73 Miss. 784 | Miss. | 1896
delivered the opinion of the court.
The appellant was charged by affidavit with unlawful retailing to three named persons in the town of Terry, and on this charge thus preferred, he was tried and convicted before the mayor of that town. Feeling aggrieved, he appealed' to the circuit court of Hinds county, first district. When the case was called in that court for trial, upon motion of the state, the affidavit was amended, among other particulars, in striking out the names of the three persons to whom he had' been charged by the affidavit with unlawfully selling liquor, and for which specific offense he had been convicted in the court of the mayor of Terry. On the affidavit thus amended, the defendant was then put on trial, and one Charles Hollingsworth, who was not one of the three originally named persons to whom the affidavit alleged the illegal sales had been made, was introduced by the state. By this witness the state showed that the defendant had illegally sold liquor to him, and that no other persons other than himself and the liquor seller were present at the time of the sale. On this evidence, the defendant was convicted, and from that conviction and sentence thereon he appeals.
It is plain that the defendant was charged with one offense before the mayor of Terry and convicted of that offense, and that, on appeal from that judgment to the circuit court, he was there tried for and convicted of another distinct offense. It is true that no averment of the names of the buyers in the affi
The striking out of the names of the three persons to whom he was originally charged in the affidavit with having sold liquor, and for a sale to whom he had actually been convicted in the mayor’s court, was not an amendment of the affidavit so as to bring the merits of the case fairly to trial on the charge intended to be set out in the original affidavit, as authorized under § 1438, code of 1892. It was an amendment by which the state was allowed to prove, not the offense intended to be set out in the original affidavit, but a wholly distinct offense, and this was erroneous. Any sale of liquor unlawfully to any man is an offense, and may be charged in general terms; but when a sale to a particular person is charged, the name of the buyer, as we have seen, becomes descriptive of the identity of that which is legally essential to the charge, and no amendment in such case is permissible which charges another and distinct offense. That the defendant was charged, tried and convicted in the mayor’s, court on one charge, and was, by what was called an amendment to that original charge, tried and convicted of another and a distinct offense in the circuit court, is indisputably certain.
The circuit court of Hinds county was not without jurisdiction to try the case by reason of the supposed discontinuance of the term at which defendant was tried. See Shep Palmer v. State, this day decided by us.
Reversed and remanded.
