Rooks v. State

• Decision Date: 21 February 1888
• Citation: 3 So. 720,83 Ala. 79
• Parties: ROOKS v. STATE.
• Court: Alabama Supreme Court

3 So. 720

83 Ala. 79

ROOKS v. STATE.

Supreme Court of Alabama

February 21, 1888

Appeal from circuit court, Cherokee county; JOHN B. TALLEY, Judge.

Indictment of George Rooks for carrying concealed weapons. Defendant appeals.

Walden & Son, for appellant.

Thos. N. McClellan, Atty. Gen., for appellee.

SOMERVILLE J.

The defendant is indicted by the name of George Rooks. The plea in abatement for misnomer, which is based on the alleged fact that his name was George W. Rux, was stricken from the file on the ground that it was frivolous. The proper practice is to demur to a defective plea of misnomer, but where the plea is so defective as to be clearly demurrable, and the court strikes it from the files, no injury accrues to the defendant, and this court will not reverse on the ground that the state was required to raise the objection on demurrer. A mistake in a middle name, or its entire omission from an indictment, in this state, will not support a plea of misnomer, being regarded as entirely immaterial. Pace v. State, 69 Ala. 231; Edmundson v. State, 17 Ala. 179. The names, Rooks and Rux, are idem sonans, and must have been so decided as matter of law, on demurrer to the plea, had the issue been raised in this manner. The proper rule in such cases is that if two names, according to the ordinary rules of pronouncing the English language, may be sounded alike, without doing violence to the letters found in the variant orthography, then the variance is, prima facie at least, immaterial, and may be so decided by the court. And, in the pronunciation of proper names, greater latitude is indulged than in any other class of words. Ward's Case, 28 Ala. 53; Block's Case, 66 Ala. 493; Edmundson's Case, 17 Ala. 179; Donnelly's Case, 78 Ala. 454; Aaron's Case, 37 Ala. 106; Gresham v. Walker, 10 Ala. 370; Heard, Crim. Pl 56. In Sayres v. State, 30 Ala 15, where the issue was one of idem sonans, it was observed by STONE, J., as follows: "Generally such issue is triable by the court without evidence, and not by the jury. We will not say that there might not be cases in which it would be permissible to introduce evidence on the question. A foreign name might be in issue; and, although the orthography of the supposed names might, according to the laws of our language, require us to affix to each a different sound, yet, in fact, the foreign orthography might be there sounded precisely as the letters employed by the...