Martin v. State

42 So. 601, 89 Miss. 633

Opinion

Mayes, J.

delivered the opinion of the court.

There is a fatal variance between the proof and the crime as charged. The affidavit charges Martin with.tearing down a certain dwelling house situated on lots 5, 6, Y, and 8, block 8, Sunflower addition to the city of Gulfport. The proof shows that the house was situated in block 9. The crime must be proved as alleged, and, if a description is given locating the house on a certain lot in a certain block, the proof must correspond with the affidavit. The affidavit was amendable, but there was no request to be permitted to amend. In this view of the law, the court erred in giving the two instructions asked for the state. Had the affidavit not described the house as being on certain lots by number, these instructions would have been correct, (under the proof, but, since the affidavit does place the house on certain designated lots, by number, in a certain block, also giving the number, the proof must correspond, and the crime charged is not made out by proof that appellant tore down a house of affiant, situated on some other lot, in another block.

Reversed and remanded.