Temple v. State, 39113

• Decision Date: 14 June 1954
• Docket Number: No. 39113,39113
• Citation: Temple v. State, 221 Miss. 569, 73 So.2d 174 (Miss. 1954)
• Parties: TEMPLE v. STATE.
• Court: Mississippi Supreme Court

Page 174

73 So.2d 174

221 Miss. 569

TEMPLE v. STATE.

No. 39113.

Supreme Court of Mississippi.

June 14, 1954.

Dave Womack, W. D. Womack, Jr., Belzoni, for appellant.

J. P. Coleman, Atty. Gen., by Wm. E. Cresswell, Asst. Atty. Gen., for appellee.

McGEHEE, Chief Justice.

On this appeal there are two grounds assigned for reversal of the conviction and sentence. The jury found from the evidence that the appellant, Paul E. Temple, had burglarized the mercantile store building of one Abe Stockner and had stolen therefrom certain goods, wares and merchandise belonging to the said owner of the store building, and the verdict of guilty was amply supported by the great weight of the evidence, and it is not contended on this appeal that the proof was insufficient to sustain the conviction on the merits of the case.

The first assignment of error is that the indictment is fatally defective in that it states in the body thereof that the grand jurors were 'taken from the body of the good and lawful men of the County of Sunflower * * * at the Term aforesaid of the Court aforesaid, to inquire in and for the body of the County aforesaid * * *'.

As a matter of fact the indictment in question here was returned by an Humphreys County grand jury and not a Sunflower County grand jury, and this fact was dictated into the record by the trial judge. He held that it was apparent from an examination of the indictment itself that the district attorney in preparing the indictment was using a Sunflower County (printed) form and evidently failed to strike out the word 'Sunflower' and insert the word 'Humphreys'; that if the defect had been called to the attention of the court seasonably it could have been amended so as to show the true facts, and that it was too late to raise the question for the first time after conviction.

Section 2449, Miss.Code of 1942, provides as follows: 'All objections to an indictment for a defect appearing on the face thereof, shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be impaneled in all other cases, and not afterward and the court for any formal defect, may, if it be thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall proceed as if such defect had not appeared.' See also Sec. 2436, Code of 1942.

Moreover, the caption of the indictment found preceding the recital as to where the grand jurors were taken from, etc., is in the following words: 'State of Mississippi County of Humphreys in the circuit court in and for said county, at the July term thereof, *...