In our opinion above we stated that "The evidence introduced by the State was directed toward showing" etc. There then follows a recital of certain facts produced by the testimony of various witnesses for the State. Counsel for appellant complains in his brief in support of his application for rehearing that we should make a different "finding of facts," in that in certain instances the facts as stated by us were not testified to by all of the witnesses for the State. For instance, we stated that one witness described the rate of speed of appellant's automobile as being "every bit of 45 or 50 miles per hour." Counsel points out that another state's witness, Burgess Waters, fixed the speed of appellant's automobile at 40 miles per hour.
Counsel further points out that only one witness for the State testified that the front car approaching had only its parking lights on, while another State's witness testified that the lights of the approaching car were on bright, as did two defense witnesses.
Our observation that the State's evidence was directed toward showing, etc., in no sense constitutes a finding of fact as to the evidence set forth, but merely constitutes facts which the jury might reasonably have inferred from some of the evidence introduced. We have reread this evidence, and feel that the tendencies of the evidence as set out, both for the State and the defense, in their strongest aspects, were fairly depicted as stated above.
Appellant for the first time now raises the point that the indictment names one of the deceased girls asUstine LeCroy, whereas in the transcription of the evidence her name is spelled as Eulestine LeCroy.
While it is true that in the indictment the LeCroy girl is described as Ustine LeCroy, and in practically every place where her name appears in the transcription of the evidence her name is written by the reporter as Eulestine, it is to be noted that Mr. Lowell Wilson testified that he remembered the incident when Ellen Pearl Riggs and Eulstine LeCroy were killed. It was then called to the court's attention that the defendant was not present in the court. room, and Mr. Wilson repeated his testimony upon defendant's return to the court room. In this repeat portion of Mr. Wilson's testimony the LeCroy girl's name is spelled Eulestine by the reporter. *Page 630
This aside, if "Eulestine" and "Ustine" may properly be considered as idem sonans, then the variance between the allegata of the indictment and the probata is immaterial.
The doctrine of idem sonans has been much enlarged by modern decisions to conform to the rule that a variance to be material must be such as to mislead the opposite party to his prejudice. State v. White, 34 S.C. 59, 12 S.E. 661, 27 Am. St. Rep. 783; Raven v. State, 149 Tex. Cr.R. 294,193 S.W.2d 527. Identity of sound is the test, and not identity of spelling. If the attentive ear finds difficulty in distinguishing them when pronounced, no matter how spelled, names are idem sonans.
The following names have been held to be idem sonans: "Walter" and "Waters," Burrows v. Hagerman, 159 Fla. 826,33 So. 2d 34; "Ray" and "Roy," Platt Cattle Co. v. Scott,157 Fla. 286, 25 So. 2d 655; "Belle" and "Bella," Reid v. State,168 Ala. 118, 53 So. 254.
Even a slight difference in pronunciation is unimportant if the attentive ear finds difficulty in distinguishing the two names when pronounced, Webb v. Ferkins, 227 Iowa 1157,290 N.W. 112, provided the misspelling of the name does not transform it into a wholly different appellation. Chaverea v. State, 141 Tex. Crim. 592, 150 S.W.2d 241.
Under the above rules it is our conclusion that "Ustine" and "Eulestine" must properly be considered as idem sonans, and that certainly the difference in the spelling of the deceased girl's name did not reasonably tend to mislead the defendant in his defense in the trial below. No error resulted therefore in the refusal of defendant's request for the affirmative charge because of this matter.
Other matters are argued in appellant's brief in support of this application for rehearing. These remaining propositions have in our opinion been sufficiently dealt with in the original opinion. We therefore omit discussion of them.
Application overruled