¶1Dissenting Opinion.
¶2— The question here is whether or not
¶3a person bearing a name is identified prima facie by the use of that name until proof to the contrary appears. Names are used in society solely for the purpose of identifying human beings. A reference to a person by a certain name prima facie identifies that person.
¶4It appears to me that the result of the majority opinion is that every time the name of a defendant in *81a criminal case is mentioned in testimony, there must be additional testimony to show that it refers to the specific individual who is the defendant in the case; that there is no assumption whatever that a name mentioned in testimony on the witness stand refers to a defendant of the same name unless that witness or other testimony specifically connects the defendant as that individual. I feel this is not realistic.
¶5If names are not sufficient to identify persons in a criminal case without additional proof, then reference to any other geographical locations, states, cities or towns will be insufficient identification of the location without technical proof showing the exact geographical spot.
¶6It is contended that the prima facie assumption (that when the names are the same it may be assumed the individual is the same) violates the presumption of innocence and casts upon the defendant the burden of denying it by proof. Under such reasoning all rules of prima facie evidence are unconstitutional since they place upon the defendant, if he desires to deny the prima facie case, the choice of taking the stand himself or offering evidence to the contrary.
¶7The Supreme Court of the United States has made very plain that although the Constitution of the United States and the State Constitution give the defendant the right not to testify, it does not prevent the State from building up such a case that the defendant may feel he has no choice but to testify.
¶8In Stein v. New York (1953), 346 U. S. 156, 73 S. Ct; 1077, 97 L. Ed. 1522, the court said, where the defendant complained that he had no choice but to testify as a prima facie case was made:
*82“The Constitution safeguards the right of. a defendant to remain silent; it does not assure him that he may remain silent and still enjoy the advantages that might have resulted from testifying.”
¶9There is not involved in this .case any presumption of guilt against the defendant. The question is: What facts make out a prima facie case? That principle is involved in every criminal case. Once a prima facie case is made out, the defendant must determine whether he desires to take the stand or not. Prima facie evidence has no relevancy whatever to the constitutional right of a defendant not to testify if he so chooses.
¶10We have, under the principle of idem sonans, some authority in this State on the question involved. Under that principle, even though the names be spelled differently, if they sound alike, it may be assumed that they refer to the same person until the contrary appears. If the sound of the two names is sufficient to identify the person even though the spelling of the names be different, then where the spelling is the same and the pronunciation is the same, there is all the stronger reason for assuming that the identity is the same. In the criminal case of Goldstine v. State (1955), 234 Ind. 388, 126 N. E. 2d 581, that principle was applied. The People v. Burford (1947), 396 Ill. 158, 71 N. E. 2d 340; Aultman, Miller & Co. v. Timm et al. (1883), 93 Ind. 158; 21 I. L. E., Names, §§4 and 6; 65 C. J. S., Names, §15, p. 30; Underhill’s Criminal Evidence, 5th Ed., §223, pp. 527, 528.
¶11The trial court and the jury in this case had a right to assume that the appellant was the same person as that named in another conviction with the *83samé name until evidence to the contrary was presented.
¶12The majority opinion argues that on appeal before us it must appear that the proof was “beyond a reasonable doubt” in the trial court. I cannot see that “proof beyond a reasonable doubt” has any application here, since the principle goes to the weight of the evidence in the trial court in a criminal case and is a matter solely for the jury or the triers of the facts — not this court on appeal. We do not measure here the weight of the evidence as to proof beyond a reasonable doubt. We only consider on appeal whether there is any evidence (prima facie, circumstantial or otherwise) with reasonable inferences to support the verdict. 9 I. L. E., Criminal Law, Sec. 733, p. 229.
¶13In Judge Bobbitt’s opinion he points out that certified copies of the finger prints (from the prison showing the defendant’s previous conviction) were part of the records in this case and that it would have been an easy matter to have taken the defendant’s finger prints for the purpose of comparison. Although that might be the case, still the ease with which corroborating proof could or could not have been made in a criminal case cannot be the criterion by which we. must determine here on appeal the sufficiency of the evidence. Most cases would not be here on appeal if the foresight were as good as the hindsight.
¶14The judgment of the trial court should be affirmed.