Wilkerson v. State

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. Be minimis non eurat 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 séem 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 exceptions shows, that when the case was called for trial, the defendant announced himself ready. A jury was sworn to try the case, and by their verdict found the defendant guilty of the offense of gaming, assessed his punishment to ten dollars, and then the defendant complains that his plea in abatement had not been tried. We are satisfied with the action of the court, in paying no attention to his plea ; in treating it as a mere nullity. He has had the advantage of a jury to try his guilt or innocence. He has no cause to complain. Let the judgment be affirmed.

(a) Campbell v. Wolff, 35 Mo. R. 459; Bank v. Vaughn, 86 Mo. R. 90; Gorman v. Dierkes, 37 MO. R. 576. See also Hanley v. Blanton, 1 Mo. R. 49, and note b.