State v. Striar

• Decision Date: 07 October 1922
• Citation: 118 A. 377
• Parties: STATE v. STRIAR.
• Court: Maine Supreme Court

118 A. 377

STATE

v. STRIAR.

Supreme Judicial Court of Maine.

Oct. 7, 1922.

Exceptions from Supreme Judicial Court, Sagadahoc County, at Law.

M. B. Striar was charged with possession of intoxicating liquors, and from an order overruling a demurrer to the complaint, he brings exceptions. Exceptions overruled.

Argued before CORNISH, C. J., and SPEAR, PHILBROOK, WILSON, and DEASY, JJ.

Arthur J. Dunton, County Atty., of Bath, for the State.

Edward P. Murray, of Bangor, for respondent.

WILSON, J. A complaint against the respondent for having in possession intoxicating liquors, in which he was described as "M. B. Striar, whose full and correct name is to your complainant unknown, of Bangor," etc. The respondent when arrested and brought into court, demurred to the complaint. The demurrer was overruled, and the case comes to this court on the respondent's exceptions. There is no merit in bis contention, and the exceptions must be overruled.

A respondent, it is true, is entitled to have a complaint or indictment describe him by his full and correct name, or, if unknown, to so describe him by physical characteristics, sex, residence, or otherwise as to identify him. This is essential to enable the accused to maintain in case of conviction, a plea of former jeopardy in case of a second charge for the same offense, as well as to comply with the provisions of the Constitution. Article 1, § S.

The respondent in this case, however, instead of taking the usual course in cases of misnomer, and pleading in abatement, seeks by a demurrer to take advantage of what is no doubt a loose way of describing a respondent when his full Christian name is unknown. His contention is that the addition of the general clause, "whose full and correct name is to your complainant unknown," is in effect an admission by the state that M.

B. Striar is in no part his true name, but, on the contrary, must be regarded as though a fictitious name, and therefore upon the authority of Com. v. Crotty, 10 Allen (Mass.) 403, 87 Am. Dec. 609, the complaint is bad.

Whether a warrant issued in this form would have been a protection for the officer arresting the respondent is not in issue here, as it was in Com. v. Crotty, supra, Harwood v. Siphers, 70 Me. 464, and in other of the cases cited in the respondent's brief. Upon plea in abatement setting forth his full and correct name, unless he failed to show, if the issue was joined by the state, that he was not also known by the name of M. B. Striar, the complaint would have been abated.

Respondent, however, comes into court "in his own proper person," and in his pleadings describes himself as M. B. Striar, and signs his pleadings by the same name. In case of a demurrer judgment is not given on the complaint or indictment alone, but upon the whole record. Chitty...