Zulkowsky v. State

Offense, the unlawful possession of equipment and mash for the purpose of manufacturing intoxicating liquor; penalty, one year in the penitentiary. Operating under a search warrant, officers found in the residence of appellant incriminating evidence sufficient to sustain the allegations of the indictment. The reception of this evidence was objected to on many grounds, only one of which we deem necessary to notice. The indictment alleges appellant's name to be Pete Zulkowsky. The testimony all shows that it was the residence of Pete Zulkowsky that was searched. In the affidavit for a search warrant it was alleged that certain incriminating articles therein set out and the premises were in charge and control of Pete Zulaposkie. The search warrant commanded the officers to search the premises of Pete Zoulaposkie. The point was properly preserved below and is here presented as error that the affidavit and warrant were insufficient because they each failed to give the name of the appellant and that the one given is variant from the name of appellant and that such failure to name the appellant renders both of said instruments *Page 354 insufficient as the basis for the search. It was indispensably necessary under the facts of this record that the name of the appellant appear in the affidavit and search warrant since he was known. Tillery v. State, 114 Tex.Crim. Rep., 24 S.W.2d 84, and Naulls v. State, 115 Tex.Crim. Rep., 27 S.W.2d 180, this day decided. Ollison v. State, 112 Tex. Crim. 354,17 S.W.2d 62. It appears from the record here without dispute that the premises searched belonged to Pete Zulkowsky. We do not think that Zulkowsky and Zulaposkie can be sounded alike "without doing violence to the powers of the letters found in the variant orthography." Unless they may be, the variance is fatal. Short v. State, 98 Tex. Crim Rep., 472,266 S.W. 419. The two names are not idem sonans. Short v. State, supra, and authorities therein cited; Branch's P. C., Sec. 24, for full collation of authorities. It being indispensably necessary to name the person in possession of the premises searched under the facts of this record and such name not appearing in the affidavit, we are of the opinion that the evidence of the searching officers was improperly admitted. For this error, the judgment is reversed and cause remanded. Reversed and remanded. 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. ON MOTION FOR REHEARING.