Spoonemore v. State , 25 Tex. Ct. App. 358 ( 1888 )

Willson, Judge.

1. “ Hix Howels ” and “ Hicks Howells ” are idem sonans, and the court did not err in its charge to the jury in disregarding the difference in the orthography of the name, and in omitting to submit to the jury for their determination whether or not the name as spelled in the indictment was the same as that proved on the trial. There was no room for doubt upon this question, and the court might well assume that the names were identical. If there had been any doubt as to whether the names were idem sonans, it would have been proper, and perhaps essential, to have submitted the question to the jury. (Henry v. The State, 7 Texas Ct. App., 388.)

Opinion delivered April 25, 1888.

2. It is objected to the charge of the court that it omits to instruct the jury in relation to the offense defined by article 749 of the Penal Code, that is, the offense of wilfully talcing into possession, driving, using, or removing live stock from its accustomed range, etc. In our opinion the evidence did not demand such a charge, and the court very properly refused to give it. It is clear from the evidence that the defendant took the animal with the fraudulent intention of appropriating it to his own use, and that he did so appropriate it. Such being the case, he was guilty of the theft defined by articles 724 and 747 of the Penal Code, and not of the offense defined by said article 749.

3. We think the evidence supports the conviction. As to the identity of the animal lost by Howells, with that sold by defendant to Milford, the evidence is sufficiently certain and conclus' ive. The motion for rehearing is refused.

Affirmed and motion overruled.