Uterburgh v. State

8 Blackf. 202, 1846 Ind. LEXIS 120

• Court: Indiana Supreme Court
• Decided: November 24, 1846
• Status: Published

Opinion

Blackford, J.

Indictment against Samuel Uterburgh for knowingly suffering a horse to be run in a horserace, &c. Plea, not guilty. The cause was submitted to the Court.

A bill of exceptions shows, that a witness for the state testified, that one Samuel Hudiburgh, on, &c., a{(. &c., ran his horse along the state road, &c., with one Hobbs, each riding his own horse; that the defendant in this cause, then in Court, was the same person he saw ride the race; that he' had known said Hudiburgh thirteen years, and had never heard him called by the name of Uterburgh, nor by any other name than that of Hudiburgh.

On this evidence, the Court found the defendant guilty. Motion for a new trial overruled, and judgment on the verdict.

There is no ground for this writ of error. Supposing the difference between the names Uterburgh and Hudiburgh to be sufficient to show a misnomer, the objection should have; been taken by a plea in abatement. That is the rule in criminal as well as in civil cases. It is true, the statute says that on the trial of all indictments, a defendant may plead the general issue, and give in evidence any and every matter of defence. it. S. 1843, p. 994. But by matter of defence, the statute means matter in bar of the prosecution, not mere matter in abatement. The defendant, by pleading not guilty, admitted his name to be Samuel Uterburgh, as he is designated in the indictment, and was estopped by that admission from afterwards denying that to be his name.

PL. and PL. Brown, for the plaintiff. A. A. Hammond, for the state.

Per Curiam.

The judgment is affirmed with costs.