Estrada v. State , 88 Tex. Crim. 333 ( 1920 )

Appellant was convicted of theft of property under the value of fifty dollars.

The State makes a case on the facts. The appellant most vigorously denies the accusation and the truth of the State's case. This phase of the case, it occurs to us, is peculiarly one of fact which the jury has decided adversely to appellant. We would not feel justified in reversing for this reason under the condition of this record.

In motion in arrest of judgment appellant claims there is a variance between the allegations in the complaint and information with reference to the name of the accused. In the complaint her name is spelled Estreada. In the information her name is alleged first as Estrada. In two other places in the information her name is spelled Esteada and Estreada. We are not prepared to hold that there is such a variance in the name as would be the subject of a motion in arrest of judgment. Idem sonans is often a very close question and depends somewhat upon not only the spelling but the pronunciation. How the two names as set out in the complaint and information are sounded is not shown by the record. They may have the same pronunciation. The names seem to be Spanish or Mexican. If there was thought to be a variance of sufficient importance to require a new information, something should have been shown in the record before the court as to the pronunciation, and whether it was of sufficient importance to require the sustaining of the proposition of viarance. This was not done on the trial, and the question was only raised on the pleading itself in the motion in arrest of judgment. We do not feel justified in reversing the judgment for this reason as presented. The fact that the name was spelled three different ways in the information we do not think of sufficient importance. The name first appears as Estrada. When the name is mentioned in subsequent portions of the information it is referred to as the "said" party. Where the name originally is properly set out and afterward referred to as the "said" party, usually the variance in the spelling or setting out of the name is not of importance. Where, in the first instance, the party is properly named, usually it is sufficient to refer to the accused in subsequent portions of the pleadings as the "said" party.

As this case presents the matter we are of opinion there is no sufficient reason why the judgment should be reversed, therefore, it is ordered affirmed.

Affirmed.

ON REHEARING. January 5, 1921.