Pedrosa v. State, 24886

• Decision Date: 21 June 1950
• Docket Number: No. 24886,24886
• Citation: 232 S.W.2d 733,155 Tex.Crim. 155
• Parties: PEDROSA v. STATE.
• Court: Texas Court of Criminal Appeals

Page 733

232 S.W.2d 733

155 Tex.Crim. 155

PEDROSA v. STATE.

No. 24886.

Court of Criminal Appeals of Texas.

June 21, 1950.

Rehearing Denied Oct. 11, 1950.

Irwin & Irwin and Robert C. Benavides, Dallas, for appellant.

Will R. Wilson, Jr., Dist. Atty., Charles S. Potts, Asst. Dist. Atty., W. B. Henley, Asst. Dist. Atty., all of Dallas, George P. Blackburn, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This is a conviction for rape, with punishment assessed at twenty years in the penitentiary.

Appellant claims a variance between the allegation of the indictment and the proof as to the name of the prosecutrix.

The indictment alleged that the rape was committed upon 'Seanda Acosta.' The conviction rests upon testimony showing that appellant raped 'Senaida Acosta.'

Senaida Acosta testified that she had never been known as or called by the name, 'Seanda' Acosta; she testified that she never heard the name, 'Seanda,' until she heard it used in the court room upon the trial of the case.

This conviction, therefore, must stand upon the proposition that proof showing appellant raped Senaida Acosta is sufficient to meet the allegations of the indictment which alleged and charged that he raped 'Seanda Acosta.'

It is apparent, then, that the state's case depends upon the doctrine of item sonans, which means that names are the same which have the same sound or sound the same.

In the case of Chaverea v. State, 141 Tex.Cr.R. 592, 150 S.W.2d 241, 242, we restated the rule governing the doctrine of idem sonans, as follows: 'The rule of idem sonans is stated as follows in Branch's Ann.Tex.P.C., sec. 22, page 11: 'If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true name, the variance and misspelling is immaterial.' And in 30 Tex.Jur., page 602, it is said: 'This phrase means 'of the same sound,' and names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has made them identical in pronunciation, irrespective of the rules of orthography. In other words, identity of sound is regarded as a surer method of measuring the similarity of names than identity of spelling, and so long as the names can be sounded alike 'without doing violence to the power of the letters,' any variation in orthography is immaterial, provided the misspelling does not transform the name into a wholly distinct appellation.'' See, also, Loven v. State, 145 Tex.Cr.R. 260, 167 S.W.2d 515.

In support of his contention that the names, 'Seanda' and 'Senaida,' are not and cannot be within the idem sonans rule, appellant, upon motion for new trial, introduced the testimony of the witness Guillermo A. Walls. As a predicate for the testimony, the qualifications of the witness were as follows: 'My name is G. A. Walls, first name is Guillermo, I live in Dallas, 3104 Maple Avenue, in the City of Dallas, Texas, I am manager of the Mexican Confederation of Chambers of Commerce in the United States, before that I was a minister of the gospel for about thirty years, before that, or in connection with my duties I was a teacher in schools in the state of Virginia and Mexico. In English training, I am a graduate of Texas Christian University, B. A. and Bachelor of Religious Education at Presbyterian Seminary at Austin, Austin Theological Seminiary, also Doctor of Religious Education from Southwestern Theological Seminary at Fort Worth. I hold two degrees, I do not hold one from Mexico except that of professor; I received those degrees from American schools I mentioned, and in studying for those degrees I had occasion to study the Spanish language, and have taught the Spanish language, in Mexico two years and in the state of Virginia two, four in all, I speak Spanish and a little bit of English, am familiar with both languages, I would say.'

In effect, the testimony of this witness, after analyzing the construction of the two names in detail, was that neither in English nor Spanish could the two names, Seanda and Senaida, be pronounced so as to sound alike.

The state did not offer any testimony contradictory to that of the witness Walls.

We are constrained to agree with the appellant that the two names are not the same under the idem sonans doctrine but are...