Raven v. State, 23288.
| Citation | 193 S.W.2d 527 |
| Decision Date | 13 March 1946 |
| Docket Number | No. 23288.,23288. |
| Parties | RAVEN v. STATE. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Appeal from District Court, Freestone County; Lex Smith, Judge.
Worth Raven was convicted for burglary, and he appeals.
Affirmed.
Joe Anderson, Norris W. Lovett, and J. S. Simkins, all of Corsicana, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
The appeal is from a five year sentence on a charge of burglary.
There is no question about the sufficiency of the evidence to sustain the conviction. The appellant plead not guilty and was tried before a jury, without being represented by an attorney. After his conviction counsel was employed and he presented a motion for a new trial, the record of which is before us.
The indictment in the case charges that appellant burglarized a building belonging to Gale Zoder. Apparently the correct name is Gale Zoda and the court, in his charge to the jury, so submitted it. What took place during the trial of the case, which brought about this situation, is not revealed by the record. The sole question presented for our consideration is whether or not there is a variance between the indictment and the charge to the jury, it being contended that the names Zoder and Zoda are not the same and cannot be so considered under the doctrine of idem sonans.
Unfortunately the decisions of our country, and even those of our own State, cannot be easily reconciled. The rule is that if an attentive mind finds difficulty in distinguishing the words by the sound, when correctly pronounced, the rule applies. In such event it is hardly probable that a party at interest has been injured by a difference in the spelling.
Of the various discussions which we have found the most enlightening, in the opinion of the writer, appears in Jones v. State, 115 Tex.Cr.R. 418, 27 S.W.2d 653. The question was there raised for the first time on a motion for rehearing. Both Judge Hawkins and Judge Morrow, writing on the subject, call attention to the fact that the doctrine of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance in a name, to be material, must be such as has misled a party to his prejudice. The authorities discussed by them seem to warrant such statement.
It would be rare that we find the same misspelled or varied words and, as a consequence, we would hardly be able to find a case discussing the word "Zode...
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...be such as to mislead the opposite party to his prejudice. State v. White, 34 S.C. 59, 12 S.E. 661, 27 Am.St.Rep. 783; Raven v. State, 149 Tex.Cr.R. 294, 193 S.W.2d 527. Identity of sound is the test, and not identity of spelling. If the attentive ear finds difficulty in distinguishing them......
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...the opposite party to his prejudice. State v. White, 34 S.C. 59, 12 S.E. 661, 27 Am.St.Rep. 783; Raven v. State, 149 Tex.Cr.R. 294, 193 S.W.2d 527. Identity of sound is the test, and not identity of spelling. If the attentive ear finds difficulty in distinguishing them when pronounced, no m......
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Martin v. State, 50921
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