Kemp v. State

• Decision Date: 08 March 1920
• Docket Number: 21045
• Citation: 83 So. 744,121 Miss. 580
• Court: Mississippi Supreme Court
• Parties: KEMP v. STATE

83 So. 744

121 Miss. 580

KEMP v. STATE

No. 21045

Supreme Court of Mississippi

March 8, 1920

March 1920

INDICTMENT AND INFORMATION. Error to permit amendment of indictment.

It was error for the court to permit the state to amend an indictment framed under Code 1906, section 1029 (Hemingway's Code, section 754) charging that defendants did unlawfully cohabit together in adultery, by striking therefrom the words "in adultery" the charge of cohabitation "in adultery" being a matter of substance in the indictment.

APPEAL from the circuit court of Humphreys county, HON. H. H ELMORE, Judge.

Mollie Wemp was convicted of unlawful cohabitation with a male and appeals.

The facts are fully stated in the opinion of the court.

Judgment reversed and case remanded.

Mortimer & Sykes, for appellant.

Replying to the brief of the attorney-general, the decision of this case involves a construction of the Code of 1906, section 1508, being section 1266 of Hemingway's Code.

We wish to say at the outset that this statute is in derogation of the common law and should be strictly construed. In speaking of such statutes the court in the case of Clarke v. State, 100 Miss. 754, second paragraph, uses the following language. "The standing aside from the beaten path of immemorial usage worn hard and bare by the footsteps of our forefathers in the law, in order to make way for the passing of the funeral cortege, brought by a too liberal construction of the criminal statute enacted in derogation of the common law is the recognition and enforcement of a dangerous doctrine to comport with the humane and beneficent conduct of the civilized court."

This specific section sets out six instances in which when there shall appear to be a variance between the statement in the indictment and the evidence offered in proof, an amendment may be allowed. They are: First. In the name of any county, city, town, village, division or any other place mentioned in such indictment. Second. 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. Third. 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. Fourth. In the christian name or surname or both, or every description whatever or any person whomsoever therein named or described. Fifth. In the ownership of any property named or described therein. Sixth. In the description of any property or things.

Taking up the cases cited by the attorney-general in the order in which he cites them, in McGuire v. State, 91 Miss. 414, the amendment therein made is expressly authorized by section 1508 sub-division five above set out, viz: In the ownership of any property named or described therein.

Coming next to Thurmond v. State, 94 Miss. 1, the amendment therein is specially authorized by this section and in our sub-division number three, viz: "In the name or description of any person . . . therein stated or alleged to be injured or damaged, etc.

In Winston v. State, 101 Miss. 101, cited by counsel, this amendment is specifically authorized by section 1508, our subdivision number one, viz: "In the name if any county, city, town, village, division, or any other place mentioned, etc."

In Smith v. State, 60 So. 330, cited by counsel, the amendment is expressly authorized by our sub-division number four, of this section viz: "In the christian name or surname, or both, etc." Clark v. State, 100 Miss. 751, has no application to the case at bar because while the state had the right to amend the indictment under section 1508, they did not amend it, and the case was properly reversed.

At the top of page six of his brief the attorney-general wisely and correctly observed that "None of these amendments would have been permissible under the common law." Which is an admission on his part that this statute is in derogation of the common law, and those amendments are allowable only and solely which are found therein.

Counsel also observed in his brief that our contention lies upon the old authorities, common-law rules. In this he is also eminently correct, and it is our contention also that so far as this case is concerned the common-law rules are still in force and effect. He even makes the statement "that this court would not now hold that a man charged with stealing a black horse could escape punishment because proof showed color of horse which he stole to have been red." He also makes the further statement that this court would not now reverse the case because the name of a person indicted for murder which the proof actually showed he committed was stated in the indictment as that of Mitchell J. McGuire and proof showed his name was Michael J. McGuire. In both instances he is incorrect, and to prove that contention we cite his own authority that of Clarke v. State.

In 100 Miss. 751, wherein the defendant was indicted for killing one man and the proof showed he killed another, and after being convicted on appeal, the case was reversed for the reason that the indictment was not amended. In the Clark case, as already above observed, the indictment could have been amended, because of section 1508, but had it not been for that section it could not have been amended, because that section specifically provides for such an amendment.

What counsel overlooked is the fact that there is absolutely nothing in section 1508 which permits an amendment such as was made in the case at bar. The case at bar falls within the following class of cases. Bloomenberg v. State, 55 Miss. 529; Tyler v. State, 69 Miss. 395, 11 So. 25; Hudson v. Stote, 73 Miss. 784, 19 So. 965.

In all three of these cases, defendants were charged with unlawful sale of intoxicating liquors, and it was specifically stated in the indictment to whom the sales were made. In the Hudson case, the affidavit was amended by striking out the names of the persons to whom the sales were made on account of the inability on the part of the state to prove that the sales were made to the parties to whom it was charged they were made.

In the Hudson case, Judge WOOD uses this language: "Any sale of liquor unlawfully to any man is an offense, and may be charged in general terms, but when a sale to a particular person is charged, the name of the buyer, as we have seen, becomes descriptive of the identity of that which is legally essential to the charge, and no amendment in such case is permissible which charges another and distinct offense. He also uses this language: "It is true that no averment of the names of the buyers in the affidavit was originally necessary, yet by making that unnecessary averment, it becomes essential as descriptive of the offense charged, citing Tyler v. State, 69 Miss. 395.

As stated in our original brief, it was unnecessary to charge the manner of cohabiting in the indictment, but the state saw fit to charge that it was cohabiting "in adultery" and "in making that unnecessary averment it became essential as descriptive of the offense charged."

In conclusion we respectfully submit that an examination of section 1508 of the Code of 1906, being section 1266 of Hemingway's Code, will disclose no authority whatever for an amendment such as was made in the instant case, and that in permitting such an amendment the trial court committed, an error so grave that the cause should be reversed and remanded.

N. T. Currie, attorney-general, for the state.

The appellant was not prejudiced by the amendment. If error, it was a harmless error. Tynes v. State, 93 Miss. 119, 46 So. 538. The amendment in this case was permissible under section 1266 of Hemingway's Annotated Mississippi Code of 1917. When the amendment was allowed, the appellant had the right, if she deemed herself prejudiced thereby, to move the court to withdraw the case from the jury and continue it or postpone it until a later day. No such request was made by the appellant and the trial proceeded with her consent with the amendment to clear a variance between the allegation in the indictment and the proof in the case. Counsel for the appellant make their contention lie upon very old authorities, common law rules. This court would not now hold that a man charged with stealing a black horse could escape punishment because the proof showed the color of the horse which he actually stole to be red. This court would not reverse a case now because the name of a person indicted for a murder which the proof showed he actually committed was stated in the indictment as that of Mitchell J. McGuire and the proof showed his name was Michael J. McGuire.

All such trivial matters are now held not to be a matter of substance. Counsel for the appellant in their brief admitted that it was unnecessary to charge the unlawful cohabitation as "in adultery or in fornication," thus admitting that an indictment drawn under this statute charging unlawful cohabitation charges the offense created and punished by the statute. If this is true as a matter of law and reason, it goes without saying that the words "in adultery or in fornication" are mere surplusage in the statute and indictment and are not necessarily descriptive of the offense because in either case there is but one offense, that of unlawful cohabitation.

Under this indictment, the only material matter for the state to prove was the unlawful cohabitation together of J. W Morrison and Mollie Kemp, the appellant, and this the state accomplished to the satisfaction of the jury. That is all the statute required the state to prove. We do not care to be drawn into a lengthy...