Rooks v. State , 83 Ala. 79 ( 1887 )

SOMERVILLE, J.

— The defendant is indicted by.the name of George Rooks. The plea in abatement for misnomer, which is based on the alleged fact that his name was George W. Rux, was stricken Lorn the file, on the ground that it was frivolous.

The proper practice is to demur to a defective plea of misnomer; but, where plea is so defective as to be clearly demurrable, and the court strikes it Lorn the files, no injury accrues to the defendant, and this court will not reverse, on the ground tbat tbe State was required.to raise tbe objection on demurrer.

A mistake in a middle name, .or its entire omission Horn an indictment, in this State,- will not support a plea of misnomer, being regarded as entirely immaterial. — Pace v. State, 69 Ala. 231; Edmundson v. The State, 17 Ala. 179.

Tbe names Books and Bux are idem sonans, and must have been so decided as matter of law, on demurrer to tbe plea, bad tbe issue been raised in tbis manner. Tbe proper rule in sucb cases is, tbat if two names, according to the .ordinary rules of pronouncing tbe English language, may be sounded alike, without doing violence to the letters found in tbe variant orthography, then tbe variance is, prima facie at least, immaterial, and may be so decided by tbe court. And in tbe pronunciation of proper names greater latitude is indulged than in any other class of words.— Ward's case, 28 Ala. 53; Block's case, 66 Ala. 493; Edmundson's case, 17 Ala. 179; Donnelly's case, 78 Ala. 454; Aaron's case, 37 Ala. 106; Gresham v. Walker, 10 Ala. 370; Heard’s Cr. Pl., p. 56.

In Sayres v. The State, 30 Ala. 15, where tbe issue was one of idem sonans,'it was observed by Stone, J., as follows: “Generally, sucb issue is triable by tbe court, without evidence, and not by tbe jury. We will not say tbat there might .not be-cases, in which it would be permissible to introduce evidence on tbe question. A foreign name might be in issue; and although tbe orthography of tbe supposed names might, according to the láws of our language, require us to affix to each a different sound, yet in fact tbe foreign orthography might -be there sounded precisely as tbe letters employed by tbe American pleader would be here pronounced. Whether, in sucb case, tbe proper -issue is idem sonans, or that tbe party is as well known by one name as tbe other, or, if tbe former, whether tbe issue thereby becomes- one for tbe jury, we do not now determine.” — 1 Bish. Crim. Proc. (3d Ed.), § 792, note 3. Of course, as here intimated, and often since decided, there may be cases where tbe issue is so involved in doubt as to be triable by ,the jury, and not by tbe court, under evidence introduced as to fact or usage. — Wharton’s Cr. Ev. (8th Ed.), § 96; Underwood's case, 72 Ala. 220.

We find no error in tbe .record, and the judgment is affirmed.