Wilburn v. State

58 So. 7, 101 Miss. 392

• Court: Mississippi Supreme Court
• Decided: March 15, 1911
• Status: Published

Opinion

Smith, J.,

delivered the opinion of the court.

The indictment upon which appellant was tried was drawn under section 5032 of the Code of 1906, and charged him with the sale of vinous, spirituous, alcoholic and intoxicating liquors, in less quantities than one gallon, within five miles of the University of Mississippi. This section of the Code was repealed by. chapters 113, 114 and 115 of the Laws of 1908, and consequently the indictment failed to charge appellant with any offense, and was therefore a nullity. Hughes v. State, 97 Miss. 528, 52 So. 631.

Over the objection of appellant, this indictment was amended by the striking out of the words “in less quantities than one gallon, within five miles of the University of Mississippi.” The indictment being wholly void, and charging no offense at all, the court was without power to permit an amendment thereof. The offense charged by the amended indictment was different from, and followed by a greater punishment than the one for which appellant was originally indicted.

The judgment of the court below is reversed, the indictment quashed, and appellant discharged.

Reversed.