
    DENNINGTON v. STATE.
    (No. 8447.)
    (Court of Criminal Appeals of Texas.
    Oct. 8, 1924.
    Rehearing Denied Nov. 5, 1924.)
    1. Indictment and information' &wkey;»79 — Misspelling ’’administer” held immaterial.
    Misspelling of “administer” in indictment for false swearing, not changing sense or meaning of language used, was immaterial, in view of Vernon’s Ann. Code Or Proc. 1916, art. 476.
    2. Perjury <&wkey;26(4) — Indictment for false swearing held proper.
    Indictment for false swearing, to obtain marriage license, alleging generally that accused made false affidavit, setting it out, “whereas in truth and in fact * * • * Miss A. * * * had not attained the age of 18 years, etc.,” being statement alleged as false in pleading relied on, in proof, and as submitted in charge, held proper.
    3. Names <&wkey;I6(2) — Spelling of name “Aleñé Trimmer” in indictment held “idem sonans” with “Eileen Trimier,” testified to as correct.
    Spelling of name of female, in .indictment for false swearing to obtain marriage license for minor female, “Aleñe Trimmer,” held idem sonans with spelling “Eileen Trimier,” which she testified was correct, so that variance was immaterial. ’
    4. Names <&wkey;!6(l) — If names in indictment and proof can be sounded alike, variance immaterial.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 456, if names in indictment and proof can be sounded alike without doing violence to the letters found in the differently spelled words, variance between them is immaterial.
    5. Perjury <&wkey;33 (5) — Proper taking of affidavit of witness, to age of female applicant for marriage license, inferable from evidence.
    There is no invariable formula for taking affidavit of witness to age 'of female applicant for marriage license, and, in prosecution for false swearing, proper swearing by clerk 'was sufficiently shown by clerk’s testimony that accused signed the affidavit and'he swore accused to it.
    Appeal from District Court, Knox County; J. I-I. Milam, Judge.
    R. C. Dennington was convicted of false swearing, and he appeals.
    Affirmed.
    W. H. Murchison, of I-Iaskell, and Black & Morrow, of Austin, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Knox county of false swearing, and his punishment fixed at two years in the penitentiary.

In order to aid his brother in getting a marriage license, appellant signed and swore to the following affidavit:

“The State of Texas, County of Knox. I, R. C. Dennin'gton, of the county of Haskell, do hereby certify that I am acquainted with the parties now applying to the county clerk of Knox county for a marriage license, and that Mr. Hamilton Dennington has attained the age of 21 years and that Miss Aleñe Trimmer has attained the age of 18 years. K. C. Den-nington.
“Sworn to before me this the 10th day of November, 1922. A. E. Propps, County Clerk, Knox County, Tex. [Seal.]”

He was indicted for false swearing, the indictment alleging that he made said, false affidavit, setting it out. Then the indictment states as follows:

“Whereas, in truth and in fact the said Miss Aleñe Trimmer mentioned in said false affidavit as aforesaid had not attained the age of 18 years and was then and there under the age of 18 years, and which false statement, declaration, and affidavit in writing was not required by law, and was not made in the course of a judicial proceeding, and the said R. C. Dennington knew the same to be false at the time he made it, against the peace and dignity of the state.”

There are three bills of exception in the record. In the first is complaint of the refusal o-f a motion to quash the indictment. The misspelling of the word “administer” did not change the sense or meaning of the language used, and was not material. See collation of authorities under article 476, Vernon’s C. O. P. The authorities cited in support of the remainder of appellant’s attack on the indictment seem lacking in application. They are perjury cases in which it was necessai*y to plead and prove the materiality to some charge, of the alleged false statement; and Brown v. State, 40 Tex. Cr. R. 48, 48 S. W. 169, and Ross v. State, 40 Tex. Cr. R. 349, 50 S. W. 336, but support the rule that when a given statement is pleaded in solido as material, the traverse and proof must be equally as comprehensive. Gabrielsky v. State, 13 Tex. Cr. App. 428, might be cited with approval in the case at bar, for it holds in substance that general allegations that certain statements be false should be followed by a negative in detail as to those particular statements whose falsity is relied on and the truth of the latter should be averred. This is exactly what was done in the instant case. It was alleged in general terms that appellant made a false affidavit, setting it out, and then the particular part whose falsity gave character to the whole affidavit was pointed out and traversed by stating that in truth and in fact Aleñe Trimmer had not attained the age of 18 years but. was under said age. That this was the statement alleged as false in the pleading relied on, and in the proof and as submitted in the charge, is evident from the record. In his charge the learned trial judge told the jury that if they found and believed from the evidence that appellant made the following voluntary statement and affidavit (setting it out), and should find beyond a reasonable doubt that at said time Aleñe Trimmer was under 18 years of age and that the affidavit was false, they should convict. This was followed in another paragraph of the charge by the statement that even though the jury believed from the evidence that Miss Trimmer was under IS years of age, yet if they found from the evidence, or had a reasonable doubt of such fact, that appellant believed her to be 18 years of age or over, they should acquit.

The remaining two bills of exception relate to the question of variance based on the claim that the names “Aleñe Trimmer” and “Eileen Trimier” are not idem sonans; the name of the girl in the affidavit and indictment being stated as Aleñe Trimmer, and in the testimony as Eileen Trimier. When on the witness stand the young lady was asked by state’s attorney how they pronounced her name and she answered, as appears, from the record, that they pronounced it Eileen and the other Trimier. This may have been satisfactory to those who heard, but we who can only read get no light from such testimony.

The rule in this regard, as stated under article 456, Arernon’s O. O. P., is that if the names' can be sounded alike without doing violence to the letters found in the differently spelled words, the variance is immaterial. As to Trimmer and Trimier., the question may be disposed of without further discussion by reference to Escobedo v. State, 88 Tex. Cr. R. 277, 225 S. W. 377, where Alphin and Alphian are held idem sonans, and to Hardy v. State, 86 Tex. Cr. R. 515, 217 S. W. 939, 8 A. L. R. 1357, holding McPherson and MePhersion likewise idem sonans. Reverting to the proper name, if the “a” in Aleñe is pronounced as that letter is in day, may, etc., there would be no trouble here, as the letters “ei” have the sound of “a” in such words as veil, vein, rein, seine, deign, etc. It thus appears that as far as we can tell the names can be sounded alike without violence to the letters in them, and the rule as to idem sonans is met.

The county clerk testified that appellant signed the affidavit and he swore him to it. There is no invariable formula prescribed for taking such affidavit, and we think the testimony sufficient on the proposition that appellant was shown to have been sworn.

Binding no error in the record, the judgment will be affirmed. 
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