Sexton v. StateSexton v. State
- Reporters:
- , ,
- Before:
- Gardner
The Court of Appeals in holding the name Levon and Lаvaughn are not, as a matter of law, idem sonans, wаs endeavoring to follow the rule of our cases by which that court is bound, and the analogies furnished by our own authorities. Particular stress‘is laid upon Munkers v. State, 87 Ala. 94, 6 So. 357. But many others are noted as having been previously reviewed by that court in Campbell v. State, 18 Ala.App. 219, 90 So. 43, among them, Jacobs v. State, 61 Ala. 448; Wells v. State, 187 Ala. 1, 65 So. 950 (Sagar and Sagars, Segar and Segars); Merlette v. State, 100 Ala. 42, 14 So. 562 (Mulette and Merlette); Adams v. State, 67 Ala. 89 (Mincher and Minchen); Noble v. State, 139 Ala. 90, 36 So. 19 (Noble and Nobles); Nutt v. State, 63 Ala. 180 (Luke Hadnett and Hodnett); Humphrey v. Whitten, 17 Ala. 30 (Humphreys and Humphrey); Tarpley v. State, 79 Ala. 271 (Tarpley аnd Tapley). Many of these cases were cited in the comparatively recent case of Nettles v. State, 222 Ala. 236, 132 So. 41.
In Patterson v. First National Bank, 229 Ala. 406, 157 So. 446, 448, we observed that: “The general rulе is that the law does not regard the spelling of namеs so much as their sound. Great latitude is allowed in the spelling and pronunciation of proper names, and in all legal proceedings, civil‘and criminal, if twо names, as commonly pronounced in the English languаge, are sounded alike, a variance-in-their spelling is immaterial.” In that case, the proof disclоsed, undisputedly, the two names Goins and Gowens were рronounced alike, and, therefore, no questiоn of law as to idem sonans was presented.
“Wherе the orthography of two names is different, and they dо not sound the same, when fairly pronounced, the dоctrine is clearly inápplicable. * * * Although the question of idem sonans is essentially a question of fact, if it arises on demurrer, and the names -are necessаrily pronounced substantially alike, the court will takе judical notice of the fact, and hold as a matter of law that the two names are the same.” 45 Cоrpus Juris 387 and 389.
That part of the opinion of the court in Munkers v. State, supra, quoted by the Court of Appeals, states no different rule, and also discloses a rеgard to the holding’ in our other cases by way of analogy.
Perhaps it may as well be confessed that, in оur opinión, the rule as to idem sonans was stressed to an extreme in some of our decided cases, among them that of Munkers v. State, supra.
We think it clear, hоwever, that the Court of Appeals is well sustained by оur authorities, notably those herein cited. But, feeling as we do that some of them doubtless gave too nаrrow an interpretation to sound and orthograрhy, yet we do not feel justified in now overruling them, and rest сontent with these observations for future considerаtion.
As stated in 45 Corpus- Juris, supra, the question of idem sonаns is essentially one of fact, and it takes a very fair case.to give it application as a matter of law.
We are not persuaded the oрinion of the Court of Appeals jn the instant casе should be here overturned, and the writ will accordingly be here denied.
Writ denied.
All the Justices concur.