Wade v. State, 57 So. 222

57 So. 222 | Miss. | 1911

Whitfield, C.

The affidavit in this case was manifestly an affidavit charging an offense against the ordinances of the city of Grenada. The words “City of Grenada” were in the caption of the affidavit originally, and stricken out. The affidavit was’ a general form of affidavit, intended to he used when charging an offense against the state. The affidavit in full is as follows:

General Affidavit.

The State of Mississippi, Grenada County.

Before me, S. T. Tatum, Mayor of Grenada, Miss., Justice of the Peace of the County aforesaid, Claud Hall, Marshal, on information and belief, makes oath that Will Wade, in the city of Grenada, Miss., County and State aforesaid, did on the 23rd day of January, 1910, and other days unlawfully sell and barter intoxicating liquors against the peace and dignity of the State of Miss.

Claud Hall, (Marshal.)

Sworn to and subscribed before, this the 21st Day of Feb., 1910.

S. T. Tatum, Mayor & Ex. Of.

Justice of the Peace-^-District.

No.....

General Affidavit. •

State of Mississippi vs. Will Wade.

Affidavit of

Claud Hall, Marshal,

Before Justice of the Peace.

Filed Feb. 21, 1910.

J. P. -District.

Filed July 1st, 1910.

E. M. Ransom,

Clerk.

The words “Mayor of Grenada” were in writing, not in print. The affidavit was made by the marshal of the town, and it was sworn to before S. T. Tatum, mayor and ex officio justice of the peace. It seems that on ,the back of the affidavit the words “City of Grenada” were stricken out, and the words “State of Mississippi” substituted. The conclusion in the body of the affidavit originally was “against the peace and dignity of the State of Miss, and the ordinances of the City of Grenada, Miss.” These last words, “and the ordinances of the City of Grenada, Miss.,” were stricken out. All these changes in the affidavit were made in the circuit court by way of amendment, over the objection of the defendant. The appellant insists, and rightly, that these amendments changed the offense with which he was charged. The case of Washington v. State, 93 Miss. 271, 46 South. 539, is conclusive of this case. Taken in connection with the case of Johnson v. State, 59 Miss. 543, and Ex parte Bourgeois, 60 Miss. 663, 45 Am. Rep. 420, the appellant should have been tried under the affidavit as originally framed for the. alleged- offense against the ordinances of the city of Grenada.

Per Curiam. The above opinion is adopted as the opinion of the court, and for the reasons therein indicated the judgment is reversed and the cause remanded, for the trial of the defendant for the offense charged against him under the ordinances of the city of Grenada.

Reversed and remanded.

Suggestion of error hied by the state and overruled.