Rampey v. The State

Rampey v. The State. Indictment for Murder. 1. Misnomer of grand juror, in insertion of wrong middle name or initial, as ground of objection to indictment. — As the law recognizes but one Christian name, the omission of a middle name, or the insertion of a wrong initial, in the venire of grand jurors, is immaterial, in the absence of evidence showing that there is another person in the county bearing the name; as to which the onus is on the defendant. 2. Amendment of sheriff’s return on venire of grand jurors. — The court has undoubted power to permit the sheriff to amend his return on the venire of grand jurors. From the Circuit Court of Chambers. Tried before the Hon. John Moore. The defendant in this case, Hal Bampey, was indicted for the murder of Allen Harris, by shooting him with a pistol; was convicted of murder in the second degree, and sentenced to the penitentiary for the term of forty years. The indictment was signed by G. N. Croft as foreman, and the minute-entry recited that G. N. Croft was appointed as foreman ; but, in the venire of persons drawn as grand jurors, the name appeared as G. H. Croft. The defendant moved to quash the indictment, and to strike it from the files, and also pleaded in abatement, on the ground that said G. N. Croft, the foreman, was not selected and drawn as a grand juror by the officers designated by law, nor did his name appear on the venire of grand jurors, nor was he selected to supply a deficiency in the original venire. On the trial of the issue formed on the plea in abatement, several witnesses for the State testified, that they had long known George N. Croft, but knew no other person in the county by the name of Croft, except his brother, Lee L. Croft, and his son, Bobert Croft. The sheriff of the county testified, as a witness for the State, “that he never had any summons for G. N. Croft as a grand juror at said term of the court; that G. N. Croft was not summoned as a grand juror for said term, and was not drawn as a grand juror, so far as the venire showed; that one G. H. Croft was drawn as a grand juror for said term, but he returned the venire not found as to him, having looked for him, and being unable to find any person by that name. S. H. Tiller, the deputy-sheriff, testified on the part of the State, “that he amended the return on the venire of grand jurors, so as to show that G. H. Croft was summoned as a grand juror, but that he had never served him with a summons, and did not know of any one else serving such a man with a summons to serve as a grand juror.” On the evidence adduced, to which several exceptions were reserved by the defendant, the court overruled the motion to quash, and to strike the indictment from the file, and instructed the jury, if they believed the evidence, to find against the defendant on the issue joined on the plea in abatement; to which charge the defendant duly excepted. N. I). Denson, for the appellant. Thos. N. McClellan, Attorney-General, for the State. [MAJORITY — SOMERVILLE, J.] SOMERVILLE, J. — The plea in abatement sets up the alleged fact, that G N. Croft, who acted as foreman of the grand jury, was never drawn or selected to serve as a grand juror, in the presence of the officers designated by law. Nixon v. State, 68 Ala. 535. The venire contains the name of one G. H. Croft. As the law recognizes but one Christian name, the insertion or omission of a middle name or initial is entirely immaterial, and may be disregarded. It has been often held that, if the middle name of a person indicted is averred, it need not be proved.- — Pace v. State, 69 Ala. 231. No more is required to be in-the list of jurors placed on a venire. Presumptively, therefore, the names G. N. Croft and G. H. Croft were the same, in the absence of some evidence that there was another person whose name was G. PI. Croft. The issue of identity being submitted to the jury, and being found in favor of the State, this finding is conclusive on us that the Croft, whose name appeared on the venire, was the same who appeared and served. In the evidence offered on this issue the onus was on the defendant to overcome the prima facie fact of identity. There was no evidence offered tending to prove this, and the general charge to find for the State, if the evidence was believed, was free from error. If any error was committed by tbe court in tbe admission of irrelevant evidence in trying this issue, it was error without injury. Tbe court bad tbe undoubted power to authorize tbe sheriff to amend bis return made in executing tbe venire. There is no reversible error in tbe record, and tbe judgment must be affirmed.