Davis v. State

• Decision Date: 14 May 1928
• Docket Number: 26952
• Citation: 150 Miss. 797,117 So. 116
• Court: Mississippi Supreme Court
• Parties: DAVIS v. STATE. [*]

117 So. 116

150 Miss. 797

DAVIS v. STATE. ^[*]

No. 26952

Supreme Court of Mississippi

May 14, 1928

Division A

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.

HON GREEK L. RICE, Judge.

APPEAL from circuit court of Panola county, First district, HON. GREEK L. RICE, Judge.

Manuel Davis was convicted of murder, and he appeals. Reversed and remanded.

Case reversed, cause remanded.

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. Leo. 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. Leo. 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.

OPINION

MCGOWEN, J.

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 if 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...