Wilkerson v. State

• Decision Date: 31 January 1850
• Citation: 13 Mo. 91
• Parties: WILKERSON v. THE STATE.
• Court: Missouri Supreme Court

13 Mo. 91

WILKERSON

v.THE STATE.

Supreme Court of Missouri.

January Term, 1850.

ERROR TO GREENE CIRCUIT COURT.

The only question presented in this case is, whether the Circuit Court did right in refusing to admit the defendant's plea in abatement to be filed; and in not allowing an issue to be made upon that plea.

ROBARDS, Attorney-General, for The State. The action of the Circuit Court in rejecting the plea in abatement was right. 1. A defendant cannot take advantage of a mistake in his surname by a plea in abatement. Upon this point, see 2 Hawkins' Pl. Crown, 328; 7 Bac. Abr. 8. 2. The defendant, in his plea, acknowledges himself to be the person indicted; and upon this ground the plea ought to have been rejected. 8 Tenn. R. 515; 3 Tenn. R. 185; 5 Tenn. R. 487; 1 Chitty's Crim. L. 448. 3. The plea does not profess to set forth the defendant's true name, but only an acquired name. 1 Chitty's Crim. L. 447. 4. If two names are, in original derivation, the same, and are taken promiscuously in common use, though they do differ in sound, yet there is no variance. 3 Chitty's Pr. 171. In the case there mentioned, Reynall and Reynolds are considered the same sound. See, also, 16 East, 110; 7 Mo. R. 142, Hutson and Hudson are considered the sae. 2 Caine, 362; 1 Wash. C. C. R. 289, 2 Wash. C. C. R. 202; 2 N. Hamp. R. 557.

RYLAND, J.

This case presents no other question before us than the act of the court below, in treating the defendant's plea in abatement as a nullity. We are satisfied that the plea is not a good one, and that the matter set forth in the plea is not susceptible of being properly plead in abatement; and we are not disposed to complain of the court below in thus treating it. The authority in 2 Hawkins' Pleas of the Crown, cited by the attorney-general, sustains his position; but without saying anything to sanction that authority, we are satisfied that this plea has no merits. “Wilkerson” or “Wilkinson,” like the names of “Robinson” or “Robertson,” or “Roberson,” “Hudson,” or “Hutson,” so much alike in sound, so nearly the same in original derivation, and so promiscuously taken in common use, that the variance in orthography may be considered so nearly nothing, as that the law will not notice it. Ds minimis non curat lex.^(a) The authority cited from 1 Washington's U. S. Circuit Court Reports, will shed much light upon this subject to those among us, who yet seem so fond of technicalities, that have met with no favor in courts of justice for more than a century.

In this case the bill of...