Turney v. State

Alabama Court of Appeals

Turney v. State

93 So. 325, 18 Ala. App. 539, 1922 Ala. App. LEXIS 206

CourtAlabama Court of Appeals

DecidedMay 9, 1922

Docket8 Div. 902.

StatusPublished

Cited by4 cases

This text of 93 So. 325 (Turney v. State) 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

Turney v. State, 93 So. 325, 18 Ala. App. 539, 1922 Ala. App. LEXIS 206 (Ala. Ct. App. 1922).

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Opinion

SAMFORD, J.

The defendant was indicted as “A. D. Turney, whose Christian name is to the grand jury unknown.” On the trial it appeared that his Christian name was “Almond,” and it therefore became a question as to whether the grand jury knew this fact; the burden of proof as to such knowl *540 edge resting on the defendant. It was the duty of the grand jury to use proper diligence to ascertain the true Christian name of the defendant, and to so allege it in the indictment, if they can do so. The law presumes that they discharged this duty, and the inquiry is, Did they falsely affirm a fact as unknown when it was known? Terry v. State, 118 Ala. 79, 23 South. 776. If they have done this, and it is so proven on the trial, the probata and allegata do not correspond, and tbe defendant may escape conviction. Terry v. State, supra; Winter v. State, 90 Ala. 637, 8 South. 556; Butler v. State, 17 Ala. App. 511, 85 South. 864. But this is a question for the jury, under the evidence and charge of the court. It was not competent for the defendant to testify that the individual grand jurors, or that the grand jury, knew his name; this was a conclusion of the witness, to which he would not be allowed to testify.

The state’s objection to the question propounded the witness Wright, “Don’t the sheriff get a reward of $50 if defendant is convicted?” was properly sustained. The sheriff was not a witness, and therefore the answer called for is irrelevant.

There was no evidence that the grand jury knew that defendant’s ñame was other than as alleged, and therefore charge No. 2 was properly refused.

The othdr exceptions are without merit. We find no error in the record, and the judgment is ¿fíirmed.

Affirmed.

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SAMFORD, J.

The defendant was indicted as “A. D. Turney, whose Christian name is to the grand jury unknown.” On the trial it appeared that his Christian name was “Almond,” and it therefore became a question as to whether the grand jury knew this fact; the burden of proof as to such knowl *540 edge resting on the defendant. It was the duty of the grand jury to use proper diligence to ascertain the true Christian name of the defendant, and to so allege it in the indictment, if they can do so. The law presumes that they discharged this duty, and the inquiry is, Did they falsely affirm a fact as unknown when it was known? Terry v. State, 118 Ala. 79, 23 South. 776. If they have done this, and it is so proven on the trial, the probata and allegata do not correspond, and tbe defendant may escape conviction. Terry v. State, supra; Winter v. State, 90 Ala. 637, 8 South. 556; Butler v. State, 17 Ala. App. 511, 85 South. 864. But this is a question for the jury, under the evidence and charge of the court. It was not competent for the defendant to testify that the individual grand jurors, or that the grand jury, knew his name; this was a conclusion of the witness, to which he would not be allowed to testify.

The state’s objection to the question propounded the witness Wright, “Don’t the sheriff get a reward of $50 if defendant is convicted?” was properly sustained. The sheriff was not a witness, and therefore the answer called for is irrelevant.

There was no evidence that the grand jury knew that defendant’s ñame was other than as alleged, and therefore charge No. 2 was properly refused.

The othdr exceptions are without merit. We find no error in the record, and the judgment is ¿fíirmed.

Affirmed.

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Bluebook (online)

93 So. 325, 18 Ala. App. 539, 1922 Ala. App. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turney-v-state-alactapp-1922.

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