
    LYNES VS THE STATE OF ALABAMA.
    
      Of writs of error in criminal cases.
    
    
      ¡Of fleas in abatement for misnomer.
    
    1. .The legislature having omitted to prescribe the regulations, by which the ordinary constitutional power of this Court, over subordinate jurisdictions, is to be exercised in criminal cases, — the Court in bringing such cases before it for revision must resort to such writs as are known to the law.
    .2. This Court recognizes the writ of error, as a common law writ.
    3. This Court has the unquestionable’ right, in the exercise of its constitutional power, to bring before it criminal cases, by ordering a writ of error.
    ,4. A substantial misnomer of either the Christian or sur-name, is good matter of plea in abatement.
    5. Thus — It may be well plead in abatement to an indictment, charging one by the name of .George Lyons, that defendant’s .true name is .George Lynes.
    
    At the last term of this Court, it being suggested, that in the record and proceedings, of the Circuit ..Court of Madison, in a case wherein the said Lynes was defendant to an indictment, and upon which •he was convicted, — great error existed — this Court awarded a writ of error.
    The record returned in obedience to said man,date, disclosed — that at the October term, eighteen hundred and thirty-four, of the Circuit Court of Madison, an indictment was found against George 
      Lyons,' Solomon Smith, John Ogden and Hugh Clingham, for the offence of playing at cards.
    The plaintiff in error being called to his trial on this indictment, plead the following plea, to wit—
    “George Lynes, indicted by the name of George Lyons, in his own proper person, comeih into Court here, and having heard the said indictment read, saith, that his name is, and always hath been, from his nativity, George Lynes, and by that name hath always hitherto, been called or known, without this that he, the said George Lynes, now is, or at any time hitherto, hath been called or known by the name of Lyons, as by said indictment, is supposed: And this, he the said George Lynes, is ready to verify — Wherefore, he prays judgment of the said indictment, and that the same may he quashed, &c.”
    A demurrer was sustained by the Court to this plea, and upon not guilty, the defendant was convicted of the offence charged.
    Argued here by M’ Clung for the plaintiff in error, and by the Attorney General, contra.
   COLLIER, J.

This Court at its last term, on the application of the plaintiff in error, awarded a writ of error to the Circuit Court of Madison, directing the clerk of that Court, to send up a full and complete transcript of the record of his indictment and conviction at the suit of the State, for playing “at a game of cards, in a public house, &c.” which record is here regularly returned, with the writ of error.

As the present, is the first case of a criminal prosecution, ever brought here by process, from this Court, it may not be out of place, briefly to state the reasons on which we place our right, to revise the judgments of the Circuit Court in such cases, by writs of error.

By the first section of the fifth article oí the constitution of Alabama, it is declared that the judicial power of the State, shall be vested in one Supreme Court, Circuit. Courts to be holden in each county in the State, and such inferior Courts of law and equity, not to consist of more than five members, as the General Assembly, may from time to time direct, ordain, and establish.

By the second section of the same article, the Supreme Court is vested with appellate jurisdiction only, co-extensive with the State, under such restrictions and regulations, as from time to time, may be prescribed by law: Provided, that it shall have power to issue writs of injunction, mandamus, quo warranto Habeas Corpus, and such other remedial writs as may be necessary to give it a general su-perintendance and control over inferior jurisdictions.

The constitution clearly invests this Court with the right of supervision, over the judgments of subordinate jurisdictions; but the legislature have omitted to prescribe the mode, by which judgments in criminal cases, shall be brought up for revision, leaving undefined the “restrictions and regulations,” contemplated by the constitution in this particular.

The Proviso to the second section, gives the right to issue such remedial and original writs, as may "be necessary to give efficiency to the constitutional powers of this Court. We have no power to frame writs for this purpose, but must adopt such as are known to the law. Let us then enquire, whether the writ of error is of common law origin, and what is its office.

In Coke upon Littleton, (288 b.) and in Bacon’s Abridgement, (2. vol. 187.) a writ of error is said to be an original writ, issuing out of the Court of Chancery, in the nature as well of a certiorari to remove a record from an inferior into a superior Court, as of a commission to the Judges of such superior Court, to examine the record, and to affirm or reverse it, according to law; and lies where a party is aggreived by any error in the foundation, proceeding, judgment, or execution of a suit in a Court of record. This writ does not owe its origin to a statute. . Its uses have been in some instances directed by the legislature, and as a remedial process, it has in some cases been extended. Its name indicates its true purpose. And in the case of The Queen vs Paty, it was held to be grantable in all cases ex debito justitice, except in treason and felony. (See further to the same effect, a very elaborate note to Saunders Reports—2 vol. 100-n. 1.)

In treason and felony, it was necessary to obtain the King’s consent, before the writ could issue.— The People vs Yates.

In England, the King is esteemed as the fountain of justice, and the Supreme Magistrates of the Kingdom, entrusted with the whole executive power of the law. No Court whatsoever, within the Kingdom or its dependencies, can claim any jurisdiction, unless it some way or other, derive it from the Crown. The Judges are his representatives, and derive their powers from him.

Now in this country, the Chief Executive Magistrate of the State, possesses no judicial powers. Such as are compatible with our form of government, and which were exercised by the King in England, — by our constitution, have devolved upon the judiciary. The writ of error, being a common law writ, and necessary to the exercise of the constitutional powers of this Court, we consider our right to issue it unquestionable. How far the legislature may trammel this right by “restrictions and regulations,” is any inquiry which need not be made. It is enough for us, that these have not yet been enacted.

To examine the case as presented, the only error relied on, which we deem it necessary to consider, is that which brings to our view, the judgment of the Circuit Court, sustaining the demurrer for the defendant in error, to the plea in abatement of the plaintiff. This plea asserts that the plaintiffs, name is George Lynes, and not George Lyons, as he is charged in the indictment.

The demurrer admits the truth of the plea, and the only question to be determined, is whether the matter of it be fatal to the indictment.

Hawkins lays it down, that a defendant cannot take advantage of a mistaken sur-name in the indictment, though he may of a mistaken Christian name; though, the sur-name by which he is described, hath no affinity with his true one, and he was never known by it.-

Lord Chief Justice Hale states the law as Hawkins ' does, and refers to some very old authors,- the correctness of which he questions, and remarks that it is always safest to allow- the plea of misnomer, both as to the sur-name and Christian name. It is difficult to discover why the distinction between the one name and the other should ever have been introduced—it must have been upon some refinement of reasoning, which has become antiquated and obsolete.

Modern decisions make no distinction between a misnomer of the sur-name and Christian name. In either case, if it be substantial, it is good cause for an abatement of the proceedings.

The usual criterion by which it is determined, whether there should be an issue to the jury upon the plea, is to inquire if the name disclosed in the' plea, has the same sound' with that set out in the' indictment. If it has, the plea does not contain abateable matter. Let us try the plea by this test: Lynes is a name of but one syllable, while Lyons is a name of two, and conveys to the ear, sounds quite dissimilar. M'Cann for M’Carn was held to be a fatal variance in Tannet's cased. So Shakepearé for Shakespeare, in Shakespeare. case. Tarhart for Tabari, was held bad in Bingham vs. Dickies.

The Attorney General has refered us to a note in Roscoets Criminal Evidence, (page 80.) where it is stated that Harris was alleged in the indictment instead of Harrison, the true name, though he ivas sometimes called by the former. And the Supreme Court of Tennesse. in the case of the State vs France held that there was no variance. We have not the report of that case before us, but if it were examined, we think it wo'uld be found to be' a case of larceny, in which property charged to have been stolen, was alleged to be the property of Harris — that his truéname was Harrison, though he was sometimes known by the former name— that there was no plea in abatement, and that the rule of idem sonans, had no influence upon the decision.

Our opinions are, that the demurrer to the plea, should have been overruled.

The judgment is therefore reversed. 
      
      2 Salk. 504.
     
      
      6 John. R, 337.
     
      
      2. Bac. Ab. 96.
     
      
      2 P. C. 317.
     
      
      2 P. C. 175-6.
     
      
      Russ. Ry. 351.
     
      
      10 East. 83.
     
      
       5 Taunt. 14.
     
      
      1 Over. R. 434.
     