Heard v. State

A re-examination of the statement of facts but serves to further convince us of the correctness of the decision in our former opinion. The testimony of the agent of the express company as to the contents of certain packages which he had never seen and which contents he only knew from an invoice, was the rankest kind of hearsay and amounted to no evidence at all and should not have been permitted. The witness could not know the contents of the packages from the invoices.

Our attention is also attracted by the further proposition that the indictment alleged the property to belong to Ellis Conway. The witness who testified that he was the agent of the express company and had the goods under his care, control and management, said his name was Ellis Conroy. In his Annotated P.C., pp. 11 and 12 Mr. Branch cites many authorities on the proposition of idemsonans. From an examination of them we think it clear that this court has never held where there is such an apparent discrepancy in the spelling and sound of the two names, that Conway and Conroy could be idem sonans. Our conclusion is that they are not and that the case might also have been reversed for failure of proof and allegation to correspond.

The motion for rehearing is overruled.

Overruled.