Jones v. State ( 1930 )

In his motion for rehearing appellant for the first time claims that a variance is shown between the name of the alleged purchaser as set out in the indictment and as shown by the statement of facts.

The purchaser is alleged to be "Jim Holland." As it appears in the statement of facts it is "Jim Hollins." No point was made in the court below on the claimed variance, therefore no opportunity occurred in the trial court to investigate the matter. We would have no difficulty if the names appeared as "Holland" and "Hollin"; it is the addition of the final "s" which causes trouble. The general rule in such cases is stated in Corpus Juris, Vol. 45, Sec. 19, to be that "the addition or omission of a final "s" is usually held a fatal variance, although in some cases it has been held immaterial." The decisions in this state are both ways and irreconcilable, unless the manner and the time in which the question was raised can throw some light on it. (See Williams v. State, 5 Tex. Cr. App. 230; Shores v. State, 68 Tex.Crim. R., 150 S.W. 904; Sawyers v. State, 48 S.W. 512; Parchman v. State, 2 Tex. Cr. App. 228; Neiderluck v. State, 21 Tex. Cr. App. 320,17 S.W. 467; Brown v State, 28 Tex. Cr. App. 65, 11 S.W. 1022; Harrison v. State, 48 Tex.Crim. R., 85 S.W. 1058; Ciulla v. State, No. 12,948, opinion March 12, 1930; Vernon's C. C. P., of Texas, Art. 401, Notes 7 and 8; Branch's Ann. Tex. P. C., Secs. 23 and 24.) We quote from Corpus Juris, Vol. 45, Sec. 19, as follows:

"It has been said, however, that the doctrine of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance in a name, to be material, must be such a one as has misled a party to his prejudice."

Some Texas cases are cited as tending to support the text. No question having been raised regarding the variance claimed in the present case until long after the trial, and it not being apparent how the variance did or could mislead appellant to his prejudice, we are not inclined to uphold appellant's contention.

The motion for rehearing is overruled.

Overruled.

ON APPLICATION TO FILE SECOND MOTION FOR REHEARING.