69 So. 310 | Ala. Ct. App. | 1915
Lead Opinion
The indictment preferred against the defendant on which he was tried and convicted alleged his name to be “Chester Weyms, alias Chester Weims,” and the defendant interposed a plea of misnomer averring his true name to be, not as alleged in the indictment, but “Chesley Wyms,” and verified his plea by an affidavit signed “Chesley Wyms.” To this plea of misnomer the state’s counsel filed a demurrer on the ground that the names of “Chester Weyms, alias Chester Weims,” and “Chesley Wyms,” are idem sonans.
There is no error in the record, and the judgment appealed from must be affirmed.
Affirmed.
Rehearing
ON REHEARING.
No brief was filed on behalf of appellant on the original submission informing us of what was relied upon as constituting error as shown by the record, and it must be confessed that in passing on the question of idem sonans we considered more the similarity of the surname than the Christian name, as shown by indictment and set up in the defendant’s plea in abatement.
Our opinion is that the demurrer to1 the plea should have been overruled. The former judgment of affirmance is set aside, and the judgment of conviction is reversed, and the cause remanded for another trial because of the error pointed out.
Reversed and remanded.