#### Burton *v.*The State.

*Violating Prohibition Law.*

(Decided April 21, 1914.

65 South. 91.)

*Names; Mem Sonans.*— The names “Burton” and “Burden” are .so similar in sound as commonly and ordinarily pronounced as to be idem sonans; where such is the case, a difference in spelling is immaterial, and a slight difference in pronunciation unimportant, if the attentive ear finds difficulty in distinguishing between the pronunciation.

Appeal from Coffee Circuit Court.

Heard before Hon. H. A. Pearce.

Pomp Burton was convicted of violating the prohibition law and he appeals.

Affirmed.

J. A. Carnley, for appellant.

The .name “Burton” and “Burden” are not idem sonans, as they neither have the same sound nor the same spelling, and the. court was in error in holding as a matter of law that they were idem *sonans.*— Lynes *v.*State, 5 Port. 286; *Humphries v. Whitten,*17 Ala. 30; *Monkers v. State,*87 Ala. 94; *Adams v. State,*67 Ala. 89; *Merlette v. State,*100 Ala. 42; *Noble v. State,*139 Ala. 92.

R. C. Briokell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.

Usually, the question of idem sonans is a matter for the jury to determine, but when it arises on demurrer, and the names have substantially the same sound, the court takes cognizance of the fact and may hold as a matter of law that they are idem sonans. — 29 Cyc. 272-277; *Sayres v. State,*30 Ala. 15; *Brooks v. State,*83 Ala. 79.

*215PELHAM, J.

Without considering or passing upon the question of whether or not the original plea in abatement filed by the defendant in the court below and sent to this court in response to a writ of certiorari issued on appellant’s motion could be looked at to contradict the recitals in the transcript, and without desiring to be understood as passing on the'loose wording in the record as. sufficiently showing a judgment entry of the court’s rulings on the state’s demurrer to the defendant’s plea, but considering the real question sought to be presented, the only thing for ns to determine on this appeal is whether or not the name *Pomp Burton*and *Pomp Burden*is idem sonans.

In applying the doctrine of idem sonans it is universally accepted that, if two proper names, as commonly and ordinarily pronounced in the English language, sound alike, a difference in their spelling is immaterial; and that much latitude is permissible in pronunciation, slight differences being unimportant, if the attentive ear finds difficulty in distinguishing between the pronunciation of the two names. It has been held and cited with approval in this state that: “The proper rule in such cases is that, if two names, according to the ordinary rules of pronouncing the English language, may be sounded alike, without doing violence to the letters found in the variant orthography, then the variance is, prima facie at least immaterial, and may be so decided by the *court.”*— Rooks *v.*State, 83 Ala. 79, 80, 3 South. 720, and authorities there cited. Applying this rule to the names *Burden*and Burton, it seems to us that they are idem sonans, and that it was properly so held by the trial court as a matter of law.

Under our holding, an affirmance necessarily follows.

Affirmed.