| Miss. | Oct 15, 1877
delivered the opinion of the court.
The only question presented is as to the constitutionality of section 2799 of the Code, which permits certain specified amendments in indictments. The question was fully considered in the case of Eliza Miller v. The State, 53 Miss. 403, and decided in favor of the constitutionality of the statute.
In this case there was an affidavit submitted, on the motion for new trial, to the effect that defendant had been surprised by the amendment, and thereby prejudiced in making his defense.
The circuit judge overruled this motion, stating in his order that he did so because no continuance had been asked, nor any intimation given that the defendant was in any manner hindered in his defense by the amendment.
We think this action was correct. A defendant cannot proceed with a trial without objection, and, after conviction, claim that he has been damnified by an action to which he did not object.
Judgment affirmed. ■