Weitzel v. State , 28 Tex. Ct. App. 523 ( 1890 )

White, Presiding Judge.

The name of the owner of the stolen property as it was written in the indictment was “ Fraude.” He spelt Ms name, and the proper way to spell it was “Freude.” An expert German and English scholar testified that he would pronounce “Fraude ” as “Frowdy,” and “Freude” as “Froydy,” and that when corrupted “Freude” was also pronounced “Friday.” The learned trial judge held the two names “Fraude” and “Froydy” to be idem sonans, and refused to submit to the jury a special requested instruction asked in behalf of defendant as follows, viz.: “ If the jury believe from the evidence that the name of the party alleged to be the owner of the property alleged to have been stolen is different in sound from the name alleged in the indictment, to-wit, William Fraude, they will acquit the defendant.”

In the case of Bell v. The State, 25 Texas, 575, our Supreme Court say: “Where any question arises concerning the name of the person upon whom the indictment alleges that the injury was inflicted, the practice should be analogous to the practice in the case of a plea of misnomer by the prisoner. The fact should be submitted to the jury, and it would be competent to show, in support of the allegation in the indictment, that the person was as well known by the name used in the indictment as by any other.” In that case the judgment was reversed because the judge erred in not leaving the jury to determine as matter of fact from the evidence whether the injury was or was not inflicted on the person named in the indictment. Under this authority the court erred in refusing to give defendant's special requested instruction, and thus submit the question of variance or no variance in the names to the jury in connection with appropriate instructions explanatory of the rules relating to idem sonans.

Because of this error the judgment is reversed and the cause remanded.

Reversed and remanded.

Judges all present and concurring.