Gaither v. Com.
| Decision Date | 22 March 1906 |
| Citation | 91 S.W. 1124 |
| Parties | GAITHER v. COMMONWEALTH. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Trigg County.
"Not to be officially reported."
Wash Gaither was convicted of murder, and appeals. Affirmed.
Max Hanberry and G. P. Thomas, for appellant.
O'REAR J.
Appellant was convicted of the murder of Taylor Vester. Vester, while lying in bed, undressed and unarmed, was shot through the heart. Appellant attempted to show that the shooting was done in self-defence. But the proof against that theory was overwhelming, and was evidently so regarded by the jury.
A continuance was sought on the ground that his attorneys had not had time to consult with his witnesses and to prepare his defense. Every person who was present at the shooting was present and testified at the trial. The issue was simple. The story was plain and uncomplicated. The murdered man was drunk. So was appellant to some degree. Some dissolute women were present in the house. They were also drinking. Appellant's councel seem to have had every advantage in the development of the facts of the case that counsel for the commonwealth had, and appear to have done all that could properly be done for their client under the circumstances of the case. That he was not hanged is probably due to the effectiveness of their services. The admission of evidence is exceptionally free from error, and the instructions are models of accuracy and clearness.
The most serious ground urged against the proceeding is that the indictment is deficient; that is, it is misspelled in some parts. For example: The word "offense" is written "offince." Bullet is spelled "bullet." Vester's name is once spelled "Vester." Misspelling, false grammar, and erroneous punctuation will not vitiate an instrument, statute, indictment, or contract where its fair intent can be gathered from the whole text. Huntington v. Lyman, 138 Mass. 205; Ewing v Burnet, 11 Pet. (U. S.) 41, 9 L.Ed. 624; Joy v. St Louis, 138 U.S. 1, 11 S.Ct. 243, 34 L.Ed. 843. There is no rule for spelling and pronouncing proper names, and particularly of surnames, which has led the courts to the adoption of the rule of idea sonans. If the name, though not spelled correctly, conveys to the ear, when pronounced according to the commonly accepted methods, a sound practically the same as when correctly spelled and pronounced, it is deemed a sufficient designation of the person alluded to. Robson v. Thomas, 55 Mo. 581; Schooler v. Ashurst, 3 A. K. Marsh. 492; Rooks v. Statt, 83 Ala. 80. The following illustrations show some of the instances in which the rule of idem sonans has been applied: "Adamson" and "Adanson." James v. State, 7 Blackf. (Ind.) 325. "Amel" and "Amiel." People v. Gosch, 82 Mich. 22, 46 N.W. 101. "Antrum" and "Antrim." State v. Scurry, 3 Rich. Law (S. C.) 69; State v. Crank, 2 Bailey (S....
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Nunley v. Com.
...misprint and could not have misled or have been prejudicial to the appellant. As was said by this court in the case of Gaither v. Commonwealth, 91 S.W. 1124: false grammar, and erroneous punctuation will not vitiate an instrument, statute, indictment, or contract, where its fair intent can ......
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Nunley v. Commonwealth
...misprint and could not have misled or have been prejudicial to the appellant. As was said by this court in the case of Gaither v. Commonwealth, 91 S.W. 1124: "Misspelling, false grammar, and erroneous punctuation will not vitiate an instrument, statute, indictment, or contract, where its fa......
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Com. v. Kerr, No. 2003-CA-001330-MR.
...v. Carter, Ky., 337 S.W.2d 674 (1960). 5. Nunley v. Commonwealth, 307 Ky. 274, 210 S.W.2d 962, 963 (1948)(quoting Gaither v. Commonwealth, Ky., 91 S.W. 1124 (1906)). ...