
    Michael J. McGuire v. The State of Mississippi.
    1. Indictment : amendment of. — The court has no power to amend an indictment, by correcting a mistake in the Christian name of the defendant, without the consent:of the grand jury who found and returned the indictment into court. 1 Chitty’s Crim. Law, 297.
    2. Pleading and practice: wiien defendant’s demurrer overruled, the judgment is not final. — In indictments for misdemeanors, if a demurrer be sustained to the defendant’s plea in abatement, or his demurrer to the replication be overruled, the judgment is respondeat ouster. 3 Chitty’s Crim. Law, 151.
    
      IN error to tbe Circuit Court of La Fayette county. Hon. P. T. Scruggs, judge.
    The indictment was for retailing.
    
      J. F. Cushman, for-plaintiff in error,
    Cited Franklin v. Tallmadge, 5 Johns. 85; State v. Hughes, 1 Swann R. 261; 2 Carter R. 305.
    
      T. J. Wharton, Attorney-General, for the State.
   HáNDY, J.,

delivered the opinion of the court.

In this case the defendant below pleaded, in abatement to the indictment, that the grand jury which found the bill was illegally organized, and that his name was Michael J. McGwire, and not Mitchell J. McGuire, as stated in the indictment. To the first ground of objection stated in the plea, the State replied traversing the allegations; and as to the misnomer, moved the court to strike out the name of Mitchell, and insert Michael in place of it; which motion was granted, and the indictment amended accordingly. The defendant demurred to the replication, and the demurrer was overruled ; and thereupon he asked leave to plead not guilty to the indictment, which was refused, and judgment final was rendered against him.

The action of the court was manifestly erroneous in two respects.

1st. In permitting the indictment to be amended by striking out the name contained in it, and inserting the name of the defendant. It is well settled that the court has no power to amend an indictment, as to matter of substance, without the concurrence of the grand jury by whom it was found, though amendments as to mere informalities may be made by the court. 1 Chitty’s Crim. Law, 297.

2d. It was error not to permit a plea to the merits, after the demurrer was overruled. Although the judgment in an indictment for a misdemeanor, upon issue to the defendant’s plea in abatement, or upon issue taken by him to the replication, and verdict against him, is final; yet if a demurrer to the plea be sustained, or his demurrer to the replication be overruled, the judgment is respondeat ouster. 3 Chitty’s Crim. Law, 451.

The judgment must therefore be reversed, and for the first error the indictment is quashed.

(This case was decided at the October term, 1857.)  