60 Ala. 56 | Ala. | 1877
When a person under indictment is not correctly named, he must take advantage of the error by plea in abatement, and in the plea state what the true name is; for, if he does not do this, he will be conclusively holden to be the person in the indictment mentioned. — 1 Bishop’s Crim. Pro. § 677. He can not relieve himself from this consequence by refusing to plead at all. If, on being arraigned, he “refuses or neglects to plead, or stands mute, the court must cause the plea of not guilty to be entered for him.” — Code of 1876, § 4870 (4169). The appellant, in this cause, was, moreover, defended by counsel; and a bill of exceptions, made out and signed for him, is in the record; and since it contains no evidence that defendant stood mute from infirmity, it is probable he waived the right to plead misnomer, upon the advice of his counsel. Whether he did or not, he must be holden to be the person who was intended to be accused of the charge in the indictment.
Let the judgment of the court be affirmed.