Evans v. State

Citation509 S.W.2d 371
Decision Date15 May 1974
Docket NumberNo. 48317,48317
PartiesOelious EVANS, Jr., Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

James S. Moss, Mesquite, for appellant.

Henry Wade, Dist. Atty., Maridell Templeton, Asst. Dist. Atty., Dallas, and Jim D. Vollers, State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

The conviction is for felony theft; the punishment, imprisonment for ten years.

The only ground of error raised is that the evidence is insufficient to sustain the conviction because there is a material variance between the alleged name of the complainant and the proof offered.

The indictment alleges the owner of the stolen property to be Daniel Wier. The transcript of the court reporter's notes reflects and the State acknowledges the proof shows the complainant's name to be Dan R. Wier. 1 There is no proof in the record that the appellant was known both as Dan and Daniel Wier. 2

Article 21.07, Vernon's Ann.C.C.P. provides:

'In alleging the name of the defendant, or of any other person necessary to be stated in the indictment, it shall be sufficient to state one or more of the initials of the Christian name and the surname. When a person is known by two or more names it shall be sufficient to state either name . . .'

Does a variance result where two names are derived from the same source or where one is an abbreviation or corruption of another but both are taken by common use to be the same though differing in sound? The decisions in this State have answered the question both ways. Some say in the absence of proof that the injured party was known by the name alleged or in the absence of proof of the contraction, derivation of corruption of the name, the Court will not take judicial notice of the contraction, derivation or corruption of such name. See Humbard v. State, 21 Tex.R. 200, 17 S.W. 126 (1886); 3 Owens v. State, Tex.Cr.App., 20 S.W. 558 (1892); 4 Waters v. State, Tex.Cr.App., 31 S.W. 642 (1895); 5 and 1 Branch's Ann.P.C.2d 469, § 480. It has also been said that where two names have the same derivation or where one is an abbreviation or corruption of the other but both are taken according to common use to be the same the use of one for the other is not a material misnomer. See Goode v. State, 2 Tex.App. 520 (1877); 6 Alsup v. State, 36 Tex.Cr.R. 535, 38 S.W. 174 (1896); 40 Tex.Jur.2d 379--380, § 8, Names, and compare State Bank & Trust Co. v. W. O. Horn & Bro., 295 S.W. 698 (Tex.Civ.App.1927). 7

We resolve the conflict by adopting the rule applied in Alsup v. State, supra, where the Court held that a variance did not result when the name alleged was Robert Thomas and the State proved the complainant's name was Bob Thomas. The Court took judicial knowledge of the contraction, derivation and corruption of names and held that it was unnecessary to introduce any evidence to show that Bob meant Robert.

We hold in this case that proof that the owner of the property was Dan R. Wier supports the allegation that the owner of the property was Daniel Wier. The cases in conflict with this holding are overruled. 8

The judgment is affirmed.

Opinion approved by the Court.

1 No particular issue has been made regarding the middle initial--the adding or deleting of a middle name or initial does not create a variance since it is not essential to allege a middle name. See ...

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4 cases
  • Johnson v. Estelle, 82-2033
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • May 6, 1983
    ...his burden, by not showing that (1) "Carol" is not a contraction, derivation, abbreviation, or corruption of "Carlyn," Evans v. State, 509 S.W.2d 371 (Tex.Cr.App.1974); (2) Venters was not known by both names, Murphy v. State, 424 S.W.2d 231 (Tex.Cr.App.1968); or (3) the two names are not i......
  • Buster v. State
    • United States
    • Texas Court of Appeals
    • June 30, 2003
    ...both are commonly taken according to common use to be the same, using one for the other is not a material misnomer. Evans v. State, 509 S.W.2d 371, 372 (Tex. Crim. App. 1974). In reviewing Appellant's claim of legal insufficiency, the first issue is whether the victim's name is a substantiv......
  • Scott v. State
    • United States
    • Texas Court of Appeals
    • April 8, 1992
    ...of the other, and one is commonly used for the other, the use of one for the other is not a material misnomer. Evans v. State, 509 S.W.2d 371 (Tex.Cr.App.1974); Alsup v. State, 36 Tex.Cr.R. 535, 38 S.W. 174 (1896). A commonly known diminutive or abbreviation is sufficient to identify a pers......
  • Ex parte Elliott
    • United States
    • Texas Court of Criminal Appeals
    • November 3, 1976
    ...of the other, and one is commonly used for the other, the use of one for the other is not a material misnomer. Evans v. State, 509 S.W.2d 371 (Tex.Cr.App.1974); Alsup v. State, 36 Tex.Cr.R. 535, 38 S.W. 174 (1896). A commonly known diminutive or abbreviation is sufficient to identify a pers......

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