
    State of Maine vs. Michael Malia.
    Sagadahoc.
    Opinion December 12, 1887.
    
      Misnomer. Criminal pleadings. Practice.
    
    When in a criminal prosecution the respondent pleads misnomer in abatement sufficient in form, the question of idem sonans, being a question of fact, must be raised by replication and not by demurrer.
    On exceptions.
    At the trial the defendant first filed a plea of misnomer, alleging that his name was Michael Mallia. The exceptions were to the ruling of the court in sustaining a. demurrer to that plea, but not for want of form.
    
      Frank J. Buker, county attorney, for the state.
    
      George E. Hughes, for the defendant,
    cited : Rex v. Shakespeare, 10 East, 83 ; Heard’s, Criminal Law, 169 ; 11 Gray, 320.
   Virgin, J.

The county attorney filed a demurrer to the defendant’s plea of misnomer. No question is raised as to the form of the plea, and we perceive no defect therein. State v. Flemming, 66 Maine, 142. The demurrer having been sustained by the judge, the defendant was found guiltyjon his plea of not guilty. By going to trial, he waived no right to his exceptions on the pleading. State v. Pike, 65 Maine, 111.

In the absence of any defect in the plea of misnomer, the state could have raised either of two questions by replication: (1) That the defendant was known as well by the name in the complaint as by that in the plea (State v. Corkrey, 64 Maine, 521); or (2) That the two names were pronounced alike. The county attorney filed no replication but demurred ; and now contends in substance that the two names are idem sonans, which is not a question of law but of fact, which the defendant has the right to submit to a jury. Rex v. Shakespeare, 10 East, 83, and cases in note a; Com. v. Mehan, 11 Gray, 323 and cases there cited.

The result is

Exceptions sustained!. Verdict set aside. Judgment for the defendant.

Peters, C. J., Walton, Danforth, Foster and Haskell, JJ., concurred.  