Summary
In Roney, no error was found even though the indictment alleged that the defendant committed an aggravated assault with "brass knucks," and the proof showed it was done with a crutch.
Summary of this case from Qasoon v. StateOpinion
No. 27307.
February 11, 1929.
1. CRIMINAL LAW. Indictment and information. Variance necessitating amendment of indictment or reversal on account thereof must be material and affect substantive rights of defendant.
Variance between allegation of indictment and proof in order to necessitate an amendment of the indictment or reversal on account of the variance must be material and affect the substantive rights of defendant.
2. INDICTMENT AND INFORMATION. Variance between charge of assault with brass knucks and proof of assault with crutch did not require amendment ( Hemingway's Code 1927, sections 1329, 1330).
Variance between indictment charging assault and battery was committed with brass knucks and evidence that assault was with a crutch held not such as required an amendment or affected the merits of the case, without regard to whether amendment was properly permitted under Code 1906, sections 1508, 1509 (Hemingway's Code 1927, sections 1329, 1330).
3. CRIMINAL LAW. Overruling objection to statement of district attorney that defendant had virtually admitted connection with fight held erroneous.
Overruling objection to statement of district attorney, in prosecution for assault and battery, to effect that defendant, up to the time of trial, had virtually admitted connection with fight, held erroneous, as without support in evidence and being a statement of fact which, if accepted, swept away entire defense.
4. CRIMINAL LAW. Broad latitude allowed counsel in argument does not extend to statement of facts not in evidence and prejudicial to defense.
Though counsel are allowed a broad latitude in argument within limits of testimony and inferences to be drawn therefrom, such right does not extend to statement of facts not in evidence which are prejudicial to defense of accused.
APPEAL from circuit court of Jones county, Second district, HON. R.S. HALL, Judge.
Collins Collins, for appellant.
The court erred in sustaining the motion of the district attorney to amend the indictment in this case by striking out the words "brass knucks" and inserting the words "a crutch," in the indictment. The court will bear in mind that this was an indictment preferred by the grand jury of the circuit court against this defendant for a felony, to-wit: Assault and battery with intent to kill and murder, and in setting out the original indictment with which the assault was made, the state set out that it was done with brass knucks. This was a very material allegation in the indictment, to-wit: The kind of weapon, if any, that was used by the defendant. The amendment in the indictment was just as important as if it had originally set out a gun or pistol, and then changed it to a bowie knife. This, being a material allegation in the indictment, was unamendable under the law. If the state had any right to amend this indictment, it must find its authority under sec. 1266, Hem. Code 1917, allowing amendments to indictments. Being in derogation of the common law, this statute must be strictly construed in favor of the person charged, and if no authority can be found there such amendment, then it was error for the court to allow it.
Sec. 1267, Hem. Code 1917, reads in part as follows: "The order of the court for such amendment shall be entered on the minutes, and shall specify precisely the amendment." This requirement of this statute was not met by the order of the court in this case. The order of the court states that the district attorney made a motion to amend the indictment, but it does not set out the amendment proposed, nor the amendment allowed, and so it was sadly defective, and the court had no right to proceed upon such an order. See Shirley v. State, 90 Miss. 415, 43 So. 299; Evans v. State, 144 Miss. 1, 108 So. 725.
The court erred in overruling defendant's objection to the following remark of the district attorney, made in his closing argument to the jury: "This defendant and his witnesses now say that defendant had nothing to do with this fight, when up to this time he has virtually admitted that he did." The district attorney is generally looked upon by the jury as being authority on law, on testimony, on morals, on religion and on every other question engaging the attention of people. He has great influence, and when he speaks a fact which he proposes to know something about, juries usually presume that he is telling the whole truth and nothing but the truth. By this statement the district attorney, acting as prosecutor for the state and performing his solemn duty before the jury, put in issue every statement made by the defendant and his witnesses, and contradicted by his own statement, every statement that the witnesses of the defendant had made. Seasonable objection was made to the statement, but the court allowed the jury to take it into consideration, and so the jury felt warranted in saying that the district attorney properly made the statement because he knew that the defendant had admitted, virtually, that he did have something to do with the figh before the trial. See 12 Cyc. 574; Long v. State, 81 Miss. 448, 33 So. 224; Martin v. State, 63 Miss. 505; Perkins v. Guy, 55 Miss. 153; Cavanah v. State, 56 Miss. 299; Cross v. State, 68 Ala. 466; Wolffe v. Minnis, 74 Ala. 386; State v. Smith, 75 N.C. 306; Profatt on Jury Trials, sec. 250.
Rufus Creekmore, Assistant Attorney-General, for the state.
The state moved the court to be permitted to amend the indictment so as to conform to the proof by inserting the word "crutch" instead of the words "brass knucks," and this motion was sustained by the court. The first point argued by counsel is that this allegation was material, and therefore was not amendable. In support of this contention, they refer the court to the provisions of sec. 1508, Code of 1906, sec. 1329, Hem. Code 1927. Certainly no extended argument is necessary to show that this defect was one which could be amended. Counsel insist, however, that the order in this case which was entered on the minutes did not specify precisely the amendment to be made, and, therefore, the provisions of the statute were not complied with, and there was in fact no valid amendment made. In support of this argument, Shirley v. State, 90 Miss. 415, 43 So. 299; and Evans v. State, 144 Miss. 1, 108 So. 725, are cited. In the Shirley case the prosecuting officer changed the indictment himself without making a motion to amend and without any order of any kind being placed upon the minutes. In the Evans case the motion to amend was made, but no order permitting the same appeared on the minutes. The case at bar is different from both of those cases. Here we have the written motion of the district attorney filed as a pleading in the case, specifying precisely the amendment which was to be made in the indictment. There appears on the minutes of the court an order reciting that the motion of the district attorney to amend the indictment in this case was sustained. The indictment itself shows that the amendment was physically made in accordance with the order of the court. The order sustaining that motion appears on the minutes of the court, and the indictment itself was amended in accordance with the motion and order. Certainly this is a sufficient compliance with the provisions of the statute here in question.
In Sanders v. State, 141 Miss. 289, 105 So. 523, the indictment charged the crime to have been committed on September 8, 1924, while the evidence showed that at that time appellant was not in office, his term having expired the previous year, and, for that reason, he could not have been guilty of the crime of embezzlement with which he was charged. The court, however, held that this variance was without harm to the appellant because he was not deceived or misled thereby, but he was equally as able to prepare for his defense as if the correct time had been alleged in the indictment. In Bowers v. State, 145 Miss. 832, 111 So. 301, a case practically on all fours with the case at bar, the indictment charged that the defendant made an assault upon the prosecuting witness with a wrench, while the proof showed that the instrument used was a stick. The court held that the variance between the indictment and the proof did not affect the merits of the case, and that the appellant could not complain thereof. In the case at bar, the instrument laid and that proved are substantially of the same character and capable of inflicting substantially the same injury. Since this is true, then the defendants would not have been prejudiced, even though the indictment had not been attempted to be amended.
In his closing argument the district attorney said: "This defendant and his witness now say that the defendant had nothing to do with this fight, when up to this time he has virtually admitted that he did." Although this statement by the district attorney was not based upon any facts in the record, defendant's objection to the same was overruled by the court. This remark by the district attorney was improper and objection to the same should have been sustained by the court, yet it was not a remark that so prejudiced the defendant as to require a reversal of this cause. Counsel are allowed a wide latitude in this argument, and the members of the jury are probably of sufficient intelligence to take the arguments of counsel "with a grain of salt." In Jennings v. State, 118 Miss. 619, 79 So. 814, the court said: "We all, lawyers or judges, know that sensible men will, in fact, weigh evidence given by interested parties with the interest of the witness in mind. The district attorney is not expected to approach a case with the cold neutrality of a judge. He is an advocate and somewhat of a partisan, and, no doubt, the jury is able to make due allowance for the arguments of the lawyer for the state." Certainly these remarks were not nearly so prejudicial to the defendant as the remarks made by the prosecuting attorney in Shows v. State, 103 Miss. 640, 60 So. 726, and Pittman v. State, 147 Miss. 593, 113 So. 348. In neither of these cases were the remarks of the district attorney based upon facts appearing in the record, but in each case the court held the remarks not to be so prejudicial to the defendant as to require a reversal of the case. So in this case the state takes the position that the remarks made by the district attorney, although they were subject to criticism, yet were not of such character as to entitle the defendant to a new trial.
Argued orally by Jeff Collins, for appellant, and Rufus Creekmore, for the state.
The appellant, Hub Roney, was indicted in the circuit court of the Second judicial district of Jones county on a charge of assault and battery with intent to kill and murder, and was convicted of assault and battery, and sentenced to pay a fine of two hundred dollars and to serve a term of three months in the county jail, and from this conviction and sentence he prosecuted this appeal.
The indictment as originally drawn charged that the assault and battery was committed with brass knucks, but the proof offered at the trial was to the effect that the weapon or instrument used by the appellant in the alleged assault was a crutch. When this fact was developed by the evidence, the district attorney filed a written motion to be permitted to amend the indictment by striking out the words "brass knucks" and inserting therefor the word "crutch." This motion was sustained by an order entered on the minutes of the court merely reciting that "the court after considering the same is of the opinion that said motion should be and hereby is sustained;" and thereupon the indictment was amended by inserting the word "crutch" for the words "brass knucks."
The appellant contends that the action of the court in permitting this amendment was erroneous, first, for the reason that the amendment was not such as is authorized under and by virtue of the provisions of section 1508, Code of 1906 (section 1329, Hemingway's 1927 Code), providing for the amendment of indictments when there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof; and, second, for the reason that no order for such amendment specifying precisely the amendment to be made was entered on the minutes of the court, as required by section 1509, Code of 1906 (section 1330, Hemingway's Code of 1927).
If it be conceded that the appellant is correct in these contentions, which we do not decide, it does not follow that there was error of which he can complain. It is not every variance between the allegation in the indictment and the proof that will necessitate an amendment of the indictment or a reversal on account of the variance, but it is only when the variance is material and affects the substantive rights of the defendant. In the case of Bowers v. State, 145 Miss. 832, 111 So. 301, the indictment charged that the assault and battery was committed with a wrench, while the proof showed that the instrument used was a stick. The court held that this variance was not such as affected the merits of the case, or of which the appellant could complain, and approved the following statement of the rule applicable in such cases: "The question in each case is whether the nature and character of the injury and the manner and means of inflicting it as proved are practically and substantially, though not identically, the same as that alleged." This case is controlling here, and, applying this rule to the facts of this case, we are of the opinion that the variance was not such as required an amendment or affected the merits of the case.
The appellant next contends that the court erred in overruling objections to certain remarks of the district attorney as shown by a special bill of exceptions. The evidence shows that there was a fight between a brother of the appellant and the party who was alleged to have been assaulted by the appellant. The evidence for the state was to the effect that the appellant got out of a car in which he was seated and joined in the fight, using a crutch with telling effect on the head and body of the injured party. The appellant admitted his presence at the scene of the difficulty, but he and a number of witnesses testified that he did not strike the prosecuting witness and took no part whatever in the fight. In the closing argument to the jury, the district attorney used the following language: "This defendant and his witnesses now say that the defendant had nothing to do with this fight, when up to this time he has virtually admitted that he did." Counsel for appellant promptly objected to this statement, but the court overruled the objection.
There does not appear in the record any warrant or basis whatever for this statement, that "up to this time he has virtually admitted that he took part in the fight." All the testimony for the defense was to the effect that the appellant had nothing whatever to do with the fight. That was his sole defense, and there was not a single fact or circumstance in evidence to warrant the statement or the inference that the appellant had ever admitted or virtually admitted that he did take any part in the fight. The statement of the district attorney that up to the time of the trial he had virtually admitted that he had participated in the fight was the statement of a fact which, if accepted, discredited and swept away his entire defense. This statement, backed by the personal and official influence of the district attorney, who asserted it as a fact, was calculated to discredit the defense offered and to influence the jury to base its verdict upon a fact not shown by the evidence before them. It is true that within the limits of the testimony, and the inference to be drawn therefrom, counsel are allowed a broad latitude in argument, but this does not extend to the statement of facts not in evidence which are so prejudicial to the defense of the accused. For the error in overruling the objection to this statement of fact by the district attorney, the judgment of the court below will be reversed, and the cause remanded.
Reversed and remanded.