Selby v. The State
| Citation | 69 N.E. 463,161 Ind. 667 |
| Decision Date | 12 January 1904 |
| Docket Number | 20,172 |
| Parties | Selby v. The State |
| Court | Supreme Court of Indiana |
From Knox Circuit Court; O. H. Cobb, Judge.
John Selby was convicted of forgery, and appeals.
Affirmed.
J. S Pricthett, W. A. Cullop and G. W. Shaw, for appellant.
C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake and L. G Rothschild, for State.
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 haec 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. Vieke 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 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. 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 sufficient designation of the person, and no advantage can be taken of the clerical error or variance." See this case for a collection of cases and illustrations. See, also, Tonges for Toenges, Siebert v. State, 95 Ind. 471, 477; Horick for Horrick, Evans v. State, 150 Ind. 651, 653, 50 N.E. 820.
We are asked under these rules to say as a matter of law that Veike and Vieke are not idem sonans. To do this we must judicially know in some way that a transposition of the vowels "ei" in proper names changes the fixed pronunciation of the name. We have no such knowledge either judicial or personal. The spelling and pronunciation of proper names is usually arbitrary, and it is a matter of common notoriety that many families spell their names differently, but pronounce them the same. We see much less reason for assuming, in considering the motion to quash, that when these particular letters are combined in a proper name, the correct and arbitrary pronunciation places the accent on the first vowel without reference to which one it is, than we have for assuming that the diphthong in popular usage often has the same sound without reference to which is the initial or which the final vowel, as in receive, believe, perceive, achieve, deceive, retrieve, and so on. In the full name of John H. Veike, alleged to have been forged, the only difference in spelling complained of is the transposition of the two vowels, and this seems so trifling as to make it very clear that a conviction or acquittal on the information would bar another prosecution for the offense charged in both counts, and that is all that should concern the appellant. We, therefore, hold that the names are idem sonans and the same, and the counts not improperly joined.
2. It is alleged in each count of the information that the defendant "did feloniously, falsely,...
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