OPINION
This is an appeal from a conviction for the offense of aggravated robbery; the punishment is life imprisonment.
It is urged that there is a material variance between the allegation and the proof of the name of the complainant, and therefore the evidence is insufficient to sustain the conviction. The indictment alleges that the complainant’s name is DIANNA LYNCH SYKES; the transcript of the court reporter’s notes reflects that the complainant’s name is DINA JONES SYKES.
A middle name or initial may be disregarded; a material variance between the allegation and the proof of the middle name or initial is neither material nor fatal. See
Dixon v. State,
There is no evidence that the complainant was known by the name DIANNA SYKES. See Article 21.07, V.A.C.C.P.;
Brown
v.
State,
The question presented is whether there is a material variance between the allegation of the complainant’s given name as Dianna and proof that it is Dina. The State argues there is not a material variance because the names Dianna and Dina are idem sonans.
The application of the rule of idem sonans, which means names are the same that have the same sound or sound the. same, varies from jurisdiction to jurisdiction. See 65 C.J.S. Names § 14, pp. 35-39, and 57 Am.Jur.2d, Names, Sec. 17, pp. 285-286. In
Stresser v. Ress,
“Some jurisdictions recognize that the test for determining if names are idem sonans is whether although spelled differently, the attentive ear finds difficulty in distinguishing the two names when pronounced. Others disregard the sound of the names and predicate their conclusions solely on appearance if the names involved are written or printed. A still further class of adjudications takes a modified view that if the name as published both appears and sounds similar to the real name, then the doctrine is applicable.”87 N.W.2d 619 , at 622.
The appellant has directed our attention to the test commonly applied in this jurisdiction, which is set out in
Pedrosa v. State,
“In the case of Chaverea v. State,141 Tex.Cr.R. 592 ,150 S.W.2d 241 , 242, we restated the rule governing the doctrine of idem sonans, as follows: ‘The rule of idem sonans is stated as follows in Branch’s Ann.Tex.P.C., sec. 22, page 11: “If the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, or if the name as stated be idem sonans with the true name, the variance and misspelling is immaterial.” And in 30 TexJur., page 602, it is said: “This phrase means ‘of the same sound,’ and names are idem sonans if the attentive ear finds difficulty in distinguishing them when pronounced, or if common and long-continued usage has made them identical in pronunciation, irrespective of the rules of orthography. In other words, identity of sound is regarded as a surer method of measuring the similarity of names than identity of spelling, and so long as the names can be sounded alike ‘without doing violence to the power of the letters,’ any variation in orthography is immateri *607 al, provided the misspelling does not transform the name into a wholly distinct appellation.” ’ ”
However, that the rule has been often articulated has not rendered easy its application; a review of the cases leaves the impression that the rule has not been applied with that fine degree of precision required to produce uniform results. A century ago in his opinion in
Goode v. State,
“The question of variance on the theory of idem sonans has been a vexed one, not only in Texas, but it seems generally upon an examination of the cases. In fact, they are so much at variance with each other and so inharmonious they are practically incapable of reconciliation.”
In Strasser v. Ress, supra, the Nebraska Supreme Court reached the same conclusion as follows:
“It is profitless to attempt to cite or analyze the cases which have considered this doctrine. They are very numerous, irreconcilable and inconsistent. Some decisions conclude that certain names are within the doctrine while other courts, sometimes in the same jurisdiction, refuse to apply the rule to similar names which are indistinguishable.”
Also see
Raven v. State,
The reasons for the disharmony in the case law on idem sonans are not difficult to discern. The rule depends for its application on the intricacies and foibles of articulated speech; its application must suffer the consequences of accents, dialects, and the peculiarities of localized or personalized pronunciations. It is difficult in the preparation of an appellate record for a court reporter to accurately describe on a printed page the nuances of sound in a witness’s articulation of a name. Even on those occasions when a witness is asked to sound out a name phonetically, it is not easy to capture on paper the accent with which the witness spoke. In
Dennington v. State,
“When on the witness stand the young lady was asked by the state’s attorney how they pronounced her name and she answered, as appears, from the record, that they pronounced it Eileen and the other Trimier. This may have been satisfactory to those who heard, but we who can only read get no light from such testimony.”
And see
Brady v. State,
Inasmuch as appellate courts are now limited to reading a “cold” record, they are rarely in a position to make a truly informed determination of whether two names could be or were pronounced to sound the same. We conclude that the resolution of questions involving the rule of idem sonans should be limited primarily to the trier of the facts. A trial judge or jury, having heard the pronunciation of the names in question by the parties involved, is in the better position to determine whether or not the names are or can be sounded the same;
Fowler v. State,
When the issue of idem sonans arises at trial, if the trial is before the court, it is a question of fact for the trial judge. If, before a jury, a fact issue requiring the application of the rule of idem so-nans is raised by the testimony, the court, at the request of the defendant, should instruct the jury to resolve the issue.
Jones v. State,
supra;
Fowler v. State,
supra;
Rodriguez v. State,
In the case at bar, although the complainant was asked and did spell her name during the hearing of a pretrial motion on another matter, the appellant first brought the trial court’s attention to the variance between “Dina” and “Dianna” in a motion for directed verdict at the conclusion of the trial on guilt or innocence. The trial judge had heard the names pronounced and overruled the motion for directed verdict. Appellant did not request that the question of variance be submitted to the jury. The evidence does not show that the names “Dina” and “Dianna” are patently incapable of being sounded the same, or that the appellant was misled to his prejudice; therefore, we will not disturb the court’s ruling. 2
The judgment is affirmed.
Opinion approved by the Court
Notes
. Although the rule we have announced is broader, we note that it has often been said that the rule of idem sonans has been much enlarged by modem decisions to conform to the growing rule that a variance in a name, to be material, must be such as to have misled a party to his prejudice. See
Gentry v. State,
. The only case cited by appellant is Pedrosa v. State, supra, in which the Court concluded that the names “Seanda” and “Senaida” were not idem sonans. We note that the uncontradicted testimony of an expert witness for the accused was that neither in English nor Spanish were the two names capable of being pronounced so as to sound the same. No such showing was made in the case at bar.