Opinion
6 Div. 177.
January 18, 1938.
Appeal from Circuit Court, Jefferson County; Robt. J. Wheeler, Judge.
Charlie Salome was convicted of violating the prohibition law, and he appeals.
Affirmed.
Jim Gibson, of Birmingham, for appellant.
It was error to strike the plea of misnomer.
A. A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.
Plea of misnomer, being a plea in abatement, should have been filed on the first trial. 16 C.J. 310; Woolf v. McGaugh, 175 Ala. 299, 57 So. 754; Code 1923, § 8784; Blair v. Williams, 159 Ala. 655, 49 So. 71; Croft v. Carter, 220 Ala. 464, 126 So. 101; Id., 23 Ala. App. 306, 126 So. 100; Williams v. State, 88 Ala. 80, 7 So. 101; Smith v. State, 73 Ala. 11; Toney v. State, 15 Ala. App. 14, 72 So. 508.
Appellant was convicted of the offense of illegally having in possession whisky and beer.
We observe not much that needs to be said.
The case being first tried in an inferior court — as was provided by law — and reaching the circuit court by appeal, it was of course too late to file, for the first time in the circuit court, a plea in abatement. Bush v. State, 27 Ala. App. 30, 167 So. 335. And it was altogether proper to strike said plea on the State's motion.
The evidence appears to us ample to support the verdict of the jury. There was, hence, no error in overruling appellant's motion to set same aside; and the judgment entered thereon is affirmed.
Affirmed.