69 So. 167 | La. | 1915
The appellant was convicted of the crime of burglary committed on the night of the 21st of January, 1914, and was sentenced to serve five years’ imprisonment in the penitentiary. 1-Iis appeal is founded upon 14 bills of exception.
When the ease was returned to the docket of the district court and the district attorney moved to amend the indictment by changing the date from the 22d to the 21st of January, 1914, the defendant’s counsel objected, contending that the so-called amendment was in effect the institution of a new and different prosecution. The objection was overruled, the date 22d was changed to 21st of January, 1914, in the indictment, and the defendant’s counsel reserved bill of exceptions No. 1. He urged the same objection to the arraignment under the amended indictment, to the overruling of which objection he reserved bill of exceptions No. 2. And he made the objection to the assignment and reassignment of the ease for trial, and to being tried, under the amended indictment, and to the three adverse rulings, reserved, respectively, bills of exception Nos. 3, 4, and 5. These five bills of exception therefore depend upon whether there was error in permitting the indictment to be amended and will be considered as one.
In remanding this case for a new trial (136 La. 261, 66 South. 966), it was said:
“In the instant case there was no formal defect apparent on the face of the indictment; but the state, having charged defendant with an offense as committed on the night of January 22d, and which had been committed by some one on that night, sought to sustain the charge * * * by evidence showing the commission of a crime, identical with the other, save as to the time, which was committed, by some one, on the night of January 20th (21st); and defendant made the objection that the evidence was inadmissible, unless and until the indictment should be amended to conform to the facts including the time to be proved. There was no other course for him to pursue, and we are of opinion that his objection should have been sustained and the indictment amended, as contemplated by R. S. 1047, above quoted; otherwise he may be convicted of two offenses, though guilty of but one.
“It is therefore ordered that the conviction and sentence appealed from be set aside, and that the case be remanded to be further proceeded with ^according to law and to the views herein expressed.”
The district attorney, in amending the indictment, followed the direction of this court,
Section 1047 of the Revised Statutes provides that an indictment may be amended in certain particulars if the court considers that the amendment is not material to the merits of the case and that the defendant cannot be prejudiced thereby in his defense. And section 1063 provides that the date of commission of the crime alleged in an indictment is not material, and that an error in this respect is not important, in cases where time is not of the essence of the offense charged.
The learned counsel for the defendant argues that the fact that there were two separate and distinct crimes of burglary of the same warehouse committed, one on the night of the 21st and the other on the night of the 22d of January, 1914, makes the date a material part of the indictment in this ease, and takes it out of the general rule. He says that the grand jury, in indicting the defendant, had in mind the burglary that was committed on the night of the 22d and had no intention of indicting him for the crime that is alleged to have been committed on the night of the 21st. But, from the fact that the grand jury indicted this defendant, we must assume that the intention was to indict him for the crime which has been proven to have been committed by him, that is, the burglary committed on the night of the 21st of January, 1914, unless we assume that he also committed the crime of burglary that was committed on the night of the 22d. And, if w’e assume this, the date would not be a material part of the indictment.
Our conclusion is that the defendant was not prejudiced in his defense by the amendment of the indictment.
“Now, under the new law, gentlemen, passed by the last Legislature, the parish is put to considerable expense, and you gentlemen will have to be locked up until the sheriff can summon the tales jurors.”
The complaint is that the jurors might have inferred from the foregoing remarks of the judge that it was the defendant’s fault, in not selecting a full jury from the regular venire, that the jurors who were selected had to be locked up while the sheriff summoned tales jurors. The judge’s criticism of the new jury law, however, seems to have been aimed at the Legislature and was not at all prejudicial to the defendant in this ease..
Bills of exception Nos. 8, 9, 10, and 11, refer to an order of the judge directing the clerk of court to draw the names of five tales
“In this case, burglary and larceny are charged in the indictment in a single count; but the jury can find a verdict for both burglary and larceny or either.”
The charge was not appropriate, because the indictment did not charge both burglary and larceny. The crime charged was breaking and entering or burglary of a warehouse in the nighttime with intent to steal. It was proper to refuse to give the charge.
We have failed to find any error in the proceedings.
The verdict and sentence appealed from are affirmed.