Selby v. State

• Citation: 161 Ind. 667, 69 N.E. 463
• Case Date: January 12, 1904
• Court: Supreme Court of Indiana

161 Ind. 667
69 N.E. 463

SELBY
v.
STATE.

Supreme Court of Indiana.

Jan. 12, 1904.

Appeal from Circuit Court, Knox County; O. H. Cobb, Judge.

John Selby appeals from a conviction. Affirmed.

James S. Pritchett, W. A. Cullop, and Geo. W. Shaw, for appellant. S. M. Emison Pros. Atty., C. W. Miller, Atty. Gen., C. C Hadley, W. C. Geake, and L. G. Rothschild, for the State.

HADLEY, J.

Appellant was convicted of forging and uttering a false instrument by a jury upon affidavit and information in two counts, both of which were held good on motion to quash and on motion in arrest of judgment. The appeal questions the ruling of the court on these motions.

Each count of the affidavit alleges that the forged note was one purporting to have been executed by one John H. Veike to John Selby, and the copy set out in hæc verba shows a note signed by John H. Veike, payable to the order of John Selby. The first count of the information alleges that the forged note was one purporting to have been executed by one John H. Veike to John Selby, and the copy set out shows a note signed by John H. Vieke, payable to the order of John Selby. The second count of the information alleges that the forged note was one purporting to have been executed by one John H. Veike, without stating to whom, and the copy set out shows a note signed by John H. Veike, payable to the order of John Selby. In each count of both affidavit and information the person to whom the note was passed is alleged to be Louis A. Meyer. In the first count of both affidavit and information the person intended to be defrauded is alleged to be Louis A. Meyer, and in the second John H. Veike. In each count of both affidavit and information it is alleged that the defendant “did then and there unlawfully, feloniously, falsely, fraudulently, and knowingly make, forge, counterfeit, utter, publish, and pass to Louis A. Meyer, as true and genuine, a certain false, forged, and counterfeit promissory note.” The principal question hinges on whether or not “John H. Veike” and “John H. Vieke” are idem sonans. Appellant contends for the negative, and insists that in sound and signification they are two distinct names, and that, as the forgery of the name of “John H. Veike” is alleged in one count, and the forgery of the name of “John H. Vieke” is alleged in the other, two distinct felonies growing out of two distinct transactions are charged, and improperly joined in the same action, for which the information should have been quashed.

We concede it to be well established in criminal prosecutions for forgery that the name charged to be forged must be proved

[69 N.E. 464]

as alleged in the indictment or information, and, when based on an affidavit and information, that the name alleged in the information as forged should accord with and be the same as that charged in the affidavit. It is not essential, however, that the names be spelled in the same way, or that they be 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. 168, 59 N. E. 383, “from that of the accurate spelling, 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...