143 Mass. 568 | Mass. | 1887
The province of the court and jury in' cases like the present, is governed by the following rule: if two names, spelt differently, necessarily sound alike, the court may, as matter of law, pronounce them to be idem sonans ; but, if they do not necessarily sound alike, the question whether they are idem sonans is a question of fact for the jury. The Queen v. Davis, 4 New Sess. Cas. 611; 5 Cox C. C. 237; 2 Den. C. C. 233. In that case, the judge ruled, as matter of law, that “Darius” and “Trius” were idem sonans. The conviction was quashed, Coleridge, J., saying, that, “if the question had been left to the jury, there can be no doubt that a Dorsetshire jury would have found that Darius and Trius were the same name.”
The casé at bar is similar to that of Commonwealth v. Donovan, 13 Allen, 571, which was an indictment for larceny from John Mealy. The witness testified that his name was spelled Malay or Maley; and that he was called Maley, but never Mealy. The court left it to the jury to say whether the name proved was idem sonans with the one in the indictment. After verdict of guilty, this court held that the question of misnomer was rightly left to the jury.
The court submitted to the jury, in the case at bar, the question whether the names “ Celestia ” and “ Celeste ” were usually and ordinarily pronounced alike. The jury were to determine this from their general knowledge, in the absence of evidence showing how they were usually pronounced, as in the cases above cited. In Commonwealth v. Jennings, 121 Mass. 47, evidence was before the jury as to the way the name was ordinarily pronounced. The ruling of the Superior Court was correct.
■ Exceptions overruled.
