Hogue v. State

HOYLE, J. The plaintiff in error was convicted of the crime of having unlawful possession of intoxicating liquors with intent to sell the same, and was sentenced to be confined in the county jail -for a term of 30 days and that he pay a fine of $50. To reverse this judgment an appeal was taken. The assignments of error are in effect as follows: That the trial court erred in permitting the information to be amended after the jury had been impaneled and testimony taken on the trial; and in refusing to require the information to be verified after the amendment; and in refusing to rearraign the defendant to the amended information; and in failing to reswear the jury to try the defendant upon the amended information; *522 and in refusing the defendant a jury after the said amendment, and in compelling the defendant to accept the jury selected to try the issues under the original information, in his trial upon the amended information. It appears from the record that the court after the first witness for the state had testified permitted the defendant to file a demurrer to the information. The original information charged: “That said B. L. Hogue did then and there, willfully and unlawfully have in his possession about 75 gallons of spirituous, vinous, fermented, malt, and intoxicating liquors, or imitation thereof or substitute therefor, with intent to sell, the kind, character, and ingredients, of which is to the county attorney unknown.” Upon the demurrer interposed the court permitted the information to be amended by striking out the words “or imitation thereof or substitute therefor.” It is our opinion that the amendment was one in matter of form only. By leave of court, an information may be amended as to matters of form after the jury has been impaneled, when the same can be done without prejudice to the substantial rights of the defendant. Rollen v. State, 7 Okla. Cr. 673, 135 Pac. 1087. There is nothing in the record which would indicate that the defendant was prejudiced by this action'of the court, and counsel do not undertake in the brief to indicate that the defendant was prejudiced thereby. -The words stricken out were mere surplusage, and for this reason the amendment as made was not one in matter of substance, and therefore could not have been prejudicial to the substantial rights of the defendant. No error was committed in refusing to require the information to be verified after the amendment. The original information was properly verified, and the defendant’s arrest on the warrant issued thereon was therefore legal. Neither did the court err in refusing to rearraign the defendant on the amended information, nor was it necessary to reswear the *523 -jury. It was not such an amendment as would alter the condition of the case, and the trial court properly ordered the case to proceed before' the jury selected and sworn to try the issues under the original information. We see no error in any of the rulings of the court. The judgment is affirmed. ARMSTRONG, P. J., and FURMAN, J., concur.