Bassett v. State , 4 Tex. Ct. App. 41 ( 1878 )

White, J.

In this case the appellant was indicted for keeping and exhibiting a bank for the purpose of gaming. On the trial the State’s witness stated that he did not know H. Bassett, but he did know Charles Bassett, whom he pointed out in court, and whom he had seen deal faro in Grayson County, Texas, within two years before the finding of the indictment. The sheriff testified that he had arrested the man pointed out by the State’s witness as Charles Bassett; that he understood, when he arrested him, that his name was Harry Bassett; and that he arrested him as the defendant in this cause, and took his bond.

Defendant saved a bill of exceptions to the evidence, and now here contends that the judgment should be reversed because the proof as to name does not correspond with the allegation as to name in the indictment. He also contends that the rules provided for in the Code of Criminal Procedure (Pasc. Dig., arts. 2937, 2938) are applicable to capital cases and cases of felony less than capital, and that they have no applicability to misdemeanor cases. These articles read as follows :

“Art. 2937. When the defendant is arraigned, his name, as stated in the indictment, shall be distinctly called; and, unless he suggests, by himself or counsel, that he is not indicted by his true name, it shall be taken that his name is truly set forth, and he shall not, thereafter, be allowed to deny the same by way of defense.

“Art. 2938. If the defendant, or his counsel for him, suggests that he bears some name different from that stated in the indictment, the same shall be noted upon the minutes of the court, the indictment amended, the style of the cause changed so as to give his true name, and the cause proceed as if the true name had been first recited in the indictment.”

Now, it is true that these rules appear to have been provided with special reference to capital cases, and that, by article 2946, they were specially extended so as to cover felonies less than capital. But we can see no reason why the same procedure should not be applicable to misdemeanors ; and, in fact, it stands to reason, if such practice is allowable in so serious and important matters as those involving life or liberty, that when the statute, as it seems to be, is silent with reference to lesser grades of offenses, we might well and safely adopt the same rules of procedure.

Mr. Bishop, treating generally of the name of the defendant, and how he is to be described, says : “ When the defendant is not correctly named, he must take advantage of the error by plea in abatement, and, in the plea, state what his true name is ; for, if he does not do this, he will be conclusively holden to be the person in the indictment mentioned, whatever may be the real fact.” 1 Bishop’s Cr. Proc., 2d ed., 677.

This practice, it seems, also obtained at common law (2 Hale’s P. C. 238 ; 1 Chitty’s Cr. Law, 202) ; and our statute requires that when the ‘ ‘ Code fails to provide a rule of procedure in any particular state of case which may arise, and is, therefore, defective, the rules of the common law shall be applied, and govern.” Pasc. Dig., art. 2493. The practice has heretofore been held by this court to apply in misdemeanors. Foster v. The State, 1 Texas Ct. App. 531.

There being no error in the proceedings on the trial in the lower court, the judgment is affirmed.

Affirmed.