William Newton, Plaintiff in Error, vs. The State of Florida, Defendant in Error, 15 Fla. 610

RANDALL, C. J., delivered the opinion of the court. Newton was indicted in St. Johns- county for the murder of Ellen "Wells, and was convicted and sentenced to be Lung at the same time at which Mary Ann Keech was tried as. an accessory. He sned out a writ of error, and assigns for error several grounds which are substantially the same as those assigned in the case of Mary Ann Keech alias Newton, vs. the State, and which are disposed of in considering that case. For reasons given in the opinion in that ease the judgment must be reversed.

Several questions arose in the coursé of the trial which were not involved in the case of Mary Ann Keech, upon which error was assigned, and though not necessary to the decision of this case we will dispose of some of them, as they were fully argued upon the. hearing and involve questions of practice. Upon the trial of Newton, he pleaded in bar that he had been used as a material witness for the State upon the trial of Mrs. Keech, his accomplice, in which trial she was convicted upon his testimony — -wherefore he says he should not be further prosecuted. Blackstone says, (4 Bl.

Com. 330, 331:) “ There is a species of confession which we read much of in our ancient books ***** called approvement; and that is when a person indicted of treason or felony, and arraigned for the same, doth confess the fact before plea pleaded; and appeals or accuses others, his accomplices, in the same crime in order to obtain his pardon.” This plea is addressed todhe court. ■Formerly, in England, a promise of pardon came from the .court, and, practically, the granting of pardons was controlled by the courts, and it was the course of things that pardons were recommended by the Judges.

In this country this practice never ■ existed, but ■ according to the. constitutions or laws of the. States, the pardoning power is vested exclusively in the Executive branches of government. ' The obligation to grant a pardon or to give impunity to a person indicted for felony, does not here vest in the courts, and, therefore, the courts cannot listen to a plea of this character. The prosecuting offieer, representing the Executive arm, exercises his discretion in regard to calling witnesses, and if a felon desires a pardon upon such ground, he must address that department.

The plea is bad and is without a precedent, so far as we are able to discover.’ ■ It is alleged that the court erred in overruling the motion in arrest' of judgment, because it was shown by the evidence that the woman killed was Ellen Keech, and'not Ellen Wells, as alleged in the indictment. While it is true that the law requires that the name of the person killed must be, as alleged, in the indictment, and this the court will never refuse to give to the jury in its charge, yet it is a question which the jury must decide as a matter of fact from the proofs. (State vs.

Angel, 7 Iredell, 27.) There is, it is true, some confusion of proof as to whether the woman killed was the wife of Keech, but with the testimony before them they determined it, and we canuot say that they found a verdict against the evidence upon that question. A prosecutor in such eases may appropriately use an alias in describing the name of the person, if he has any doubts upon the matter. It is sufficient, however,' to give the name by which the person is usually known. (Wharton Am. Crim. Law, § 250.) And a name acquired by reputation is sufficiently certain. (State vs. Gardner, Wright’s O.

Rep. 392; People vs. Freeland, 6 Cal. 95.) The questions mooted in the brief of counsel as to the form of the indictment, &c., are not properly before us by any pleading or exception, and we will not’examine them further than we have done in the case of Mrs. Keech, just decided. The judgment of the Circuit Court is reversed, and this cause is remanded, with directions that the indictment be quashed. ■ ' ■ ' ■