
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    The State v. John B. Lorey.
    A plea of misnomer, of the Christian or surname, adjudged to be a good plea in abatement to an indictment of assault.
    Motion to reverse a decision made by Brevaed, J., in Sumter district. Indictment for an assault, with an intent to commit murder. The defendant pleaded in abatement, that his name was not Lorey, but Lorez. The Circuit Solicitor, Ervijí, on the part of the State demurred to the plea, in support of which demurrer he argued, that although á misnomer of a Christian name may be pleaded in abatement to an indictment, yet that no such plea can be pleaded of the surname of the indictee. The presiding judge, however, being of opinion that in. criminal, as well as in civil cases, the defendant may plead a misnomer of the surname, as well as of the Christian name, as there might have been in ancient times a reason for a distinction which does not now exist; and as no good reason seems now to exist for keeping up this distinction, and as formerly, in cases of appeal for murder, the misnomer of the surname of the offender was a good objeclion in abatement, he decided in favor of the defendant, overruling the demurrer, founding his opinion principally upon the authority of Lord Hale, 2 Hal. H. P. C. chap. 25, p. 175-6, who says that the safest way is to allow the plea of misnomer to an indictment, both as to the surname and Christian name, for that he who pleads misnomer of either, must in the same plea set forth what is his true name, and then he con-eludes himself; and if the grand jury be not discharged, the indictment may presently be amended by the grand jury, and returned according to the name he gives himself. 2 Haw. P. C. c. 25, sec. 69. Cro. Circ. Comp. 89. 3 Bac Abr. 624, new ed. 6 Mod. 116. 1 Bac! Abr. 70, 87. 1 Cora. Dig. 19, 20. 2 Wils. 393, 413. 4 Mod. 347. 12 Mod. 55. Plowd. 85. 2 Lea. Ca. 469, 475.
    
      Note. One indicted for an assault and battery pleaded misnomer of his surname in abatement, and for want of a replevin, judgment was entered that he be discharged, Rexv. Sherman. Rep. Temp. Hardw 300. Vid. same book, 286. In aplea of misnomer, there is nothing to go by but the sound, and a literal exactness in spelling the name is not required. 1 Str. 231.
    The motion in this court was argued in April, 1810, by Rich-ahbson, for the plaintiff, arid Branding, for the defendant.
    Richardson cited 4 Com. Dig. 492. 2 Haw. 328. The same name, &c.
    Branding cited 1 Com. Dig. 38. 4 'Mod. 347. Bac. “ Misnomer.” The demurrer admits the name to be different. On arraignment, the party pleads viva voce; in capital cases, a mistake in the surname not fatal, when surnames were little regarded. This not a capital case; plea in writing. The variance as important as to the surname as in regard to the Christian name. Tile reason in this country is stronger in support of an objection to a mis. nomer of a surname, than of a Christian name, &c.
   Bat, J.,

delivered the opinion of the whole court, May 5th, 1810. The demurrer admits that the names are materially different. The names may, however, be materially the same. We must be bound by the pleadings to support the demurrer. The State might have put the fact in issue, whether the names were not the same, or whether the defendant was not known as well by orje name as the other. The distinction between Christian and surnames, though supported by authorities, seems to the court to be unsupported by reason. Pleas in abatement in criminal, as in civil cases, we think, are good, as well for a misnomer of the surname, as for a mhuomer of the Christian name.

Motion rejected.  