| Miss. | Oct 15, 1875
delivered the opinion of the court.
The plaintiff in error was indicted, tried, convicted and senten
The statute under which this conviction was had reads as follows : “ If any person, knowingly, shall mark or brand any animal, the property of another, with a mark or brand not that of the owner, without the consent of the owner, or without authority of law, he shall, on conviction thereof, be imprisoned in the penitentiary not more than three years, or be fined in a sum not more than five hundred dollars, or be imprisoned in the common jail for a period not longer than one year, or both, in the discretion of the court.”
There was a motion to quash the indictment for omitting to include the words of the statute, “or without authority of law,” which was .overruled. An exception thereto constitutes the first assignment of error.
There was no error in this. It is unlike other sections of the code and the cases cited. The offense is complete without these words, and they do not constitute a negative necessary to be averred. The marking “ without authority of law,” might constitute distinct cause of indictment, or, if done with authority of law, it would be matter of defense.
The indictment charged that the property marked belonged to John Barton. On the trial it appeared that it was the property of John Thomas Barton. An amendment of the indictment was allowed, by the insertion therein of the middle name of Mr. B., to which the defendant excepted, and this is the basis of the second assignment of error. This amendment is expressly provided for in the Code, § 2799.
The third and fourth assignments of error are simply variations of the second.
Upon allowing the amendment of the indictment, the court refused a continuance, except on an affidavit of surprise. Such affidavit being declined, a continuance was refused. There was
There was a plea in abatement to the jurisdiction and a verdict of the jury for the state on that issue, but no judgment upon the finding. Without objection, and without calling the attention of the court to the omission of a formal judgment, on that plea, the accused, after the finding, on the plea in abatement, was arraigned and pleaded not guilty to the indictment. The want of a formal judgment on the plea in abatement is first raised here by the sixth assignment of error. It is too late to present a purely technical error of this unimportant character. The decision and action of the court with reference to the question of jurisdiction affirmatively appears, and the record only lacks a formal judgment on that plea.
The plea in abatement presented the fact that the offense was committed in Chickasaw county, but that subsequently, and before prosecution in Chickasaw, the county of Colfax was formed, • including that portion of Chickasaw wherein the offense was committed. Upon these facts the court assumed jurisdiction in Colfax. To this the defendant excepted, and this is embraced in the seventh assignment of error, which avers that the circuit court of Colfax had not jurisdiction. This is not error.
The eighth assignment is based on a misunderstanding of the record. It assumes that the cause was submitted to a jury on the merits, on August 10th, and again on August 15th, without accounting in the record for such action. Counsel clearly misapprehend the record. There was but one jury on the merits, whose verdict was rendered August 15th.
The ninth assignment is but a repetition of the eighth, and not well taken.
The tenth assignment avers that the court sentenced the accused without the verdict of a jury. The record does not show this, but that there was a jury and verdict in due form.
The eleventh assignment raises the constitutionality of the statute.
The thirteenth assignment avers that it was error to sentence the accused to “,hard labor.” These words are mere surplusage. They are without special import, and have no effect beyond the laws regulating the conduct and control of persons imprisoned in the penitentiary.
• There was a motion for a new trial on the following grounds:
1. Because the court erred in refusing the defendant’s first charge on the plea in abatement.
2. The court erred in giving the first charge for the state.
8. The jury found contrary to the evidence.
4 The jury found contrary to the law and the evidence.
This motion was overruled, and is the basis of the fourteenth and last assignment of error.
The evidence simply sustains the verdict. The charges referred to in the motion for a new trial are those given and refused on the plea in abatement. The Court held that the courts in Colfax had jurisdiction, and refused to charge that they had not.,
There were no charges to the jury on the merits.
No error is shown in this case. The constitutionality of the statute involved is discussed in another branch of the case (No. 1545), on habeas corpus, present term, to which reference is made.