DUNLOP v. WARDEN, 229 Md. 619 (1962)

182 A.2d 51

DUNLOP v. WARDEN OF MARYLAND HOUSE OF CORRECTION

[App. No. 7, September Term, 1962 (Adv.).]Court of Appeals of Maryland.
Decided June 18, 1962.

CRIMINAL LAW — Indictment — Misnomer Of Defendant Is Not Fatal If There Is No Question As To Identity — Curing Defect By Interlineation On Motion To Amend. pp. 619-620

POST CONVICTION PROCEDURE ACT — Defective Indictment Not Open To Review Under — Misnomer Of Defendant — Defendant Made No Effort To Correct Misspelling Of Name At Arraignment, Or Previously, When He Was Served With Written Copy Of Indictment. p. 620

J.E.B.

Decided June 18, 1962.

Clarence Dunlop instituted a proceeding under the Post Conviction Procedure Act, and from a denial of relief, he applied for leave to appeal.

Application denied.

Before the full Court.

PER CURIAM.

This is an application for leave to appeal from the denial of post conviction relief. Other grounds for relief were asserted below, but the only claim here is that the judgment and sentence are void because the indictment was defective.

The applicant, whose true surname is Dun ap, was indicted and convicted of assault with intent to murder under the name of Clarence Dun op. A question as to the erroneous spelling of the name was not raised at the trial, but the evidence was such as to sufficiently identify the defendant as one of the perpetrators of the crime.

The misnomer of a defendant is not fatal to an indictment

Page 620

if there is no question as to the identity of the accused, and the defect may be cured by interlineation on a motion to amend Lank v. State, 219 Md. 433. See also Romans v. State, 178 Md. 588.

In the instant case, the defendant was not only orally apprised of the charge against him under the name of Clarence Dunlop when he was arraigned, but had previously been served with a written copy of the indictment in which his name was misspelled. And since he made no effort then to correct the defect, it was too late to do it in this post conviction proceeding where a defective indictment is not open to review. See Wilson v. Warden, 222 Md. 580.

Application denied.