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THE

AMERICAN AND ENGLISH

ENCYCLOPÆDIA OF LAW.

SPELLING (See also INDICTMENT, vol. 10, p. 548; NAME, vol. 16, p. 122).—The formation of words by letters; orthography. Incorrect spelling does not vitiate a written instrument, if the intention clearly appears. This rule applies with full force to the written verdict of a jury, it having been frequently held that when the sense is clear, neither bad spelling nor ungrammatical findings avoid the verdict.2

1. Black's L. Dict.; Bouv. L. Dict.; State v. Hedge, 6 Ind. 330.

Incorrect Spelling Disregarded.-Incorrect spelling was disregarded in the following cases: "Octagenta," "Septemgenta," "Sewtene Pounds," cited James Osborn's Case, 10 Rep. 133a; quadrans," Cromwell v. Grunsden, Salk. 462; 1 Ld. Ray. 335: 5 Mod. 278; "Tenerie and Obligarie," Dodson v. Kayes, Yelv. 193; "nobules" for "robilibus," Matthew . Purchins, Cro. Jac. 203; "threty-two ponds," for thirty-two pounds, Hulbert v. Long, Cro. Jac. 607; "Joaem," without any dash over it, for "Johannem," "quinginta." Downs v. Hathwaite, Cro. Car. 415; "Terdecem," Hopehill v. Searle, Cro. Car. 386; 'Septuagintis" for "Septingentis," Walter v. Pigot, Moore 645; see also Cro. El. 896; "Octogessim," Moore 864; see other cases collected, 2 Rolle Abr., p. 146 et seq., tit. "Obligation."

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In Hogans v. Carruth, 19 Fla. 90, the court, by Westcott, J., said: “As to the mistake in spelling the word presence, it is entirely immaterial.

The law fortunately is far from being strict in requiring any great accuracy or precision in respect to what is written, so far as the rules of grammar or orthography are concerned, or as to the chirography or evenness of the page or the straightness of the lines." In Watters v. Bredin, 70 Pa. St. 237,

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after reciting a deed the court said: "I have omitted the inaccuracies in spelling, for mala grammatica non vitiat chartam."

v.

Cases Where the Badly Spelled Word Was Held to Avoid the Deed.—“ Teneri in terengentate liberis," Hills Cooper, Čro. Jac. 603; "Octigent," Fitzhughe's Case, Hob. 19; Quimquagent," Parry v. Dale, Yelv. 95.

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See as to the effect of bad spelling,. whereby it is doubtful what is meant, Fielder v. Troy, Sty. 257.

2. Snyder . U. S., 112 U. S. 216; Koontz v. State, 41 Tex. 570; Haney v. State, 2 Tex. App. 504; Krebs v. State, 3 Tex. App. 349; Taylor v. State, 5 Tex. App. 569; McCoy v. State, 7 Tex. App. 379; Pepper v. Harris, 78 N. Car. 71.

Thus in Hoy v. State, 11 Tex. App. 32, where a verdict of guilty was found, the jury assessed the defendant's punishment at "two years in the State penitenilery." The court, by White, J., said: “As to the verdict, the misspelling of the word 'penitentiary' is upon a par with the spelling of the same word in the verdict in the case of McMillan v. State, 7 Tex. App. 100, in which it was held that misspelling does not vitiate a verdict, when no doubt can be entertained as to the words in

tended, or as to their meaning."

In McCoy v. State, 7 Tex. App. 379, the verdict assessed the prisoner's

The rule of idem sonans has received exhaustive treatment in another article. In addition to the numerous cases there cited as illustrative of the doctrine, the following lists are appended.2

punishment at "a five years in the State prisin." This was held a suffi

cient verdict.

In Wooldridge v. State, 13 Tex. App. 443; 44 Am. Rep. 708, it was held that a verdict in a murder case which read, "We the jury find the defendant guilty of murder in the fist degree," was insufficient, illegal, and would not support a judgment of conviction. The case has been much criticised. See 27 Alb. Law J., pp. 341, 381, 422; 16 Cent. L. J. 361, 378, 415.

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In Walker v. State, 13 Tex. App. 618, the court held the verdict of gilty of mrder in the first degree" to be valid. The court reconciles this decision with its decision in the case just cited as follows: "By the ninth assignment of error the sufficiency of the verdict as returned into court, and upon which the judgment of conviction is based, is called in question. This verdict as we copy it from the judgment entry, the original not having been sent up with the record, reads as follows: Wee the jurors finde the defendant gilty and of mrder in the first degree, and assess his confinement in the penetentiary for life.' It is objected to this verdict, (1) that it finds defendant guilty of no offense known to the law; and (2) that it does not assess the punishment as required by law. It will be perceived that in the verdict the defendant is found guilty of 'mrder,' the letter u' being left out of the word which the jury evidently intended to use. In the Wooldridge case, decided by this court at the present term, ante, 443, the rules governing verdicts in murder cases were elaborately discussed, and it is unnecessary for us to reiterate them. In that case the wordfist' was used in the verdict, instead of the wordfirst,' in finding the degree of the murder. It was held that these two words were well known and commonly used words, having entirely different meanings, and not sounding alike, and that the one could not be substituted for the other, or construed to mean the other, and that the verdict was insufficient. It was, however, expressly stated in the opinion in that case, that as the word 'fist' used in the verdict did not have the sound of the word 'first,' which should have been used,

In

the question of idem sonans was eliminated from the case, and was not considered. In the case before us the question of idem sonans does arise, and directly affects the verdict. If the word mrder' used in the verdict is not idem sonans with the word 'murder,' then manifestly this verdict is insufficient and must be set aside. But if the words are idem sonans, then the verdict must be sustained, notwithstanding the bad spelling of the word in the verdict, for it is well settled that incorrect orthography or ungrammatical language will not vitiate a verdict. Taylor v. State, 5 Tex. App. 569; Koontz v. State, 41 Tex. 570; McMillan v. State, 7 Tex. App. 100; Curry v. State, 7 Tex. App. 91. applying the doctrine of idem sonans, the rule is that if the words may be sounded alike without doing violence to the power of the letters found in the variant orthography, then the words are idem sonans, and the variance is immaterial. Henry v. State, 7 Tex. App. 388; Ward v. State, 28 Ala. 53; Gresham v. Walker, 10 Ala. 370; Gahan v. People, 58 Ill. 160. Applying this rule to the word 'mrder,' used in the verdict, we hold it to be idem sonans with the word 'murder,' as properly spelled, and that the variance in the orthography of the two is not a material one, but that their sound is so nearly the same, when pronounced, that there is scarcely, if in fact, any difference. are not different words correctly spelled and not sounding alike, as in the Wooldridge case, before referred to, but are in fact the same word differently spelled, but sounding alike. We think also that the doctrine of idem sonans applies to and governs verdicts in the same manner, and to the same extent, that it does in other matters. Haney v. State, 2 Tex. App. 504; Taylor v. State, 5 Tex. App. 569; Huffman v. Com., 6 Rand. (Va.) 685; Williams v. State, 5 Tex. App. 226; State v. Smith, 33 La. Ann. 1414." See also NAME, vol. 16, p. 122.

They

Indictments. The effect of misspelling in an indictment is fully treated under the title INDICTMENT, vol. 10, p. 548. 1. See NAME, vol. 16, p. 122.

2. Idem Sonans.-Abbotsan and Ab. basan, Cotton's Case, Cro. Eliz. 258;

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Adderson and Anderson, Van Pelt Pugh, 1 Dev. & B. (N. Car.) 210; Augustine and Augustina, Com. v. Desmarteau, 16 Gray (Mass.) 15; Aramanti and Amaranti, Musquez v. State, 41 Tex. 226; Bagswell and Bagwell, Case 2. Bartholow, 21 Kan. 300; Baswell and Basil, Hyde v. Watson, 1 Den. (N. Y.) 670; Berry and Barry, Rateree v. State, 53 Ga. 570; Beton and Belton, Belton v. Fisher. 44 Ill. 32; Biddulph and Puthuff, Pillsbury v. Dugan, 9 Ohio 120; 34 Am. Dec. 427; Blackman and Blackburn, Miller v. State, 53 Miss. 403; Boswell and Roswell, Brooking v. Dearmond, 27 Ga. 58; Braddy and Brady, Dickerson V. Brady, 23 Ga. 161; Buter and Butler, Reeves v. State, 20 Ala. 33; Byles and Bayles, Hoagland v. Culvert, Spenc. 288; Byrne and Burns, State v. Burns, 8 Nev. 251; Cahew and Cahill, State v. Thompson, 20 N. H. 250; Corrigan and Corgan, Prince v. McLean, 17 U. C. Q. B. 463; Coonrod and Conrad, Carpenter v. State, 8 Mo. 291; Currier and Kiah, Tibbets v. Kiah, 2 N. H. 557; Daniel and David, Jackson 7. Stanley, 10 Johns. (N. Y.) 133; David and Daniel, Com. v. Riggs, 14 Gray (Mass.) 376; 77 Am. Dec. 333; Davies v. Pratt, 16 C. B. 586; 81 E. C. L. 586; Davis and Davids, Taylor v. Com., 20 Gratt. (Va.) 825; Danden and Darden, State v. Turner, 25 La. Ann. 573; De Hust and De Hurst, Mortimer v. Oger, Cro. Eliz. 258; Domick and Domeck, Olive v. Com., 5 Bush (Ky.) 376; Dougal and Dugald, Barnes v. People, 18 Ill. 52; Edward Charles and Charles Edward, Hands v. Clement, 11 M. & W. 816; Edward E. T. and E. E. T., Union Bank v. Tillard, 26 Md. 446; Edward and Edwin, Mann v. Birchard, 40 Vt. 326; Grant v. Clapp, 106 Mass. 453: Elbertson and Elberson, Elberson v. Richards, 42 N. J. L. 70: Ellen and Helen, Taylor v. Com., 20 Gratt. (Va.) 829; Erlin and Erlwin, Cromwell v. Grundsen, Salk. 462; Farelly and Farley, Leonard v. Wilson, 2 C. & M. 589; Flory and Florez, State v. Florez, 5 La. Ann. 429; Foster and Forster, Rutland v. Forster, Cro. Jac. 77; Franciscus and Francis, Griffith v. Middleton, Cro. Jac. 425; Garret and Jared, Graham v. Roberts, 1 Head (Tenn.) 56; Gigger and Jiger, Com. v. Jennings, 121 Mass. 47; 23 Am. Rep. 249; Gardiner and Gardner, and Gravaier and Gravier, Rector v. Taylor, 12 Ark. 128; Harman and Herman, Kahn v. Herman, 3 Ga. 266; Hopper and Harper, Jester v.

Hopper, 13 Ark. 43; Harris and Harrison, State v. France, 1 Overt. (Tenn.) 434; Henderson and Henry, Henry v. Curry, 1 Abb. Adm. 433; Hubble and Hubbles, Cotton v. State, 4 Tex. 260; Hudson and Hutson, Chapman v. State, 18 Ga. 736; Hutchinson and Hutcheson, State v. Stedman, 7 Port. (Ala.) 495; Janes and James, Janes v. Whitbread, 11 C. B. 406; 73 E. C. L. 406; Jna. and Jno.. U. S. v. Hinman, Baldw. (U. S.) 292; Joan and Jane, Griffith v. Middleton, Cro. Jac. 425; Keeland and Kneeland, Hammond v. Reddin, Dudley (Ga.) 177; Land and Lance, Davenport v. State, 38 Ga. 184; Lington and Lincoln, Armstrong v. Colby, 47 Vt. 359; Litherbarrow and Letherbarrow, Letherbarrow . Ward, 5 Jur. 388; Little and Lytle, Lytle v. People, 47 Ill. 422; Littlemore and Lidamore, Parker v. People, 97 Ill. 32; Loyons and Lyons, Roe v. Doe, 32 Ga. 39; Lutle and Little, O'Neil v. State, 48 Ga. 66; McConnellsburg and Connelsburg, Gibson v. Gibson, 20 Pa. St. 9; Margaret N. and Margaret Ann, Dilts v. Kinney, 15 N. J. L. 130; Malay and Mealy, Čom. v. Donovan, 13 Allen (Mass.) 571; May and Mayo, Mayo v. State, 7 Tex. App. 342; Mawre and Moore, Countess of Rutland's Case, 5 Co. 42; Montacue and Montague, State v. Montague, 2 McCord (S. Car.) 257; Mordern and Modern, Langdale v. People, 100 Ill. 263; Moss and Morse, Litchfield v. Farmington, 7 Conn. 108; Ogilbee and Ogilsbee, Hamilton v. Langley, 1 McMull. (S. Car.) 498; O'Mara and O'Meara, O'Meara v. North America Min. Co., 2 Nev. 112; Palus Cheal and Paulus Cheale, Codwell's Case, 5 Co. 42; Peirs and Peter, Griffith v. Middleton, Cro. Jac. 425; Peregran and Peregrine, Dunn v. Clements, 7 Jones (N. Car.) 58; Pettis and Pittis, Hutto v. State, 7 Tex. App. 44; Pillsby and Pillsbury, Pillsbury v. Dugan, 9 Ohio 117; 34 Am. Dec. 427; Redus and Reder, Hunter v. State, 8 Tex. App. 75; Robert Rodger Strang and Robert Roger Strong, In re Smith, 10 C. B. N. S. 344; 100 E. C. L. 342; Roffenberg and Rifenberg, Whitaker v. Wheeler, 44 Ill. 440; Samul and Samuel, Fenn v. Alston, 11 Mod. 284; Seam and Couture, Augur v. Couture, 68 Me. 427; Sarmine and Sarmin, Cull v. Sarmin, 3 Lev. 66; Seden and Soden, Wyatt v. Barwell, 19 Ves. 435; Shipcott and Shapcott. Bowen v. Shapcott, 1 East 542; Sin Groon and Lin Goon, People v. McNealy, 17 Cal.

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