The indictment charges that Mathews Dunning unlawfully possessed a still and did make or manufacture prohibited liquors. Defendant demurred to the indictment, and interposed a plea of not guilty. The state offered only one witness, the arresting officer; the defendant offered no witnesses. The state's witness testified that he had known defendant twenty odd years; that he guessed he had known Mathew that long. Thereupon the witness was asked by defendant's attorney if he knew defendant as Mathew Dunning, and if defendant went by the name of Mathews Dunning. The witness replied that he had heard him called Mathew. Defendant then objected to any testimony as to Mathew Dunning, which objection being overruled, defendant sought leave to withdraw his plea of not guilty and demurrer and to be allowed to file a plea of misnomer. The court declined to permit this, and defendant objected. In this there was no error. By pleading in bar — not guilty — defendant waived his right to plead in abatement. Jones v. State, 61 So. 434, 181 Ala. 63; Whitehead v. State, 90 So. 351,206 Ala. 288; Smith v. State, 39 So. 329, 142 Ala. 14. The trial court might, within its discretion, have permitted the defendant to withdraw plea in bar and to file a plea of misnomer, but in failing to do so there was no abuse of discretion. Whitehead v. State, supra. Defendant requested affirmative charges and also requested a charge (3) to the effect that, unless the jury believed beyond a reasonable doubt that defendant's name was Mathews Dunning, they could not find him guilty. The alleged misnomer did not create a variance available under the general charge. Jones v. State, supra. A request for instruction cannot be made to take the place of a plea of misnomer. McBride v. State, 98 So. 135, 19 Ala. App. 471.
Where the oral charge of the court is not in the record, it will be presumed that refused charges other than the affirmative charge, where they state correct propositions of law, were covered by the court's oral charge. McBride v. State,102 So. 728, 20 Ala. App. 434. This serves to dispose of defendant's refused charge 4.
There was no error in permitting the witness to testify how much mash was found at the place of the still.
No error appearing in the record, the judgment will be here affirmed.
Affirmed. *Page 319