Goodwin v. State

• Decision Date: 22 January 1924
• Parties: GOODWIN v. STATE.
• Court: Tennessee Supreme Court

257 S.W. 79

148 Tenn. 682

GOODWIN v. STATE.

Supreme Court of Tennessee.

January 22, 1924

Error to Criminal Court, Shelby County; J. Ed Richards, Judge.

Walter Goodwin was convicted of unlawfully carrying a pistol, and he brings error. Affirmed.

Prewitt Semmes, of Memphis, for plaintiff in error.

Wm. H Swiggart, Jr., Asst. Atty. Gen., for the State.

CHAMBLISS J.

Defendant was convicted of unlawfully carrying a pistol. He first assigns as error the overruling of a plea of misnomer, his name correctly spelled being Walter Gooden, and he having been indicted as Walter Goodwin. It is well settled that a name need not be correctly spelled in an indictment. Variant orthography is immaterial when substantially the same sound is preserved. This court has held that Ellett and Elliott are idem sonans; also Johnston and Johnson. Robertson v Winchester, 85 Tenn. 171, 182, 1 S.W. 781; Truslow v. State, 95 Tenn. 189, 196, 31 S.W. 987.

Placing the emphasis upon the first syllable of the name of plaintiff in error, where it customarily falls, it is difficult to distinguish, unless care is used, between the names Gooden and Goodwin, and we are of opinion that the cases in this state cited sustain the application of the rule of idem sonans. An examination of the examples cited in the brief of counsel and those elsewhere to be found support this conclusion. Moreover, it will be borne in mind that--

"When a party has in fact had a hearing, and a day in court, it is not the policy of the law to defeat the effect of the judgment or decree rendered upon a clerical mistake." Nelson v. Trigg, 3 Shannon Cases, 742.

The facts show beyond question the guilt of the plaintiff in error, but the question of unlawful search is raised by other assignments. On the trial the arresting officer testified that the behavior of the defendant, particularly the fact that he was "staggering all over the street," was such as to cause the officer to arrest the defendant for drunkenness, and the officer testified that the arrest was made on this ground. Having thus lawfully arrested him, he searched the defendant, and found on him a pistol loaded and concealed in a scabbard. He testified that he "didn't have any idea of finding a gun on him," and that he arrested him "because he was drunk."

The only objection interposed to the evidence of the officer was upon the ground that the officer had no search warrant.

"An officer may, without a warrant, arrest a person for a public offense committed, or a breach of the peace threatened, in his presence." Shannon's Code, § 6997.

Public drunkenness is a public offense, and the objection for the want of a warrant was not well taken.

The state having made out its case and rested, defendant was placed upon the stand following an announcement by his counsel that he would be introduced for the purpose only of attempting to show that the arrest and subsequent search were illegal. He testified on direct examination that he was not drunk. However, he did not in any way seek to controvert the testimony of the officer that his...