Opinion
No. 27819.
May 27, 1929. Suggestion of Error Overruled June 10, 1929.
1. CRIMINAL LAW. In larceny prosecution, permitting premature amendment showing correct name of owner of calf stolen held harmless ( Hemingway's Code 1927, section 1329).
In prosecution for larceny, permitting amendment of indictment, showing correct name of owner of calf stolen, to be prematurely made, held harmless, where amendment would have been permissible under Hemingway's Code 1927, section 1329 (Code 1906, section 1508), after evidence was heard.
2. INDICTMENT AND INFORMATION. Amendment of indictment changing name of owner of calf stolen from L.H. to L.T. held permissible, where evidence showed it was calf grand jury had in mind ( Hemingway's Code 1927, section 1329).
In larceny prosecution, where indictment charged stealing of cow belonging to L.T. and calf belonging to L.H., amendment showing L.T. owned calf held permissible, under Hemingway's Code 1927, section 1329 (Code 1906, section 1508), where evidence disclosed theft by defendant, at same time and place, of cow and calf, the property of L.T., and that it was this cow and calf that grand jury had in mind when it found indictment, and therefore identity of offense was not changed by amendment.
3. CRIMINAL LAW. Continuance requested after amendment of indictment held properly refused, where it was unnecessary to enable defendant to meet case.
Continuance requested after amendment of indictment regarding name of owner of calf stolen held properly refused, where it was unnecessary in order to enable defendant to meet case made by amendment.
4. LARCENY. Evidence sufficiently established that person named in indictment as owner was owner of cattle stolen.
In larceny prosecution, evidence held to sufficiently establish that person named as owner in indictment was owner of cattle stolen.
APPEAL from circuit court of Panola county, HON. GREEK L. RICE, Judge.
Richard Denman, of Charleston, and Creekmore Creekmore, of Jackson, for appellant.
The amendment of the indictment by the district attorney before any proof was taken was unauthorized by statute, and error.
Sec. 1329 of Hemingway's 1927 Code; Miller v. State, 53 Miss. 403; Shurley v. State, 90 Miss. 415; Knight v. State, 64 Miss. 802.
The amendment was improper and unauthorized as it was one of substance and not of form.
Sec. 1329 of Hemingway's Code of 1927; 31 C.J., p. 823; White v. State, 95 Miss. 76, 48 So. 611; Hudson v. State, 73 Miss. 784; Tyler v. State, 69 Miss. 395; Blumenberg v. State, 55 Miss. 528; Sec. 26 of the Constitution of Mississippi; Pitts v. State, 115 Miss. 189.
The state failed to prove ownership of the property as alleged in the indictment, as it was laid before, or after, the amendment.
McDowell v. State, 68 Miss. 348; Unger v. State, 42 Miss. 643.
After the indictment was amended the defendant should have been granted a continuance.
Sec. 879, 16 C.J., p. 485; Foreman v. State, 95 Miss. 77, 48 So. 611; Miller v. State, 53 Miss. 403.
James McClure, of Sardis, for the state.
The amendment of the indictment by the district attorney before proof was taken was authorized.
Sec. 1329, Hemingway's Code 1927; Washington v. State, 118 So. 719.
Under Section 26 of the Constitution of 1890 the appellant was fully informed of the nature of the case charged against him.
The law recognizes the right of amendment to indictments, when the amendment does not change the identity of the offense charged.
Sec. 1329, Hemingway's Code of 1927; Blumenberg v. State, 55 Miss. 528; Mac Haywood v. State, 47 Miss. 1. Silas M. Murrah v. State, 51 Miss. 675; Robert Garvin v. State, 52 Miss. 207; Knight v. State, 64 Miss. 802; Thomas Peebles v. State, 55 Miss. 434; Eliza Miller v. State, 52 Miss. 403; Freeman v. State, 108 Miss. 818; Smith v. State, 112 Miss. 248; Graves v. State, 114 So. (Miss.) 123.
It is not the law that the appellant was guaranteed a continuance because the amendment was authorized by the court, but he was only entitled to a continuance, when he would be prejudiced by the court not giving it to him.
The appellant was not prejudiced by the trial court failing to grant him the continuance as applied for.
Knight v. State, 64 Miss. 806.
Appellant failed to secure any ruling of the trial court on the exception to the evidence of Maggie Walton when it was offered and cannot now complain of the admission of this evidence.
Wilson v. Bridgeforth, 108 Miss. 199.
J.A. Lauderdale, Assistant Attorney-General, for the state.
The amendment of the indictment by the district attorney before any proof was taken was authorized by statute.
Sec. 1329, Hemingway's Code of 1927; Washington v. State, 118 So. 719.
The proposed amendment did not change the identity of the offense and the amendment was properly made. Blumenberg v. State, 55 Miss. 528, text 530; Knight v. State, 64 Miss. 802; Sec. 3081 of the Code; Peebles v. State, 55 Miss. 434; Miller v. State, 53 Miss. 403; Winston v. State, 101 Miss. 101; Thurmond v. State, 94 Miss. 1; Smith v. State, 112 Miss. 248; Smith v. State, 103 Miss. 356; Freeman v. State, 108 Miss. 818; Graves v. State, 148 Miss. 62.
The refusal of request for continuance, after amendment of indictment, was proper.
Knight v. State, 64 Miss. 802.
Argued orally by H.H. Creekmore and Richard Denman, for appellant and by James McClure and J.A. Lauderdale, Assistant Attorney-General, for appellee.
This is an appeal from a conviction of grand larceny. The indictment as returned by the grand jury alleged that the appellant "did unlawfully, willfully, and feloniously take, steal, and carry away one certain cow of the value of fifty dollars, the personal property of Lewis Taylor, and one yearling calf of the value of fifteen dollars, the personal property of Lewis Hamilton." When the case was called for trial, and before any evidence was heard, the indictment was amended by striking out the word "Hamilton" and inserting in lieu thereof the word "Taylor," making the sentence in which the amendment was made read as follows: "And one yearling calf of the value of fifteen dollars, the personal property of Lewis Taylor." This amendment was prematurely made, but if it would have been permissible under section 1508, Code of 1906 (Hemingway's Code 1927, section 1329), after the evidence was heard, no harm was done thereby to the appellant, and he cannot complain thereat. Washington v. State (Miss.), 118 So. 719.
The amendment changing the name "Lewis Hamilton" to "Lewis Taylor" is clearly within the provisions of the statute hereinbefore referred to, unless it changed the identity of the offense sought to be charged by the indictment. The evidence discloses the theft by the appellant, at the same time and place, of a cow and a calf, the personal property of Lewis Taylor, and it is clear from the evidence that it was this cow and calf that the grand jury had in mind when it found the indictment. The identity of the offense sought to be charged in the indictment was not changed by the amendment, and was therefore within the permission of the statute.
The cases cited by counsel for the appellant are not in conflict herewith, for in each of them the rule applied was identical with that applied here, and in each of them the amendment was not allowed, for the reason that the court could not say that the identity of the offense sought to be charged was not changed by the amendment made to the indictment.
The continuance requested after the amendment of the indictment was properly refused, for the reason that it does not appear that a continuance was necessary in order to enable the appellant to meet the case made by the amendment.
There is no merit in the appellant's contention that Lewis Taylor was not proven to be the owner of the cattle. The witness Wiley testified more than once to this.
No error was committed in the court below with reference to the testimony of Maggie Walton.
Affirmed.