Weyms v. State

69 So. 310, 13 Ala. App. 297, 1915 Ala. App. LEXIS 57

Opinions

PELHAM, P. J.

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.

(1) We think the court’s ruling in sustaining this demurrer free from error under the recognized rule in this state that, when two proper names, as commonly and ordinarily pronounced, sound alike, a difference in their spelling is'immaterial,.and much latitude in pronunciation is permissible. The variance in the names here is immaterial.—Burton v. State; 10 App. App. 214, 65 South. 91.

(2) The transcript contains a motion to quash’the indictment and the ruling of the court on the motion, and also certain refused charges are set out; but, as the appeal is on the record proper without a bill of exceptions, these matters are not properly incorporated in the record, and not before us for review.—Ex parte Watters et al., 180 Ala. 523, 61 South. 904; Peters v. Nolen, 10 Ala. App. 599, 65 South. 699; Payne v. State, 10 Ala. App. 85, 65 South. 262.

There is no error in the record, and the judgment appealed from must be affirmed.

Affirmed.