28 N.C. App. 203 | N.C. Ct. App. | 1975
The defendant asserts error in denial of his motion to quash the indictment on the ground that the indictment alleges that his name is Mike Spooner but that his proper name is Michael Charles Irwin Spooner. The only evidence that defendant’s proper name is Michael Charles Irwin Spooner comes from the
The name of the defendant in ah indictment is required to be set out with some degree of accuracy and completeness for the purpose of protecting him from double jeopardy, but nomen-clative exactitude is not practical. The doctrine of idem sonans applies when names sound alike. State v. Higgs, 270 N.C. 111, 153 S.E. 2d 781 (1967); State v. Utley, 223 N.C. 39, 25 S.E. 2d 195 (1943). However the doctrine of idem sonans does not apply in this case since “Mike” does not sound like “Michael.” “Mike” is the nickname or the familiar form of the proper name Michael, and it appears from the evidence in this case that the defendant was known and commonly referred to as Mike Spooner. Where the indictment refers to the defendant by the name which he is commonly and generally known, rather than his proper name, the variance is immaterial. 41 Am. Jur. 2d, Indictments and Informations, §§ 128, 270, pp. 961, 1045 (1968) ; 42 C.J.S., Indictments and Informations, § 127(b), p. 1016 (1944); see also State v. Buck, 6 N.C. App. 726, 171 S.E. 2d 10 (1969).
We note that the judgment provides for a sentence of “not less than five (7) years.” This is obviously a clerical error, and we direct the Clerk of Superior Court to correct the judgment and commitment by deleting the numeral (7) and substituting (5) to conform to the written “five” and to enter and issue the corrected judgment and commitment. Where there is error on the face of the record, an appeal presents the matter for review, and the judgment may be modified to conform with the legal requirement. In re Burrus 275 N.C. 517, 169 S.E. 2d 879 (1969). Except for the clerical error noted, we find
No error.
