918

Docket6 Div. 310.

StatusPublished

This text of 79 So. 142 (Plain v. City of Birmingham) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Plain v. City of Birmingham, 79 So. 142, 16 Ala. App. 468, 1918 Ala. App. LEXIS 152 (Ala. Ct. App. 1918).

Pincite

Opinion

BROWN, P. J.

The complaint on which the appellant was tried charged in effect that:

“Augustus Plain, whose name is otherwise unknown to affiant, with the intent to injure and defraud the Birmingham Railway, Light & Power Company, connected or aided or abetted in connecting a wire or other instrument or contrivance with a wire used by said corporation for the supplying of electricity in such a manner as to supply such electricity to a burner, orifice, or lamp where the same could be burned or used without passing through the meter provided for registering the quantity consumed, against the laws and ordinances of the city of Birmingham.”

To this complaint the defendant filed a plea of misnomer as follows:

“Comes the defendant, and, answering said complaint or information, says: That her name is not Mrs. Auguster Plain, nor is she commonly known by such name, but that her name is Annie Plan.”

Without raising the question that the defense asserted by this plea has been waived, and without testing its sufficiency or filing appropriate replication thereto, the prosecution joined issue thereon. The undisputed evidence shows that the defendant’s name is Annie Plan, and while the witness Wiggins, for the prosecution, testified:

“That he had known the defendant several years, and knew the name she was called by in the community generally; that she was known commonly as ‘Augustus Plan,’ and also as ‘Augustus Plain’; that she was also called ‘Auguster Plain,’ and ‘Annie Plan,’ and ‘Mrs. Auguste Plan.’ ”

*469 There is no evidence that the defendant is commonly known by the name of Mrs. Auguster Plain. The evidence further shows without dispute that the husband of the defendant was Auguste Plan, and that the contract with the Birmingham Railway, Light & Power Company for furnishing them electricity was made between the husband and the company. The undisputed evidence sustains the plea of misnomer, and the court erred in rendering judgment against defendant on this plea. Hewlett v. State, 135 Ala. 59, 33 South. 662; White v. State, 7 Ala. App. 69, 61 South. 463; Gerrish v. State, 53 Ala. 476.

The court is further of the opinion, after careful consideration of the evidence in this record, that her undisputed evidence rebuts and meets every inference afforded by the evidence for the prosecution, and that the judgment of conviction under this evidence was erroneous. Judgment will therefore be rendered, discharging the appellant.

Reversed and rendered.

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BROWN, P. J.

The complaint on which the appellant was tried charged in effect that:

“Augustus Plain, whose name is otherwise unknown to affiant, with the intent to injure and defraud the Birmingham Railway, Light & Power Company, connected or aided or abetted in connecting a wire or other instrument or contrivance with a wire used by said corporation for the supplying of electricity in such a manner as to supply such electricity to a burner, orifice, or lamp where the same could be burned or used without passing through the meter provided for registering the quantity consumed, against the laws and ordinances of the city of Birmingham.”

To this complaint the defendant filed a plea of misnomer as follows:

“Comes the defendant, and, answering said complaint or information, says: That her name is not Mrs. Auguster Plain, nor is she commonly known by such name, but that her name is Annie Plan.”

Without raising the question that the defense asserted by this plea has been waived, and without testing its sufficiency or filing appropriate replication thereto, the prosecution joined issue thereon. The undisputed evidence shows that the defendant’s name is Annie Plan, and while the witness Wiggins, for the prosecution, testified:

“That he had known the defendant several years, and knew the name she was called by in the community generally; that she was known commonly as ‘Augustus Plan,’ and also as ‘Augustus Plain’; that she was also called ‘Auguster Plain,’ and ‘Annie Plan,’ and ‘Mrs. Auguste Plan.’ ”

*469 There is no evidence that the defendant is commonly known by the name of Mrs. Auguster Plain. The evidence further shows without dispute that the husband of the defendant was Auguste Plan, and that the contract with the Birmingham Railway, Light & Power Company for furnishing them electricity was made between the husband and the company. The undisputed evidence sustains the plea of misnomer, and the court erred in rendering judgment against defendant on this plea. Hewlett v. State, 135 Ala. 59, 33 South. 662; White v. State, 7 Ala. App. 69, 61 South. 463; Gerrish v. State, 53 Ala. 476.

The court is further of the opinion, after careful consideration of the evidence in this record, that her undisputed evidence rebuts and meets every inference afforded by the evidence for the prosecution, and that the judgment of conviction under this evidence was erroneous. Judgment will therefore be rendered, discharging the appellant.

Reversed and rendered.

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79 So. 142, 16 Ala. App. 468, 1918 Ala. App. LEXIS 152, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plain-v-city-of-birmingham-alactapp-1918.

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