When in the indictment the name of the deceased is set forth, the state must prove the name as set forth or there is a fatal variance. Wells v. State, 187 Ala. 1, 65 So. 950; Parks v. State, 21 Ala. App. 177, 106 So. 218, 219; Cooper v. State, 26 Ala. App. 326, 159 So. 370; Stallworth v. State, 146 Ala. 8, 41 So. 184, 185; Winter v. State, 90 Ala. 637, 8 So. 556; Shoults v. State, 208 Ala. 598, 94 So. 777; Suttle v. State, 19 Ala. App. 198, 96 So. 90; 30 C.J. 131; Campbell v. State, 18 Ala. App. 219, 90 So. 43; Painter v. State, 24 Ala. App. 426, 136 So. 277; Gullatt v. State, 24 Ala. App. 11, 130 So. 169; Merlette v. State, 100 Ala. 42, 14 So. 562. A bigamist's marriage or attempted marriage is void ab initio, and the name of the woman does not change thereby. McCaig v. State, 16 Ala. App. 581, 80 So. 155; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Hines v. Hines, 203 Ala. 633, 84 So. 712, 713; United States v. Barker, 5 Cir., 70 F.2d 1002. The indictment alleging deceased was killed by a blunt instrument, the particular description of which was unknown, and the undisputed proof showing death caused by a pistol shot which was known to the grand jury, there was a fatal variance.
W. H. Stoddard, of Luverne, for respondent. The names Levon and Levaughn are not idem sonans, and the Court of Appeals correctly so held. Munkers v. State, 87 Ala. 94, 6 So. 357; Painter v. State, 24 Ala. App. 426, 136 So. 277; Clements v. State, 19 Ala. App. 640, 99 So. 832; Noble v. State, 139 Ala. 90, 36 So. 19; Humphrey v. Whitten, 17 Ala. 30; Jacobs v. State, 61 Ala. 448; 21 A. E. Ency. Law, 2d Ed., 313, 317; Campbell v. State, 18 Ala. App. 219, 90 So. 43; Western Union Tel. Co. v. Louissell, 11 Ala. App. 563, 66 So. 839; Prince v. State, 20 Ala. App. 35, 101 So. 174; Merlette v. State, 100 Ala. 42, 14 So. 562; Wells v. State, 187 Ala. 1, 65 So. 950; White v. State, 7 Ala. App. 69, 61 So. 463; Lynes v. State, 5 Port. 236, 30 Am.Dec. 557; Washington v. State, 68 Ala. 85; Adams v. State, 67 Ala. 89; Leath v. State, 132 Ala. 26, 31 So. 108; Tarpley v. State, 79 Ala. 271; Kirk v. Suttle, 6 Ala. 679, 681; Nutt v. State, 63 Ala. 180; Smith v. State, 8 Ala. App. 187, 62 So. 575; Davis v. State, 21 Ala. App. 231, 106 So. 874; May v. State, 22 Ala. App. 278, 114 So. 788. GARDNER, Justice.
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 all legal proceedings, if two names are commonly pronounced, or sound alike, variations in spelling are immaterial, however, if the names are not commonly pronounced and do not sound alike, then such names are not considered idem sonans. Lawrence v. State, 59 Ala. 61; Merlette v. State, 100 Ala. 42, 14 So. 562; Milbra v. Sloss-S. S. I. Co., 182 Ala. 622, 62 So. 176, 46 L.R.A., N.S., 274; Sexton v. State, 236 Ala. 20, 180 So. 731; Birmingham Coal Iron Co. v. Brice, 6 Ala. App. 638, 60 So. 952; White v. State, 7 Ala. App. 69, 61 So. 463; Weyms v. State, 13 Ala. App. 297, 69 So. 310; Suttle v. State, 19 Ala. App. 198, 96 So. 90; Davis v. State, 21 Ala. App. 231, 106 So. 874; Painter v. State, 24 Ala. App. 426, 136 So. 277. MacDonald Gallion, Atty. Gen., and Winston Huddleston, Supernumerary Circuit Solicitor, Wetumpka, for the State.
Clements and Clemnts are not idem sonans, and where an indictment charges defendant assaulted one Clemnts but the evidence showed without conflict that the name of the party assaulted was Clements, defendant was entitled to have the evidence excluded on ground of a fatal variance, or the affirmative charge given in his favor. Clements v. State, 19 Ala. App. 640, 99 So. 832; Prince v. State, 20 Ala. App. 35, 101 So. 174; Hurt v. State, 23 Ala. App. 369, 125 So. 787; Booker v. State, 24 Ala. App. 179, 132 So. 70; Painter v. State, 24 Ala. App. 426, 136 So. 277. Where evidence showed without conflict that one of defendants on trial actually committed the assault and evidence for other defendant tended to show that he had nothing to do with the assault, though present, the latter defendant was entitled to have the jury charged that if the assault was committed by the other defendant without the knowledge, connivance or assent of this defendant, then the jury should find this defendant not guilty. Ferguson v. State, 141 Ala. 20, 37 So. 448; Jones v. State, 174 Ala. 53, 57 So. 31. Allowing the Solicitor to make a gruesome argument to the jury, not based on any evidence in the case, simply for the purpose of prejudicing the jury, and over objection of defendant's counsel, constitutes reversible error. Flowers v. State, 15 Ala. App. 220, 73 So. 126; West v. State, 17 Ala. App. 353, 85 So. 833; Taylor v. State, 22 Ala. App. 428, 116 So. 415; Pointer v. State, 24 Ala. App. 23, 129 So. 787; Moore v. State, 30 Ala. App. 552, 9 So.2d 146.
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, ante, p. 34, 140 So. 180. The ruling on the plea of misnomer constituted reversible error. Painter v. State, 24 Ala. App. 426, 136 So. 277; Clements v. State, 19 Ala. App. 640, 99 So. 832; Munkers v. State, 87 Ala. 94, 6 So. 357. The possession of Jamaica ginger does not violate the statute (section 4621) directed against the possession of intoxicating liquors. The definitions of section 4615 of the Code are not broad enough to include Jamaica ginger.
Keiffer and Keefer are not idem sonans, and it was error to a reversal to sustain demurrer to defendant's plea of misnomer. Painter v. State, 24 Ala. App. 426, 136 So. 277. The indictment does not with sufficient certainty describe the instrument alleged to have been used in the homicide. Thos. E. Knight, Jr., Atty. Gen., for the State.