Blumenberg v. State

55 Miss. 528 | Miss. | 1878

Chalmers, J.,

delivered the opinion of the court.

The plaintiff in error was indicted for unlawfully selling liquor to J. T. Middlebrook. Upon the trial the proof established the fact that he had sold the liquor to A. T. Middle-brook, and thereupon the district attorney amended the indictment, by leave of court, against the objection of the accused, by changing the name in the indictment. If we could regard this as a mere mistake in the name, and the correction as conforming the indictment to the person intended by the grand jury, the amendment would be proper, under section 2799 of the Code of 1871, as expounded in Miller v. The State, 53 Miss. 403. In other words, if the grand jury indicted the plaintiff in error for selling liquor to the person whose real name was A. T. Middlebrook, but whom they erroneously supposed to be named J. T. Middlebrook, then the power of so amending as to conform to the truth existed; but the proof seems to show that this was not the case. There were in the county both a J. T. and an A. T. Middle-brook.

It was J. T. who appeared before the grand jury; it was to him that the indictment charged the liquor to have been sold; and it was his name that was marked upon the back of the indictment, as a witness for the state. None of these things were true as to A. T. Middlebrook. Every presumption, therefore, must be that it was the sale of liquor to J. T. Middlebrook that was presented by the grand jury. From some cause he was not called as a witness, but A.'T. Middle-brook was. The latter testified to a purchase of liquor by himself, within or about two years before the trial of the case ; but this, of course, did not negative the idea of a sale to J. T. Middlebrook also. If there was such sale to the latter, and it was this sale that the grand jury intended to present, it was improper to so amend the indictment as. to make it charge a different sale to another person. Identity of name is not essential, but identity of the offense and of the person is. The name may be changed so as to conform to the truth, but the person cannot be changed, because this would be the finding of a new bill, and not the amendment of the one found by the grand jury. The amendment was improper.