Garlington v. State

150 S.W.2d 253, 141 Tex. Crim. 595, 1941 Tex. Crim. App. LEXIS 265

• Court: Court of Criminal Appeals of Texas
• Decided: April 2, 1941
• Docket: No. 21532.
• Status: Published

Opinions

GRAVES, Judge.

Appellant was charged with privately taking from the person of Jim Folley $100.00 in money, and under the verdict of the jury he was sentenced to serve two years in the penitentiary.

The testimony shows beyond controversy that the person who was thus deprived of his money was named Jim Foely and not Jim Folley. Proper motions were made and objections offered, and exceptions reserved to the failure of the allegation and proof to correspond. We are not impressed with the contention that Foely and Folley sound the same. We do not think the doctrine of idem sonans can be applied to these two names to such an extent that we can say that they sound the same.

To the same effect are bills Nos. 1, 2, 3 and 4, all of which evidence error, in our opinion, because of the failure of the allegation and proof to correspond.

Bill No. 5 relates to a voluntary return of $70.00 to Jim Foely by appellant and the admission of certain testimony relative to such return of this money. If such amount was returned to Foely, and same was all the money and the same money taken from Foely by appellant, and if .the jury should find that same was voluntarily returned within a reasonable time and before prosecution was begun, then the appellant would only be subject to a pecuniary fine. See Art. 1424, P. C.; Bird v. State, 16 Texas Ct. App. 528; also authorities under Art. 1424, supra, Vernon’s Ann. P. C., Vol. 3.

By the term “prosecution is begun,” we think is meant the filing of a complaint or indictment charging the offense of theft of the money. See Words & Phrases, 2d Series, Vol. 1, p. 419.

Believing that Foely and Folley are not idem sonans, this judgment is reversed and the cause remanded.