Biggers v. State , 109 Ga. 105 ( 1899 )

Little, J.

Plaintiff in error was indicted in the superior court of Bibb county, for the offense of gaming, and tried in the city court of Macon and found guilty. He pleaded a misnomer in abatement, and alleged that his true name is not John Biggers but that his name is John Bickers. By consent the plea was submitted to the judge for determination, who adjudged that “Upon hearing the evidence I find ‘Bickers’ and ‘Biggers’ are idem sonans, and find against the plea.” He moved for a new trial, on the ground that the verdict was contrary to law and the evidence. The evidence was clear, and overwhelming that the defendant was guilty of the offense of playing and betting for money, within the statutory limit of time before the finding of the indictment, at a game known as “craps,” played ivith dice; and the only question is,- whether or not the court committed any error in his finding upon the plea of misnomer. We think not. The two names Bickers and Biggers have a very similar sound, and the rule laid down by Mr. Bishop in his Criminal Procedure (4th ed.), vol. 1, § 688, is, that the law does not regard orthography, that no harm comes from misspelling a name, provided it is idem sonans with the true spelling. He cites a number of cases to support the doctrine. In the 21 Mo. 504, “Blackenship” was held to be idem sonans with “Blankenship.” In 18 Ill. 52, “McInnis” was held to be idem sonans with “McGinnis.” In 2 Greene (Iowa), 88, “ Conly ” was held idem sonans with “ Conolly.” In the 18 Ga. 736 (Chapman v. State), it was held that “Hudson” was idem sonans with “Hutson.” In delivering the opinion in that case, Lumpkin, J., said : “ Idem sonans is no longer an infallible test. Identitate personse, and not identitate nominis, is and should always have been the true and only issue.” There was no pretense in this case that the person on trial was not the person who was guilty of the offense charged in the bill of indictment. His plea was that he was not indicted by his right name, and while in all cases the accused has the right not to be held to answer to an indictment framed against another person, nor against himself in any other than his true name or one by which he 'is known, such immaterial error in orthography as is alleged to exist in this case will, not be favorably considered. There was no error in finding against the plea.

Judgment affirmed.

All the Justices concurring.