State v. Laymon

Annotate this Case

348 N.W.2d 902 (1984)

217 Neb. 464

STATE of Nebraska, Appellee, v. Tony I. LAYMON, Appellant.

No. 83-704.

Supreme Court of Nebraska.

May 25, 1984.

C.E. Danley, Beatrice, for appellant.

Paul L. Douglas, Atty. Gen., and Linda L. Willard, Lincoln, for appellee.


BOSLAUGH, Justice.

The defendant, Tony I. Laymon, appeals from his conviction and sentence for third offense driving while under the influence of alcoholic liquor. No issue is raised as to the defendant's conviction and sentence for refusal to submit to a blood, breath, or urine test.

The defendant's only contention on this appeal is that the State failed to prove two prior convictions. The certified copies of prior convictions received in evidence at the enhancement proceeding show Tony I. Layman, not Tony I. Laymon, as the defendant.

*903 The defendant made no objection to the offer of the certified copies at the enhancement proceeding. A defendant may not predicate error on the admission of evidence to which a timely objection was not made. State v. Holland, 213 Neb. 170, 328 N.W.2d 205 (1982).

The rule of idem sonans is applicable to both civil and criminal proceedings. State v. Cardin, 194 Neb. 231, 231 N.W.2d 328 (1975). Under the doctrine of idem sonans a mistake in the spelling of a name is immaterial if both modes of spelling have the same sound and appearance. State v. Journey, 201 Neb. 607, 271 N.W.2d 320 (1978). See, also, Strasser v. Ress, 165 Neb. 858, 87 N.W.2d 619 (1958); State v. Paulson, 176 Neb. 126, 125 N.W.2d 194 (1963); Bunge v. State, 87 Neb. 557, 127 N.W. 899 (1910); Carrall v. State, 53 Neb. 431, 73 N.W. 939 (1898).

The names Layman and Laymon are so similar in pronunciation and appearance and the variation is so slight that they must be regarded as idem sonans. Moreover, the defendant offered no evidence and has not claimed or demonstrated that he is not the Tony I. Laymon who was twice convicted of drunk driving. We conclude that the defendant was not misled or prejudiced by the admission into evidence of the certified copies.

The judgment is affirmed.