Roney v. State

Decision Date11 February 1929
Docket Number27307
Citation120 So. 445,153 Miss. 290
CourtMississippi Supreme Court
PartiesRONEY v. STATE. [*]

Division B

1. CRIMINAL LAW. Indictment and information. Variance necessitating amendment of indictment or reversal on account thereof must be material and affect substantive rights of defendant.

Variance between allegation of indictment and proof in order to necessitate an amendment of the indictment or reversal on account of the variance must be material and affect the substantive rights of defendant.

2. INDICTMENT AND INFORMATION. Variance between charge of assault with brass knucks and proof of assault with crutch did not require amendment (Hemingway's Code 1927 sections 1329, 1330).

Variance between indictment charging assault and battery was committed with brass knucks and evidence that assault was with a crutch held not such as required an amendment or affected the merits of the case, without regard to whether amendment was properly permitted under Code 1906, sections 1508, 1509 (Hemingway's Code 1927, sections 1329, 1330).

3. CRIMINAL LAW. Overruling objection to statement of district attorney that defendant had virtually admitted connection with fight held erroneous.

Overruling objection to statement of district attorney, in prosecution for assault and battery, to effect that defendant, up to the time of trial, had virtually admitted connection with fight held erroneous, as without support in evidence and being a statement of fact which, if accepted, swept away entire defense.

4. CRIMINAL LAW. Broad latitude allowed counsel in argument does not extend to statement of facts not in evidence and prejudicial to defense.

Though counsel are allowed a broad latitude in argument within limits of testimony and inferences to be drawn therefrom such right does not extend to statement of facts not in evidence which are prejudicial to defense of accused.

HON. R S. HALL, Judge.

APPEAL from circuit court of Jones county, Second district, HON. R. S. HALL, Judge.

Hub Roney was convicted of assault and battery, and he appeals. Reversed and remanded.

Judgment reversed, and cause remanded.

Collins & Collins, for appellant.

The court erred in sustaining the motion of the district attorney to amend the indictment in this case by striking out the words "brass knucks" and inserting the words "a crutch," in the indictment. The court will bear in mind that this was an indictment preferred by the grand jury of the circuit court against this defendant for a felony, to-wit: Assault and battery with intent to kill and murder, and in setting out the original indictment with which the assault was made, the state set out that it was done with brass knucks. This was a very material allegation in the indictment, to-wit: The kind of weapon, if any, that was used by the defendant. The amendment in the indictment was just as important as if it had originally set out a gun or pistol, and then changed it to a bowie knife. This, being a material allegation in the indictment, was unamendable under the law. If the state had any right to amend this indictment, it must find its authority under sec. 1266, Hem. Code 1917, allowing amendments to indictments. Being in derogation of the common law, this statute must be strictly construed in favor of the person charged, and if no authority can be found there such amendment, then it was error for the court to allow it.

Sec. 1267, Hem. Code 1917, reads in part as follows: "The order of the court for such amendment shall be entered on the minutes, and shall specify precisely the amendment." This requirement of this statute was not met by the order of the court in this case. The order of the court states that the district attorney made a motion to amend the indictment, but it does not set out the amendment proposed, nor the amendment allowed, and so it was sadly defective, and the court had no right to proceed upon such an order. See Shirley v. State, 90 Miss. 415, 43 So. 299; Evans v. State, 144 Miss. 1, 108 So. 725.

The court erred in overruling defendant's objection to the following remark of the district attorney, made in his closing argument to the jury: "This defendant and his witnesses now say that defendant had nothing to do with this fight, when up to this time he has virtually admitted that he did." The district attorney is generally looked upon by the jury as being authority on law, on testimony, on morals, on religion and on every other question engaging the attention of people. He has great influence, and when he speaks a fact which he proposes to know something about, juries usually presume that he is telling the whole truth and nothing but the truth. By this statement the district attorney, acting as prosecutor for the state and performing his solemn duty before the jury, put in issue every statement made by the defendant and his witnesses, and contradicted by his own statement, every statement that the witnesses of the defendant had made. Seasonable objection was made to the statement, but the court allowed the jury to take it into consideration, and so the jury felt warranted in saying that the district attorney properly made the statement because he knew that the defendant had admitted, virtually, that he did have something to do with the fight before the trial. See 12 Cyc. 574; Long v. State, 81 Miss. 448, 33 So. 224; Martin v. State, 63 Miss. 505; Perkins v. Guy, 55 Miss. 153; Cavanah v. State, 56 Miss. 299; Cross v. State, 68 Ala. 466; Wolffe v. Minnis, 74 Ala. 386; State v. Smith, 75 N.C. 306; Profatt on Jury Trials, sec. 250.

Rufus Creekmore, Assistant Attorney-General, for the state.

The state moved the court to be permitted to amend the indictment so as to conform to the proof by inserting the word "crutch" instead of the words "brass knucks," and this motion was sustained by the court. The first point argued by counsel is that this allegation was material, and therefore was not amendable. In support of this contention, they refer the court to the provisions of sec. 1508, Code of 1906, sec. 1329, Hem. Code 1927. Certainly no extended argument is necessary to show that this defect was one which could be amended. Counsel insist, however, that the order in this case which was entered on the minutes did not specify precisely the amendment to be made, and, therefore, the provisions of the statute were not complied with, and there was in fact no valid amendment made. In support of this argument, Shirley v. State, 90 Miss. 415, 43 So. 299; and Evans v. State, 144 Miss. 1, 108 So. 725, are cited. In the Shirley case the prosecuting officer changed the indictment himself without making a motion to amend and without any order of any kind being placed upon the minutes. In the Evans case the motion to amend was made, but no order permitting the same appeared on the minutes. The case at bar is different from both of those cases. Here we have the written motion of the district attorney filed as a pleading in the case, specifying precisely the amendment which was to be made in the indictment. There appears on the minutes of the court an order reciting that the motion of the district attorney to amend the indictment in this case was sustained. The indictment itself shows that the amendment was physically made in accordance with the order of the court. The order sustaining that motion appears on the minutes of the court, and the indictment itself was amended in accordance with the motion and order. Certainly this is a sufficient compliance with the provisions of the statute here in question.

In Sanders v. State, 141 Miss. 289, 105 So. 523, the indictment charged the crime to have been committed on September 8, 1924, while the evidence showed that at that time appellant was not in office, his term having expired the previous year, and, for that reason, he could not have been guilty of the crime of ambezzlement with which he was charged. The court, however, held that this variance was without harm to the appellant because he was not deceived or misled thereby, but he was equally as able to prepare for his defense as if the correct time had been alleged in the indictment. In Bowers v. State, 145 Miss. 832, 111 So. 301, a case practically on all fours with the case at bar, the indictment charged that the defendant made an assault upon the prosecuting witness with a wrench, while the proof showed that the instrument used was a stick. The court held that the variance between the indictment and the proof did not affect the merits of the case, and that the appellant could not complain thereof. In the case at bar, the instrument laid and that proved are substantially of the same character and capable of inflicting substantially the same injury. Since this is true, then the defendants would not have been prejudiced, even though the indictment had not been attempted to be amended.

In his closing argument the district attorney said: "This defendant and his witness now say that the defendant had nothing to do with this fight, when up to this time he has virtually admitted that he did." Although this statement by the district attorney was not based upon any facts in the record, defendant's objection to the same was overruled by the court. This remark by the district attorney was improper and objection to the same should have been sustained by the court, yet it was not a remark that so prejudiced the defendant as to require a reversal of this cause. Counsel are allowed a wide latitude in this argument, and the members of the jury are probably of sufficient intelligence to take...

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    • United States
    • Mississippi Supreme Court
    • 5 Febrero 1940
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    ...between an indictment and the proof requires an amendment to the indictment or a reversal because of the variance. In Roney v. State, 153 Miss. 290, 297, 120 So. 445 (1929), the rule was stated as It is not every variance between the allegation in the indictment and the proof that will nece......
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