McDole v. State, 40328

• Decision Date: 07 January 1957
• Docket Number: No. 40328,40328
• Citation: McDole v. State, 229 Miss. 646, 91 So.2d 738 (Miss. 1957)
• Parties: Henry McDOLE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 738

91 So.2d 738

229 Miss. 646

Henry McDOLE v. STATE of Mississippi.

No. 40328.

Supreme Court of Mississippi.

Jan. 7, 1957.

Mitchell & Simmerman, W. L. Richardson, Pascagoula, for appellant.

Joe T. Patterson, Atty. Gen., by John H. Price, Jr., Asst. Atty. Gen., for appellee.

HALL, Justice.

Appellant was indicted for willfully, unlawfully, feloniously and burglariously breaking and entering a certain inhabited dwelling house in the nighttime belonging to Edna Flowers, with the felonious intent to unlawfully, willfully and feloniously rape, ravish and carnally know one Vernell Harris violently and against her consent. He was convicted and appeals therefrom. Only two errors are assigned and argued.

Before the beginning of the trial the State made a motion for leave to amend the indictment so as to show that the female involved was Ida Pearl Harris instead of Vernell Harris, and the court sustained this motion, which action appellant claims is reversible error. There is no merit in this contention. Section 2532, Code of 1942, provides that where on the trial of an indictment there appears any variance between the Christian name of any person stated in the indictment and that shown in the proof, the trial court may allow the indictment to be amended according to the proof, if the variance is not material to the merits of the case and if the defendant cannot be prejudiced thereby in his defense on the merits. In the case of Gillespie v. State, 221 Miss. 116, 72 So.2d 245, we held that in an indictment for the murder of Zach Edwards there was no error in the court allowing the State to amend the indictment so as to change the name from Zach Edwards to Elisha or Lish Edwards for the reason that the offense charged in the indictment was not changed but that the amendment was to accurately identify and particularly describe, as to name, the very offense charged in the indictment. In the case at bar the appellant was charged with the offense of burglary and there was no charge in the charge made against him but only in the name of the person whom he intended to ravish.

The other assignment of error is that the court erred in failing to grant the appellant a peremptory instruction. The proof shows by several witnesses that someone removed a screen from the kitchen window and climbed up on a table and entered the house at the window, knocking an ash tray and several bottles which had been sitting in the window to the ground. The culprit was barefooted and left footprints along with sprigs of grass and other debris. This occurred at approximately two o'clock in the morning. The house was occupied...