Wilson v. City of Aberdeen
| Decision Date | 08 November 1937 |
| Docket Number | 32929 |
| Citation | 179 Miss. 751,176 So. 601 |
| Court | Mississippi Supreme Court |
| Parties | WILSON v. CITY OF ABERDEEN |
APPEAL from the circuit court of Monroe county HON. THOS. H JOHNSTON, Judge.
Richard Wilson was convicted of the unlawful possession of intoxicating liquor in violation of an ordinance of the City of Aberdeen, and he appeals. Reversed and remanded.
Reversed and remanded.
M. C Young, of Aberdeen, for appellant.
Amendments, under Section 1292 of the Code of 1930, on appeal from the justice court are to be liberally allowed and are permissible if not so imperfectly framed "as that the fact constituting the gist of the offense was omitted."
Coulter v. State, 75 Miss. 356, 22 So. 872; Brown v. State, 81 Miss. 137, 32 So. 952.
If the gist of the offense is contained in the affidavit it can be amended of course.
City of Pascagoula v. Seymour, 101 So. 576.
An indictment may be amended as to the name of the defendant under Section 1209, Code of 1930, but there must be some name or the name is stated as unknown.
State v. Murphy, 124 Miss. 440, 86 So. 330.
In this case certain heirs, the names unknown to the grand jurors, on amendment was allowable, but some name or designation must be given. A complete omission of the defendant is fatal and not amendable. Our code is liberal in allowing amendments, under Section 1289 of Code of 1930. The christian name or the surname may be changed or corrected, but there must be some name or basis to change or correct.
Want of a proper or perfect venue may be amended, but if no venue at all is set out, we submit that is fatal and not amendable under Section 1208, Code of 1930.
Jones v. State, 133 Miss. 801, 98 So. 342; Griffin v. State, 105 So. 457.
The court should have sustained the defendant's objection to the introduction of the affidavit for a search warrant and the search warrant, and, of course, the evidence of the officers based on the search warrant. Both papers set out all the various violations and the places and things that may be searched, all in the disjunctive.
None of them are erased or deleted. The defendant should not be called upon to defend himself from the charges and presumptions implicated in such a "gatling gun" paper. He is entitled to be advised under section of the State Constitution of the specific place or places and things to be searched and the violations charged. In the numerous cases decided by this court, it has always been the principle that a sharp, clear cut, definite affidavit for a search warrant and search warrant must be drawn.
The court should have excluded the affidavit for search warrant and the search warrant, and for that reason the case should have been decided for defendant.
The affidavit attempting to charge the offense does not charge that same was contrary to any ordinance or ordinances of the City of Aberdeen and does not show that the affidavit was ever filed or marked filed.
Since this affidavit does not charge an offense against or contrary to any ordinance of the City of Aberdeen and is not even marked field in any court, it is a mere nullity.
Johnson v. City of Aberdeen, 176 So. 262.
It is therefore respectfully submitted that this case should be reversed and the appellant discharged.
Thomas Fite Paine, of Aberdeen, for appellee.
The principal assignment of error argued by the appellant is that the court committed error in permitting the affidavit from the mayor's court to be amended in the circuit court by adding thereto the name of the appellant and the words, "did unlawfully."
Several cases are cited by counsel under this assignment of error, none of which we respectfully submit are directly in point but on the contrary the case of Coulter v. State, 75 Miss. 356, is authority for the action of the court in permitting the amendment.
City of Pascagoula v. Seymour, 101 So. 576; Moran v. State, 102 So. 388; Sullivan v. State, 117 So. 374.
Section 1292, Code of 1930, we respectfully submit, is ample authority for the action of the trial court.
This amendment made in the circuit court was authorized to bring the merits of the case fairly to trial on a charge intended to be set out in the original affidavit. The appellant was not prejudiced thereby and could not have been injured in any way.
Amendments to affidavits from the lower courts in the circuit court are allowed more liberally than amendments to indictments and of course for the reason given in the case of Coulter v. State, 75 Miss. 356.
The affidavit did specifically charge him with unlawful possession of intoxicating liquor and this ground was sufficient to entitle the mayor to issue the search warrant and sustain the action of the officers in executing the search warrant.
Argued orally by M. C. Young, for appellant.
Appellant, Richard Wilson, was tried and convicted of the unlawful possession of intoxicating liquor before the mayor of the City of Aberdeen, and ex officio justice of the peace of Monroe County, upon an affidavit of T. M. McDuffie, city marshal, which did not contain the name of the appellant as the defendant and did not charge that he "unlawfully" had in his possession intoxicating liquor. Neither did the affidavit aver that the offense charged was in violation of any ordinance of the City of Aberdeen, but merely charged the same to the "contrary to the form and statute in such cases made and provided, and against the peace and dignity of the City of Aberdeen, Mississippi."
An appeal was taken to the circuit court of Monroe County, where a demurrer to the affidavit was interposed, setting up these insufficiencies of the affidavit, and was by the court sustained. Thereupon leave to amend the affidavit was granted, and the same was amended by inserting therein the name of the appellant, and also by inserting the words "did unlawfully" before the words "have in his possession intoxicating liquor." But no amendment of the affidavit was asked on the part of the city so as to charge that the alleged offense was committed in violation of any of its municipal ordinances.
The proceedings instituted before the mayor, as an ex officio justice of the peace of Monroe County, consisted not only of the affidavit made by the city marshal on which appellant was tried, but also of an affidavit made by him for a search warrant for the search of the...
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Mays v. State
...the offense committed. The amendment did not change the offense. Patterson v. State, 1937, 179 Miss. 758, 176 So. 603; Wilson v. Aberdeen, 1937, 179 Miss. 751, 176 So. 601; Cannon v. State, 1925, 140 Miss. 217, 105 So. 501. Hudson v. State, 1896, 76 Miss. 784, 19 So. 965, relied upon by app......