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WILLIE REED v. STATE OF MISSISSIPPI

APRIL 22, 1987

WILLIE REED
v.
STATE OF MISSISSIPPI



BEFORE WALKER, C.J., PRATHER & SULLIVAN, JJ.

SULLIVAN, JUSTICE, FOR THE COURT:

Willie Reed was indicted and tried for the armed robberies of Pearl Pope, William T. Boyd and Toby Clark. At trial, the prosecution was allowed to reopen its case and delete the name of Toby Clark from the indictment. All references to Clark were also deleted from the jury instructions. Thereafter, the jury returned a verdict finding Reed guilty of the crime charged and he was sentenced to life imprisonment by the Circuit Court of Lauderdale County. For the reasons set forth below, we affirm the conviction of armed robbery as to victims Pope and Boyd. However, with regard to the charges alleging armed robbery of Clark, we hold that the deletion from the indictment and subsequent jury instructions were tantamount to an acquittal on this charge and thereby dismiss this charge with prejudice.

FACTS

 On March 26, 1981, two assailants broke into a private boarding home in Meridian, Mississippi, which was owned by Mrs. Pearl Pope. Mrs. Pope and her two boarders, William T. Boyd and Toby Clark, were attacked and robbed. Subsequent investigations revealed that the two assailants were really Willie Reed and Robert Turner.

 Reed and Turner were indicted together under a multi-count indictment. Count I of the indictment charged them with armed robbery against all three victims in violation of 97-3-79 of the Mississippi Code Annotated (1972). *fn1 Thereafter, Reed and Turner each entered into plea bargaining with the State. Turner ultimately pled guilty and received a five year suspended sentence. He also agreed to testify on behalf of the State. Reed continued to negotiate until February 25, 1985. At that point, negotiations collapsed and a trial date was immediately set for February 28, 1985. The State was ordered to proceed under one count of the indictment and chose Count I.

 At trial, Evita Reed testified that Willie Reed, her uncle, had been living with her next door to Mrs. Pope. She further stated that on the day of the robbery, Reed had asked her if she had a gun and if Mrs. Pope had any

 money in her home.

 Robert Turner, Evita Reed's fiance, testified that he was staying at Evita's home on the night in question and that Reed awakened him around 11:30 p.m. The two men then went next door and gained entrance to Mrs. Pope's home through the kitchen door. Turner next testified that when Mrs. Pope came into the kitchen, Reed jumped her, tied her up, and began beating her and demanding money. *fn2 Reed then ransacked the house, found a pistol, and again attacked the victims. The two men then left the house leaving Mrs. Pope bound and gagged in the kitchen and ran back next door to Evita Reed's home.

 Both Mrs. Pope and Mr. Boyd related similar descriptions of the events. Mrs. Pope also testified that her jewelry, money box and .22 calibre pistol were stolen. Mr. Boyd stated that money was taken from his person as well.

 Officer Steve Thomas testified that when police arrived they found the house in disarray and also found a change box on the front porch. The police then went next door to Evita Reed's home and found loose change scattered on the front porch. Robert Turner was arrested that morning at Evita Reed's home and Reed was subsequently detained in Jacksonville, Florida, and returned to the State.

 Thereafter, the State rested their case. Defense counsel moved for a directed verdict arguing a material variance between the proof and the indictment because the State failed to offer any proof as to the robbery of Toby Clark. The motion was overruled but the trial court allowed the State to reopen its case and delete Toby Clark from both the indictment and the jury instructions. The jury then returned a general verdict finding Reed guilty and sentenced him to life imprisonment.

 LAW

 DID THE TRIAL COURT ERR IN ALLOWING THE STATE TO AMEND THE INDICTMENT TO DELETE THE NAME OF TOBY CLARK?

 Under this assignment of error, Reed contends the court erroneously allowed the State to amend the indictment deleting the name of victim Clark because such an amendment goes to the substance rather than the form of the indictment and because the trial judge failed to enter the appropriate order in the record as required by 99-17-15 of the Mississippi Code Annotated (1972).

 Section 99-17-13 of the Miss. Code Ann. (1972), provides for amendments to criminal indictments during the course of a trial in limited situations. See Miss. Code Ann., 99-17-13 (1972). However, any amendment, to be permissible, must be in form and not substance. Atkins v. State, 493 So. 2d 1321, 1322 (Miss. 1986). We have adopted the following test ...


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