Dees v. State

152 S.E. 913, 41 Ga. App. 321, 1930 Ga. App. LEXIS 566

Opinion

Bloodworth, J.

We will enlarge upon headnote 7 only. There is no error in the portion of the charge incorporated in ground 8 of the motion. There is no evidence to authorize any insistence that the articles which were alleged to have been stolen belonged to a man named R. E. Strickland instead of R. E. Stribling, or that the person named in the indictment as R. E. Strickland and marked thereon as the prosecutor is a different individual from the person who testified in the case and claimed to have owned the articles stolen. In Watkins v. State, 18 Ga. App. 500 (89 S. E. 624), this court said: “Idem sonans is no longer an infallible test in settling the question of variance between allegata and probata. Identitate personae and not identitate nominis is and should always have been the true and only issue in cases of this character. . . The only sane and sound test is that of identity of person.” In Chapman v. State, 18 Ga. 736, 738 (1), the Supreme Court said: “The change continually going on in the mode of spelling names — the different pronunciation of the same name, according to the circumstances and condition in life of the owner, makes the objection, upon the score of discrepancy, much less material than formerly. Idem sonans is no longer an infallible test. Identitate personae and not identitate nominis, is and should always have been the true and only issue.” See Fielding v. State, 30 Ga. App. 664 (118 S. E. 601); Woody v. State, 113 Ga. 928 (1) (39 S. E. 297); Webb v. State, 149 Ga. 211 (1) (99 S. E. 630).

Judgment affirmed.

Broyles, G. J., concurs. Luke, J., dissents.