Roland v. State

• Citation: 127 Ga. 401,56 S.E. 412
• Parties: ROLAND. v. STATE.
• Decision Date: 18 January 1907
• Court: Supreme Court of Georgia

127 Ga. 401

56 S.E. 412

ROLAND.

v.STATE.

Supreme Court of Georgia.

Jan. 18, 1907.

1. Names —Idem Sonans—Indictment—Designation of Accused.

Where a defendant was indicted under the name of "George Rawlin, " and filed a plea of misnomer, wherein he alleged that his true name was "George Roland, " and that he had never been known and called by the name under which he was indicted, and, upon the trial of the issue thus formed, the evidence showed that while the surname of the accused, as spelled, was "Roland." it was pronouncd by those who knew him "Rolin, " such plea was properly overruled; the court rightly holding that the name in the indictment and the name by which the accused was known and called were idem sonans.

[Ed. Note.—For cases in point, gee Cent Die. vol. 36, Names, §§ 12-15.]

2. Carrying Weapons—Evidence.

The evidence upon which the jury found the accused guilty was sufficient to sustain the verdict. (Syllabus by the Court.)

Error from Superior Court, Greene County; H. G. Lewis, Judge.

George Roland was convicted of carrying a concealed weapon, and brings error. Affirmed.

An indictment was returned by the grand Jury of Greene county In which George Rawlin was charged with the offense of carrying about his person a concealed pistol. It was transferred to the county court of that county for trial. In the county court the defendant before pleading to the merits, filed a plea of misnomer, wherein he alleged that he was indicted under the name of "George Rawlin"; that he had never been known by that name; that his true name was "George Roland, " and he had never been known by any other name, and had never been known or called by the name "George Rawlin, " under which he was indicted. The county judge heard the evidence submitted upon the issue thus raised, and overruled the plea. Upon the trial of the main issue, the jury found the defendant guilty. He carried the case, by certiorari, to the superior court, where the certiorari was overruled, and he excepted. In his petition for certiorari he alleged that the judge of the county court erred in overruling his plea of misnomer, and that the verdict rendered by the jury was contrary to the evidence.

Jas. B. & Noel P. Park, for plaintiff In error.

Jos. E. Pottle, Sol. Gen., and Jos. Davison, Sol., for defendant in error.

COBB, P. J. (after stating the facts). 1. In reference to the trial of the Issue arising under the plea of misnomer, the judge of the county court answered as follows: "The following evidence was submitted under the plea: George and Victor Rolin each testified that they were brothers and were called, respectively, George and Victor Rolin, like the 'rolin of a wagon.' They were not known or called by any other name, and not known or called by the name 'Rawlin.' The pronunciation given by these witnesses was the sound of 'Rolin, ' or, as they compared it, 'rolling' with the sound of the 'g' left off. T. S. Bryant testified that he had known the father of these boys, who signed his name 'Roland, ' spelled 'R-o-l-a-n-d.' The boys cannot read and write. The court held the names idem sonans, and overruled the plea." We do not think there was any error In this ruling of the county judge. Aperson may be properly Indicted under a name by which he is generally known and called, whether this be his true name or not, Accordingly, our Penal Code provides: "A plea of misnomer should state the true name of the accused, that he had never been known by any other name than that, and that he is not known and called by the name under which he was indicted." Pen. Code 1895, § 954. Consequently such a plea is fatally defective when it does not allege that the defendant was not known and called by the name under which he was indicted. Wilson v. State, 69 Ga. 224; Henderson v. State, 95 Ga. 32T, 22 S. E. 537. Upon the same principle, a name by which a person was generally known is a proper designation in an indictment for his murder, although he may have had another name. Jones v. State, 65 Ga. 147. So, if the name under which the defendant was indicted and the name by which he was known and called were idem sonans, there was no misnomer in the indictment. The question whether one name is idem sonans with another is one of pronunciation, and not of spelling. 21 Am. & Eng. Enc. L. 313, 317; Commonwealth v. Donavan, 13 Allen (Mass.) 571, 572; People v. Fick, 89 Cal. 144, 26 Pac. 759; Myer v. Fegaly, 39 Pa. 429, 80 Am. Dec. 534; Galliano v. Kilfoy, 94 Cal. 86, 88, 29 Pac. 416. In the case first cited, Gray, J., said: "The question whether one name is Idem sonans with another is not a question of spelling, but of pronunciation, depending less upon rule than upon usage." This language was approvingly quoted in People v. Fick, supra. See, also, the Georgia cases cited hereafter. The term "idem sonans, " as used by the courts, does not necessarily mean that the two names to which it is applied are...