L. HAND, Circuit Judge (after stating the facts as above).
It is important to detach the exact question raised by the appeal. The result of the misnomer does not here arise, since, so far as it goes to the validity of the indictment, it must be raised by plea in abatement. 1 Bish. New Cr. Proc. § 677(2). The error, being in the middle initial, is probably not available anyway. Games v. Dunn, 14 Pet. 322, 327, 10 L. Ed. 476; Cox v. Durham, 128 F. 870, 874 (C.C.A. 8); O'Halloran v. McGuirk, 167 F. 493, 494 (C.C.A. 1). All that is before us is whether the appellant is the person in fact indicted, because, though it was suggested at the bar that the prima facie case made by the indictment had been answered, plainly there is no merit in the contention.
Identity is ordinarily proved prima facie by similarity of name, though that may be answered by showing that there are two persons of the same name. When the names are not alike, other proof is necessary; we may assume that the issue is always open, and that the prosecution has the burden of proof. Strictly, no proof is relevant that the person arrested committed the crime. The jurors do not indict the man who committed the crime, but him described in the evidence before them. They may select another and an innocent man, though the person arrested be guilty. If so, the prosecution fails on the issue of identity, which must be settled before that of guilt becomes relevant. Thus the only person who can be removed is the person whom the jurors mean to indict. Their meaning is to be ascertained, like any other, from the words they use, not from what is in their minds; but the meaning to be attributed to their words may, in case of doubt, be found by looking at the circumstances under which they are uttered. This is a universal canon. Now the only circumstances relevant to the words used are the evidence before them when they find the indictment, for it is from these alone that they get any acquaintance with the subject. They are to be understood, therefore, as indicting the persons described in the testimony, if doubt arises. Hence, if it be shown that the witnesses described the person arrested, he is the person indicted.
In the case at bar Gilbert swore that to the grand jury he described the person of whom he was speaking as the person he had come to know and the owner of the restaurant on Sixth avenue in Manhattan, and that he called this person Louis A. Mouquin. When the jurors used that name, they meant that person; thus the prosecution proved the identity of the appellant, for nobody disputes that he is the person whom Gilbert so described.
The point is new, so far as we have been able to learn; but there seems to us no question that, on principle, this is the proper answer.
Order affirmed.