{ "id": 1568073, "name": "Mooney v. State", "name_abbreviation": "Mooney v. State", "decision_date": "1919-03-10", "docket_number": "", "first_page": "410", "last_page": "413", "citations": [ { "type": "official", "cite": "137 Ark. 410" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "20 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1869332 ], "opinion_index": -1, "case_paths": [ "/ark/20/0097-01" ] }, { "cite": "91 Va. 808", "category": "reporters:state", "reporter": "Va.", "case_ids": [ 2336253 ], "opinion_index": -1, "case_paths": [ "/va/91/0808-01" ] }, { "cite": "52 Tex. Crim. 344", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 4564556 ], "opinion_index": -1, "case_paths": [ "/tex-crim/52/0344-01" ] }, { "cite": "13 Mo. 91", "category": "reporters:state", "reporter": "Mo.", "case_ids": [ 8853667 ], "opinion_index": -1, "case_paths": [ "/mo/13/0091-01" ] }, { "cite": "34 S. C. 59", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 4394405 ], "opinion_index": -1, "case_paths": [ "/sc/34/0059-01" ] }, { "cite": "57 Tex. Crim. 625", "category": "reporters:state", "reporter": "Tex. Crim.", "case_ids": [ 2375322 ], "opinion_index": -1, "case_paths": [ "/tex-crim/57/0625-01" ] }, { "cite": "105 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347018 ], "weight": 2, "pin_cites": [ { "page": "149" } ], "opinion_index": -1, "case_paths": [ "/ark/105/0082-01" ] }, { "cite": "111 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "opinion_index": -1 }, { "cite": "100 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312255 ], "opinion_index": 0, "case_paths": [ "/ark/100/0149-01" ] }, { "cite": "55 Ark. 244", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1322214 ], "opinion_index": 0, "case_paths": [ "/ark/55/0244-01" ] }, { "cite": "73 Ark. 32", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1504023 ], "opinion_index": 0, "case_paths": [ "/ark/73/0032-01" ] }, { "cite": "97 Ark. 1", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1318844 ], "opinion_index": 0, "case_paths": [ "/ark/97/0001-01" ] }, { "cite": "102 Ark. 627", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1354066 ], "opinion_index": 0, "case_paths": [ "/ark/102/0627-01" ] }, { "cite": "111 Ark. 402", "category": "reporters:state", "reporter": "Ark.", "opinion_index": 0 }, { "cite": "105 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347018 ], "opinion_index": 0, "case_paths": [ "/ark/105/0082-01" ] }, { "cite": "68 Ark. 241", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1334138 ], "opinion_index": 1, "case_paths": [ "/ark/68/0241-01" ] }, { "cite": "72 Ark. 613", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1505496 ], "opinion_index": 1, "case_paths": [ "/ark/72/0613-01" ] }, { "cite": "62 Ark. 516", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1905700 ], "opinion_index": 1, "case_paths": [ "/ark/62/0516-01" ] }, { "cite": "50 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8720447 ], "opinion_index": 1, "case_paths": [ "/ark/50/0097-01" ] }, { "cite": "21 Ark. 462", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1868254 ], "opinion_index": 1, "case_paths": [ "/ark/21/0462-01" ] }, { "cite": "1 Ark. 503", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8728839 ], "opinion_index": 1, "case_paths": [ "/ark/1/0503-01" ] }, { "cite": "7 Ark. 70", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726819 ], "opinion_index": 1, "case_paths": [ "/ark/7/0070-01" ] }, { "cite": "12 Ark. 128", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8727767 ], "opinion_index": 1, "case_paths": [ "/ark/12/0128-01" ] }, { "cite": "123 Ark. 111", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1556200 ], "opinion_index": 1, "case_paths": [ "/ark/123/0111-01" ] }, { "cite": "84 Ark. 97", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1524378 ], "opinion_index": 1, "case_paths": [ "/ark/84/0097-01" ] }, { "cite": "100 Ark. 149", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1312255 ], "opinion_index": 1, "case_paths": [ "/ark/100/0149-01" ] }, { "cite": "105 Ark. 82", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1347018 ], "opinion_index": 1, "case_paths": [ "/ark/105/0082-01" ] } ], "analysis": { "cardinality": 326, "char_count": 5748, "ocr_confidence": 0.532, "pagerank": { "raw": 1.35032445026747e-07, "percentile": 0.633192128189713 }, "sha256": "757b7a782da95d3317ffe294dfc2fba55c49079de163215fc7f1e2373f01c5f4", "simhash": "1:b3e0d2c702d2e4e6", "word_count": 1025 }, "last_updated": "2023-07-14T15:41:36.610388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Mooney v. State." ], "opinions": [ { "text": "WOOD, J.\nThe appellant was convicted of the crime of grand larceny on an indictment which charged him in apt words with stealing a calf, \u201cthe property of Grover Fincher.\u201d\nThe appellant duly appeals to this court, and the only question presented is whether or not the charge in the indictment is sustained by proof that the animal stolen was the property of Grover Faneher.\nOn direct examination the prosecuting witness testified, \u201cmy name is Grover Fincher,\u201d and on cross-examination he said, \u201cmy name is Faneher.\u201d\nIn indictments for larceny the allegation of ownership is material and must be proved, as alleged. McLemore v. State, 111 Ark. 402; Wells v. State, 102 Ark. 627; Fletcher v. State, 97 Ark. 1; Merritt v. State, 73 Ark. 32; Blankenship v. State, 55 Ark. 244.\nThe testimony of the prosecuting witness shows on direct examination that his name is \u201cFincher\u201d and on cross-examination that his name is \u201cFaneher.\u201d He is the same individual whether called \u201cFincher\u201d or \u201cFancher.\u201d Although his name under the evidence was \u201cFancher,\u201d yet he was also called \u201cFincher,\u201d and under such circumstances there is no material variance between the allegation of ownership and the proof thereof.\nMoreover, the majority of the court are of the opinion that there is sufficient similarity in the sound of the names \u201cFincher and Faneher\u201d to bring the case within the well recognized doctrine of idem sonans. Birones v. State, 105 Ark. 82; Godard v. State, 100 Ark. 149.\nIn 14 Ruling Case Law, p. 207, sec. 51, it is said: \u201c * * * where the name as written in the indictment may be pronounced in the same way as the name given in the 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.\u201d\nThe difference in spelling could not have misled the appellant in the preparation of his defense.\nThe judgment is, therefore, correct, and it is affirmed.", "type": "majority", "author": "WOOD, J." }, { "text": "McCULLOCH, C. J.,\n(concurring). I concur in the judgment for the reason that the testimony is sufficient to warrant the finding that the name of the owner of the stolen property is Fincher, as charged in the indictment, and not Faneher \u2014 at least that he was known by that name \u2014 and there was no variance between the allegation and proof. Bennett v. State, 84 Ark. 97; Woods v. State, 123 Ark. 111. I do not agree, however, to that part of the opinion which holds that the name Fincher and Fancher have the same sound so as to he, in effect, the same in the indictment and in the proof. Where the variance occurs merely in the spelling of the name it is immaterial. Such is the effect of decisions'of this court in Rector v. Taylor, 12 Ark. 128, where it was held that the name Gardner and Gardnier have the same sound; the decision in Seman v. Hill, 7 Ark. 70, where it was held that Gravier and Gravaier have the same sound; in Ruddell v. Mozer, 1 Ark. 503, where Mozer, Mausuer and Monseuer were held to have the same sound, and in Power v. Woolley, 21 Ark. 462, where Woolley and Wolley were treated as having the same sound; in Beneux v. State, 50 Ark. 97; where Bennaux and Beneux were held to be the same; in Bennett v. State, 62 Ark. 516, where Watkins and Wadkihs were held to be the same; in Taylor v. State, 72 Ark. 613, where Foshee and Forshee were held to be the same; in Godard v. State, 100 Ark. 149, where Vaughn and Vaughan were held to be the same; and in Birones v. State, 105 Ark. 82, where Nowlin and Nolan were held to have the same sound. On the contrary, the court held in State v. Williams, 68 Ark. 241, that the names Hite and Hyde do not have the same sound; and in Woods v. State, supra, that the names Wood and Woods are not of the same sound.\nFincher and Fancher do not sound alike though there is enough similarity possibly to cause confusion among acquaintances as to correct name of the individual so called. Such was the case in this instance and Fancher was known by the name of Fincher. That being so it was not a fatal variance to mention him in indictment under the^name of Fincher if the proof showed that he was known by that name even though it was not his true name.", "type": "concurrence", "author": "McCULLOCH, C. J.," } ], "attorneys": [ "G. O. Patterson, for appellant.", "John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee." ], "corrections": "", "head_matter": "Mooney v. State.\nOpinion delivered March 10, 1919.\n1. Larceny \u2014 indictment \u2014 allegation op ownership. \u2014 In indictments for larceny, the allegation of ownership' is material and must be proved as alleged.\n2. Same \u2014 indictment\u2014variance.\u2014Where the indictment in a larceny case named the prosecuting witness as \u201cFincher,\u201d and the evidence showed that his name was \u201cFaneher,\u201d though he was also called \u201cFincher,\u201d there is no material variance.\n3. Names \u2014 IDEM sonans. \u2014 \u201cFincher\u201d and \u201cFaneher\u201d held within the rule of idem sonans.\nAppeal from Johnson Circuit Court; J. H. Evans, Special Judge;\naffirmed.\nG. O. Patterson, for appellant.\nThe indictment alleges that the steer belonged to Grover Fincher but the proof showed that Grover Fancher owned it. The allegation of ownership is material, and should be proved as alleged. 111 Ark. 462; 102 Id. 629; 73 Id. 32; 55 Id. 244; Kirby\u2019s Digest, \u00a7 2233. This section has no application where the correct name is not given. The variance is .fatal. Supra. The court should have instructed the jury to find for defendant as requested. The names are not \u201cidem sonans.\u201d\nJohn D. Arbuckle, Attorney General, and T. W. Campbell, Assistant, for appellee.\nThere is no variance. Witness first stated that his name was Fincher. On cross-examination he stated that it was Faneher. The names are idem sonans and the variance is not material. 105 Ark. 82; 100 Id. 149; 62 Id. 516; 72 Id. 613; 50 Id. 97; 57 Tex. Crim. 625; 34 S. C. 59; 13 Mo. 91; 52 Tex. Crim. 344; 91 Va. 808; 14 R. C. L. 207; 20 Ark. 97." }, "file_name": "0410-01", "first_page_order": 434, "last_page_order": 437 }