Opinion
7 Div. 390.
March 6, 1928.
Appeal from County Court, De Kalb County; E. M. Baker, Judge.
Zode P. Hughes was convicted of keeping open store on Sunday, and he appeals. Affirmed.
John B. Isbell, of Ft. Payne, for appellant.
Zode P. Hughes and Zole P. Hughes are not idem sonans. Rooks v. State, 83 Ala. 79, 3 So. 720; Munkers v. State, 87 Ala. 94, 6 So. 357; Merlette v. State, 100 Ala. 42, 14 So. 562; Campbell v. State, 18 Ala. App. 220, 90 So. 43; Clements v. State, 19 Ala. App. 640, 99 So. 832.
Charlie C. McCall, Atty. Gen., for the State.
Brief did not reach the Reporter.
Appellant was indicted, under the name "Zode P. Hughes, alias Zode Hughes, whose name is otherwise unknown to the grand jury than as stated," for the offense of keeping open store (not being a druggist) on Sunday. He was tried by the court without a jury and found guilty.
Defendant filed a plea of misnomer, and offered evidence to show his true name to be Zole P. Hughes, and that he had never been called by the name of Zode P. or Zode Hughes. There is no doubt, from the evidence "Zode" and "Zole" Hughes were one and the same man. There was no evidence impeaching the verity of the allegation that defendant's true name was unknown to the grand jury.
Under the form of indictment here considered, defendant's true name was immaterial, in the absence of proof that the grand jury did know his true name at the time of returning the indictment. The issue was whether the defendant's name was otherwise unknown to the grand jury, with the burden of proof on the defendant. The plea of misnomer is not proper in a case such as this. Oliveri v. State, 13 Ala. App. 348, 69 So. 359; Axelrod v. State, 7 Ala. App. 61, 60 So. 959.
No error appearing, the judgment is affirmed.
Affirmed.