State v. Williams

• Decision Date: 09 June 1900
• Citation: 57 S.W. 792,68 Ark. 241
• Parties: STATE v. WILLIAMS
• Court: Arkansas Supreme Court

57 S.W. 792

68 Ark. 241

STATE v. WILLIAMS

Supreme Court of Arkansas

June 9, 1900

Appeal from Independence Circuit Court, JAS. W. BUTLER, Special Judge.

Judgment affirmed.

Jeff Davis, Attorney General, Chas. Jacobson and S.D. Campbell Prosecuting Attorney Third Circuit, for appellant.

The defect in the instrument was immaterial, since the offense was a joint one. Rap. Cr. Proc. § 83; Clark, Cr. Proc 341."Hyde" and "Hite" are idems sonans. Rap. Cr. Proc. § 83; Clark, Cr. Proc. 341; Wharf. Cr Pl. & Pr. § 119. De minimis lex non curat. 53 Am. Dec. 137. Whether the names were idem sonans was for the jury. Authorities supra.

BUNN, C. J. BATTLE, J., absent.

OPINION

BUNN, C. J.

The material part of the indictment charges that "the said Josephus Williams, being a man, and May Hite, being a woman, in the county and state aforesaid, on the 1st day of November, 1898, did unlawfully cohabit together as husband and wife, without being married. "Upon a plea of "not guilty," a jury was impaneled to try the issues, and the state offered the following testimony. Monroe Claxton testified that he was acquainted with defendant Williams; that he did not know a woman by the name of May Hite, but he knew May Hyde; that defendant and the woman Hyde lived together in the same house in the bottom during part of the year 1868. On being questioned by the court, witness said the woman's name was spelled "Hyde." The court then ruled, over the objections of the state, that the two names Hyde and Hire are not idem sonans, and refused further testimony on the part of the state, unless it could show that May Hite was in fact the same as May Hyde, the state having offered to prove by two other witnesses the acts of cohabitation, and by one other (the clerk of the county and probate court) that, so far as his records showed, the defendant had never been married to May Hyde or May Hite, all of which testimony the court refused to admit, because witnesses did not identify the woman as May Hite as named in the indictment, but referred to May Hyde only. The defendant objected to all testimony referring to May Hyde, and not to May Hite, for the same reason, and his objections were sustained by the court.

The foregoing being all the testimony in the case, the court gave the following charge to the jury: "Gentlemen of the jury: It is conceded by the state that, under the rulings of the court, the state has failed to make out a case, and your verdict will be 'Not guilty.' The thing falls simply from the ruling of the court that the name of the woman is wrong. The proof shows that the name of the woman is May Hyde, while the indictment charged May Hite, and for that reason defendant is not convicted." All proper exceptions were saved. The jury returned a verdict of not guilty, in obedience to the direction of the court. Motion for new trial was filed and overruled, and state took her bill of exceptions and appealed.

The court directed the verdict because of a variance between the proof and allegation in the indictment as to the name of the woman jointly indicted with the defendant, who, however, was not arrested. It is well to state, also, that the doctrine of idem sonans may not necessarily have the same effect in the ease against the woman as in this case, as the name of the woman in this case against Williams is merely descriptive of the offense, while in a case against her it would but denominate the party defendant. The state sought to have the court declare that the two names are idem sonans, and therefore the same in law. This declaration the court declined to make, but, on the contrary declared...