Sunday v. State

• Citation: 14 Mo. 417
• Parties: MICHAEL SUNDAY v. STATE OF MISSOURI.
• Decision Date: 31 March 1851
• Court: United States State Supreme Court of Missouri

14 Mo. 417

MICHAEL SUNDAY

v.STATE OF MISSOURI.

Supreme Court of Missouri.

March Term, 1851.

APPEAL FROM ST. LOUIS CRIMINAL COURT.

MICHAEL SUNDAY, pro se. The appellant hails from Germany, where he came into the world, bearing the ancestral name of Sontag, which, translated from the Teutonic into Anglo-Saxon, means Sunday. By the latter name he has been impleaded in the Criminal Court, that tribunal claiming the right to re-baptize him in English. Of the legality of such a proceeding he is dubious. A dutch wood-chopper has a Celtic pride in his patronymic, and insists that the power which would seek to divest him of it is of a piece with that which would despoil a Highlander of his breeches. At the unprecedented liberty thus taken with his name, he was, as became him, indignant. He gave vent to his indignation in the form of a plea of misnomer, asseverating that he was not Sunday but Sontag. That if Sunday had been guilty of any illegal actings and doings, Sontag had neither act nor part in them, nor was he willing in his stead to become a denizen of the penitentiary. His plea, thus plain and impregnable, was not even treated with the decent ceremony of a replication, but was summarily erased; against which he entered his solemn protestation, and now reiterates the same before this court, where he trusts the laws of human nomenclature are held in more reverence, and his complaint meet with better luck. The appellant is advised of a legal principle called idem sonans which protects a man who has a name, and thinks it worth keeping. If this be so, Sunday no more sounds like Sontag than it sounds like Sabbath, or Lord's day, or Dies Dominius; all these may indeed be idem significans, but if they are idem sonans his ears deceive him so badly that he gives up all pretensions to know the difference between sounds, and could not tell a cough from a sneeze. To all who set any value on a name, this new idea of idem significans is alarming. If by virtue of it Sontag may be made Sunday, there is no similar desceration for which it may not furnish a pretext. Not to go far for illustrations, Lackland might be held rectus in curia as Baron Vide Poche, and Colt as Nebuchadnezzar or Grass-eater. The appellant submits that having tendered an issue by his plea, he is entitled to have it tried, in which he is ready to verify that by one name he has had his being, moved and lived, and by it he hopes to die.

LACKLAND, for The State. The court did not err in sustaining the motion to strike out the plea in abatement. Because the defendant had no right to file a dilatory plea, after having pleaded the general issue, without leave of the court first had and obtained. In this cause the plea in abatement was filed, and no notice given until a portion of the jury was sworn. If this practice be allowed, it will operate to the end of swindling justice. A party is indicted by a wrong name or by one name, and is also known by another; he comes in and pleads the general issue, finds no fault with the name, has witnesses all ready, and just before going into trial he files a dilatory plea and thus forms an issue to suit his testimony, and the State must consequently go into the trial of an issue utterly unprepared. The law, I take it, is well settled that courts look upon all dilatory pleas with jealousy and will not allow a plea of general issue or other plea to the merits to be withdrawn to give place to a dilatory plea when moved so to do. Much less it seems to me will they allow a defendant to file his dilatory plea after having filed a plea of general issue or plea to the merits, when that plea is filed with notice, or consent of court. “A dilatory plea must be stated at the time the prisoner is arraigned, and before the plea of not guilty is made.” 1 Chitty, 422, 438; 1 Blacks. R. 4; 2 Burr, 1810; 2 Hale, 219; Cro. C. C. 9. This court cannot see whether the court below erred in overruling the motion for a new trial, as neither the evidence nor the instructions are set forth in the record. The court did not err in overruling the motion in arrest. The indictment was good. See Jennings v. State, 9 Mo. R. 862.

RYLAND, J.

The defendant below, appellant here, was indicted, by the grand jury in St. Louis county for stabbing one Henry Long on purpose and of his malice aforethought with intent to kill. The indictment contains three...