Bingham v. State, 53757
| Decision Date | 01 June 1983 |
| Docket Number | No. 53757,53757 |
| Citation | 434 So.2d 220 |
| Parties | Johnny Ray BINGHAM v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Herring & Self, James H. Herring, Canton, for appellant.
Bill Allain, Atty. Gen. by Frankie Walton White, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before BROOM, HAWKINS and DAN M. LEE, JJ.
This is an appeal from the Circuit Court of Madison County wherein Johnny Ray Bingham, defendant/appellant, was indicted and tried for the September 13, 1980, murder of Ozell Carter. The jury found Bingham guilty of manslaughter, whereupon he was sentenced to serve a term of 15 years in the custody of the Mississippi Department of Corrections. Bingham now appeals his conviction and sentence to this Court and assigns the following errors for reversal:
PROPOSITION ONE
The trial court erred in granting the oral motion of the district attorney, after the jury had been empaneled, to amend the indictment rendered by the grand jury against the defendant, Johnny Ray Bingham, to reflect the name of the person killed to be Ozell Carter rather than Mozell Carter as shown on the face of the indictment.
The trial court erred in failing to sustain the objection by the defendant to the statement made by the district attorney to the jury during voir dire examination that if the court instructed the jury that the state of Mississippi would be required to prove that the defendant was guilty beyond a reasonable doubt, the jury should not interpret that to mean that they must find the defendant guilty beyond a shadow of a doubt.
The trial court erred in failing to sustain the motion for a mistrial of the defendant to the statement made by the district attorney to the jury during voir dire examination that if the court instructed the jury that the state of Mississippi would be required to prove that the defendant was guilty beyond a reasonable doubt, the jury should not interpret that to mean that they must find the defendant guilty beyond a shadow of a doubt.
The trial court erred in failing to sustain the objection of the defendant to the testimony of Sheriff W.B. Noble during the state's rebuttal as to what Roy Lee Lawson told him on the night of September 13 and 14, 1980.
The trial court erred in failing to grant the motion for mistrial of the defendant concerning the testimony of Sheriff W.B. Noble, during the state's rebuttal, as to what Roy Lee Lawson told him on the night of September 13 and 14, 1980.
The trial court erred in failing to grant the defendant's motion for new trial since the verdict of the jury was against the overwhelming weight of the evidence.
During the evening hours of September 13, 1980, several people attended a party at the home of Emma Caldwell. Among those present were the appellant and Ozell Carter, deceased.
Sometime during the evening Ozell Carter attempted to sit down next to Emma Caldwell who resisted his advances. Carter then grabbed Miss Caldwell by the arm; however, she jerked away and walked to the front porch of the residence. When appellant, Emma's boyfriend, inquired as to what was wrong, she explained that Carter kept "messing" with her. Appellant responded that he would talk to Carter.
When appellant confronted Carter with the matter, an argument erupted. According to witnesses for the state, appellant shot Carter while Carter was pouring beer into a cup. Appellant and his witnesses testified, however, that Carter set his cup down and then reached into his pocket before appellant shot him. Appellant and his witnesses, who knew that Carter had a reputation for carrying a weapon, believed Carter was reaching for a weapon at the time appellant fired the fatal shot. It was subsequently learned, however, that Carter was unarmed. Witnesses for the state denied that Carter made any move resembling an effort to produce a weapon.
Carter died from a single .38-caliber wound to the right temple.
The jury returned a verdict of guilty of manslaughter, whereupon appellant was sentenced to serve a term of 15 years in the custody of the Mississippi Department of Corrections.
I. Did the trial court err in granting the state's ore tenus motion to amend the indictment after the jury had been empaneled to change the name of the victim from Mozell Carter to Ozell Carter?
The indictment in the case at bar charged as follows:
THE STATE OF MISSISSIPPI
IN THE CIRCUIT COURT OF SAID COUNTY, MARCH TERM, 1981.
The Grand Jurors of the State of Mississippi, taken from the body of good and lawful citizens of said county, elected, summoned, empaneled, sworn and charged to inquire in and for the body of the county aforesaid, at the term aforesaid of the Court aforesaid, in the name and by the authority of the State of Mississippi, upon their oath present that JOHNNY RAY BINGHAM late of the county aforesaid, on or about the 14th day of September, 1980, in the county aforesaid and within the jurisdiction of this Court, did wilfully, unlawfully and feloniously, and of his malice aforethought, kill and murder one Mozell Carter, a human being.
After the jury was empaneled on the day set for trial (September 14, 1981), the state moved ore tenus to amend the indictment by changing the victim's name from Mozell Carter to Ozell Carter. A hearing was held, whereupon the trial court found that the grand jury intended to indict appellant for the murder of Ozell Carter. Therefore, the amendment was allowed. The trial judge, however, declared a mistrial and reset the case for the following Thursday (September 23, 1981), to allow appellant additional time he might need to make certain changes in his trial strategy and therefore avoid any possible prejudice appellant may have suffered due to the granting of the amendment.
MCA Sec. 99-17-13 (1972) provides that:
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, in the name of any county, city, town, village, division, or any other place mentioned in such indictment, or in the name or description of any person or body politic or corporate, therein stated or alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person, body politic or corporate, therein stated or alleged to be injured or damaged; or intended to be injured or damaged, by the commission of such offense, or in the Christian name or surname, or both, or other description whatever, of any person whomsoever, therein named or described, or in the ownership of any property named or described therein, or in the description of any property or thing, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof, whenever it may be deemed necessary by the court to amend such indictment, record, and proceedings, on such terms as to postponing the trial, to be had before the same or another jury, as the court shall think reasonable. After such amendment, the trial shall proceed in the same manner, and with the same consequences in all respects, as if a variance had not occurred; but if the court shall, on application, refuse a continuance, the defendant may take a bill of exceptions thereto, and assign such refusal for error.
The test for determining whether an accused has been prejudiced by an amendment to an indictment is stated in Byrd v. State, 228 So.2d 874 (Miss.1969):
Section 2449 of the Mississippi Code of 1942 Annotated (1956) provides for the amendment of indictments in cases of formal defects. It will be noted that the amended indictment did not change the crime charged and did not add any new elements thereto. As stated in 42 C.J.S. Indictments and Informations Sec. 240, page 1250 (1944):
The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance, * * *
This is the rule that has been adopted by our Court. Kelly v. State, 239 Miss. 683, 124 So.2d 840, 85 A.L.R.2d 1199 (1960); Gillespie v. State, 221 Miss. 116, 72 So.2d 245 (1954); Hearn v. State, 219 Miss. 412, 69 So.2d 223 (1954); Perciful v. Holley, 217 Miss. 203, 63 So.2d 817 (1953); Mays v. State, 216 Miss. 631, 63 So.2d 110 (1953); Osser v. State, 165 Miss. 680, 145 So. 754 (1932); Sauer v. State, 166 Miss. 507, 144 So. 225 (1932). (228 So.2d at 875-76)
In Jones v. State, 279 So.2d 594 (Miss.1973), this Court upheld an amendment to the indictment during trial which corrected the victim's name from Larry Smith to James Smith in a prosecution for the sale of marijuana. In McDole v. State, 229 Miss. 646, 91 So.2d 738 (1957), an amendment to an indictment prior to trial was upheld in a burglary prosecution to correct the victim's name from Vernell Harris to Ida Pearl Harris. 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...
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