Appellant insists that since the subject of variance was first discussed in the motion for rehearing an opportunity should be afforded to combat the views of the court in a second motion for rehearing.
In an indictment charging the sale of intoxicating liquor, the name of the purchaser, if known, is an essential averment. See Hoover v. State, 259 S.W. 1088. And with the averment the proof must correspond; otherwise there will be a variance fatal to the prosecution. See Wharton's Cr. Ev. 10th Ed., Vol. 1, sec. 94. It is not every variation in the spelling of the same which will constitute a fatal variance. Names may have different letters or different arrangements thereof and yet be idem sonans. In Wharton's Cr. Ev. supra, sec. 96, it is said:
"Idem sonans means of the same sound. It exists when the attentive ear finds difficulty in distinguishing the names when pronounced; or, where common, long-continued usage has made them identical in pronunciation."
In Bishop's New Cr. Proc., 2nd Ed., Vol. 2, p. 540, subd. 2, it is said:
"When this question of idem sonans arises at the trial, it is of fact for the jury to decide under proper instructions from the court."
In the case of Weitzel v. State, 28 Tex. Cr. App. 523, and in the case of Bell v. State, 25 Tex. Rep. 574, it was held that the question as to whether the names in the indictment were idem sonans *Page 422 was a question of fact to be determined by the jury. A like announcement was made in Wharton's Cr. Ev., 10th Ed., Vol. 1, sec. 96. In another paragraph of the same section the following is said:
"The decisions on the question of idem sonans exceed two thousand in number. Locality and habitation have such a marked bearing on the cases, that the mere fact that a name in one state was held to be idem sonans with another would hardly be persuasive in another state, and certainly not controlling. The principles in their application vary with each case."
A somewhat comprehensive discussion of the subject is found in several of the decisions of this state. Among them are the following: Reyes v. State, 81 Tex.Crim. R.; Rowan v. State, 57 Tex.Crim. R.; Gentry v. State, 62 Tex.Crim. R.; Feeny v. State, 62 Tex.Crim. R.. From one of these decisions we take the following quotation:
"In discussing the idem sonans of names this court, in Rowan v. State, 57 Tex.Crim. R., said: 'Mr. Abbott, in his Trial Brief, section 680, lays down the following rule: "A variance is not now regarded as material unless it is such as might mislead the defense, or might expose the accused to the danger of being put twice in jeopardy for the same offense." And Mr. Rice, in his valuable work on Evidence, lays down the following rule: "There is a rule of growing importance by which courts, for many years, have evinced, by their decisions, a disposition to recede from the fading adherence to common law technicalities, and hold rather to substance than mere form. Modern decisions conform to the rule that a variance, to be material, must be such as to mislead the opposite party to his prejudice, and hence the doctrine of idem sonans has been much enlarged by modern decisions, to conform to the above salutary rule. The law does not treat very slight variance, if trivial, such as the omission of a letter in the name, as fatal. The variance should be a substantial and material one to be fatal." See sec. 123, vol. 3. It may be said to be wholly immaterial as to how the word is spelled. If practically they have the same sound they will be regarded as idem sonans, and if the words have the same sound then there is no fatal variance, although the two names may have been spelled slightly different. See Parchman v. State, 2 Tex. Cr. App. 228. And if the words can be sounded alike, without disturbing the power of the letters that is found in the variant orthography, the variance will be immaterial. * * * Identity of sound may be regarded as a surer method of designating the names of persons *Page 423 than that of depending upon mere identity in the orthography.' * * * 'The doctrine of idem sonans has been much enlarged by modern decisions to conform to the growing rule that a variance, to be material, must be such as would mislead a party to his prejudice.' State v. White, 34 S.C. 59, 12 S.E. Rep. 661; 27 Am. St. Rep. 783."
From Wharton's Cr. Ev. 10th Ed., vol. 1, sec. 95, page 288, the following quotation is taken:
"The modern rule is that a variance in names is not now regarded as material, unless it appears to the court that the jury was misled by it, or some substantial injury is done to the accused, such as that, by reason thereof, he was unable intelligently to make his defense, or he was exposed to the danger of a second trial on the same charge."
In Ruling Case Law, Vol. 14, p. 207, sec. 51, it is said:
"Slight variations in orthography have sometimes been held fatal and sometimes not, but it may be stated as the general rule deducible from the modern decisions that where the name as written in the indictment may be pronounced in the same way as the name given in evidence, although such may not be the strictly correct pronunciation, the variance will not be regarded as fatal, unless the variant orthography be such as would be likely to mislead the defendant in preparing his defense."
The precedents collated in Words Phrases, 3rd Series, Vol. 4, p. 40; also 2nd Series, Vol. 2, p. 928; also 1st Series, Vol. 4, p. 3380, are in accord with the general statements quoted above.
In the light of the record and the precedents, we are constrained to adhere to the announcement made in the original opinion, namely, that there is not such difference in the spelling of the words as would preclude a decision by the trial court that the names were idem sonans, and that the rules of law quoted from the text-writers hereinabove and approved and applied by this court in the decisions to which reference has been made, are controlling of this court in the present appeal and that by them it would be precluded from overturning the verdict of conviction because of an alleged variance which could not have misled the accused to his prejudice.
For the reasons stated, the request for permission to file a second motion for rehearing is refused.
Refused. *Page 424