United States v. Low

D. Hawaii

United States v. Low

4 D. Haw. 57

DecidedSeptember 13, 1911

StatusPublished

This text of 4 D. Haw. 57 (United States v. Low) is published on Counsel Stack Legal Research, covering District Court, D. Hawaii primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Low, 4 D. Haw. 57 (D. Haw. 1911).

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Opinion

Clemons, J.

The defendant, named in the indictment as “George Low,” pleads in abatement misnomer, in that his true name is “George K. Lowe.”

[1] The absence of the middle initial “K” is no misnomer. Edmundson v. State, 17 Ala. 179: 52 Am. Dec. 169; 29 Cyc. 265, and cases cited; 14 Enc. Pl. & Pr. 275-276; 21 A. & E. Enc. L. 2d. ed., 307; Clark Crim. Proc., 145-146. See Keene v. Meade, 3 Pet. (U. S.) 1, 7; Games v. Dunn, 14 Pet. (U. S.) 322, 326; Dunn v. Games, 8 Fed. Cas. 98 (No. 4,176): 1 McLean, 321; Choen v. State, 52 Ind. 347: 21 Am. Rep. 179, 181, note. The reason of the rule is often given as the fact that “the law knows of but one Christian name,” and such is the reasoning of the United States Supreme [58]*58Court, Keene v. Meade, supra; Games v. Dunn, supra; but a better ground would seem to be that the omission, in a case like this, cannot in any reasonable view prejudice the defendant. See State v. White, 34 So. Car. 59: 27 Am. St. Rep. 783, 784.

[2] As to the spelling of the Surname, the indictment must stand, under the modern application of the rule of idem sonans, that the defect is not fatal “where the name, as written in the indictment, may be pronounced (although such may not be the strictly correct pronunciation) in the same way as the name given.” State v. White, 34 So. Car. 59: 27 Am. St. Rep. 783-785; Faust v. United States, 163 U. S. 452, 454; United States v. Hinman, 26 Fed. Cas. 324 (No. 15,370), Bald. 292; Territory v. Johnson, 16 Haw. 743, 748; Clark, Crim. Proc., 145-149; 29 Cyc. 275-276; 21 A. & E. Enc. L., 2d. ed., 313

These well-settled rules dispose of the plea, without considering whether the defects, if any, are matters of form, immaterial under the curative provisions of Rev. Stat. sec. 1025; Rose’s Code, sec. 1579; 2 Fed. Stat. Ann., 340. See People v. Ferris, 56 Cal. 442, 444; Burroughs v. State, 17 Fla. 643, 655-656.

The rule of the California Federal Court of the Northern District, abolishing pleas in abatement for misnomer, might well be adopted here. See 3 Rose’s Code, 2295-2296, rule 98, providing that “when the defendant is arraigned, he shall be informed that if the name by which he is indicted is not his true name, he must then declare his true name or be proceeded against by the name in the indictment.”

The plea is overruled.

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Clemons, J.

The defendant, named in the indictment as “George Low,” pleads in abatement misnomer, in that his true name is “George K. Lowe.”

[1] The absence of the middle initial “K” is no misnomer. Edmundson v. State, 17 Ala. 179: 52 Am. Dec. 169; 29 Cyc. 265, and cases cited; 14 Enc. Pl. & Pr. 275-276; 21 A. & E. Enc. L. 2d. ed., 307; Clark Crim. Proc., 145-146. See Keene v. Meade, 3 Pet. (U. S.) 1, 7; Games v. Dunn, 14 Pet. (U. S.) 322, 326; Dunn v. Games, 8 Fed. Cas. 98 (No. 4,176): 1 McLean, 321; Choen v. State, 52 Ind. 347: 21 Am. Rep. 179, 181, note. The reason of the rule is often given as the fact that “the law knows of but one Christian name,” and such is the reasoning of the United States Supreme [58]*58Court, Keene v. Meade, supra; Games v. Dunn, supra; but a better ground would seem to be that the omission, in a case like this, cannot in any reasonable view prejudice the defendant. See State v. White, 34 So. Car. 59: 27 Am. St. Rep. 783, 784.

[2] As to the spelling of the Surname, the indictment must stand, under the modern application of the rule of idem sonans, that the defect is not fatal “where the name, as written in the indictment, may be pronounced (although such may not be the strictly correct pronunciation) in the same way as the name given.” State v. White, 34 So. Car. 59: 27 Am. St. Rep. 783-785; Faust v. United States, 163 U. S. 452, 454; United States v. Hinman, 26 Fed. Cas. 324 (No. 15,370), Bald. 292; Territory v. Johnson, 16 Haw. 743, 748; Clark, Crim. Proc., 145-149; 29 Cyc. 275-276; 21 A. & E. Enc. L., 2d. ed., 313

These well-settled rules dispose of the plea, without considering whether the defects, if any, are matters of form, immaterial under the curative provisions of Rev. Stat. sec. 1025; Rose’s Code, sec. 1579; 2 Fed. Stat. Ann., 340. See People v. Ferris, 56 Cal. 442, 444; Burroughs v. State, 17 Fla. 643, 655-656.

The rule of the California Federal Court of the Northern District, abolishing pleas in abatement for misnomer, might well be adopted here. See 3 Rose’s Code, 2295-2296, rule 98, providing that “when the defendant is arraigned, he shall be informed that if the name by which he is indicted is not his true name, he must then declare his true name or be proceeded against by the name in the indictment.”

The plea is overruled.

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