Bailey v. State

126 So. 476, 156 Miss. 772, 1930 Miss. LEXIS 203

• Court: Mississippi Supreme Court
• Decided: March 3, 1930
• Docket: No. 28439.
• Status: Published

Opinion

Ethridge, P. J.,

delivered the opinion of the court.

Paul Bailey was indicted, tried, and convicted of burglary, and appeals.

The principal assignment of error is that the indictment was returned at the September, 1928, term of court and was not marked “filed” until the September, 1929, term of court. Since the record came here, the clerk has certified another copy of the indictment which shows that' it was filed by the clerk on the 5th day of September, 1928, the term at which it appears on the face of the indictment to have been found. The last certificate is dated January 31, 1930, and the original was dated the 25th of October, 1929. We assume that the first indictment was erroneously copied, and that the clerk discovered his mistake, or his attention was called to it, and that he sent the true copy in the last certified. But, regardless of whether this be the fact or not, the point was not raised in the court below at any stage during the trial, and, under the case of Hugh Wooten v. State (Miss.), 125 So. 103, it cannot be raised here for the first time.

It was argued that the testimony is insufficient to support a conviction. We have carefully read the testimony, and think it is ample to sustain a conviction. Therefore the judgment of the court below will be affirmed.

Affirmed.