#### STATE v. RUFFIN SAWYER.

(Filed 13 December, 1950.)

1. Criminal Daw § 56—

A motion in arrest of judgment, for insufficiency of tbe indictment or warrant may be made for tbe first time in tbe Supreme Court. Rule 21.

2. Same—

A motion in arrest of judgment must be based on matters appearing on tbe face of tbe record or which should appear thereon and do not, and therefore motion in arrest will not lie for a misnomer, since it can be supported only by facts *dehors*the record.

3. Indictment and Warrant § 12—

Objection for misnomer in the indictment or warrant must be raised by plea in abatement, and defendant waives his right to object thereto by entering a plea of not guilty and going to trial.

*774. Indictment and Warrant § 10—

The names “Sawyer” and “Swayer” *held*to come within the rule of *idem sonans.*

5. Same: Criminal Law § 56—

The use of the words “the above” in the complaint in charging a criminal offense is not approved, but construing the verified complaint and the warrant subjoined together, it *is held*that the pleading sufficiently identified defendant, so as to defeat motion in arrest of judgment.

Appeal by defendant from *Frizzelle, J.,*and a jury, at tbe August Term, 1950, of Cumberland.

Criminal prosecution tried *de novo*on tbe original warrant in tbe Superior Court on tbe defendant’s appeal from tbe Eecorder’s Court of tbe City of Fayetteville.

Tbe verified complaint and warrant are entitled “State and City of Fayetteville *v.*Euffin Swayer.” .Tbe complaint charges “tbe above” witb these two violations of tbe Alcoholic Beverage Control Act of 1937: (1) Tbe possession for sale of intoxicating liquor purchased from a county store; and (2) tbe sale of intoxicating liquor purchased from a county store. G.S. 18-50. Tbe warrant, which was subjoined to tbe criminal complaint, addressed this order to tbe police of tbe City of Fayetteville: “For tbe causes stated in tbe affidavit, which is hereto attached and made a part hereof, you are commanded forthwith to arrest Euffin Swayer, and him have before tbe Eecorder’s Court of tbe City of Fayetteville on Monday tbe 17th day of July, 1950, to answer tbe above complaint and be dealt witb as tbe law directs.”

Notwithstanding bis surname is Sawyer rather than Swayer, tbe defendant answered tbe charge witb a simple plea of not guilty.

Tbe State’s witness, Eugene Brown, testified that on tbe occasion alleged tbe defendant bad physical custody of one pint of intoxicating liquor; that such liquor was contained in a sealed bottle bearing a county store stamp and appropriate revenue stamps; and that be bought such liquor from tbe defendant, and paid him $3.50 for it. Tbe defendant denied Brown’s evidence in its entirety, and asserted that be never saw Brown prior to tbe trial of tbe case in tbe Eecorder’s Court.

Tbe jury found tbe defendant “guilty as charged.” Tbe court sentenced him to imprisonment, and be appealed, assigning several parts of tbe charge as error.

When tbe appeal was beard in tbe Supreme Court, tbe defendant moved in arrest of judgment. He assigned these two reasons for bis motion: (1) That tbe criminal pleading describes him as Euffin Swayer whereas tbe testimony shows that bis name is Euffin Sawyer; and (2) that bis name does not appear in tbe charging part of tbe warrant, *i.e.,*
      *78the complaint, and by reason thereof the warrant does not describe him with sufficient certainty to identify him as the person charged with the crimes alleged.

*Attorney-General McMullan, Assistant Attorney-General Bruton, and Walter F. Brinlcley, Member of the Staff, for the State.*

*Lester G. Garter, Jr., for the defendant, appellant.*

EutiN, J.

Under Rule 21, a motion in arrest of judgment for insufficiency of an indictment or warrant may be made for the first time in the Supreme Court. *S. v. Harris,*229 N.C. 413, 50 S.E. 2d 1; *S. v. Jones,*218 N.C. 734, 12 S.E. 2d 292; *S. v. Ballangee,*191 N.C. 700, 132 S.E. 795; *S. v. Stephens,*170 N.C. 745, 87 S.E. 131; *S. v. Marsh,*132 N.C. 1000, 43 S.E. 828, 67 L.R.A. 179; *S. v. Caldwell,*112 N.C. 854, 16 S.E. 1010; *S. v. Lumber Co.,*109 N.C. 860, 13 S.E. 719; *S. v. Watkins,*101 N.C. 702, 8 S.E. 346.

A motion in arrest of judgment can *be*based only on *matters*which appear on the face of the record, or on matters which should, but do not, appear on the face of the record. *S. v. Mitchem,*188 N.C. 608, 125 S.E. 190; *S. v.*Shemwell, 180 N.C. 718, 104 S.E. 885. This being so, the objection that the defendant is given an incorrect name in the warrant is not presented by his motion in arrest, for such objection can be supported only by facts *dehors*the record.

Indeed, the defendant waived this objection by pleading not guilty and going to trial without giving the court his correct name under the rule that ordinarily an objection to the misnomer of the accused in an indictment or warrant must be raised by a plea in abatement before pleading to the merits. *S. v. Ellis,*200 N.C. 77, 156 S.E. 157; *S. v. McCollum,*181 N.C. 584, 107 S.E. 309; 22 C.J.S., Criminal Law, section 427. Furthermore, the names Saw-yer and Swa-yer are so nearly alike as to bring them within the rule of *idem sonans. S. v. Vincent,*222 N.C. 543, 23 S.E. 2d 832; *S. v. Gibson,*221 N.C. 252, 20 S.E. 2d 51; *S. v. Reynolds,*212 N.C. 37, 192 S.E. 871; *S. v. Donnell,*202 N.C. 782, 164 S.E. 352; *S. v. Hare,*95 N.C. 682; *S. v. Patterson,*24 N.C. 346, 38 Am. Dec. 699.

It is settled law that an indictment or warrant is fatally defective, and subject to a motion in arrest of judgment unless it describes the accused with sufficient certainty to identify him as the person charged with the crime alleged. *S. v. Finch,*218 N.C. 511, 11 S.E. 2d 547; *S. v. McCollum, supra; S. v. Phelps,*65 N.C. 450. The name of the defendant does not appear in the portion of the warrant which charges the violation of the Alcoholic Beverage Control Act of 1937. The charging part of the warrant, *i.e.,*the complaint, simply alleges that “the above” committed *79the offenses specified. For these reasons, we find nothing to commend in the phraseology employed by the draftsman of the pleading. Nevertheless, we are constrained to hold the warrant adequate to overcome the present objection of the defendant. The complaint refers to the title of the action, and the warrant refers to the complaint. When the title, the complaint, and the warrant are considered together as parts of the same instrument and proceeding, they point out the defendant with due certainty as the person committing the offenses alleged. *S. v. Poythress,*174 N.C. 809, 93 S.E. 919.

The trial court instructed the jury accurately on the law of the case, summed up the evidence of the witnesses correctly, and stated the contentions of the prosecution and defense fairly. As a consequence, the exceptions to the charge are untenable.

Inasmuch as the trial in the court below was free from legal error, the judgment will not be disturbed.

No error.