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LEWIS OSCAR YOUNG v. STATE OF MISSISSIPPI

APRIL 08, 1987

LEWIS OSCAR YOUNG
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, P.J., AND PRATHER AND ANDERSON, JJ.

ANDERSON, J., FOR THE COURT:

This is an apeal from the Circuit Court of Jackson County, wherein Lewis Oscar Young was convicted of rape and sentenced to twenty-two years' imprisonment without possibility of parole under the provisions of Mississippi Code Annotated, Section 99-19-81 (Supp. 1986), one of our two habitual offender statutes.

We have reviewed the assignments of error pertaining to the principal charge of rape and are of the opinion that none of them has sufficient merit to justify detailed discussion. Unfortunately, such is not the case with the habitual offender portion of the trial.

 At the sentencing hearing, the state introduced certain documents tending to show that Young had three prior felony convictions. They can be summarized as follows:

 CONVICTION OF LOCATION TYPE OF DOCUMENT

 Rape Adams Co. Undated document from Circuit Court stating that" Louis Young "pleaded guilty and directing that he be confined to the State Penitentiary

 Grand Larceny Tallahatchie (1) indictment of" Louis (auto) County Young "(December term,

 1959) (2) Letter from Circuit Clerk informing prison authorities of conviction in Cause No. 3680

 Robbery Tallahatchie (1) indictment of" Louis County Young "(December term,

 1959) (2) letter from circuit clerk informing prison authorities of conviction in Cause No. 3678 (3) court transcript recording conviction in Cause No. 3678 on December 7, 1959.

 At trial, Young's counsel raised several objections to these documents. The first was that the state never established by independent testimony that the defendant was the same man referred to in the documents. (In the present case, the defendant was tried as" Lewis Oscar Young ", whereas the documents refer to" Louis Young. ")

 Mississippi follows the general rule that an identity between the name in a document and the name of the defendant creates a rebuttable presumption that the two people are in fact identical. E.g., Course v. State, 461 So. 2d 770, 771 (Miss. 1984); Goldsby v. State, 240 Miss. 647, 674, 123 So. 2d 429, 439 (1960); McLeod v. Bridges, 180 Miss. 585, 588-89 (1938).

 Appellant retorts that this rule does not apply here, since the names" Lewis Oscar Young "and" Louis Young "are different. This difference, however, is governed by the principle of idem sonans; where names sound substantially alike, minor variances in their form are considered immaterial. 65 C.J.S. Names 14." Lewis "and" Louis "are plainly idem sonans. State v. Murrary, 16 N. C. App. 638, 92 S.E.2d 688, 689 (1972). The fact that the earlier documents omit the defendant's middle name is of no legal consequence. E.g., State v. Fields, 616 S.W.2d 86, 87 (Mo. App. 1981).

 A more serious objection is that during the sentencing phase, the trial judge considered evidence not properly before him and conducted a sentencing hearing of insufficient scope. At the beginning of the hearing, defense counsel moved to exclude the state's documents because no foundation had been laid for them. In overruling this motion, the trial judge used language clearly showing that he was relying on evidence introduced in the trial for rape. He said:" and of course, having sat in this trial for two days and not only ...


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