Keys v. State ( 1915 )

Smith, J.,

delivered the opinion of the court.

This is an appeal from a conviction for the unlawful selling of intoxicating liquor. The indictment alleged that appellant “did . . . sell . . . spirituous and intoxicating against the peace and dignity of the state of Mississippi.” A demurrer being interposed thereto, the district attorney, by permission of the court, over the objection of appellant, amended the indictment by inserting the word “liquors” between the words “intoxicating” and “against.” The demurrer was then overruled. Chapter 115, Laws of 1908, provides that:

“If any person shall sell . . . any ... . intoxicating or spirituous liquors, he shall on conviction be fined,” etc.

It is manifest from a mere inspection of the indictment that the offense therein intended to be charged is that defined by this statute, and that the absence of the word “liquors” is a mere clerical omission, so that the defect in the indictment may be treated as a formal one within the meaning of section 142G, Mississippi Code of 1906. Gamblin v. State, 45 Miss. 658. That appellant was prejudiced in the preparation of his defense, or was in the least doubt of the crime he was charged with having committed, becausé of the omission from the indictment of the word “liquors,” is inconceivable. Consequently no error was committed in permitting the amendment.

Appellant’s requested instruction to the jury “not to consider the physical defects of the defendant as any evidence against him” was properly refused. The jurors, we presume, were common sense men, and needed no instruction of this character.

'Affirmed.