Commonwealth v. Sims , 2 Va. 374 ( 1823 )

HOLMES, J.,

delivered the opinion of the Court:

Our Statute, ^(a) is nearly a copy of the Statute of 1 Hen. 5, ch. 5, which requires, that whenever the Exigent may issue, an addition to the name of the Defendant, of his estate, degree, or mystery, shall be made. The- Judges,present are all of opinion, that the addition of estáte, degree, or mystery, must be given, and if it is not, the Indictment •may be abated by the express words of the ■Daw ; but if a Defendant be a yeoman, and also a tradesman, as shoemaker, he may be indicted by either addition so that it be true : and most of us are of opinion, that the dis•tinction between yeoman and labourer, is a ,. • sound one, and pleadable in abatement.

*The judgment of the Court is, 1.

That an Indictment charging an assault, is abateable by reason of no addition given to the Defendant.

2. That an addition given must be the true one, and if not true, may be traversed by a plea in abatement, such as that filed.

3 That the difference between the addition of labourer, and yeoman,' as pleaded, is sufficient to abate the indictment.

(a) 1 Rev. Code of 1819, ch. 169, § 41, p. 610.