Pinney v. State

• Decision Date: 12 February 1901
• Docket Number: 19,480
• Citation: 59 N.E. 383,156 Ind. 167
• Parties: Pinney v. The State
• Court: Indiana Supreme Court

59 N.E. 383

156 Ind. 167

Pinney v. The State

No. 19,480

Supreme Court of Indiana

February 12, 1901

From the Monroe Circuit Court.

Affirmed.

J. E Henley and J. B. Wilson, for appellant.

W. L Taylor, Attorney-General, Merrill Moores, C. C. Hadley and J A. Zaring, for State.

OPINION

Jordan, J.

The record in this appeal discloses that "Isaac Penny" was tried and convicted of the crime of having obtained certain property by means of false pretenses and was sentenced by the judgment of the lower court to be confined in the state prison. It appears from the notice of appeal served upon the proper officers, and also from the assignment of errors in this court, that the case is prosecuted in the name of "Isaac Pinney." The State contends that therefore no question is presented, for the reason that the alleged errors are not assigned in the name of "Isaac Penny", the proper appellant, but instead are assigned in the name of "Isaac Pinney", which name, as insisted, is quite different from the name of the convicted person, and that, therefore, the rule idem sonans is not applicable. If "Penny" and "Pinney" are not idem sonans then there is a fatal variance and the alleged errors can not be considered, as the principle is well settled that the assignment of errors in this court must be in the name of as well as against the proper party. Braden v. Leibenguth, 126 Ind. 336, 25 N.E. 899. The law does not regard orthography, and no harm can result from spelling a name incorrectly, provided it is idem sonans with the correct spelling. If the name is spelled differently from that of the accurate spelling thereof, but nevertheless conveys to the ear, when pronounced according to the usual recognized rule of acoustics a sound which is practically the same as the sound of the true name; or, in other words, if the names may be sounded alike without doing violence to the powers of the letters in the variant orthography, this is a sufficient designation of the person, and no advantage can be taken of the clerical error or variance. 1 Bishop's New Crim. Proc. § 688; 14 Ency. Pl. & Pr. 288, cl. 10; Black v. State, 57 Ind. 109; State v. McCormick, 141 Ind. 685, 40 N.E. 1089; Smurr v. State, 88 Ind. 504.

The following names, under the decisions of this court, have been held to be idem sonans: "Conn" and "Corn," Moore v. Anderson, 8 Ind. 18; "Adanson" and "Adamson", James v. State, 7 Blackf. 325; "Beckwith" and "Beckworth", Stewart v. State, 4 Blackf. 171; "Geessler" and "Geissler", Cleaveland v. State, 20 Ind. 444; "McGloflin" and "McLaughlin", McLaughlin v. State, 52 Ind. 476; "Meyer", "Meyers", and "Mayer", Smurr v. State, supra. See, also, Idem Sonans, Bouvier's Law Dict. 974, and authorities there collected. 2 Woollen's Tr. Proc. § 3197. It is manifest, we think, that when tested by the rule asserted by the authorities to which we have referred that the names "Pinney" and "Penny" may be held to be idem sonans, and designate the same individual. Consequently there is no material variance between the name of the convicted party disclosed by the record and the name appearing in the assignment of errors.

The only question presented and urged by counsel for appellant is the sufficiency of the affidavit and information to withstand the motion to quash. It is urged as a principal reason, by counsel, that the information is bad for duplicity. Appellant was convicted, as previously stated, of having violated the statute relating to false pretenses, which reads as follows: "Whoever, with intent to defraud another, designedly, by color of any false token or writing, or any false pretense, obtains the signature of any person to any written instrument, or obtains from any person any money, or the transfer of any bond, bill, receipt, promissory note, draft, or check, or thing of value, or whoever sells, or barters, or disposes of, or offers to sell, barter or dispose of, any transfer, bond, bill, receipt, promissory note, draft, or check, or anything of value, knowing the signature of the maker, indorser, or guarantor thereof to have been obtained by any false pretense, shall be imprisoned in the state prison not more than seven years nor less than one year, and fined in any sum not more than $ 1,000 nor less than $ 10." § 2352 Burns 1894, § 2204 Horner 1897.

The affidavit and information in charging the offense are alike. The information, omitting the formal parts, is as follows "That Isaac Penny and John Mann on the 20th day of June, 1900, at said county and State, did then and there feloniously, and with intent to defraud said John Galyan, buy from him a certain team of horses then and there the property of said Galyan, of the value of $ 125, by pretending to said Galyan that they, the said Penny and Mann would give said Galyan $ 125 for said horses, and did then and there feloniously obtain from said Galyan his said team of horses by giving to said Galyan bi...