People v. Whelan , 239 Mich. 428 ( 1927 )

Counsel for defendant have been very fair, both to the trial court and to this court. They frankly and properly concede that the conviction should be affirmed unless the affidavit upon which the search warrant was issued was defective. They insist, however, that the use of the name Richard Roe in the affidavit renders that instrument a nullity, the evidence showing that such was not the true name of the man who accompanied the deputy sheriff to defendant's premises. For ages the names John Doe and Richard Roe have been used in pleadings and other legal documents to designate persons whose true names were unknown. The testimony of the deputy sheriff who made the affidavit in question is to the effect that the true name of this person was unknown to him. Under these circumstances, in my judgment the affidavit was not defective because, instead of using the language, a person "whose true name is unknown" to deponent, it used a name which from time immemorial has been used as the equivalent of such language. Upon principle, I think the case falls within the ruling in People v. Starkweather, 224 Mich. 137 . For this reason I am constrained to dissent from the opinion prepared by my Brother BIRD.

The conviction is affirmed.

SHARPE, C.J., and SNOW, STEERE, CLARK, and McDONALD, JJ., concurred with FELLOWS, J.