The State moves for a rehearing herein, asserting that the description by name of the person for whom a search warrant was issued in this case, is incorrectly copied in the transcript; it being agreed by both the State and the appellant that the original affidavit and search warrant might be considered by this court, which were not here when this case was reversed, and same are accordingly sent here for our inspection.
The name of the party whose premises are stated to be thus desired to be searched in the affidavit, — as we read same, — appears to be "Pete Zulakoskie". The State insists in its motion that there is no variance between this name and that of the appellant which is spelled "Pete Zulkowsky". We are impelled to agree with the State's contention in the light of the authorities. In Reys v. State, 45 Tex.Crim. Rep.,76 S.W. 457, 77 S.W. 213, this court held that the words "Gudlupe" and "Gaudalupe" were idem sonans. In other words, that the "a" between the two syllables did not amount to a variance. It appears plain that the syllable "skie" in the affidavit, and the "sky" at the end of appellant's name, would ordinarily receive the same pronunciation when appearing as the closing syllable of a proper name, there being no difference *Page 355 in the sound of the "y" in the one case and the "ie" in the other. We think the middle syllable of the name which is "kos" in the affidavit, and "kow" in appellant's name, when appearing in conjunction with the consonants forming the complete name word, have so nearly the same sound as to be immaterially variant, if at all. In Wilks v. State, 27 Texas App., 381,11 S.W. 415, this court held the words "Fauntleroy" and the word "Fontleroy" to be idem sonans. In Gentry v. State,62 Tex. Crim. 497, 137 S.W. 696, this court held the name "Laun Gentary" in the affidavit to be idem sonans with "Lon Gentry" in an information. There appears in Jones v. State,115 Tex. Crim. 418, 27 S.W.2d 653, an extended discussion of the doctrine of idem sonans in which the name "Holland" and the name "Hollins" are held to be idem sonans. We might further observe in this connection that the rule quoted in the last mentioned case from Wharton's Cr. Ev., which, in substance, is that a variance in name 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, — has weighty application here. There seems no question raised in this record but that upon the search warrant issued upon the affidavit, the home of this appellant was found and searched under the authority of said search warrant. In it was found the intoxicating liquor testified to by the officer. Appellant does not seem to take the position that the officers found the wrong place, or searched the premises of the wrong man, or that he was not in fact the owner of the premises and place searched. It seems utterly impossible to conceive of any injury resulting to appellant from the claimed variance, which, however, we do not think exists under the rule laid down by the authorities above cited.
The State's motion for rehearing will be granted, the judgment of reversal will be set aside, the judgment of the trial court will be affirmed.
Granted.
ON APPELLANT'S MOTION FOR REHEARING.