Commonwealth v. Darcey , 94 Mass. 539 ( 1866 )

Hoar, J.

Misnomer can only be taken advantage of by plea in abatement; and a plea of not guilty to a criminal charge is a waiver of any objection of misnomer. Commonwealth v. Lewis, 1 Met. 151. The appeal from the judgment of a trial justice opens the issues which were made by the defendant before him. But after a plea of not guilty, a plea of misnomer in abatement could not be made before the trial justice; and we think cannot be made at any subsequent stage of the case.

If the defendant had pleaded in abatement before the justice and judgment had been rendered against him upon the plea, his appeal would have reinstated him in all his rights of defence. But there is no reason why he should have a second opportunity to make a dilatory plea which he has expressly waived. He can have all the advantage resulting from an acquittal or conviction, by proving, whenever it becomes material, that he is the person who was acquitted or convicted by the name to which he pleaded. And this he must do if he had been indicted and tried by his true name. Exceptions overruled.