Campbell v. State

• Decision Date: 21 June 1921
• Docket Number: 7 Div. 701
• Citation: 90 So. 43,18 Ala.App. 219
• Parties: CAMPBELL v. STATE.
• Court: Alabama Court of Appeals

90 So. 43

18 Ala.App. 219

CAMPBELL v. STATE.

7 Div. 701

Court of Appeals of Alabama

June 21, 1921

Appeal from Circuit Court, Etowah County; W.J. Martin, Judge.

Bob Campbell, alias Bob Cameron, was indicted and convicted of violating the prohibition law, in that he manufactured prohibited liquor, and he appeals. Reversed and remanded.

The following charges were refused the defendant:

(1) The presumption of good character and the presumption of innocence are both matters of evidence for the consideration of the jury in favor of the defendant, until the jury is satisfied of the guilt of the defendant beyond all reasonable doubt.

(2) The law presumes that the defendant has a good character and you have a right to look to this fact in determining whether or not the defendant is guilty.

(5) It is the duty of the jury to reconcile the evidence of the witnesses if there is a conflict in their evidence, and to reconcile such evidence so as to make all the witnesses speak the truth, if possible.

E.O McCord & Son, of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

The indictment contained one count, averring that Bob Campbell alias Bob Cameron, committed the offense charged therein. As an answer to the indictment the defendant filed a sworn plea in abatement--a plea of misnomer--in which it was insisted that his name now nor never was Bob Campbell nor Bob Cameron that he is not now, nor has he ever been, known or called by either of said names, but that his name is now and has always been Bob Cambron, and that he has always been called and known by the name of Bob Cambron. To this plea the state demurred, and as a ground therefor stated "that the name of Bob Cameron and Bob Cambron are idem sonans." This demurrer presented for decision by the court the question whether or not Bob Cameron, by which the defendant was indicted, is idem sonans with Bob Cambron, which the plea avers to be his true name, and by which he has always been called and known. Though this question is strictly one of pronunciation, when raised by demurrer, as here, it may be treated as a question of law. The term "idem sonans" means sounding the same or alike; having the same sound. And is applied to names which are substantially the same, though slightly varied in the spelling.

In the instant case whatever doubt that may have existed in the minds of this court on this question it would seem should necessarily be resolved in favor of the insistence of the defendant that the names are not idem sonans as a matter of law, after a consideration of the following decisions of the Supreme Court of this state, in view of the fact that the decisions of the Supreme Court shall govern the holdings and the decisions of this court. The Supreme Court has held that the name "Moncus" is not idem sonans with "Munkers." Munkers v. State, 87 Ala. 94, 6 So. 357, and has also held that the following names do not come within the rule: "Manison and Manson"; "Sagars and Segars"; "Barnham and Barham"; "Humphreys and Humphrey"; "Mulette and Morlette"; "Donnel and Donald"; "Comeyns and Cummins"; "Shakepear and Shakespeare"; "McCinney and McKinney"; "Levi Noble and Levi Nobles"; "Cobbs and Cobb"; "Chapalear and Chapelas." These several decisions, among others, will be found by analogy of the names respectively considered and held not to be idem sonans, to support our holding to the same effect as to the names here under consideration.

The following excerpt from the court's opinion in the Munkers Case, supra, appears to be specially applicable and in point to the case at bar, where the court said:

"There is a material difference in orthography, and a perceptible difference between Moncus and Munkers (here Cameron and Cambron), when ordinary sound and power are given to the variant letters. They are as different names as some which this court has held not to be idem sonans. If by local usage the names have the same pronunciation, it becomes a question of fact, which must be referred to the jury. The court erred in sustaining the demurrer to the plea. The state should have taken issue, or replied."

State witness W.M. Horton,...