Donnel v. United States

Pee Cueiam, Mason, Chief Justice. Two indictments were found against the plaintiff in error under the gaming act in which his name [142] was written Donald. To each of these he pleaded in abatement, alleging that his name was Donnel. Demurrers were filed to these pleas and those demurrers sustained on the ground that the two names were idem sonans. This is the principal error, complainad of. Courts are not fastidious in enforcing absolute precision in regard to orthography. Names admitting of the same pronunciation are often made up of very different letters. In these cases, a mistake of one mode of spelling for another is unimportant, even in an indictment. The public prosecutor is not bound to ascertain the particular letters used by the accused in writing his name, for this might often be impracticable. Rut where the orthography of the indictment composes a name which by the ordinary rules of pronunciation produces a different sound from the true one, the mistake will be fatal. In the present case perhaps the ear would not readily catch the difference in pronunciation, still the names are very different. Even if it be a fact that the two names are ordinarily pronounced so nearly alike as not to be distinguishable, that is a fact which we cannot judicially know. We think therefore the court erred in deciding that the two names were of the same sound. The judgment below will therefore be reversed.