#### Hayney vs. The State.

Upon an indictment for assault and battery, on Grimanda C, Saddler, evidence of an assault and battery on Grimalda C. Saddler will not warrant a conviction. The names are not the same sound.

This was an indictment against John Hayney, for an assault and battery on Grimanda C. Saddler, tried in the Yell Circuit Court, in September, 1842, before the Hon. Richard C. S. Brown, one of ■the circuit judges. Evidence of assault and battery on Grimalda C. Saddler Verdict of guilty; and motion for new trial for variance between indictment and evidence overruled. Exceptions, and appeal.

The case was argued here by Blackburn, for the appellant, and R. W. Johnson, Ally. Gen., contra.

By the Court,

Paschal, J.

It is certainly necessary that the name ■of the person assaulted be proved as laid in the indictment; otherwise, the variance is fatal. The names “Grimanda" and “Grimalda?' have certainly not the same sound. Prosecutors are not to be held, as to names, to the correct orthography, but certainly the name in the indictment must be idem sonans with the true name. This is the rule universally laid down, in all works on the subject of criminal proceedings. The Circuit Court then, having, upon the evidence, found the party guilty, contrary to law,ought to have granted the new trial. ■.Case remanded, with instructions to grant a new trial.