Foreman v. State

48 So. 611 | Miss. | 1909

Fletcher, J.,

delivered the opinion of the court.

This appellant was indicted for embezzling certain funds which came into his hands as “secretary of the B. K. Bruce Lodge of Colored Odd Fellows.” On the trial it was developed by the testimony that it was appellant’s duty to collect these funds and remit them to the secretary of the “Odd Fellows’ Benefit Association of Mississippi;” this latter organization being somewhat distinct in its organization and objects from the Odd Fellows lodge proper. Thereupon the court, over the objection of defendant, permitted the state to amend the indictment so as to charge that Foreman was “agent of the Odd Fellows’ Benefit Association of Mississippi.” Appellant’s counsel, insisting that the amendment made a new case and that he was thereby taken by surprise, and was unprepared to make defense1, asked that the case be continued.

We think it was fatal error to deny this request. It is manifest that the amendment did make a new case, and reasonable opportunity should have been given defendant to meet the changed aspect of affairs. Indicted for embezzling funds received as an officer of one society, he was tried for embezzling funds -received as an officer of another, toward which he sustained a different attitude and in regard to which he owed a different duty. Since the case must be reversed, we here express grave doubts as to the propriety of the amendment, and suggest that a new indictment be secured, which will correctly describe appellant’s attitude toward the funds collected and contain proper averments as to the ownership of the moneys alleged to have been misappropriated.

Reversed and remanded.