Sayres v. State , 30 Ala. 15 ( 1857 )

STONE, J.

The issue in this ease was idem sonans. G-onerally, such issue is triable by the court, without evidence, and not by the jury.

We will not say there might not be cases in which it would be permissible to introduce evidence on this issue. A foreign name might be in issue; and, although the orthography of the two supposed names might, according to the laws of our language, requires us to affix to each a different sound, yet in fact the foreign orthography might be then sounded precisely as the letters employed by the American pleader would be here pronounced. Whether, in such case, the proper issue is idem sonans, or that the party is as well known by the one name as the other; or, if the former, whether the issue thereby becomes one for the jury, we do not now determine. See Armstrong v. Burrows, 6 Watts, 266; Wushtoff v. Dracourt, 3 Watts, 240; Jennings v. Sherwood, 8 Conn. 127; Sidwell v. Roberts, 1 Penn. Rep. 386; Welsh v. Dusar, 3 Binn. 337; Denison v. Wertz, 7 Serg. & R. 372; Moore v. Miller, 4 Serg. & R. 279; Watson v. Blaine, 12 Serg. & R. 131; Overton v. Tracey, 14 Serg. & R. 311; Etting v. U. S. Bank, 11 Wheat. 59; Groddard v. Pratt, 16 Pick. 412.

There are some authorities which hold, that “where the writing is illegible, or obscure, the question what the letters really are, is a matter of fact to be decided by the jury.” — Armstrong v. Burrows, 6 Watts, 206. There are, however, decisions the other way. — Demon v. Hayward, 2 Ad. & El. 666; Jackson, ex dem. Swaine v. Hansom, 18 Johns. 107.

However the rule may be, we are satisfied it cannot aid the prosecution in this case. Here the evidence was not called out to prove what was the meaning of an obscure writing. The bill of exceptions informs us, that the letter, over which the controversy arose, was plainly a v. The opinion of the witness was, that the pleader intended the letter r. On what this opinion was based, we are not informed. He furnishes no fact from which he draws his conclusion; but, on the contrary, states that the writer usually formed the letter r as others do. Hnder these facts, the opinion was a mere conjecture, and not the judgment of an expert. We think the evidence should not have been received. — Flournoy v. Mims, 17 Ala. 36 ; Barb. Or. Law, 399.

It is not our purpose, in thus declaring the law, to lay down a rule which will forbid all intendment, where letters are imperfectly formed. We entertain no doubt that . it is the duty of all courts, in cases of doubtful orthography, to consult the context, and so decipher the manuscript as, if possible, to give the writing some meaning, and carry the intention into effect. That rule cannot aid the present case. "Whether the letter was v or r, it fails to make a word with which we are acquainted. The one orthography produces S-ci-e-y-v-s ; the other, S-a-e-y-r-s. No reasonable intendment can give these letters, in either form, the same sound as the letters S-a-y-r-e-s.

We think there was error, also, in allowing the witness to testify that Cunningham “received the money as Ms own.” What act or word, accompanying the receipt of the money, enabled this witness to say he received it as his own, we are not informed. Neither are we able to comprehend a distinction between receiving the money as Ms own or otherwise, unless its character was defined by what was said at the time the money was received. The receipt of the money was not one of the facts in issue, so as to let in the res gestee. It was, at most, a collateral circumstance, and, whether true or false, could not prove that the money was the property of Cunningham, — the only point on which we suppose it was offered in evidence. The fact that Cunningham had died before the trial, cannot legalize the evidence.

What Cunningham, the deceased witness, said, on the morning after the alleged larceny, was properly excluded from the .jury. It was nothing more than hearsay.

The judgment of the circuit court is reversed, and the cause remanded. Let the prisoner remain in custody, until discharged by due course of law.