Hudson v. State
| Citation | 19 So. 965,73 Miss. 784 |
| Court | United States State Supreme Court of Mississippi |
| Decision Date | 04 May 1896 |
| Parties | L. H. HUDSON v. THE STATE |
March 1896
FROM the circuit court of the first district of Hinds county HON J. B. CHRISMAN, Judge.
The opinion states the case.
Reversed and remanded.
Williamson & Potter, for the appellant.
The amended affidavit charged another separate and distinct offense, for which the accused could not be tried on his appeal. Miller v. State, 53 Miss. 405, 406; Blumenberg v. State, 55 Ib., 529.
The very statute allowing amendments of affidavits (§ 1438 code of 1892) requires that the amendment shall be so made as to bring fairly to trial, on its merits, "the charge intended to be set out in the original affidavit." Hudson was not tried in the circuit court on the charge intended to be set out in the affidavit originally made before the mayor of Terry, and he was not tried for the offense of which he was convicted in the mayor's court, from the judgment of which he had appealed.
Wiley N. Nash, attorney-general for the state.
The amendment was clearly proper under § 1438, code of 1892. No injury is shown to have resulted to the defendant from its allowance of which he has any right to complain. The section of the code cited was intended to cover just such a case as the one under consideration. The affidavit, as amended, sets out an illegal selling of vinous and spirituous liquors, and such was the charge intended to be made in the original affidavit, and that is the offense of which defendant was convicted.
Indictments for crimes like this will not be quashed or abated for want of form. Code 1892, § 1595. It is not necessary, in prosecutions like this, to aver the name of the buyer. Riley v. State, 43 Miss. 397; Lea v. State, 64 Ib., 201.
The appellant was charged by affidavit with unlawful retailing to three named persons in the town of Terry, and on this charge thus preferred, he was tried and convicted before the mayor of that town. Feeling aggrieved, he appealed to the circuit court of Hinds county, first district. When the case was called in that court for trial, upon motion of the state, the affidavit was amended, among other particulars, in striking out the names of the three persons to whom he had been charged by the affidavit with unlawfully selling liquor, and for which specific offense he had been convicted in the court of the mayor of Terry. On the affidavit thus amended, the defendant was then put on trial, and one Charles Hollingsworth, who was not one of the three originally named persons to whom the affidavit alleged the illegal sales had been made, was introduced by the state. By this witness the state showed that the defendant had illegally sold liquor to him, and that no other persons other than himself and the liquor seller were present at the time of the sale. On this evidence, the defendant was convicted, and from that conviction and...
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