126 P. 1040 | Okla. Crim. App. | 1911
The plaintiff in error, Angelo Pozzini, was convicted in the county court of Coal county at the January, 1910, term, on a charge of violating the prohibitory law, and his punishment fixed at imprisonment in the county jail for a period of thirty days and a fine of one hundred dollars. It appears from the record that at the conclusion of the trial there was a fatal variance between the allegation in the information and the proof adduced. The county attorney thereupon asked leave to amend the information to conform to the facts proved, which leave was granted by the court. This was error. If an information is to be amended it should be done before the case goes to trial. It cannot be amended in matter of substance after the empaneling of a jury, and can be amended in matters of form only when such can be done without prejudice to the rights of the accused. Let the judgment be reversed and the cause remanded for a new trial.
