
    Commonwealth vs. Florence Donovan.
    The question whether Mealy is idem sonans with Malay or Maley, when it arises ir evidence in the trial of an indictment, on the general issue, is for the jury, and not for the court.
    Indictment for larceny from the person of John Meaiy.
    At the trial in the superior court, before Brigham, J., a wit ness answering to that name was called, and testified to the larceny from himself of the property charged in the indictment. On cross-examination, he testified that his name was spelled Malay or Maley, but never Mealy ; and that he was called Maley; but never Mealy. This was all the testimony offered as to the name of the person from whom the larceny was committed. The defendant asked the court to rule “ that if they should find his name to be Malay or Maley, and not Mealy, then they should acquit the defendant.” The judge declined so to rule,, but left it to the jury to say whether the name proved was idem sonans with the one in this indictment, and whether he was known by and answered to the name of John Mealy as well as to the name of John Malay.
    The jury returned a verdict of guilty, and the defendant alleged exceptions.
    
      E. J. Sherman, for the defendant.
    
      Mealy is not the same name with Malay or Maley, nor idem sonans. The averment of the name of the person from whom the property was stolen must be proved as laid. The whole testimony on this point is reported. A specific instruction was asked for, that if the jury should find the name to be different from that alleged, they should acquit the defendant. This instruction should have been given. Commonwealth v. Mehan, 11 Gray, 321. Commonwealth v. Shearman,, 11 Cush. 546.
    
      Reed, A. G., for the Commonwealth.
   Gray, J.

The question whether one name is idem sonans with another is not a question of spelling, but of pronunciation, depending less upon rule than upon usage, which, when it arises in evidence on the general issue, is for the jury and not for the court, and was rightly submitted to the jury in this case. Commonwealth v. Mehan, 11 Gray, 322, 323. Commonwealth v. Gill, 14 Gray, 400. Exceptions overruled.  