State v. Schricker

29 Mo. 265 | Mo. | 1860

Scott, Judge,

delivered the opinion of the court.

The defendant was indicted for selling intoxicating liquors without license by the name of William Shucker. He pleaded the misnomer in abatement. Thereupon the court proceeded as directed in the twenty-fifth section of the fourth article of the act regulating criminal practice, which prescribes that, “ if a defendant be indicted by a wrong name, unless he declare his true name before pleading, he shall be proceeded against by the name in the indictment. If he allege that another name is his true name, it must be entered on the minutes of the court; and after such entry, the trial and all other proceedings on the indictment shall be had against him by that name, referring also to the name by which he is indicted, in the same manner in all respects, and with the same consequences, as if he had been indicted by his true name.”

It was maintained for the defendant that the foregoing section is in conflict with the provision of the constitution of the United States and of this state, which protects persons from prosecutions for offences of a certain grade unless by way of indictment. The restrictions imposed by the amendments-to the constitution of the United States operate on the powers of the general government alone. It has been settled that they do not restrain the powers of the state governments. (Barron v. City of Baltimore, 7 Peters, -.)

But we can not see how the provision of the statute under consideration conflicts with the right of individuals to be free from summary prosecutions for indictable offences. The law prosecutes the person of the offender, being satisfied that when the party really guilty is made to suffer there can be no great evil in misnaming him. The idea of the counsel is founded on a misconception of the nature of a plea of misnomer. It does not deny the identity of the person of the offender, but admits that he is the person indicted but by a wrong name. A plea denying the identity of the person would amount to the general issue. We can not see how the party would be affected unconstitutionally if the law had required the plea of misnomer to be disregarded. The taking away the benefit of a plea of misnomer does not increase the danger of unfounded prosecutions. An innocent person can defend himself under a plea of'misnomer but temporarily. If he escapes from one indictment, he may be indicted again by his true name; so that if he is not guilty, the only defence is on the merits. This was so before the statute altered the common law.

Judgment affirmed;

Judge Ewing not sitting.