Sexton v. State, 4 Div. 382.

• Decision Date: 14 December 1937
• Docket Number: 4 Div. 382.
• Parties: SEXTON v. STATE.
• Court: Alabama Court of Appeals

180 So. 729

28 Ala.App. 59

SEXTON v. STATE.

4 Div. 382.

Court of Appeals of Alabama

December 14, 1937

Rehearing Denied Jan. 11, 1938.

Appeal from Circuit Court, Crenshaw County; A. E. Gamble, Judge.

Levon Sexton was convicted of second degree murder, and he appeals.

Reversed and remanded.

Certiorari denied by Supreme Court in Sexton v. State, 4 Div 2, 180 So. 731.

RICE J., dissenting.

W. H Stoddard, of Luverne, for appellant.

A. A Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State.

SAMFORD Judge.

The defendant, with two others, was indicted jointly for the murder of Manley Sexton. There was a severance, and this defendant, alone, was put on trial in this case. There was verdict and judgment finding the defendant guilty of murder in the second degree.

The defendant, by way of plea in abatement, claimed that his name was not Levon Sexton, as set out in the indictment, but was Lavaughn Sexton, and that he had never been known as or called Levon. The solicitor filed a demurrer to this plea, among other grounds, setting up that the two words, Levon and Lavaughn, are idem sonans. This demurrer was sustained, and this ruling of the court is insisted upon as error.

By sustaining the demurrer to the plea, the court assumes, as a matter of law, that the two names are idem sonans. While it may be a fact that the defendant was called by either the one or the other name in the community in which he lived, it can hardly be held that Levon and Lavaughn are one and the same name; pronounced alike, though spelled differently. In the case of Munkers v. State, 87 Ala. 94, 6 So. 357, 358,

the Supreme Court, in holding that Moncus and Munkers were not idem sonans, as a matter of law, had this to say: "There is a material difference in orthography, and a perceptible difference between 'Moncus' and 'Munkers,' when ordinary sound and power are given to the variant letters. They are as different names as some which this court has held not to be idem sonans. * * * If by local usage the names have the same pronounciation, it becomes a question of fact, which must be referred to the jury. The court erred in sustaining the demurrer to the plea. The state should have taken issue or replied."

So, in this case, the first syllable in Levon might be pronounced with a long "e," or a short "e"; the second syllable could have but one pronunciation. The "La" in Lavaughn could never be pronounced "Le," and "Vaughn" would not naturally be pronounced as "Von."

This court in Campbell v. State, 18 Ala. App. 219, 90 So. 43, was at some pains to point out cases in which the Supreme Court had held names not to be idem sonans as a matter of law, to wit: Muncus and Munkers; Manison and Manson; Sagars and Segars; Barnham and Barham; Humphrey and Humphreys; Mulette and Morlette; Donnel and Donald; Comeyns and Cummins; Shakepear and Shakespeare; McCinney and McKinney; Levi Noble and Levi Nobles; Cobbs and Cobb; Chapalear and Chapelas.

The foregoing is taken from decisions of the Supreme Court, and by analogy have been followed by this court in Campbell v. State, 18 Ala.App. 219, 99 So. 43; Clements v. State, 19 Ala.App. 640, 99 So. 832, 833; and Kingery v. State, 26 Ala. App. 283, 158 So. 768.

In the Clements Case, supra, it was pointed out that the spelling of the two names was entirely different, and it was added: "Of course, if by local usage, the names have been given the same sound, or pronunciation, this could have been shown, had the state taken issue upon the plea as a question of fact would have been presented. But by demurring to the plea the state admitted the facts stated in the plea, but contended that as a matter of law the plea did not call for the relief sought thereby. In other words, the demurrer raised an issue, not of fact, but of law."

Other cases of similar import might be cited both from ...