Evans v. State

• Decision Date: 16 February 1927
• Docket Number: No. 24936.,24936.
• Citation: 199 Ind. 55,155 N.E. 203
• Parties: EVANS v. STATE.
• Court: Indiana Supreme Court

199 Ind. 55

155 N.E. 203

EVANS

v.STATE.

No. 24936.

Supreme Court of Indiana.

Feb. 16, 1927.

Appeal from Vanderburgh Circuit Court; Chas. P. Bock, Judge.

Thomas Evans was convicted of murder in the first degree, and he appeals. Affirmed.Benj. F. Zieg and Oscar Birch, both of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., and U. S. Lesh, former Atty. Gen., for the State.

GEMMILL, C. J.

The appellant was indicted in the Vanderburgh circuit court for murder in the first degree. It was alleged in the indictment that he killed and murdered one Ruby Mossie by cutting, stabbing, and mortally wounding her with a knife, on the 11th day of September, 1924. Upon arraignment, he entered a plea of not guilty. He was tried by a jury, and was found guilty of murder in the first degree. The verdict fixed his punishment at imprisonment in the state prison during life, and judgment was rendered on the verdict. He assigns as error that the court erred in overruling his motion for a new trial.

The evidence shows that the woman named in the indictment as Ruby Mossie, but whose name was Ruby Mauzy, and who was 21 years old, was stabbed on September 11, 1924, between 4:30 and 5:30 oclock p. m., in a field a short distance from the corner of Taylor and Lodge streets, in the city of Evansville. She died at St. Mary's Hospital in that city about 6:20 p. m. on that day. The last person who was seen with her prior to the time she was stabbed was the appellant. He was taken to police headquarters soon after her death, was questioned, and was released. He was arrested the next morning; and on the afternoon of that day, after he had been taken to the morgue, where he viewed the body of the deceased, he signed by making his mark, and swore to an extrajudicial written confession, in which he stated that he stabbed said Ruby Mossie. This confession was repudiated by him at the trial. After the trial and conviction of appellant, one Henry Chapman executed an affidavit in which he said that he stabbed the woman. That affidavit and supporting affidavits are made part of the motion for a new trial to show that appellant had newly discovered evidence.

The confession of appellant, which the court permitted to be introduced in evidence, is as follows:

Evansville, Indiana, September 12, 1924.

My name is Thomas Evans. I live on Gilbert avenue just off the Henderson traction line. I am now 26 years old and will be 27 next February 14th.

I met Ruby Mossie about five weeks ago on the river in a family boat. I took her to my father's house, where I, my father, and stepmother lived. I was supposed to pay $5 a week board for her and $5 for myself. I paid the board as long as I had the money.

She left my father's house last Sunday a week ago, on August 31, 1924, and went to live with Frank Redman at 407 Lodge avenue. I was supposed to pay $6 a week board for her there. I had not paid anything on this board yet. I saw Ruby every night when I came from work.

Yesterday I was not working. I went to Redman's about 7 o'clock in the morning. I saw Annie Redman and Ruby. I stayed at Redman's until Ruby was ready to go with me to look for a job for myself. I went to the Evansville Veneer Company, the Dyer Packing Company (now American Packing Corporation), the Graham Glass Company, and Schmadels Furniture Factory.

We then went back to Redman's. Ruby and I ate dinner there, eating bread, cakes, and pies bought from a baker wagon. About 2 p. m. Ruby and I left. Ruby stopped at a store on Kentucky avenue while I went down on Washington avenue to look for a job. We then went back to Redman's. It was about 3:15 p. m. We stayed there until 4:30 p. m. We walked down Lodge avenue toward Green River road. On Lodge avenue, near the Henderson traction line, about two blocks from Redman's home, I pulled out my knife and opened it. I didn't say anything. Neither did Ruby. I stabbed Ruby Mossie in the neck with the knife. It is the same knife shown me by Chief Bell, and is a two–blade bone handle knife.

“After I stabbed Ruby I went down Lodge avenue and cut across toward the sawmill on Green River road, the shortest way to my home. I did not see Ruby any more that day, and I didn't go back to the place where I stabbed her.

This afternoon, when Mr. Heeger and Chief Bell took me to Schaefer's morgue, and showed me the body of Ruby Mossie, was the first time I saw her after stabbing her.

I was jealous of Ruby because she started flirting with Joe Durbin and some other man whose name I do not remember. I made up my mind about a week ago to put her out of the way. She started flirting about a week and a half ago.

The clothes I had on when I stabbed her are at my home. I had a black coat with green checks, and a pair of blue overalls.

This is a true statement of how I killed Ruby Mossie, and is made of my own free will without any threats or promises from any person.

[Signed] Thomas his X mark Evans.

Witness W. J. Foley.

Subscribed and sworn to before me this 12th day of September, 1924.

Walter J. Foley, City Clerk.

This statement made in the presence of Ira C. Wiltshire, superintendent of police, Emmett Bell, chief of detectives, and John Heeger. [Seal of the city clerk affixed.]”

[1] The first alleged error as cause for a new trial, presented by appellant in his brief, is that the court erred in giving to the jury of its own motion instruction No. 19. This instruction is as follows:

“The indictment charges the killing of Ruby Mossie, spelled R–u–b–y M–o–s–s–i–e. Some of the evidence introduced herein was to the effect that the deceased's name was Ruby Mauzy, spelled R–u–b–y M–a–u–z–y. I instruct you that on this point you may disregard the difference in the two names, and that proof of the killing of Ruby Mauzy, spelled R–u–b–y M–a–u–z–y, will support the charge in the indictment charging the killing of Ruby Mossie, spelled R–u–b–y M–o–s–s–i–e.”

[2][3] Appellant says that this instruction was erroneous, for the reason that it invaded the province of the jury; and he contends that the question as to whether the two names were idem sonans was a question of fact for the jury and not of law for the court. Usually the question as to whether the doctrine of idem sonans applies to the name of a person as set forth in a pleading so as to avoid a charge of variance is one of fact for the jury. When, however, the issue is free from doubt, it may be determined by the court as a question of law. 19 R. C. L. 1336, § 15. Whether names are idem sonans is not a question of spelling, but of pronunciation determined largely by usage. If the names, though spelled differently, sound alike, the court may determine that they are idem sonans and instruct the jury to disregard the variance in spelling. Underhill, Criminal Evidence (3d Ed.) § 82; 29 Cyc. 277; 21 Am. & Eng. Ency. of Law (2d Ed.) 317; Commonwealth v. Warren (1887) 143 Mass. 568, 569, 10 N. E. 178;State v. Williams (1900) 68 Ark. 241, 57 S. W. 792, 82 Am. St. Rep. 288.

[4] In People v. Spoor (1908) 235 Ill. 230, 85 N. E. 207, 126 Am. St. Rep. 197, 14 Ann. Cas. 638, where the court instructed that it was not material that the indictment spelled the name “Staunton” instead of “Stanton,” the Supreme Court held that the trial court instructed properly, as the names were idem sonans. In Webb v. State (1919) 149 Ga. 211, 99 S. E. 630, the court instructed the jury that, if it should appear that the name of the party killed was spelled “Welsh” instead of “Welch,” these two words were idem sonans in law, and therefore it was immaterial whether his name was spelled properly or improperly, so far as that feature of the case was concerned. It was decided by the higher court that there was no error in the instruction, and that the law did not regard the spelling of names, so much as their pronunciation or sound. In Cleaveland v. State (1863) 20 Ind. 444, the court instructed as follows: “Geissler and Geessler are near enough alike to make no difference in this case.” This court held that said instruction was correct. It has been held that a mere variance in the letters with which the names are spelled is not fatal, if they are pronounced substantially the same. People v. Gormach (1922) 302 Ill. 332, 134 N. E. 756, 29 A. L. R. 1120. Perfect identity of sound is not required. Practical similarity of sound is all that can be insisted upon. Puckett v. Hetzer (1910) 82 Kan. 726, 109 P. 285, 136 Am. St. Rep. 127. The appellant cites and relies upon Siebert v. State (1883) 95 Ind. 471, 478, in which the court refused to instruct the jury that certain names were not idem sonans. This court held that the refusal of the lower court was not error. The matter was not free from doubt, and it was a question of fact for the jury. He also cites Smurr v. State (1883) 88 Ind. 504. In that case, this court said:

“It is a well–established principle in criminal prosecutions that the name of the injured party must be proved as charged in the indictment. It is not essential, however, that the evidence must show that the name is correctly spelled in the indictment. When substantially the same sound is preserved, the variant orthography will make no difference. *** If the orthography in the indictment and in the evidence indicated a variance in the sound of the name of the deceased, it was, perhaps, a proper question for the jury to determine from the evidence whether the sound as disclosed in the testimony was the same as that indicated in the indictment, and upon this point the court gave the jury a proper charge.”

The Indiana cases relied upon by appellant are in accord with the general rule stated. Instruction No. 19 was a proper instruction in this case.

[5] Appellant claims that there was error because the court refused to give his tendered instruction No. 7. Said instruction reads:

“While in cases where the fact is clearly established that the person accused of murder actually killed the person with whose murder he is charged, it is not...