O.C.G.A. § 17-7-112 (2019)

Annotations

JUDICIAL DECISIONS Time for filing plea of misnomer is before arraignment. After plea of guilty or conviction is too late. Dutton v. State, 92 Ga. 14, 18 S.E. 545 (1893); Pulliam v. Donaldson, 140 Ga. 864, 80 S.E. 315 (1913). If accused is known by different names it is lawful for indictment to identify accused by such names as aliases. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982). If the accused is indicted, with an alias, under more than one name, a special plea of misnomer, to be good, must aver unequivocally that the accused has never been known by either of the names set out in the indictment, and that neither is the accused’s true name. Andrews v. State, 196 Ga. 84, 26 S.E.2d 263, cert. denied, 320 U.S. 780, 64 S. Ct. 87, 88 L. Ed. 468 (1943), overruled on other grounds, Frady v. State, 212 Ga. 84, 90 S.E.2d 664 (1955). If the accused is indicted under an alleged true name and an alias, a special plea of misnomer to be good must aver unequivocally that the accused has never been known by either of the names set out in the indictment, and that neither were the accused’s true name. Wilson v. State, 69 Ga. 224 (1882); Henderson v. State, 95 Ga. 326, 22 S.E. 537 (1895); Stinchcomb v. State, 119 Ga. 442, 46 S.E. 639 (1904). Trial counsel was not ineffective because the defendant failed to show either a deficiency or that the outcome of the trial would have been different had counsel investigated or attempted to remedy

the purported name discrepancy between the defendant’s birth certificate and the name on the indictment; the defendant was positively identified at trial by various witnesses as the perpetrator of the charged crimes; the names on the birth certificate and the indictment consisted of the same four names, though listed in different order; and the defendant did not show that the defendant was never known by the names under which the defendant was indicted, including the alias. Adams v. State, 350 Ga. App. 340, 829 S.E.2d 412 (2019). Motion to quash is not proper remedy for striking alias from indictment, instead, the defendant should file a special plea of misnomer averring that the defendant has never been known by any of the names set out in the indictment. Stevens v. State, 247 Ga. 698, 278 S.E.2d 398 (1981), cert. denied, 463 U.S. 1213, 103 S. Ct. 3551, 77 L. Ed. 2d 1398 (1982). Indictment citing a name by which one is generally called is sufficient to withstand a plea of misnomer. Roland v. State, 127 Ga. 401, 56 S.E. 412 (1907). Indictment which describes the accused by Christian and surnames is sufficient even if the indictment fails to designate the accused by the initial of the accused’s middle name. Veal v. State, 116 Ga. 589, 42 S.E. 705 (1902). Doctrine of idem sonans. - Under the doctrine of idem sonans, if two names though spelled differently sound alike, the names are to be regarded as the same and are sufficient to withstand a plea of misnomer. Webb v. State, 149 Ga. 211, 99 S.E. 630 (1919).

Names with similar sound or spelling not subject to misnomer. - Question of idem sonans may be determined either by pronunciation or by spelling, or by both. Lovett v. State, 9 Ga. App. 232, 70 S.E. 989 (1911). For illustrative cases, see Biggers v. State, 109 Ga. 105, 34 S.E. 210 (1899) (‘‘Biggers’’ and ‘‘Bickers’’); Washington v. State, 113 Ga. 698, 39 S.E. 294 (1901) (‘‘Serena’’ and ‘‘Surrena’’); Woody v. State, 113 Ga. 927, 39 S.E. 297 (1901) (‘‘Gittings’’ and ‘‘Giddans’’); Roland v. State, 127 Ga. 401, 56 S.E. 412 (1907) (‘‘Roland’’ and ‘‘Rowlin’’); Lovett v. State, 9 Ga. App. 232, 70 S.E. 989 (1911) (‘‘Jerry Lovett’’ and ‘‘Jerry Levatte’’); Watkins v. State, 18 Ga. App. 500, 89 S.E. 624 (1916) (‘‘Maria’’ and ‘‘Marie’’). Misnomer not sufficiently shown. - Defendant’s argument that a trial court erred by rejecting the defendant’s ‘‘Special Plea of Misnomer’’ filed pursuant to O.C.G.A. § 17-7-112 was without merit because the case was proceeding according to the accusation filed by the solicitor (now district attorney) pursuant to O.C.G.A. § 17-7-71(b)(1), which contained the defendant’s correct name. Switlick v. State, 295 Ga. App. 849, 673 S.E.2d 323 (2009). Defendant Latoya Thornton’s claim of misnomer and motion to quash were re-

jected because, contrary to the defendant’s claims, the defendant had previously been arrested and booked into jail under the name Latoia Jordan. The accusation naming the defendant as Latoia Jordan therefore was sufficient because Jordan was another name by which the defendant was known. Thornton v. State, 325 Ga. App. 475, 753 S.E.2d 139 (2013). Question of what a name spells is for the jury. Washington v. State, 113 Ga. 698, 39 S.E. 294 (1901). Judge may find indictment name to equal defendant’s. - When a judge finds the name in the indictment, though somewhat illegible, is really the same as that admitted to be the true name of the accused in the plea, the judge’s decision is controlling. Gunn v. State, 10 Ga. App. 819, 74 S.E. 312 (1912). No new trial when plea stricken. - No new trial can be had on motion from a ruling of the court in striking a plea of misnomer. McDow v. State, 113 Ga. 699, 39 S.E. 295 (1901); Wilkinson v. State, 18 Ga. App. 330, 89 S.E. 460 (1916). For example of charge of this rule to jury, see Jackson v. State, 134 Ga. 473, 68 S.E. 71 (1910). Cited in Rountree v. State, 34 Ga. App. 668, 130 S.E. 919 (1925); Jackson v. State, 153 Ga. App. 462, 265 S.E.2d 368 (1980); Cook v. State, 162 Ga. App. 778, 293 S.E.2d 46 (1982).

RESEARCH REFERENCES Am. Jur. 2d. - 21 Am. Jur. 2d, Criminal Law, §§ 589, 595 et seq. ALR. - Necessity in indictment charging violation of statute regarding wages, or hours, of naming particular employees, 81 A.L.R. 76.

Time and manner of raising objection of misnomer of defendant in indictment or information, 132 A.L.R. 410.