State v. Cardin
| Decision Date | 03 July 1975 |
| Docket Number | No. 39845,39845 |
| Citation | 194 Neb. 231,231 N.W.2d 328 |
| Parties | STATE of Nebraska, Appellee, v. Lloyd A. CARDIN, Appellant. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. To sustain a conviction the evidence must show beyond a reasonable doubt not only that the crimewas committed, but also that the defendant committed it.
2. Under the doctrine of item sonans a mistake in the spelling of a name is immaterial if both modes of spelling have the same sound and appearance.
3. The doctrine of idem sonans is applicable to both civil and criminal proceedings.
4. Under section 29--2261, R.S.Supp., 1974, the use of a presentence report is only required for sentencing if the offense is a felony.
Michael N. Schirber, Papillion, for appellant.
Paul L. Douglas, Atty. Gen., Gary B. Schneider, Sp. Asst. Atty. Gen., Lincoln, for appellee.
Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.
Defendant, Lloyd A. Cardin, and two codefendants, his father, Lloyd R. Cardin, and one John A. Bojanski, were all charged in the county court of Cass County, Nebraska, with committing the misdemeanor offense of assault and battery in violation of section 28--411, R.S.Supp., 1974. The judge of that court found the codefendants not guilty, but found defendant, Lloyd A. Cardin, guilty as charged, and sentenced him to a 20-day jail term in the Cass County jail. Defendant thereafter appealed to the District Court for Cass County, Nebraska, which affirmed his county court convinction, but modified the sentence of the county court to a term of 20 days in the Cass County jail, to be served on weekends from 7 a.m., Saturday morning, until 7 a.m., Monday morning, and further provided that the commitment should be served on days when there were no school functions. Defendant appeals to this court from that judgment and sentence.
The defendant assigns as error the failure of the District Court to reverse the conviction in the county court as a matter of law, claiming that the State failed to produce any evidence identifying the defendant as the person who committed the crime charged; and also that the sentence imposed was excessive, and was imposed without a presentence investigation. We affirm.
Defendant is correct in his assertion that to sustain a conviction, the evidence must show beyond a reasonable doubt not only that the crime was committedBut also that the defendant committed it. State v. Sedlacek, 178 Neb. 322, 133 N.W.2d 380 (1965). Defendant claims that there is a lack of evidence in the record tying this defendant to the crime in question, and that there were no witnesses who testified that they saw the defendant hit the victim, Larry Donovan. However, before examining this contention, we wish to dispose of another matter raised by defendant.
Defendant points out and makes much of the fact that the complaint filed against the three defendants in this case spells his first name, and that of his father, as 'Lloyd,' whereas throughout the entire bill of exceptions containing the testimony given in the trial of the case in county court, their names are spelled 'Loyd.' We think this objection is without merit, and frivolous. While we are confident that the difference in the spelling of the first names was undoubtedly merely an error in the transcription of the testimony, we are certain that the variance in spelling was not in any way prejudicial to the defendant. The error, if any, would clearly be covered under the doctrine of idem sonans. Under that doctrine, a mistake in the spelling of a name is immaterial if both modes of spelling have the same sound and appearance. Strasser v. Ress, 165 Neb. 858, 87 N.W.2d 619 (1958). We have also held that doctrine is applicable to both civil and criminal proceedings. State v. Paulson, 176 Neb. 126, 125 N.W.2d 194 (1963). In Strasser v. Ress, Supra, this court held that where the name 'Harold G. Strassen' appeared in an abstract of record of a justice of the peace court showing a conviction for speeding, the true name being 'Harold G. Strasser,' true name of the licensee and the name appearing in the abstract were so similar in pronunciation and appearance that they must be regarded as idem sonans. Also in Bunge v. State, 87 Neb. 557, 127 N.W. 899 (1910), the court held that 'Adolph' and 'Adolf' are idem sonans when used in both forms as the Christian name of the complaining witness in an information for robbery, and in the transcript of the proceedings of the examining magistrate. See, also, Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898), where this court held that the names 'Mrs. Fred Steinburg' and 'Mrs. Fred Steenburg,' the first endorsed on an information as the name of a witness, and the second appearing in testimony as her name, are idem sonans.
The record is replete with evidence identifying the defendant as the one who inflicted the brutal beating upon the victim in this case. This is obvious from the testimony of witnesses for both the State and the defendant. The first witness for the State was the victim, Larry Donovan. He was asked: He also testified that prior to the altercation 'little Loyd was standing next to me,' and he explained that by 'little Loyd' he meant Loyd Cardin, Jr. He testified that Loyd Cardin, Jr., hit him in the mouth and knocked him down three times. He was asked: Subsequent in the testimony, the following appears: '
Of particular interest, with regard to the identification of all the defendants in this case, is the testimony given by one of the participants, David Mark Thompson. His testimony in this regard was as follows: (Emphasis supplied.)
The third witness for the State was Vickie Lynn Wentz. She was asked the following questions and gave the following answers: It was at approximately this point that counsel made the following statement into the record, apparently without objection: Subsequent on her examination, she was asked the following questions: ...
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State v. Kellogg
...881, 887 (1977), the court stated that § 29-2261 "requires" a court to order a presentence investigation. See, also, State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975). In contrast to the instant case, the defendant in State v. Bruns, 200 Neb. 612, 265 N.W.2d 210 (1978), contended that it......
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State v. Jablonski
...the court shall not impose sentence without first ordering a presentence investigation." (Emphasis supplied.) In State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975), this court stated: "While it is true that the court sentenced the defendant without the benefit of a presentence investigati......
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State v. Griffin
...199 Neb. 341, 258 N.W.2d 918 (1977), overruled on other grounds, State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980); State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975). The only mitigating information offered by Griffin when she appeared for sentencing was that she was the mother of a 2-......
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State v. Turco
...use of a presentence investigation before sentencing an offender is required only as to those convicted of felonies. State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975). See Neb.Rev.Stat. § 29-2261(1) (Reissue 1995) (requiring presentence investigation when offender has been convicted of f......