When a person under indictment is not correctly named, he must take advantage of the error by plea in abatement, and in the plea state what the true name is; for, if he does not do this, he will be conclusively holden to be the person in the indictment mentioned. — 1 Bishop’s Crim. Pro. § 677. He can not relieve himself from this consequence by refusing to plead at all. If, on being arraigned, he “refuses or neglects to plead, or stands mute, the court must cause the plea of not guilty to be entered for him.” — Code of 1876, § 4870 (4169). The appellant, in this cause, was, moreover, defended by counsel; and a bill of exceptions, made out and signed for him, is in the record; and since it contains no evidence that defendant stood mute from infirmity, it is probable he waived the right to plead misnomer, upon the advice of his counsel. Whether he did or not, he must be holden to be the person who was intended to be accused of the charge in the indictment.
2. The indictment charges that defendant trespassed upon the premises of the prosecutor, Sebert Jordan, within six months after having been warned not to do so; a statutory offense, for which the fine, not exceeding $100, is to go to the prosecutor whose premises were trespassed upon; and Jordan was allowed by the court to testify as a witness in the cause, against the objection and exception of defendant. This action of the court is assigned as error. We consider the question thus raised as settled adversely to the defendant by the case of Hall v. The State, 53 Ala. 634. Section 4410 of the Code of 1876 was probably intended to overturn the different decision in Northcot v. The State (43 Ala. 330), and abolish an exception thereby set up to the general rule. *'
Let the judgment of the court be affirmed.