Summary
In Davis v. State, 150 Miss. 797, 117 So. 116, an amendment to cure a similar variance between the indictment and the proof was authorized by the court at the trial, but the statute providing how the amendment should be made was not complied with, for which reason the judgment of the court below was reversed and the cause remanded.
Summary of this case from Horn v. StateOpinion
No. 26952.
May 14, 1928.
1. INDICTMENT AND INFORMATION. Amendment to indictment during trial to charge that "Man" J. was killed instead of "Ernest" J., held permissible ( Hemingway's Code 1927, section 1329).
In murder prosecution, permitting amendment of indictment during trial so as to charge that "Man" J. was killed instead of "Ernest" J. held permissible under Hemingway's Code 1927, section 1329 (Code 1906, section 1508), since the offense was identical.
2. CRIMINAL LAW. Permitting prosecuting attorney to amend indictment, during murder trial, by changing name of alleged deceased without order on minutes, held reversible error ( Hemingway's Code 1927, section 1330).
Permitting prosecuting attorney, during murder trial, to amend indictment so as to charge that "Man" J. was killed, instead of "Ernest" J., without entering order on minutes of court permitting amendment, as required by Hemingway's Code 1927, section 1330 (Code 1906, section 1509), held reversible error.
APPEAL from circuit court of Panola county, First district; HON. GREEK L. RICE, Judge.
Holmes Fant, for appellant.
Appellant was tried for killing one negro and was convicted of killing another. The grand jury indicted the appellant for murdering Ernest Jones; it appeared from the evidence that the deceased's name was Man Jones. The district attorney announced that he wanted to make a motion to amend; the court said, "let the amendment be made," but it was not done and never has been done. No order was made and spread on the minutes, as the statute in such case demands. The trial court was without authority to order an amendment by a mere oral announcement. The court, in such case can speak only thru its minutes. Could the appellant now plead former jeopardy to murdering Man Jones? The original secret docket of indictments, which was never amended, shows that the appellant was at one time indicted for killing Ernest Jones, but nowhere in the records is there any writing to evidence the fact that the indictment was legally amended so as to substitute "Man" for "Ernest." Had the appellant not taken an appeal, these stenographer's notes would never have been transcribed, and in that event, there would be no writing whatever to evidence the fact that the trial court even knew an amendment was desired by the district-attorney. In a strikingly similar case, Shurley v. State, 90 Miss. 415, this court said: "If the indictment before us was amendable at all, which we do not decide, it could be done only in strict conformity with Code 1906, section 1509. It must be by an order of the court, that order must be spread on the minutes, and that order must specify precisely the amendment." Appellant's italics. The oral announcement could not dispose with the legal and statutory requisites; the rule announced in Clark v. State, 100 Miss. 751, where no effort was made to cure a similar variance, is applicable to the present case. In the Clark case, supra, it was said that the fact that an amendment could have been made did not cure the error of not amending the indictment in strict conformity with the statute. By reason of the court's error in overruling the appellant's objection to this pretended amendment, the appellant is entitled to a reversal at the hands of this court.
James W. Cassedy, Jr., Assistant Attorney-General, for the state.
On page 45 of the record, the court ordered the amendment of the indictment so as to charge the murder of Man Jones instead of Ernest Jones. The testimony for the state shows that the dead man's name was Man Jones, or Marion Jones as one witness stated. There is no evidence in the record to show that the appellant was connected with the killing of a person by the name of Ernest Jones. There is no evidence to show. In Woulard v. State, 137 Miss. 808, the following is said in the opinion. "The record shows that the deceased was known as well by one of those names as the other. That being true the indictment could have alleged either name. 14 R.C.L. 182, sec. 28." In Lee v. State, 138 Miss. 483, the following is set forth in the opinion. "Appellant's name as shown by the uncontradicted evidence is W.J. Lee. He was indicted under the name of W.L. Lee. Under section 1508, Code of 1906, section 1266, Hemingway's Code, which provides among other things, that where there is a variance between the indictment and the evidence `in the Christian name or surname, or both, or other description whatever, of any person whomsoever, therein named or described,' such defect is amendable. See Blumenberg v. State, 55 Miss. 528; Orr v. State, 81 Miss. 130, 32 So. 998; Woulard v. State, 137 Miss. 808, 102 So. 781. This statute applies as well to an error in the name of a defendant as any other person named in an indictment." Though an error was committed in failing to enter the order amending the indictment upon the minutes of the court, this error is harmless in view of the fact that it was clearly shown that Man Jones was the person whom the appellant killed. The indictment was physically amended and is now in the records of the court showing that the appellant was charged with the killing of Man Jones instead of Ernest Jones. A plea of former jeopardy could certainly be sustained on these facts if the appellant were not indicted for the murder of Man Jones.
Holmes Fant, in reply brief for appellant.
The state cites cases where the deceased was known by two names. Woulard v. State, 137 Miss. 808, 102 So. 781. Such was not true in the present case; the deceased was referred to as "Man" and "Marion," but never as "Ernest." The state also cites the case of Lee v. State, 138 Miss. 483, 103 So. 233, where the accused was known by two names; that is, he was indicted as W.L. Lee when his name was W.J. Lee. The Lee case presents a situation entirely different from the one now under consideration, and has no application in the case at bar. We admit that the state could have secured an order allowing an amendment, but in view of the fact that they did not we submit that the trial court committed error in proceeding with the trial until such order was spread at large on the minutes in accordance with our Statutes. Sections 1266-7 of Hemingway's 1917 Code, set out in a way in which amendments may be made, and under the Shurley cases, cited in our brief in chief, the court is in error unless these provisions are strictly complied with. The appellant is clearly entitled to a reversal.
Argued orally by Herbert Fant, for appellant, and James W. Cassedy, Jr., Assistant Attorney-General., for the state.
The appellant, Manuel Davis, was convicted in the circuit court of Panola county on a charge of murder, and sentenced to life imprisonment in the penitentiary.
In view of the fact that we have determined that this case must be reversed and remanded for another trial, we shall not undertake to set out the facts as disclosed by the record.
The indictment charged that the defendant, the appellant, Manuel Davis, killed, etc., Ernest Jones, a human being. No witness testified that the appellant killed Ernest Jones. Without contradiction, it appears that the name of the deceased was Man Jones. During the trial, the district attorney, thinking it necessary to amend the name of the deceased to "Man" Jones instead of "Ernest" Jones, in the indictment, called the court's attention to such matter, and leave was orally granted to so amend. No order was entered on the minutes of the court permitting this amendment, but an amendment was attempted by the district attorney's altering the indictment, in that he undertook to erase the word "Ernest" and insert the word "Man."
Section 1329, Hemingway's 1927 Code (section 1508, Code of 1906), sets forth, in detail, what amendments may be made on the trial of an indictment, when there is variance between the statement in the indictment and the evidence offered in proof thereof; and, among other things, set forth that the Christian name, or surname, or both, of any person named or described therein, may be amended. It was held by this court in the case of Kline v. State, 44 Miss. 317, that, if a material element of the crime or a necessary negation be omitted, the indictment cannot, by authority of the statute, be amended so as to cure the defect. In Blumenberg v. State, 55 Miss. 528, it was held that identity of name was not essential, and amendments could be made therein, but identity of the offense and of the person is essential, and cannot be amended. In Smith v. State, 103 Miss. 356, 60 So. 330, this court held that under the section, supra, the court may allow an amendment to an indictment so as to give the correct Christian name of the accused.
The attorney-general cites the case of Woulard v. State, 137 Miss. 808, 102 So. 781, in which case an amendment was not made, but the proof showed that the deceased was known as well by one name as by another, and the court held that a failure to amend the indictment under the circumstances was not reversible error. Likewise in the case of Lee v. State, 138 Miss. 483, 103 So. 233. But, in the case at bar, in order to preserve the identity of the offense, it is necessary and proper to amend the indictment so as to charge that "Man" Jones was killed instead of "Ernest" Jones; and the amendment to the indictment was permissible under the statute quoted, supra, as the offense is identical. However, section 1330, Hemingway's 1927 Code (section 1509, Code of 1906) is in the following language:
"The order of the court for such amendment shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have the same effect as if the indictment or other proceeding were actually changed to conform to the amendment; and wherever necessary or proper for the guidance of the jury, or otherwise, the clerk shall attach to the indictment a copy of the order for amendment."
This court held in the case of Shurley v. State, 90 Miss. 415, 43 So. 299, that, where an indictment was changed by the prosecuting attorney, it should have been quashed, as an indictment can only be amended by an order spread upon the minutes, and specifically as provided by the Code of 1906, section 1509. There was no motion to quash this indictment. The defendant objected to an amendment to same being made; and the amendment attempted to be made was done in a manner not authorized by law, and the defendant asked at the conclusion of the testimony for a peremptory instruction. The indictment and judgment show a conviction for the murder of Ernest Jones, when, as a matter of fact, the proof shows that Ernest Jones was not the man killed. The secret indictment record and the judgment of the court would not show this unauthorized alteration of the indictment by the district attorney, and the object of section 1330 is to make a record showing of the amendments which are permitted under the statute to cure variances.
True it is that the evidence shows that "Man" Jones was killed, but the indictment and judgment would not disclose that Manuel Davis, the defendant, was convicted of the murder of "Man" Jones, but it would disclose that the indictment and judgment were for the murder of "Ernest" Jones. If the order had been entered on the minutes, then the record would have disclosed the identity of person and of offense. Therefore, under the decisions of Clark v. State, 100 Miss. 751, 57 So. 209, 38 L.R.A. (N.S.) 187, Ann. Cas. 1914A, 463, and Shurley v. State, supra, this case must be reversed, and the cause remanded for another trial.
Reversed and remanded.