State v. Mohr

Missouri Court of Appeals

State v. Mohr

55 Mo. App. 325

CourtMissouri Court of Appeals

DecidedDecember 4, 1893

StatusPublished

Cited by3 cases

This text of 55 Mo. App. 325 (State v. Mohr) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Mohr, 55 Mo. App. 325 (Mo. Ct. App. 1893).

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Ellison, J.

Defendant was indicted, tried and convicted under section 3810, Revised Statutes, 1889, for unlawfully permitting a gaming device to be used for gaming in a building in his possession and control. The indictment charged that “George Mohr on” etc., “at” etc., “did unlawfully permit a certain gambling device” etc., “to be used for the purpose of gaming, in a certain building there situate and in a certain room in the said building by him occupied, and of which, said room in said building he, the said George Moores,, then and there had the possession and control,” etc.

[327]*327Are “Mohr” and “Moores” idem sonansf We are of the opinion that they are not. It matters little how names are spelled, they are idem sonans, within the meaning of the authorities, if the attentive ear finds difficulty in distinguishing them when pronounced in ordinary usage. Chamberlain v. Blodgett, 96 Mo. 484. If there is no such difficulty they are not of the same sound. There is no difficulty whatever in distinguishing the pronunciation of the two names set forth in this indictment. The addition of the letter “s” in the latter name makes it different in fact and in sound from the first.

In The King v. Samuel Shakespeare, 10 East. 83, where the defendant was indicted as Samuel Shakepear, it was held fatal. Lord Ellenboeough said: “That the final ‘e’ might not make a material difference, but the omission of the ‘s’ in the middle makes it a differently sounding name from the true one.” The names,Frank and Franks were held not to be the same name nor alike in sound. Parchman v. State, 2 Texas App. 228. So of Wood and Woods, Neiderluck v. State, 21 Texas App. 320. So of Wilkin and Wilkins, in Brown v. State, (Court of App. Texas, 1889). And so of Humphrey and Humphreys, in Humphrey v. Whitten, 17 Ala. 30.

The misdemeanor as defined by the statute is-the setting up a gaming device in any house of which the defendant has “at the time the possession and control.”. In this indictment the possession and control is alleged to be in a George Moores, who is not the defendant. There was, therefore, no misdemeanor charged and a conviction cannot be sustained.

Other points were made by defendant which are not necessary to notice. 'Many of them could not be noticed, as they were not saved by an exception to order overruling the motion for a new trial.

Reversed.

All concur.

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Ellison, J.

Defendant was indicted, tried and convicted under section 3810, Revised Statutes, 1889, for unlawfully permitting a gaming device to be used for gaming in a building in his possession and control. The indictment charged that “George Mohr on” etc., “at” etc., “did unlawfully permit a certain gambling device” etc., “to be used for the purpose of gaming, in a certain building there situate and in a certain room in the said building by him occupied, and of which, said room in said building he, the said George Moores,, then and there had the possession and control,” etc.

[327]*327Are “Mohr” and “Moores” idem sonansf We are of the opinion that they are not. It matters little how names are spelled, they are idem sonans, within the meaning of the authorities, if the attentive ear finds difficulty in distinguishing them when pronounced in ordinary usage. Chamberlain v. Blodgett, 96 Mo. 484. If there is no such difficulty they are not of the same sound. There is no difficulty whatever in distinguishing the pronunciation of the two names set forth in this indictment. The addition of the letter “s” in the latter name makes it different in fact and in sound from the first.

In The King v. Samuel Shakespeare, 10 East. 83, where the defendant was indicted as Samuel Shakepear, it was held fatal. Lord Ellenboeough said: “That the final ‘e’ might not make a material difference, but the omission of the ‘s’ in the middle makes it a differently sounding name from the true one.” The names,Frank and Franks were held not to be the same name nor alike in sound. Parchman v. State, 2 Texas App. 228. So of Wood and Woods, Neiderluck v. State, 21 Texas App. 320. So of Wilkin and Wilkins, in Brown v. State, (Court of App. Texas, 1889). And so of Humphrey and Humphreys, in Humphrey v. Whitten, 17 Ala. 30.

The misdemeanor as defined by the statute is-the setting up a gaming device in any house of which the defendant has “at the time the possession and control.”. In this indictment the possession and control is alleged to be in a George Moores, who is not the defendant. There was, therefore, no misdemeanor charged and a conviction cannot be sustained.

Other points were made by defendant which are not necessary to notice. 'Many of them could not be noticed, as they were not saved by an exception to order overruling the motion for a new trial.

Reversed.

All concur.

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55 Mo. App. 325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mohr-moctapp-1893.

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