Washington v. State
| Decision Date | 12 November 1928 |
| Docket Number | 27325 |
| Court | Mississippi Supreme Court |
| Parties | WASHINGTON v. STATE. [*] |
1. INDICTMENT AND INFORMATION. Allowing amendment to indictment by changing date of offense from 20th to 21st of March, in anticipation of proof, held not erroneous.
In prosecution for possession of still, the allowance of an amendment of indictment by changing the date from the 20th to the 21st of March, in anticipation of proof, held not erroneous, though prematurely entered.
2. SEARCHES AND SEIZURES. Failure of affidavit to name district of which justice of the peace issuing warrant was official did not invalidate warrant.
Failure of affidavit for search warrant issued by justic of the peace to name district, of which the justice of the peace was an official, did not invalidate warrant, since justice of the peace has authority to issue a search warrant for property in any part of his county.
3. SEARCHES AND SEIZURES. Search warrant is not void because of improper return, but may be amended to conform to facts. Search warrant is not void because an improper return is made thereon, but is amendable in the court to which it is returnable, and may be amended to conform to the facts.
4. INTOXICATING LIQUORS. Evidence held to sustain conviction for possession of still in its integral parts.
Evidence in prosecution for having possession of a still in its integral parts held sufficient to sustain conviction.
APPEAL from circuit court of Pike county, HON. E. J. SIMMONS, Judge.
Tommy Washington was convicted for having in his possession a still in its integral parts, and he appeals. Affirmed.
Affirmed.
Price, Price & Jackson, for appellant.
Cited: Kline v. State, 44 Miss. 317; Blumenberg v. State, 55 Miss. 528; Graves v. State, 114 So. 123; Bradley v. State, 128 Miss. 114, 90 So. 627; Riley v. James, 73 Miss. 1, 18 So. 930; Comby v. State, 106 So. 827; Orrick v. State, 105 So. 465; Ivey v. State, 106 So. 111; Matthews v. State, 134 Miss. 807, 100 So. 18; Davis v. State, 117 So. 116.
J. A. Lauderdale, Assistant Attorney-General, for the state.
Cited: Hendricks v. State, 144 Miss. 87; Goffredo v. State, 145 Miss. 66; Conwill v. State, 147 Miss. 118.
Tommy Washington, appellant here, was convicted on an indictment charging him with having in his possession a still in its integral parts, fined three hundred dollars, and prosecutes an appeal to this court from that judgment.
We shall take up the causes assigned by appellant for reversal, and with each separate cause state the facts in connection therewith.
First. The court permitted an amendment of the indictment on motion of the district attorney by proper order duly entered on the minutes, before any testimony was heard.
The indictment charged that the crime was committed on the 20th day of March, 1928. After the jury was impaneled, and before any testimony was taken, the court entered an order upon the minutes amending the indictment by changing the date from the 20th of March to the 21st of March. This amendment was objected to by the appellant, the objection was overruled by the court, and exception reserved. No continuance was asked. On the trial the proof showed that the amendment was proper. Section 1245, Hemingway's 1927 Code (section 1248, Code of 1906), is as follows:
"An indictment for any offense shall not be insufficient for omitting to state the time at which the offense was committed in any case where time is not of the essence of the offense, nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding of the indictment, or on an impossible day, or on a day that never happened, nor for the want of a proper or perfect venue."
Counsel for appellant seems to make the point that, because the order was made in anticipation of the proof, instead of in response thereto, therefore prejudicial error occurred. The officers made the search on the 21st day of March, and found what they said was a still in the possession and in the home of the appellant. This amendment was not material, was not vital, and was not a mutilation of the indictment as in the case of Davis v. State (Miss.), 150 Miss. 797, 117 So. 116, wherein the district attorney mutilated a murder indictment by changing the name of the deceased alleged to have been killed by the defendant. No order of the court was entered in that case, so that it appeared that on the indictment for killing Ernest Jones, the court permitted proof of the killing of Man Jones, without an order entered on the minutes to conform to a correct variance in the proof. No harm came to the appellant by virtue of the amendment in the case at bar, since it was properly entered in anticipation of the proof which later sustained the judgment of the court entered before the actual proof disclosed the variance.
We do not think that the fact that the order may have been prematurely entered affected the validity of the order, or prejudiced any right of the defendant.
Second. We are asked to reverse the case because the affidavit for the search warrant issued by the justice of the peace in this case does not name the district of...
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