Com. v. Warren

• Decision Date: 23 February 1887
• Citation: 10 N.E. 178,143 Mass. 568
• Parties: COMMONWEALTH v. WARREN.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

143 Mass. 568

10 N.E. 178

COMMONWEALTH v. WARREN.

Supreme Judicial Court of Massachusetts, Norfolk.

February 23, 1887

COUNSEL

J.L. Eldridge, for defendant.

OPINION

The question of misnomer was not rightfully submitted to the jury. Com. v. Jennings, 121 Mass. 47, differs from this case.

H.N. Shepard, Asst. Atty. Gen., for the Commonwealth.

The motion to quash was properly overruled. Heard, Crim.Law, 786; Com. v. Jennings, 121 Mass. 47. There was no variance. Com. v. Stone, 103 Mass. 421; Com. v. Donovan, 13 Allen, 571; Com. v. Jennings, ubi supra.

GARDNER, J.

The province of the court and jury, in cases like the present, is governed by the following rule: If two names, spelled differently, necessarily sound alike, the court may as matter of law pronounce them to be idem sonans; but if they do not necessarily sound alike, the question whether they are idem sonans is a question of fact for the jury. Queen v. Davis, 4 New Sess.Cas. 411; also reported in 5 Cox, Crim.Cas. 237, and in 2 Denison, Cr.Cas. 233. In that case the court held as matter of law that "Darius" and "Trius" were idem sonans. The conviction was quashed, COLERIDGE, J., saying that, if the question had been left to the jury, there can be no doubt that a Dorsetshire jury would have found that "Darius" and "Trius" were the same name.

The case at bar is similar to that of Com. v. Donovan, 13 Allen, 571, which was an indictment for larceny from John Mealey. The witness testified that his name was spelled Malay, or Maley, and that he was called Maley, but never Mealey. The court left it to the jury to say whether the name proved was idem sonans with the one in the indictment. After verdict of guilty, this court held that the instructions were correct.

The court submitted to the jury in the case at bar the question whether the names "Celestia" and "Celeste" were usually and ordinarily pronounced alike. The jury were to determine this from their general knowledge, in the absence of evidence showing how they were usually pronounced, as in the cases above cited. In Com. v. Jennings, 121 Mass. 47, evidence was before the jury as to the way the name was ordinarily pronounced. The ruling of the superior court was correct.

Exceptions overruled.