BEFORE WALKER, PRATHER AND ANDERSON
WALKER, PRESIDING JUSTICE, FOR THE COURT:
Charlie Ellis, Jr. was convicted in the Circuit Court of Jefferson County of grand larceny. Ellis was sentenced as an habitual criminal to life imprisonment without parole. He appeals his conviction and sentence.
On January 1, 1982 the Jessamine Ridge Baptist Church in the Melton Community north of Fayette was broken into and two butane heaters and two collection plates or sacramental plates were taken. The following day two more heaters were discovered missing.
The police were able to recover three of the stolen heaters. In each case, the person who had possession of the heater said that Charlie Ellis had sold it to him. There was testimony from Ernest Bell (" Cool Bear ") that he drove Ellis to a spot not far from the Jessamine Ridge Baptist Church and that Ellis retrieved two heaters from some bushes.
Ellis contended that he sold the heaters on behalf of and at the request of Ernest Bell. Ellis' story was contradicted by Bell and by the two purchasers who testified at Ellis' trial.
Appellant's first proposition on appeal is stated:
THE TRIAL COURT ERRED IN GRANTING THE STATE'S MOTION TO AMEND ITS INDICTMENT THEREBY PREJUDICING THE APPELLANT.
An indictment was returned against Ellis on April 22, 1983. The indictment contained these words:" That at said time and place the said Charlie Ellis, Jr., was an habitual criminal as defined in Section 99-19-81 of the Mississippi Code of 1972, Annotated. . . . "
On the day of the trial, the State, through the assistant district attorney, moved to amend the indictment to reflect that appellant had been indicted under Section 99-19-83 of the Mississippi Code of 1972, Annotated. The amendment was allowed over the objection of appellant's counsel. Appellant's counsel had been previously advised that the State intended to proceed under Section 99-19-83. Appellant was fully aware during plea negotiations that the State was taking
Both statutes concern sentencing as habitual criminals. Section 99-19-81 provided for the maximum sentence under the applicable felony statute without benefit of parole, pardon, or reduction. Section 99-19-83 provides a mandatory sentence of life imprisonment without benefit of parole, pardon or reduction.
In McGuire v. State, 35 Miss, 366, 367 (1858), cited by appellant, this Court said:" It is well stated that the court has no power to amend an indictment, as to matter of substance, without concurrence of the Grand Jury by whom it was bound, though amendments as to mere informalities may be made by the court. "
This Court, in this century, has had more to say on amendment of indictments. In Shelby v. State, 246 So.2d 543, 546 (Miss. 1971) the following was said:
It is well settled in this state, as was noted by learned circuit judge, that a change in the indictment is permissible if it does not materially alter facts which are the essence of the offense on the face of the indictment as it originally stood or materially alter a defense to the indictment as it originally stood so as to prejudice the defendant's case. Mississippi Code 1942 Ann. 2451 (1956); Byrd v. State, 228 So.2d 874 (Miss. ...