18 Ga. App. 500 | Ga. Ct. App. | 1916
The. verdict in this case finding the accused guilty, though based upon circumstantial evidence, is not contrary to law and the evidence. The proved facts on the trial are not only consistent with his guilt, but exclude every other reasonable hypothesis than that of the guilt of the accused.
The accused was charged with illicit sexual intercourse with one Maria Story. The witnesses upon the trial testified that her name was Marie Story. The point is raised that there is a variance between the allegata and the probata. Maria and Marie are idem sonans. The testimony upon the trial identified the woman; and the court did not err in instructing the jury as follows: “If you should believe beyond a reasonable doubt, from the evidence submitted, that the defendant did have sexual intercourse with the woman and at the time as alleged, then you will look to the evidence and see if it was the same woman named in the accusation, and if you should so find that it was the same person, then you would be authorized to find the defendant guilty.” Idem sonans is no longer an infallible test in séttling the question of variance between allegata and probata. Identitate personae and not identitate nomin'is is and should always have been the true and only issue in cases of this character. Chapman v. State, 18 Ga. 736, 738. Tested by the idem sonans rule, this court holds that Maria Story and Marie Story are idem sonans. Barry and Berry are idem sonans. Ratteree v. State, 53 Ga. 570. Jeffers and Jeffries are idem sonans. Jeffries v. Bartlett, 75 Ga. 230. Biggers and Bickers are idem sonans. Biggers v. State, 109 Ga. 105 (34 S. E. 210). The only sane and sound test is that of identity of person.
Judgment affirmed.