Where the spelling of two names is different and that difference naturally carries a difference in sound, they are not to be held to be idem sonans without proof as to the common custom of pronouncing the two names the same. Hurt v. State, 23 Ala. App. 369, 125 So. 787; Underwood v. State, 72 Ala. 220; Clements v. State, 19 Ala. App. 640, 99 So. 832; Campbell v. State, 18 Ala. App. 219, 90 So. 43; Nutt v. State, 63 Ala. 180; Wells v. State, 187 Ala. 1, 65 So. 950; Merlette v. State, 100 Ala. 42, 14 So. 562; Munkers v. State, 87 Ala. 94, 6 So. 357. When ownership is alleged, a variance between the allegation and the proof entitles the accused to an acquittal.
A. A. Carmichael, Atty. Gen., and John J. Haynes, Asst. Atty. Gen., for the State. Idem sonans means sounding the same or alike, and when names sound alike spelling is not regarded. Weyms v. State, 13 Ala. App. 297, 69 So. 310; Patterson v. First Nat. Bank, 229 Ala. 406, 157 So. 446; Gresham v. Walker, 10 Ala. 370; Nettles v. State, 222 Ala. 236, 132 So. 41; Maughan v. State, 24 Ala. App. 259, 133 So. 918; Clements v. State, 19 Ala. App. 640, 99 So. 832. W. H. Stoddard, of Luverne, for respondent.
Spelling is not regarded in respect to proper names. If they sound alike, they are the same, and much latitude is allowed in spelling and pronouncing. Nettles v. State, 222 Ala. 236, 132 So. 41; Patterson v. First Nat. Bank, 229 Ala. 406, 157 So. 446; Weyms v. State, 13 Ala. App. 297, 69 So. 310; Clements v. State, 19 Ala. App. 640, 99 So. 832; Gresham v. Walker, 10 Ala. 370; Maughan v. State, 24 Ala. App. 259, 133 So. 918. Enough of a former difficulty may be proved to show the nature and gravity of the offense. Folkes v. State, 17 Ala. App. 119, 82 So. 567; Wright v. State, 19 Ala. App. 562, 99 So. 52; Eaton v. State, 8 Ala. App. 136, 63 So. 41; Smith v. State, 8 Ala. App. 187, 62 So. 575.
The names Cleo and Clio are not idem sonans. Crawford v. State, 112 Ala. 1, 21 So. 214; Campbell v. State, 18 Ala. App. 219, 90 So. 43; Clements v. State, 19 Ala. App. 640, 99 So. 832. Harwell G. Davis, Atty. Gen., for the State.
However, it seems to us that "Janey" and "Jeanie" sound enough alike to invoke the idem sonams rule. — See Johnson v. State, 34 Ala. App. 623, 43 So.2d 424, cert. denied 253 Ala. 194, 43 So.2d 431; Clements v. State, 19 Ala. App. 640, 99 So. 832; Miller v. State, 110 Ala. 69, 20 So. 392; and other cases collated at 20D So.Dig. Names, 16. We find no error to reverse.
Hart v. State, 28 Ala. App. 545, 190 So. 95; Id. 238 Ala. 188, 190 So. 98; Puckett v. State, 23 Ala. App. 493, 127 So. 678; Id. 221 Ala. 698, 128 So. 910; Turner v. State, 29 Ala. 13, 191 So. 392; Id. 238 Ala. 352, 191 So. 396; Potter v. State, 29 Ala. App. 239, 194 So. 711; Walters v. State, 30 Ala. App. 547, 9 So.2d 32; Naugher v. State, 241 Ala. 91, 1 So.2d 294. There was no fatal variance between the indictment and proof as to name of injured girl. Variance in a middle name is immaterial. 45 C.J. 369, § 6(B); Reid v. State, 168 Ala. 118, 53 So. 254; Fannin v. State, 20 Ala. App. 122, 101 So. 95; Walling v. State, 13 Ala. App. 253, 69 So. 236; Edmundson v. State, 17 Ala. 179, 52 Am.Dec. 169. Idem sonans is applied to names which are substantially the same, though slightly varied in spelling. Clements v. State, 19 Ala. App. 640, 99 So. 832; Frazier v. State, 19 Ala. App. 322, 97 So. 251; Golson v. State, 15 Ala. App. 420, 73 So. 753. Variance, to be material, must be such as to mislead opposite party to his prejudice. State v. White, 34 S.C. 59, 125 S.E. 661, 27 Am.St.Rep. 783.
The indictment charged the killing of Herbert Pierce, and the proof showed the man killed was Hubert Pierce. There was thus a fatal variance. Ex parte Shoults, 208 Ala. 598, 94 So. 777; Parks v. State, 21 Ala. App. 177, 106 So. 218; Stone v. State, 115 Ala. 121, 22 So. 275; Campbell v. State, 18 Ala. App. 219, 90 So. 43; Clements v. State, 19 Ala. App. 640, 99 So. 832; Birmingham C. I. Co. v. Brice, 6 Ala. App. 638, 60 So. 952. It was error to admit evidence of the movements of defendant and his son prior to the commission of the offense; no conspiracy or threats being shown. Threats made by the defendant, general in character and having no reference to the injured party, are not admissible. King v. State, 89 Ala. 146, 7 So. 750; George v. State, 145 Ala. 41, 40 So. 961, 117 Am.St.Rep. 17; Stokes v. State, 17 Ala. App. 27, 81 So. 363; Naler v. State, 25 Ala. App. 486, 148 So. 880. Defendant's requested charges stated correct propositions of law and should have been given. Bush v. State, 19 Ala. App. 650, 100 So. 307; Byrd v. State, 17 Ala. App. 301, 84 So. 777.
Defendant was entitled to judgment on his plea of misnomer. Painter v. State, 24 Ala. App. 426, 136 So. 277; Clements v. State, 19 Ala. App. 640, 90 So. 832; Munkers v. State, 87 Ala. 94, 6 So. 357. The judgment entry is not sufficient to support a conviction; there being no sufficient adjudication of guilt and no valid sentence. Presley v. State, 22 Ala. App. 167, 113 So. 485; Wells v. State, 19 Ala. App. 403, 97 So. 681; Shepard v. State, 20 Ala. App. 627, 104 So. 674; McMahan v. State, 21 Ala. App. 522, 109 So. 553; Oliver v. State (Ala.App.) 140 So. 180; Perkins v. State, 21 Ala. App. 504, 109 So. 563.
In Noble v. State, 139 Ala. 90, 36 So. 19, the names N-o-b-l-e and N-o-b-l-e-s were held not the same. In Munkers v. State, 87 Ala. 94, 6 So. 357, the names of M-o-n-c-u-s and M-u-n-k-e-r-s, though ordinarily sounded alike, were held different names; and M-i-n-c-h-e-r and M-i-n-s-h-e-n were held not idem sonans in Adams v. State, 67 Ala. 89; H-a-d-n-e-t-t and H-o-d-n-e-t-t not the same, Nutt v. State, 63 Ala. 180; and S-a-e-y-v-s and S-a-e-y-r-s were not idem sonans, Sayres v. State, 30 Ala. 15. See, also, Weyms v. State, 13 Ala. App. 297, 69 So. 310; Clements v. State, 19 Ala. App. 640, 99 So. 832; Dinkins v. State, 21 Ala. App. 206, 106 So. 621; Hewlett v. State, 135 Ala. 59, 33 So. 662; McMillan v. Aiken, supra; Norton v. Orendorff, 191 Ala. 508, 67 So. 683. The trial court committed no reversible error in striking the plea on motion of the state, since the plea was not properly verified and was filed after the plea of not guilty. The action of the court in granting the motion to strike the plea will be sustained, if for any reason the ruling was justified under the law.
" ' "A duty devolves upon the jury, if it can be done, to place that construction upon the evidence which makes all witnesses speak the truth." Clements v. State, 19 Ala. App. 640, 641, 99 So. 832 (1924).'