Woods v. State

Supreme Court of Alabama

Woods v. State

133 Ala. 162

CourtSupreme Court of Alabama

DecidedNovember 15, 1901

StatusPublished

Cited by6 cases

This text of 133 Ala. 162 (Woods v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woods v. State, 133 Ala. 162 (Ala. 1901).

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Opinion

TYSON, J.

The demurrer to tlie indictment questions its sufficiency with respect to the relation of Herbert Evans, to whom the false pretense was alleged to have been made, to the partnership from whom the goods were fraudulently obtained. It is insisted that the averments fail to show that Evans was either a member of the partnership, a clerk, servant, employe or agent, of the firm of Evans Brothers. This insistence lias for its foundation the fact that Eváns to whom the false representation was alleged to have been made, is designated as Herbert Evans, while the partnership averred [to have been defrauded, is alleged to have been composed to A. C. Evans, Charles D. Evans and Herbert H. Evans. The argument is, that by the use of the letter “IT.” two distinct and separate persons bearing the name of Herbert Evans are ¡shown; and therefore, the false, representation having been made to one Herbert Evans, who is in nowise shown to have been connected with the firm that was defrauded, the indictment is bad. It may be that this contention would be sound, if it. could be affirmed that there appears upon the face of the indictment two persons bearing the name of Herbert Evans. But, since the law does not- regard a middle name and as identity of name is presumptive of identity of person, it must- be held upon demurrer that they are the same person. — Garrett v. The State, 76 Ala. 18. In describing third persons in an indictment, certainty to a common intent is all that is required. — Thompson v. The State, 48 Ala. 165. The demurrer was not well taken.

In the recent, case of Leath v. The State, 132 Ala. 26, the defendant was indicted for obtaining money by false pretenses. The. false representation alleged' was that the indorsements by the payees of certain warrants were genuine. The evidence showed that some of these indorsements were not- genuine. The point was made in that case, as here, that there was á fatal variance between the allegations and the proof; and it was in[166]*166sistecl that tbe State should be required to prove the falsity of the entire representation as charged. We held otherwise. See also Beasley v. The State, 59 Ala. 20, where the ease of O’Connor v. The State, 30 Ala. 9, upon which appellant relies, is distinguished.

Affirmed.

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TYSON, J.

The demurrer to tlie indictment questions its sufficiency with respect to the relation of Herbert Evans, to whom the false pretense was alleged to have been made, to the partnership from whom the goods were fraudulently obtained. It is insisted that the averments fail to show that Evans was either a member of the partnership, a clerk, servant, employe or agent, of the firm of Evans Brothers. This insistence lias for its foundation the fact that Eváns to whom the false representation was alleged to have been made, is designated as Herbert Evans, while the partnership averred [to have been defrauded, is alleged to have been composed to A. C. Evans, Charles D. Evans and Herbert H. Evans. The argument is, that by the use of the letter “IT.” two distinct and separate persons bearing the name of Herbert Evans are ¡shown; and therefore, the false, representation having been made to one Herbert Evans, who is in nowise shown to have been connected with the firm that was defrauded, the indictment is bad. It may be that this contention would be sound, if it. could be affirmed that there appears upon the face of the indictment two persons bearing the name of Herbert Evans. But, since the law does not- regard a middle name and as identity of name is presumptive of identity of person, it must- be held upon demurrer that they are the same person. — Garrett v. The State, 76 Ala. 18. In describing third persons in an indictment, certainty to a common intent is all that is required. — Thompson v. The State, 48 Ala. 165. The demurrer was not well taken.

In the recent, case of Leath v. The State, 132 Ala. 26, the defendant was indicted for obtaining money by false pretenses. The. false representation alleged' was that the indorsements by the payees of certain warrants were genuine. The evidence showed that some of these indorsements were not- genuine. The point was made in that case, as here, that there was á fatal variance between the allegations and the proof; and it was in[166]*166sistecl that tbe State should be required to prove the falsity of the entire representation as charged. We held otherwise. See also Beasley v. The State, 59 Ala. 20, where the ease of O’Connor v. The State, 30 Ala. 9, upon which appellant relies, is distinguished.

Affirmed.

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