Miller v. State
| Decision Date | 01 October 1876 |
| Citation | 53 Miss. 403 |
| Parties | ELIZA MILLER v. THE STATE. |
| Court | Mississippi Supreme Court |
1. CRIMINAL LAW. Indictment for assault with intent to kill and murder. Code 1871, § 2497.
It is not necessary, under § 2497, Code 1871, to charge a battery in the indictment, and the charge of an assault with intent to kill and murder is sufficient.
2. SAME. Variance. Amendment.
On the trial of an indictment for an assault with intent to kill and murder Roan Blackman, after the evidence for the State was closed, and during the examination of witnesses for the defence, it was disclosed by the defendant's evidence that the name of the person on whom the assault was committed was Roan Blackburn. Held, that the court did not err in ordering an amendment of the indictment by directing the name "Blackman" to be changed to "Blackburn" without the consent of the accused.
3. SAME. Construction and constitutionality of § 2799, Code.
Sect. 2799, Code 1871, providing that, whenever on the trial of an indictment a variance appears between the allegation and proof in the name of the person charged to be injured, the court, if it shall consider the variance immaterial and that the defendant cannot be prejudiced in his defence on the merits, may order the indictment, record and proceedings to be amended according to the proof, while it confers a delicate power, which should be employed cautiously, with scrupulous regard to the defence on the merits and on such terms as to preclude the possibility of harm, and for any abuse of which the judgment will be reversed, is, nevertheless, not unconstitutional, the exercise of the power conferred being limited and guarded as provided in the statute, and the action of the court both in ordering the amendment and refusing a continuance on the ground of the amendment being, by the terms of the statute, subject to review by the Supreme Court.
4. SAME. How amendment made under § 2799, Code.
Under § 2799, Code 1871, where, on the trial of an indictment, it is disclosed by the evidence that the name of the party injured is misstated in the indictment, the order of the court directing the amendment does not work the amendment, but an actual manual change of the name in the indictment must be made; and if the name be corrected in one essential place in the description of the offence in the indictment, and not corrected in another in the same description, the verdict subsequently rendered on the indictment as amended cannot be sustained.
ERROR to the Circuit Court of Madison County.
Singleton Garrett, for the plaintiff in error.
1. The amendment of the indictment was error. McGuire v. State, 35 Miss. 367.
2. The statute, § 2799, Code 1871, is unconstitutional. § 31, Bill of Rights; art. 1, Const. 1869.
3. The indictment was bad, because it did not charge an assault and battery with a deadly weapon. Williams v. State, 42 Miss. 329.
G. E. Harris, Attorney-General, for the State.
1. The amendment of the indictment was authorized by the Code of 1871, § 2799, and no application was made for a continuance.
2. The indictment is sufficient under the provisions of the Code: "Every person who shall be convicted of . . . or of any assault . . . upon another with any deadly weapon." Code 1871, § 2497.
The plaintiff in error, having been convicted of an assault with a deadly weapon, with intent to kill and murder, prosecutes her writ of error, and complains that the indictment is bad, because it does not charge a battery, and Williams v. State, 42 Miss. 328, is relied on in support of this point. That decision was in reference to art. 18, p. 575, Code of 1857, which differs from § 2497 of the Code of 1871, under which this indictment was found, in that an assault and battery with a deadly weapon, &c, was made punishable by the former, while "any assault, or assault and battery," &c., is punishable by the latter. It is not necessary, under § 2497 of the Code, to charge an assault and battery, and the indictment is sufficient.
It is further complained that the Circuit Court erred in ordering an amendment of the indictment, by directing the name "Blackman" to be changed to "Blackburn," without the consent of the accused, and after the evidence for the State had been closed, and during the examination of witnesses for the defence. "Blackman" was the person upon whom the defendant was charged to have made the assault; and when evidence disclosed that the real name was "Blackburn," the court ordered an amendment of the indictment by substituting "Blackburn" for "Blackman." This was in accordance with § 2799 of the Code of 1871, and proper. We do not perceive any constitutional objection to the law authorizing amendment of indictments. It does not violate § 31 of art. 1 of the Constitution to correct an error in the name of a person specified in an indictment duly found and returned by a grand jury. The object of this provision of ...
To continue reading
Request your trial