Davis v. State

• Decision Date: 25 June 1920
• Docket Number: (No. 5838.)
• Citation: 224 S.W. 510
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 510

224 S.W. 510

DAVIS v. STATE.

(No. 5838.)

Court of Criminal Appeals of Texas.

June 25, 1920.

Rehearing Denied October 13, 1920.

Appeal from District Court, Van Zandt County; Joel R. Bond, Judge.

Will Davis was convicted of rape, and he appeals. Affirmed.

Stanford & Sanders, of Canton, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of rape and alloted six years in the penitentiary. We deem it unnecessary to discuss the facts. If the state's evidence was believed by the jury, it authorized a conviction. Had they believed the appellant, they would have acquitted of rape.

The question of variance between the name of the prosecutrix alleged in the indictment and that proved upon the trial is relied upon, among other things, for reversal. The indictment alleged the name of prosecutrix to be Mary Hodge.

The evidence shows her name was Mary Hodges; the difference being the "s" in the latter name, which was not in the first. The question of variance on the theory of idem sonans has been a very vexed one, not only in Texas, but it seems generally upon an examination of the cases. In fact, they are so much at variance with each other and so inharmonious they are practically incapable of reconciliation.

Some general rules, however, are fairly well recognized. If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true name, the variance and misspelling is not material. This is quoted from Mr. Branch's Ann. P. C. p. 11. For citation of authorities see that work. Generally speaking, where names are pronounced rather indiscriminately either one way or the other, and in the spelling the variation of difference is slight, it would not constitute grounds for a variance under the doctrine of idem sonans.

We are of opinion that Hodge and Hodges come within that rule, and that the variance would not be of sufficient importance to require a reversal of this judgment. The writer is of opinion that perhaps a test in cases of this character might be that, if under the second prosecution the accused could plead jeopardy on account of the name, the variance would not be of sufficient importance to require a reversal. This doctrine, however, might be fraught with some difficulty. With this particular case there should be no trouble, because the names are so similar that the variance would be...