Winston v. State
| Decision Date | 26 February 1912 |
| Citation | 101 Miss. 101,57 So. 545 |
| Court | Mississippi Supreme Court |
| Parties | OLLIE WINSTON v. STATE |
October 1911
APPEAL from the circuit court of Jones county, HON. PAUL B. JOHNSON Judge.
Ollie Winston was convicted of assault and battery with intent and appeals.
Affirmed.
The facts are fully stated in the opinion of the court.
R. E Halsell, for appellant.
We submit that the demurrer charging the indictment failed to show in what district the offense was committed, ought to have been sustained, nor do we think even before trial the indictment was amendable. There should have been another indictment, and certainly the court had no right after the defendant had been tried, to permit the district attorney to amend the indictment as was done in this case.
Frank Johnston, assistant attorney-general, for appellee.
There was a demurrer to the indictment, and pending the demurrer the district attorney made a motion for leave to amend the declaration by inserting the county, so as to state the venue in the indictment.
The motion to amend followed immediately the demurrer in the record.
It seems that the amendment was made just after the testimony of W. J. Bruce, a witnesses for the state, and the amendment consisted simply in placing the name of the county in the indictment.
The order of the court, allowing the amendment, appears immediately after the indictment and cities that the order allowing the amendment was made on the motion of the district attorney.
In the motion for the new trial, the objection was made to the action of the court in permitting the amendment.
The objection to the amendment is clearly based on a mistaken conception of the law.
Section 1508, of the Code of 1906, provides in the broadest and most liberal manner, for amendments to indictments. This statute has been construed in several cases by this honorable court in which the court has allowed amendments to be made in indictments, which are clearly authority for the amendment made in this case.
In Haywood's case, 47 Miss., a name was changed in the indictment, and so in Foster's case, 52 Miss., and Knight's case, 64 Miss.
Section 1508, of the Code, expressly provides that the name of the county in the indictment may be changed, or added, by the amendment.
The matter of an amendment of this character is clearly technical and formal, but the place of the crime is not in dispute.
It is not shown by the...
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Collier v. State
...text 530; Knight v. State, 64 Miss. 802; Sec. 3081 of the Code; Peebles v. State, 55 Miss. 434; Miller v. State, 53 Miss. 403; Winston v. State, 101 Miss. 101; v. State, 94 Miss. 1; Smith v. State, 112 Miss. 248; Smith v. State, 103 Miss. 356; Freeman v. State, 108 Miss. 818; Graves v. Stat......
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Kemp v. State
...number three, viz: "In the name or description of any person . . . therein stated or alleged to be injured or damaged, etc. In Winston v. State, 101 Miss. 101, cited by counsel, amendment is specifically authorized by section 1508, our subdivision number one, viz: "In the name if any county......