Painter v. State

• Decision Date: 23 June 1931
• Docket Number: 6 Div. 919.
• Parties: PAINTER v. STATE.
• Court: Alabama Court of Appeals

136 So. 277

24 Ala.App. 426

PAINTER v. STATE.

6 Div. 919.

Court of Appeals of Alabama

June 23, 1931

Rehearing Stricken Aug. 4, 1931.

Appeal from Circuit Court, Fayette County; Ernest Lacy, Judge.

Clevis Painter was convicted of seduction, and he appeals.

Reversed and remanded.

B. G. Wilson, of Jasper, and W. W. Monroe, of Fayette, for appellant.

Thos E. Knight, Jr., Atty. Gen., for the State.

BRICKEN P.J.

The indictment charged one Clervus Painter, alias Clevis Painter with the offense of seduction. This appellant was arrested and required to stand trial under said indictment, but before entering upon the trail he filed a plea of misnomer in proper form and substance, and sworn to as the law required, in which it was insisted that his true name is Cleavies Panter and not Clervus Painter alias Clevis Painter, as alleged in the indictment, and that he has never been known or called by the name or names contained in the indictment. To said plea the state interposed demurrers upon the ground principally that the names in question are idem sonans. The ruling of the court in sustaining the demurrers is the principal insistence of error relied upon for a reversal.

In sustaining the demurrer to the plea the court held in effect as a matter of law, that the designated names are idem sonans and as a result the plea was no answer to the indictment. This question has been considered by this court en banc, and the conclusion here reached is that the court fell into error in thus holding. We are of the opinion that the names "Cleavies Panter," the admitted true name of this appellant, is not idem sonans with the names "Clervus Painter alias Clevis Painter." We think the case of Clements v. State, 19 Ala. App. 640, 99 So. 832 833, is ample authority in this connection. In the Clements Case the following instances have been collated wherein the appellate courts of this state have held the names are not idem sonans, to wit: "'Munkers and Moncus,' Munkers v. State, 87 Ala. 94, 6 So. 357; 'Manson and Manison;' 'Sagars and Segars;' 'Barnham and Barham;' 'Humphreys and Humphrey;' 'Mulette and Merlette;' 'Comeyns and Cummins;' 'Shakepear and Shakespeare;' 'McKinney and McCinney;' 'Levi Noble and Levi Nobles;' 'Cobbs and Cobb;' 'Chapelas and Chapalear;' 'Donnel and Donald;' 'Cambron and Cameron.' Others could be cited, but these we think are ample to sustain, by analogy, our holding that Clements and Clemmons,...