Opinion
Decided December, 1897.
On the trial of an indictment for a second offence of illegally keeping malt liquor for sale, the state may prove a former conviction of the defendant under another name by which he was known and called.
INDICTMENT, against the defendant, under the name Francis Narcarm, for a second offence of illegally keeping malt liquor for sale. Facts agreed. The alleged former conviction was of the defendant under the name Ferrin Narcarm, before a police court. The only record of the conviction was the original complaint and warrant, with minutes indorsed upon the warrant by the clerk of the court, showing that the defendant pleaded guilty and was fined. The defendant's true name is Ferrin Narcarm, but he is also known as and called Francis Narcarm.
George M. Fletcher, solicitor, for the state.
Albin, Martin Howe, Cornelius E. Clifford, and Daniel B. Donovan, for the defendant.
The original complaint and warrant and the minutes indorsed upon the warrant were competent evidence of the former conviction. State v. Cox, post, p. 246.
The defendant could take advantage of the misnomer in the indictment only by a plea in abatement; and to such a plea a replication that he is known as well by one name as the other would be good. 1 Ch. Cr. L. 445, 451; 1 Arch. Cr. L. Pl. 261, 262, n, 267; Whar. Am. Cr. L., ss. 536, 537; Rex v. Berriman, 5 C. P. 601; Commonwealth v. Dedham, 16 Mass. 141, 147; Turns v. Commonwealth, 6 Met. 224; Commonwealth v. Fredericks, 119 Mass. 199; State v. Thompson, 20 N.H. 250.
Judgment, guilty.
All concurred.