State v. Vincent

• Decision Date: 08 January 1943
• Docket Number: 725.
• Citation: 23 S.E.2d 832,222 N.C. 543
• Parties: STATE v. VINCENT.
• Court: North Carolina Supreme Court

23 S.E.2d 832

222 N.C. 543

STATE v. VINCENT.

No. 725.

Supreme Court of North Carolina

January 8, 1943

Criminal prosecution tried upon indictment charging the defendant with rape.

There is evidence on the record tending to show that on the night of 7 June, 1941 the defendant and one Clarence Willis, both residents of Durham, N.C., went out to stage a hold-up or robbery. They found an automobile parked on a side road near the Oxford Highway just outside the city limits of Durham. The prosecutrix, a deaf and dumb woman, and Bono Williams who is partially deaf and dumb, were in the car. They were on the back seat. It is in evidence that the defendant robbed the man, jerked his wrist watch off, took the keys out of the car, motioned the woman to get out, which she did, told her companion to tell her he had a gun which he did, and the defendant then proceeded to ravish the prosecutrix. State v. Long, 93 N.C. 542.

The defendant testified on the hearing that Clarence Willis was the culprit in the case; that he, Willis, put on the defendant's cap and coat and went to the car while the defendant watched the road from behind a tree.

Verdict: "Guilty of rape".

Judgment Death by asphyxiation.

The defendant appeals, assigning errors.

Harry McMullan, Atty. Gen., and George B. Patton and Hughes J Rhodes, Asst. Attys. Gen., for the State.

Bennett & McDonald, of Durham, for defendant.

STACY Chief Justice.

The defendant is indicted under the name of Earnest Howard Vincent. He testified on the hearing that his name was "Earnest Howard Vincent". In his application to appeal in forma pauperis, he uses the name Earnest Howard Vinson. He now says that his real name is Earnest Howard Furgerson. It is admitted "that in the above named cause the name Earnest Howard Vincent is the one and the same name and person as Earnest Howard Vinson". Whatever the defendant's real name may be, there can be no doubt that the person who was tried under the name of Earnest Howard Vincent pleaded to the indictment under this name and was identified by the prosecutrix as her assailant. He was sentenced under the name of Earnest Howard Vincent, and he is now held in custody under the same name. It seems to be a clear case of idem sonans, there being no question as to the identity of the defendant. State v. Vestal, 82 N.C. 563; Hubner v. Reickhoff, 103 Iowa 368, 72 N.W. 540, 64 Am.St.Rep. 191; 38 Am.Jur. 612.

It was said in Pitsnogle v. Commonwealth, 91 Va. 808, 22 S.E. 351, 50 Am.St.Rep. 867, quoting with approval from 1 Bishop on Crim.Proc., Sec. 689, that "if two names may be sounded alike without doing violence to the power of the letters found in the variant orthography, the variance is immaterial".

The term "idem sonans" means sounding the same. Here, the two names, "Vincent" and "Vinson", sound almost alike. No point was made of the variance, if such it be, on the trial, and, of course, the defendant will not now be heard to say that his real name is "Furgerson". He was tried under the name of Vincent, without objection or challenge, and sentenced under the same name. There being no question as to his identity, he may retain the name for purposes of judgment. State v. Patterson, 24 N.C. 346, 38 Am.Dec. 699.

While the prosecutrix was on the stand as a witness, the defendant was asked to stand up in the presence of the jury. The prosecutrix then pointed him out as the man who had assaulted her on the night in question. The defendant complains at this procedure, on the ground that he was thus required to give evidence against himself in a criminal prosecution. For this position, he relies upon State v. Jacobs, 50 N.C. 259, where the defendant, whose status as a free Negro was at issue, was required to exhibit himself to the jury and the action of the trial court was held for error. Compare, Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138. Here, however, the identity of the defendant, and not his status or degree of color, was at issue. State v. Garrett, 71 N.C. 85, 17 Am.Rep. 1. In this respect, the case comes squarely under the decision in State v. Johnson, 67 N.C. 55, where it was held that the State had a...