76 Ala. 96 | Ala. | 1884
— The plea in abatement, interposed to the indictment by the defendant, is insufficient as a plea of misnomer. It should not only aver what the defendant’s name is at the time of the issue joined, but that he has always, or at least has hitherto, been called and known by such name. It is common practice to state that the defendant was baptized by such name, if such be the fact, but this is not now deemed necessary. — 1 Bish. Or. Proc. (3d Ed.) §§ 792, 686; 2 Wharton’s Precedents, 1142.
The demurrer to the plea was properly sustained. The record fails to disclose the particular grounds upon which it was based ; but these must be assumed to have been sufficient, as the plea was defective for the reason above assigned, and this court will make all proper presumptions to sustain the correctness of the rulings made by the lower court.
The refusal of the court to allow the defendant to amend his plea is not revisable, in the absence of a bill of exceptions from the record. The point is one which could be reserved only in this manner. — Code, 1876, § 4978 ; Jarman v. McMahon's Adm'r, 37 Ala. 431; Ex parte Knight, 61 Ala. 482; Powell v. Asten, 36 Ala. 140 ; 1 Brick. Dig. 71, § 8. The record, moreover, fails to disclose the nature of the amendment proposed to be made by the defendant; and the action of the court in refusing to allow it can not be assumed to be erroneous, because the amendment may have been demurrable, and there is no error in refusing to allow an amendment to which a demurrer would be sustained. — Beavers v. Hardie, 59 Ala. 570.
Judgment affirmed.
