Potter v. State
| Decision Date | 10 May 1930 |
| Docket Number | A-7285. |
| Parties | POTTER v. STATE. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma |
Syllabus by the Court.
It is not error to permit a county attorney to amend the information in matter of form or substance, where the same can be done without material injury to the defendant, even though the trial may have begun.
This court will not reverse a cause because of the admission of incompetent evidence, unless it clearly appears that the admission of such incompetent evidence has probably caused a miscarriage of justice or deprived the defendants of a constitutional or statutory right.
Additional Syllabus by Editorial Staff.
Variance between amended information and proof as to one of persons to whom defendants sold liquor did not require reversal.
Appeal from County Court, Payne County; L. H. Woodyard, Judge.
Ernest Potter was convicted of selling intoxicating liquor, and he appeals.
Affirmed.
Brown Moore and Guy L. Horton, both of Stillwater, for plaintiff in error.
The Attorney General, for the State.
The plaintiff in error, hereinafter called defendant, was convicted in the county court of Payne county on a charge of unlawfully selling spiritous liquor, to wit, whisky, and his punishment fixed at a fine of $50 and imprisonment in the county jail for thirty days.
The evidence of the state shows that the defendant, who lived near the town of Yale, sold a half gallon of whisky to B. C Adkison and one Jardot. The state called the twelve year old son of B. C. Adkison who testified that he drove his father's car and took him and Jardot to Potter's place; that his father was drunk in the back seat, and that Jardot got the whisky from Potter, paid $5 for it, and that later they changed a $10 bill of his father's and gave Jardot $2.50. When Adkison was arrested for being drunk, the boy took the officers out to defendant's place and showed them where they bought the whisky.
Of course the defendant denied that he saw the parties or sold them any whisky.
The defendant first contends that the court erred in permitting the state to amend the information after the jury was impaneled and before evidence was introduced by permitting the state by interlineation to insert the words, "and Herman Jardot" following the name of B. C. Adkison. In the case of Rich v. State (Okl. Cr. App.) 284 P 903, this court fully discusses the question raised by defendant and it was there said: "That the information may be amended in substance at any time after the trial begins with leave of court, if no prejudice thereto results to the defendant." The court there cited numerous decisions of this court supporting that rule.
Defendant next contends that the court erred in not arraigning him upon the amended information and forcing him to trial over his objections. The amendment of the information was not of such a nature as to require a rearraignment or a continuance of the case.
The defendant next contends that there was a fatal variance between the amended information and the proof, in that the proof tended to show that there were two...
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