which has since been overruled by Lapina v. Williams, 232 U.S. 78, as to the holding that the Immigration Act does not apply to domiciled aliens.

UNITED STATES OF AMERICA v. GEORGE LOW.

September 13, 1911.

1. Indictment—Designation of defendant-Omission of middle initial of name: The failure of an indictment in designating the defendant, to give the middle initial of his name, is not fatal.

2. Same-Same-Spelling of defendant's surname—Idem sonans: In an indictment the spelling of the defendant's surname "Low" instead of "Lowe," is no misnomer.

Indictment: Plea in abatement.

C. C. Bitting for the plea.

W. T. Rawlins, Assistant U. S. Attorney, contra.

CLEMONS, J. The defendant, named in the indictment as "George Low," pleads in abatement misnomer, in that his true name is "George K. Lowe."

[1] The absence of the middle initial "K" is no misnomer. Edmundson v. State, 17 Ala. 179: 52 Am. Dec. 169; 29 Cyc. 265, and cases cited; 14 Enc. Pl. & Pr. 275-276; 21 A. & E. Enc. L. 2d. ed., 307; Clark Crim. Proc., 145-146. See Keene v. Meade. 3 Pet. (U. S.) 1, 7; Games v. Dunn, 14 Pet. (U. S.) 322, 326; Dunn v. Games, 8 Fed. Cas. 98 (No. 4,176): 1 McLean, 321; Choen v. State, 52 Ind. 347: 21 Am. Rep. 179, 181, note. The reason of the rule is often given as the fact that "the law knows of but one Christian name," and such is the reasoning of the United States Supreme

Court, Keene v. Meade, supra; Games v. Dunn, supra; but a better ground would seem to be that the omission, in a case like this, cannot in any reasonable view prejudice the defendant. See State v. White, 34 So. Car. 59: 27 Am. St. Rep. 783, 784.

[2] As to the spelling of the surname, the indictment must stand, under the modern application of the rule of idem sonans, that the defect is not fatal "where the name, as written in the indictment, may be pronounced (although such may not be the strictly correct pronunciation) in the same way as the name given." State v. White, 34 So. Car. 59: 27 Am. St. Rep. 783-785; Faust v. United States, 163 U. S. 452, 454; United States v. Hinman, 26 Fed. Cas. 324 (No. 15,370), Bald. 292; Territory v. Johnson, 16 Haw. 743, 748; Clark, Crim. Proc., 145-149; 29 Cyc. 275-276; 21 A. & E. Enc. L., 2d. ed., 313

These well-settled rules dispose of the plea, without considering whether the defects, if any, are matters of form, immaterial under the curative provisions of Rev. Stat. sec. 1025; Rose's Code, sec. 1579; 2 Fed. Stat. Ann., 340. See People v. Ferris, 56 Cal. 442, 444; Burroughs v. State, 17 Fla. 643, 655-656.

The rule of the California Federal Court of the Northern District, abolishing pleas in abatement for misnomer, might well be adopted here. See 3 Rose's Code, 2295-2296, rule 98, providing that "when the defendant is arraigned, he shall be informed that if the name by which he is indicted is not his true name, he must then declare his true name or be proceeded against by the name in the indictment."

The plea is overruled.

IN THE MATTER OF THE APPLICATION OF WONG ON FOR A WRIT OF HABEAS CORPUS.

October 3 1911.

Habeas Corpus-Practice-Order to show cause-Chinese exclusion law: Where a petition for a writ of habeas corpus for relief of one ordered deported under the Chinese exclusion law, discloses the same facts as those of a case previously determined here (In re Su Yen Hoon, 3 U. S. Dist. Ct. Haw. 606), the court instead of granting the writ in the first instance, orders the respondent to show cause why the writ should not issue, and upon the hearing on the return to the order denies the writ, following the decision in the previous case.

Habeas Corpus: Petition for writ; order to show cause. Thompson, Wilder, Watson & Lymer for petitioner. R. W. Breckons, U. S. District Attorney, for respondent. CLEMONS, J. It appearing that the grounds of the petition herein were identical with those presented in behalf of the petition in In re Su Yen Hoon, 3 U. S. Dist. Ct. Haw. 606, and Judge Robertson in that similar case having rendered a decision adverse to the petitioner, I deemed it the best practice not to issue the writ, and, instead, ordered the respondent to show cause why the writ should not issue. See 9 Enc. Pl. & Pr. 1024-1025, and notes; Church, Hab. Corp., 2nd ed., sec. 101; also, Soga v. Jarrett, 3 U. S. Dist. Ct. Haw. 502, 517.

At the hearing on the return to the order to show cause, the respondent's counsel urged that, admitting the facts alleged in the petition, the writ must be denied, in view of the decision of this court in the case of Su Yen Hoon, supra.

As that decision appears to be sound in its disposition of the questions raised, it should be followed. See United States v. Hoshi, 3 U. S. Dist. Ct. Haw. 439; United States v. Ishibashyi, 3 U. S. Dist. Ct. Haw. 517.

The rule to show cause is discharged, and the writ denied.

IN THE MATTER OF THE PETITION OF ERNST BISCHOF FOR NATURALIZATION.

October 28, 1911.

Naturalization-Residence-Member of marine corps, honorably discharged: Under 28 Stat. 124, an alien who has been honorably discharged from service in the marine corps after having served for the term of one enlistment, may be admitted to citizenship without other proof of residence, such service being taken in lieu thereof.

Naturalization: Application under act of July 26, 1894, 28 Stat. 124.

W. T. Rawlins, Assistant U. S. Attorney, for the United States.

CLEMONS, J. The petitioner, having served one enlistment in the United States marine corps and having been honorably discharged from service, applied for naturalization, and his vouching witnesses made affidavit to his residence for a term of three years within the Territory of Hawaii. Upon the hearing of the petition, the assistant United States attorney raised the query whether the full five years' residence required in ordinary cases by subdivision "fourth" of section 4 of the naturalization act, 34 Stat. 596, as amended, must not be shown by the affidavit.

Under the practice, as I understand it to have been observed heretofore in similar cases, the statute applying to the navy and marine corps, 28 Stat. 124, has uniformly been interpreted as entitling those who have received an honorable discharge after having served the specified length of time, to admission to citizenship without other proof of residence. See Van Dyne, Naturalization, 110. The statutes enacted for the benefit of those in the service of the army, navy and marine corps were not repealed by the general naturalization act of June 29, 1906, 34 Stat. 596. Bessho v.

United States, 178 Fed. 245, 247; United States v. Rodiek, 162 Fed. 469, 471-472. Although they are in the nature of exceptions to the general naturalization laws, they were intended as a special inducement to those in the army and navy service and should be construed to fully effect the intention. The statute relating to merchant seamen is another provision of the same class. In all of these statutes the intention appears to be to make service the substitute for residence; except that in case of soldiers one year's residence is required instead of the usual five year's residence. Rev. Stat. sec. 2166; Van Dyne, Naturalization, 109-111. The statute in question, 28 Stat. 124, appears, in the final clause thereof, to contemplate all that is required in the way of proof, when it says:

"Any alien of the age of twenty-one years and upward who has enlisted or may enlist in the United States Navy or Marine Corps, and has served or may hereafter serve five consecutive years in the United States Navy or one enlistment in the United States Marine Corps, and has been or may hereafter be honorably discharged, shall be admitted to become a citizen of the United States upon his petition, without any previous declaration of his intention to become such; and the court admitting such alien shall, in addition to proof of good moral character, be satisfied by competent proof of such person's service in and honorable discharge from the United States Navy or Marine Corps."

This is exactly the same as the provision of Rev. Stat. sec. 2166, relating to soldiers, except that it omits any reference to proof of residence. It is thus significant that the statute in question does not say "the court admitting such alien, shall in addition to proof of good moral character, and residence, be satisfied by competent proof of such person's service and honorable discharge from the United States Navy or Marine Corps."

So far as the reference to previous declaration of intention is concerned, it seems that this is added merely to remove any doubt of the necessity of such declaration, and