Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the name of any county, city, town, village, division, or any other place mentioned in such indictment, or in the name or description of any person or body politic or corporate, therein stated or alleged to be the owner of any property, real or personal, which shall form the subject of any offense charged therein, or in the name or description of any person, body politic or corporate, therein stated or alleged to be injured or damaged; or intended to be injured or damaged, by the commission of such offense, or in the Christian name or surname, or both, or other description whatever, of any person whomsoever, therein named or described, or in the ownership of any property named or described therein, or in the description of any property or thing, it shall and may be lawful for the court before which the trial shall be had, if it shall consider such variance not material to the merits of the case, and that the defendant cannot be prejudiced thereby in his defense on the merits, to order such indictment and the record and proceedings in the court to be amended according to the proof, whenever it may be deemed necessary by the court to amend such indictment, record, and proceedings, on such terms as to postponing the trial, to be had before the same or another jury, as the court shall think reasonable. After such amendment, the trial shall proceed in the same manner, and with the same consequences in all respects, as if a variance had not occurred; but if the court shall, on application, refuse a continuance, the defendant may take a bill of exceptions thereto, and assign such refusal for error.
Codes, 1871, § 2799; 1880, § 3081; 1892, § 1435; 1906, § 1508; Hemingway's 1917, § 1266; 1930, § 1289; 1942, § 2532.
Notes of Decisions
Cited in
55
cases (
2 in the last 5 years), 1975–2022 · leading case:
Doby v. State, 532 So. 2d 584 (Miss. 1988).
Doby v. State, 532 So. 2d 584 (Miss. 1988).
· cites it 5× “2 DID THE TRIAL COURT ERR IN GRANTING THE STATE'S MOTION TO AMEND WHERE NO ORDER MAKING THE AMENDMENT WAS PLACED ON THE COURT MINUTES AND NO AUTHORIZATION WAS GIVEN THE DISTRICT ATTORNEY TO CHANGE THE INDICTMENT ON ITS FACE? Keeping in mind the argument in Proposition 1, Doby…”
Evans v. State, 499 So. 2d 781 (Miss. 1986).
· cites it 6× “The trial court allowed the amendments, holding that (1) The amendment was not of a material nature and (2) the amendment would not deprive the defendants of any defense which they might have had prior to the amendment. These standards upon which the court's holding was based…”
Reed v. State, 506 So. 2d 277 (Miss. 1987).
· cites it 4× “See Miss. Code Ann., § 99-17-13 (1972). However, any amendment, to be permissible, must be in form and not substance.”
Evans v. State, 725 So. 2d 613 (Miss. 1997).
· cites it 2× “Miss.Code Ann. § 99-17-13 (1994). However, such amendments may not be "material to the merits of the case" and the defendant must not be prejudiced in "his defense on the merits.”
Burks v. State, 770 So. 2d 960 (Miss. 2000).
· cites it 4× “" The change of one letter of the victim's name was also not a material variance on the face of the indictment when the amendment did not alter the criminal charge brought against Burks. Any errors complained of in the indictment above are matters of form and not of substance,…”
Washington v. State, 800 So. 2d 1140 (Miss. 2001).
· cites it 2× “See Miss.Code Ann. § 99-17-13 (2000). As the State points out, to hold otherwise would be placing form over substance.”
Burt v. State, 493 So. 2d 1325 (Miss. 1986).
· cites it 2× “Miss. Code Ann. § 99-17-13 (1972) provides: Whenever, on the trial of an indictment for any offense, there shall appear to be any variance between the statement in the indictment and the evidence offered in proof thereof, in the .”
Hannah v. State, 336 So. 2d 1317 (Miss. 1976).
· cites it 2× “It is authorized by Mississippi Code Annotated section 99-17-13 (1972). And see Sanders v.”
Williams v. State, 131 So. 3d 1174 (Miss. 2014).
· cites it 2× “Miss.Code Ann. § 99-17-13 (Rev.2007); Miss.”
Baldwin v. State, 732 So. 2d 236 (Miss. 1999).
· cites it 2× “Section 99-17-13 allows for the amendment of the indictment to change a name, as in the present case, so long as the defendant is not prejudiced and such variance is not material to the merits of the case.”
Akins v. State, 493 So. 2d 1321 (Miss. 1986).
· cites it 2× “1976); Miss. Code Ann. § 99-17-13 (1972). Likewise, a trial court may not amend an indictment to change the charge in the indictment to another crime, except by action of the grand jury who returned the indictment.”
Mixon v. State, 921 So. 2d 275 (Miss. 2005).
· cites it 2× “[4] § 99-17-15 provides in part: The order of the court for amendment of the indictment, record or proceedings provided in section 99-17-13 shall be entered on the minutes, and shall specify precisely the amendment, and shall be a part of the record of said case, and shall have…”
Miss. Code Ann. § 99-17-13(1994): 1 case
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