Neiderluck v. State

Hurt, Judge.

Appellant was convicted of theft of money, the property of E. S. Woods. The indictment alleges that the money was taken from the possession of, and belonged to E. S. Woods. The proof shows that it was the property of E. S. Wood. Is this a variance? Are the names “Wood” and “Woods” idem sonans?

In Parchman v. The State, 2 Texas Court of Appeals, 228, it is held that “Frank” and “Franks” are neither the same name nor idem sonans. “Thompsons” and “ Thompson,” and “ Richards” and “Richard” are held not to be idem sonans. See also examples given by Mr. Wharton in the first volume, section 57, of his work on Criminal Law.

Under the authorities, “Woods” and “ Wood” are not idem sonans, and hence there is a variance. There is no proof that Woods was called Wood.

Appellant and some others were suspected, but not arrested for some weeks after the theft. But soon after the theft they were arrested and placed in jail together. The State, over objection of defendant, introduced in evidence statements made by the parties, they being in jail together, charged as vagrants. The statements of each, made in the presence of defendant, were admissible, though the conspiracy was at an end; but it is insisted that the defendant was in jail, and as he was not cautioned, as the law directs, his statements were inadmissible.

Opinion delivered May 15, 1886.

The question presented is this: Must the defendant be in custody—in jail—for the offense then being tried, in order to make his confession inadmissible as evidence? We think not. (Art. 750, Code Crim. Proc.; Grosse v. The State, 11 Texas Ct. App., 364; Davis v. The State, 19 Texas Ct. App., 202.) The code does not require that the defendant shall be in jail for the offense then being tried, in order to render his confession incompetent. We are of the opinion that the statement made by defendant while in jail, he not being then cautioned, as the law directs, nor having made statements found to be true, etc., were not admissible, although he was imprisoned, not for this offense, but for vagrancy.

The judgment is reversed and the cause remanded.

Reversed and remanded.