Summary
In Gillespie v. State, 221 Miss. 116, 72 So.2d 245 (1954), an amendment to an indictment was upheld in a murder prosecution during trial to change the victim's name from Mack Edwards to Lish Edwards. Davis v. State, 150 Miss. 797, 117 So. 116 (1928), involved a murder prosecution wherein this Court upheld an amendment to an indictment during trial to reflect the victim's name as Man Jones rather than Ernest Jones.
Summary of this case from Bingham v. StateOpinion
No. 39167.
May 10, 1954.
1. Homicide — evidence — sustained murder conviction.
Evidence sustained a conviction of murder.
2. Indictments — amendments — clerical mistake — Christian name.
Where there was a clerical mistake in an indictment for murder as to deceased's Christian name, permitting amendment of indictment prior to trial to state true first name of deceased, was proper under showing made nor was defendant prejudiced or deprived of any substantial right necessary to the ends of justice. Sec. 26, Constitution 1890; Sec. 2532, Code 1942.
3. Continuance — after amendment of indictment — refusal not error.
Refusal to grant defendant's oral motion for a continuance made after amendment of indictment to state true name of alleged victim, was not error, especially where motion itself, and motion for new trial, failed to show by affidavit any way in which defendant was prejudiced, and Supreme Court was satisfied that no injustice resulted from such refusal. Secs. 1520, 2532, Code 1942; Rule 11, Rules of Supreme Court.
Headnotes as approved by Ethridge, J.
APPEAL from the circuit court of Noxubee County; JOHN D. GREENE, JR., Judge.
Ernest L. Brown, Macon, for appellant.
I. The Court erred in sustaining the motion to amend the indictment so as to charge appellant with the murder of Lish Edwards. Blumenberg v. State, 55 Miss. 528; Commonwealth v. Snow (Mass.), 169 N.E. 562; Hughes v. State, 207 Miss. 594, 42 So.2d 805; State v. Sims (La.), 98 So. 415; Sec. 26, Constitution 1890; Sec. 2532, Code 1942; 26 Am. Jur., Homicide, Sec. 273 p. 344; 27 Am. Jur., Indictments and Information, Sec. 117 p. 677.
II. The Court erred in overruling appellant's motion for a peremptory instruction.
III. The trial court erred in overruling appellant's motion for a directed verdict.
IV. The trial court erred in overruling appellant's motion for a continuance. Cruthirds v. State, 190 Miss. 892, 2 So.2d 145.
Wm. E. Cresswell, Asst. Atty. Gen., Jackson, for appellee.
I. The trial court correctly sustained the State's motion to amend the indictment prior to the beginning of the testimony. Clark v. State, 100 Miss. 751, 57 So. 209; Collier v. State, 154 Miss. 446, 122 So. 538; Davis v. State, 150 Miss. 797, 117 So. 116; Horn v. State, 165 Miss. 169, 147 So. 310; Hughes v. State, 207 Miss. 594, 42 So.2d 805; Miller v. State, 53 Miss. 403, 68 Miss. 221, 8 So. 273; Washington v. State, 153 Miss. 154, 118 So. 719; Sec. 1329, Code 1927 (Hemingway's); Secs. 2532-3, Code 1942.
II. The trial court correctly overruled the oral motion for a continuance. Knight v. State, 64 Miss. 802, 2 So. 252; Lamar v. State, 63 Miss. 265; Newell v. State, 209 Miss. 665, 48 So.2d 332; Secs. 1520, 2532, Code 1942.
(Hn 1) Appellant was convicted in the Circuit Court of Noxubee County of the murder of Lish Edwards and was sentenced to life imprisonment in the state penitentiary. The conviction is amply supported by the evidence.
Appellant argues that the trial court committed reversible error in permitting the State to amend the indictment immediately prior to the beginning of the trial. The killing occurred on July 12, 1953. The indictment was returned on August 18 and the trial was held on August 21. The original indictment charged that appellant murdered "Zach Edwards". After the jury was selected, the district attorney moved the court to permit the State to amend the indictment by changing the name of the murdered person from Zach Edwards to Lish Edwards. On this motion Sarah Frierson testified that Zach Edwards was alive and present in the courtroom, and that Elisha or Lish Edwards was a different person, the brother of Zach. The county attorney testified that prior to the convening of the grand jury the case was docketed as murder by appellant of Lish Edwards, and that he presented the matter to the grand jury and it indicted appellant for the murder of Elisha or Lish Edwards. The trial court by order in writing then permitted the amendment over appellant's objection, following which the State began to put on its testimony.
(Hn 2) We do not think that this was error. Mississippi Code 1942, Section 2532, provides that where on the trial of an indictment there appears any variance between the Christian name of any person stated in the indictment and that shown in the proof, the trial court may allow the indictment to be amended according to the proof, if the variance is not material to the merits of the case, and if the defendant cannot be prejudiced thereby in his defense on the merits. In other words, the amendment may be made to state truly and describe accurately the particular and identical offense for which the grand jury indicted. Mississippi Constitution, Section 26, requiring that an accused be advised of the offense charged, does not prohibit an amendment which does not deprive the accused of any substantial right necessary to the ends of justice. The importance of properly identifying the person upon whom the crime was committed is to apprise the accused of the particular offense charged with a view to his defense. In this case there was a clerical mistake in the use of the deceased's Christian name. Appellant was not prejudiced by the amendment. The offense charged in the indictment was not changed. The amendment before trial was made to state truly the first name of the person for the killing of whom the grand jury indicted accused. Its purpose was to accurately identify and particularly describe, as to name, the very offense charged in the indictment. All of the evidence showed that the man whom appellant killed on the morning in question was Lish Edwards. That is not denied. It is not shown that there was any surprise to appellant by this substitution of the true Christian name of the deceased, nor can we see any reason for holding that the trial of accused was at all prejudiced by the amendment. Similar amendments in accordance with Code Section 2532 have been approved in a number of cases. Wood v. State, 64 Miss. 761, 773, 2 So. 247 (1887); Thurmond v. State, 94 Miss. 1, 47 So. 434 (1908); Mackguire v. State, 91 Miss. 151, 44 So. 802 (1907); Miller v. State, 53 Miss. 403 (1876); Miller v. State, 68 Miss. 221, 8 So. 273 (1890); Horn v. State, 165 Miss. 169, 147 So. 310 (1933); Davis v. State, 150 Miss. 797, 117 So. 116 (1928); Hughes v. State, 207 Miss. 594, 603, 42 So.2d 805 (1949). Blumenberg v. State, 55 Miss. 528 (1878), relied upon by appellant, is clearly distinguishable. That amendment charged a different sale of liquor to a different person, which was a separate offense. Both of the purchasers had on separate occasions bought liquor from appellant. Moreover, it was not there shown, as it is here, that the name stated in the amended indictment was the one the grand jury had in mind when considering the charge.
(Hn 3) Nor was there any error in the court's denial of appellant's oral motion for a continuance, made after the amendment was allowed. The motion itself, and the motion for a new trial failed to show by affidavit any way in which appellant was prejudiced by denial of the continuance. And under Code Section 1520 such denial is not ground for reversal unless we are satisfied that injustice resulted from it. Mississippi Code 1942, Section 2532; Rule 11, Mississippi Supreme Court; Knight v. State, 64 Miss. 802, 806, 2 So. 252 (1887).
Affirmed.
Roberds, P.J., and Lee, Arrington and Gillespie, JJ., concur.