Opinion
No. 27584.
December 10, 1928.
BREACH OF THE PEACE. Indictment for disturbing peace by entering "dwelling" was supported by proof that defendant came onto front porch of residence ( Hemingway's Code 1927, section 880).
Indictment under Hemingway's Code 1927, section 880 (Code 1906, section 1112), charging defendant with unlawfully disturbing the peace by entering a dwelling house, was sufficiently supported by proof that defendant came onto front porch of dwelling and used profane language as charged in indictment, since the front porch of a residence is a part thereof, and charge of entering "dwelling" is supported by proof of coming onto front porch thereof.
APPEAL from circuit court of Marion county, HON. J.Q. LANGSTON, Judge.
Goss Goss, for appellant.
The indictment states that the disturbance was on the inside of the house, "by then and there entering the house of the said Mrs. Janie Autrey, etc." and the proof shows that the disturbance was on the outside of the houses. See Quin v. State, 65 Miss. 479; Bishop on Criminal Practice, section (373). This case appears to be directly in point with the case herein, and if this case is followed by the court, then the appellant should have a reversal.
The court below should have sustained the motion of the defendant, wherein the defendant asked that the jury be peremptorily instructed to find in favor of the defendant, for the reason that the proof shows that the disturbance was on the outside of the house, and fails to show that the disturbance was created by the defendant.
The court below erred in permitting the district attorney to amend the indictment to conform to the proof. Place is made an essential element of the offense, and must be charged in the indictment and being charged, must be proven as laid. Quin v. State, supra. James W. Cassedy, Jr., Assistant Attorney-General, for the state.
The appellant first contends that it was error for the court to sustain the motion of the district attorney to allow an amendment to the indictment and in overruling the motion of the defendant for the peremptory instruction. It is argued that the indictment charged the disturbance in the house, and that the proof shows the disturbance took place on the porch of the house, and that the amendment could not be made because this was a material part of the crime charged. In answer to these contentions, it is my opinion that the variance in the proof with the allegation in the indictment is not such a variance as is harmful or prejudicial to the appellant, and would not cause a reversal of the case, if the amendment had not been made. Sanders v. State, 141 Miss. 289.
The appellant does not show on this appeal wherein he was harmed or prejudiced in the trial of this case because of the amendment.
The appellant, Zeno Moree, was convicted in the circuit court of Marion county on an indictment charging him with the offense of unlawfully disturbing the peace of a family, and from the sentence imposed he prosecuted this appeal.
The indictment charged that the defendant "did willfully and unlawfully disturb the peace of the family of Mrs. Janie Autrey by then and there entering the dwelling house of the said Mrs. Janie Autrey, and then and there, in the presence and hearing of the said Mrs. Janie Autrey, using certain profane language," etc. In support of this indictment, Mrs. Janie Autrey testified that about three o'clock in the morning some one fired a pistol at the rear of her home, the bullet passing through the back door and lodging in the wall of the room; that shortly thereafter the appellant came onto the front porch, and to the front door of her home, and began cursing and swearing; that she blew a horn to summon help, and the appellant told her not to blow "that God damned horn;" that she then left the house, through the back door, and went to the home of a nearby neighbor, and had him come and carry the appellant away from her home.
At the conclusion of the evidence for the state, the appellant moved the court to exclude the evidence and grant a peremptory instruction to find him not guilty, for the reason that the indictment charged that appellant entered the dwelling house and there used the profane language, while the proof showed that the profane language was used on the outside of the dwelling house. Before the court ruled on this motion, the district attorney asked leave to amend the indictment, so as to charge that the disturbance was on the front porch of the house, and this motion was sustained and the amendment made.
The only assignments of error presented are that the court below erred in permitting the state to amend the indictment to conform to the proof, and in overruling appellant's motion to peremptorily instruct the jury to find him not guilty. This indictment was based upon section 1112, Code of 1906 (section 880, Hemingway's 1927 Code), which provides that:
"Any person who enters the dwelling house of another, or the yard or curtilage thereof, or upon the public highway, or any other place near such premises, and in the presence or hearing of the family of the possessor or occupant thereof, or of any member thereof, or of any female, makes use of abusive, profane, vulgar, or indecent language, or is guilty of any indecent exposure of his person at such place, shall be punished for a misdemeanor."
It will be unnecessary to decide whether or not the amendment of the indictment was properly allowed under the provisions of section 1508, Code of 1906 (section 1329, Hemingway's 1927 Code), which provides that, under some circumstances, an indictment may be amended "whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof," etc., for the reason that we do not think there was such a variance between the indictment and the proof as required an amendment, or entitled the appellant to an acquittal in the absence of such amendment. The indictment charged that the appellant entered the dwelling house and used the profane language, while the proof showed that he came onto the front porch of the dwelling house and there used the language charged in the indictment. The front porch of a residence is a part thereof, and a charge that one entered a dwelling house is supported by proof that he came onto the front porch of such dwelling house.
The judgment of the court below will therefore be affirmed.
Affirmed.