State v. Sweeney

May 25, 1914

No. 20572

Reporters:: , ,
Before:: Sommerville

SOMMERVILLE, J.

Defendant was charged with burglary and larceny in two counts in an indictment against him and another. There was a severancе, and he was found guilty on both counts; but the district attorney, with consent of the court, nolle prosequied the charge of larceny; and the court sentenced defendant on the verdict of burglary alone.

[1] The first and third bills of exceptions resеrved to the rulings of the court have reference only to the second count in the indictment, charging larceny; and аs that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍charge was subsequently nolle prosequied with leave of the court, before sentence was pronounсed, consideration of these bills of exceptions passes out of the case.

[2] The second bill of exceptions was taken to a nolle prosequi entered in the case of a juror, who had been charged with assault аnd battery, after examination on his voir dire. Defendant objected to the action of the district attorney, which objection was overruled. The record shows that the juror did not sit on the case; that defendant challenged him peremptorily; and it also shows that defendant had not exhausted his challenges ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍on the trial. No injury, therefore, resulted from the ruling of the court, even if it were erroneous; and defendant cannot be heard to complain.

[4] The fourth bill of exceptiоns was taken to an amendment of the indictment during the trial so as to read “the storehouse of E. N. Lewis, known as the Collins Hardware Company, a corporation of said parish and state,” etc., instead of “the storehouse of the Collins Hаrdware Company, Limited, a corporation of said parish and state,” as charged originally in the indictment.

Defendаnt argues that an indictment, being a presentment of a grand jury, under oath, cannot be amended by order of the court; thаt to permit the amendment on the trial would tend to deprive the defendant of his liberty, without due process of law; that it would ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍have the effect of compelling defendant to plead and defend his case without the benefit and advantage of his constitutional light to be informed of the nature and cause of the accusation brought against him; and that it would dеfeat defendant’s right to have *570a true copy of the indictment served upon him two full days before being compelled to make his defense.

It appears from the bills of exceptions that the evidence showed that E- N. Lewis was the true owner and the one in actual posses: sion of the storehouse which had been burglariously entered, and that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the stоrehouse was known as the Collins Hardware Company; and the state was permitted to amend so as to show that the рroperty was “the property of E. N. Lewis, known as.the Collins Hardware Company.”

[3] Article 1047, R. S., provides: That it shall be lawful for thе court, before which the trial shall be had, to order the’ amendment of an indictment according to the proof, where there is a variance between it and the statement made in the indictment “in the name or description of any рerson, body politic or corporate, therein stated or alleged to be the owner of any propеrty, real or personal, which shall form the subject of any offense charged therein; * * * or in the Christian name or surname, оr both Christian name and surname, or other description whatsoever, of any person whomsoever therein named оr described; * * * or in the ownership of any property named or described therein” — if the court “shall consider such variаnce not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defеnse.”

The amendment in- question was fully authorized by the section of the Revised Statutes ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍above quoted from, and by the opiniоns of this court in State v. Satterwhite, 52 La. Ann. 499, 26 South. 1006, and State v. Johnson, 116 La. 30, 40 South. 521, and by the authorities cited in those cases. .

The amendment did not change the storehouse burglarized, but only the name of the owner аnd possessor, and in such a way as to scarcely make a change in the description of the person; such аn amendment does not deprive a person of his liberty without due process of law, or deprive him of the right of being аdvised of the nature of the crime charged against him.

Defendant was fully informed of the nature and cause of the accusation against him. He was charged with burglary at the time and place fixed in the indictment, and the storehouse which he wаs charged with having feloniously entered was described as “the storehouse of the Collins Hardware Company, Limited”; and whеn the evidence showed that it was the storehouse of E. N. Lewis, but known as the Collins Hardware Company, the variance in the description of the place entered could not have been held to be material to the merits of the сase. .There could have been no uncertainty as to the particular storehouse defendant was chargеd with having feloniously entered, for it was known as the Collins Hardware Company, although it actually belonged to E. N. Lewis. The amendment did not attempt to change the ownership of the property. The Collins Hardware Company was not the owner of the storehouse; it belonged to Mr. Lewis; and Mr. Lewis was shown to have been doing business in the name of that company at the time of the burglary. The identity of Lewis and the corporation appears to have been certain. The аmendment did not really change the name of the person whose storehouse was said to have been enterеd feloniously by defendant.

[5] The amendment which was allowed not being to a’ material part of the indictment, and only as to a description in the name of the owner of the storehouse alleged to have been entered by defendant, it was unnecessary that the indictment should have been served upon the defendant before trial, as is provided shall be done in section 992, R. S. Section 1047, R. S., contemplates that the trial shall be without delay, and that there shall be no service of a copy of the bill as amended.

Judgment affirmed.