#### Phillips vs. The State.

Criminal Pleading : Indictment: Wrong name in formal part of.

■When in the style and charging part of an indictment the defendant’s name is properly written, the substitution of a wrong name in the formal part does not vitiate it. The common law plea of misnomer is of no avail now under the Criminal Code procedure.

APPEAL from Phillips Circuit Court.

Hon. J. N. Cypert, Circuit Judge.

Palmer, for appellant.

Henderson, Attorney General, contra.

Enslish, C. J.

Indictment as follows :

“State oe Arkansas, against Enoch Brown, T. J. Phillips.

In the Phillips Circuit Court, November Term, 1879. Indictment.

“The grand jury of Phillips county, in the name and by *385the authority of the state of Arkansas, accuse Enoch Brown and T. J. Hugs of the crime of horse-racing, committed as follows, viz.: ■

“The said Enoch Brown and T. J. Phillips, on the twelfth day of August, 1879, in the county aforesaid, then and there unlawfully did run a horse-race on a public highway, to-wit: on the lower Little Rock road, a public road of said county, against the peace,” etc.

A capias was issued upon the indictment against defendant T. J. Phillips, who was arrested, and gave bail for his appearance to answer the charge; and, accordingly, appeared, and filed a demurrer to the indictment, on the fol-lowing grounds:

1. That the indictment is not direct and certain as to ■the parties charged with having committed the offense.'

2. It is otherwise vague and insufficient.

The court overruled the demurrer, and he waived arraignment, and entered the plea of not guilty, upon which he was tried, convicted, fined ten dollars, and appealed.

The indictment was preferred under see. 1 of the act of November 5,1875, making it a penal offense to run a horse-race on a public highway, or on the street of any town or city, etc. Acts of 1875, p. 8.

The objection made to the indictment is, that it charges the offense against Enoch Brown and T. J. Hugs, and not T. J. Phillips.

The style of the indictment is: The State of Arkansas v. Enoch Brown and T. J. Phillips; and in the charging part -of the indictment it is alleged that, “the said Enoch Brown and T. J. Phillips” ran the horse-race. The name T. J. Hugs, as written in the formal commencement of the indictment, is manifestly ,a mere clerical misprision.

In The State v. Hand, 6 Ark., 165, relied on by counsel *386for appellant, there was a successful common law plea of misnomer, which is of no avail now under the Criminal Code procedure. The State v. Webster et al., 30 Ark., 166; Gantt’s Dig., sec. 1785, p. 405.

Affirmed.