Turner v. People , 1891 Ill. App. LEXIS 8 ( 1891 )

Sample, J.

An information was filed against the appellants under the names of J. B. Turner Jr., and O. W. Turner. They filed a plea of misnomer in abatement, in proper form, averring that they were baptized in the name of Charles W. Turner and James B. Turner, and since that time have hitherto been so called and known. The court, on motion of the State’s attorney, struck the plea from the files, to which appellants excepted. The case proceeded to trial and appellants were convicted. The motion for a new trial was overruled and judgment for a fine entered, from which this appeal is prosecuted. The only error discussed is the action of the court in striking the plea of misnomer from the files. This action of the court was error.

The appellants were entitled to have an issue formed and tried on their plea. Amann v. People, 76 Ill. 188. The plea of not guilty does not allow a defendant in a criminal case to prove matters merely in abatement. Hawkins v. People, 106 Ill. 628. It is well settled that in criminal proceedings the indictment must state the Christian names, if known, and if not known that fact should be averred. Willis v. People, 1 Scam. 399; 1 Chitty Cr. L. p. 447. For the reasons stated we are constrained to reverse and remand this cause.

Reversed and remanded.