Garlington v. State , 141 Tex. Crim. 595 ( 1941 )

The State has filed a motion for rehearing in which it seriously contends that we erred in holding that the names of "Foely" and "Folley" not to be idem sonans. If the names, when pronounced, sound alike, then the State's contention is correct; if not, then its contention cannot be sustained. If we split the names as if they were composed of two syllables, then we perceive more readily the difference in the sound, namely: "Foe-ly" has the sound of a long "o" as in "foe" and "hoe," while "Fol-ley" has the sound of the short "o" as in "holly" and "dolly." Consequently the names are not idem sonans. Names are descriptive of persons for identification and must be proved as charged.

The State contends our original opinion in this case is in conflict with the decision of this court in the case of Brady v. State, 122 Tex.Crim. R., 55 S.W.2d 104. We do not think so because in that case the name was evidently not an English name and we were not advised as to whether the name "Balcon," as charged in the indictment, and his true name "Baucom," although spelled differently, were pronounced alike. The trial court heard the names pronounced and concluded that they sounded alike and were idem sonans, while in the instant case, we know that the names, when pronounced, do not sound alike.

The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.