Pinney v. State

Decision Date12 February 1901
Citation156 Ind. 167,59 N.E. 383
PartiesPINNEY v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from circuit court, Monroe county; William H. Martin, Judge.

Isaac Pinney was convicted of obtaining property by false pretenses, and he appeals. Affirmed.

J. E. Henley and J. B. Wilson, for appellant. W. L. Taylor, Atty. Gen., James A. Zaring, Pros. Atty., C. C. Hadley, and Merrill Moores, for the State.

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 Penny.” 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 error cannot 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 Bish. New Cr. Proc. § 688; 14 Enc. Pl. & Prac. 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” (Steward 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,” Bouv. Law Dict. 974, and authorities there collected; 2 Woollen, Tr. Proc. § 3197. It is manifest, we think, that, when tested by the rule asserted by the authorities to which we have referred, 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 one thousand dollars nor less than ten dollars.” Burns' Rev. St. 1894, § 2352 (Horner's Rev. St. 1897, § 2204).

The affidavit and information in charging the offense are alike. The information, omitting the formal parts, is as follows: “That Isaac Penny and John G. Mann, on the 20th day of June, 1900, at said county and state, did then and there feloniously, and with intent to defraud John Galyan, buy from him a certain team of horses, then and there the property of said...

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4 cases
  • Lowe v. Board of Commissioners of White County
    • United States
    • Indiana Supreme Court
    • 12 Febrero 1901
    ... ... power of the legislature in matters of taxation for public ... purposes is unlimited, except as restricted by the [156 Ind ... 165] State or federal Constitution. Board, etc., v ... Harrell, 147 Ind. 500, 46 N.E. 124; State Board, ... etc., v. Holliday, 150 Ind. 216, 42 L. R. A ... ...
  • Selby v. The State
    • United States
    • Indiana Supreme Court
    • 12 Enero 1904
    ... ... correctly spelled. If substantially the same sound is ... preserved, a variant orthography will make no difference. The ... test always is, are the names as spelled idem ... sonans--have the same sound. "If the name is ... spelled differently," says the court in Pinney ... v. State, 156 Ind. 167, 59 N.E. 383, "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 * * * this is a ... ...
  • Pinney v. State
    • United States
    • Indiana Supreme Court
    • 12 Febrero 1901
  • Bynum v. State, 29117
    • United States
    • Indiana Supreme Court
    • 22 Abril 1954
    ...Criminal Law (2d Ed.) § 365. The names 'Tommie' and 'Tommy' are idem sonans and there was no variance in the proof. Pinney v. State, 1901, 156 Ind. 167, 169, 59 N.E. 383, and cases therein No other alleged errors are properly presented for our consideration. Judgment affirmed. DRAPER, C. J.......

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