BEFORE ROY NOBLE LEE, P.J., SULLIVAN AND GRIFFIN, JJ.
GRIFFIN, JUSTICE, FOR THE COURT:
Jerry Ward Shive appeals the judgment of the Circuit Court of the First Judicial District of Hinds County in which be was convicted of the crime of gratification of lust and sentenced to serve a term of eight years in the Mississippi Department of Correction, with five years suspended on supervised probation. As error he assigns the trial judge's failure to allow him to amend his indictment to read a lesser charge of simple assault; the state's failure to prove his intent to gratify his lust or indulge his depraved, licentious sexual desires; and finally that the verdict of the jury was contrary to the overwhelming weight of the evidence.
However, for the reasons stated below, we affirm the lower court decision.
Appellant was indicted on July 9, 1985, for" gratifying his lust and indulging his depraved licentious sexual desires . . . [on] the private parts of a certain child under the age of fourteen (14) years, to-wit: R.H. "
Testimony at trial showed that on March 28, 1985, R. H., a nine-year-old female, was sitting on her bed doing her homework when the appellant entered her room. Despite
her denial to his request that he be allowed to" rub her bottom ", Shive proceeded to do it anyway. Further testimony showed this had occurred on numerous occasions over the course of one to two years. The child used a doll to demonstrate to the jury what she termed her" bottom ": this proved to be the vaginal area.
Appellant's visit at the time in question was confirmed by the child's mother, and she did recall as well Shive having been in R. H.'s bedroom on that date.
Shive's testimony was that, while he did in fact touch her as alleged, it was to check for pin worms and/or to determine whether the child had suffered any abuse at the hands of her mother.
Shive stated he believed R.H. was being physically and mentally abused by her mother, so his" searches "were in an attempt to obtain evidence that she was an unfit mother. However, while he found no evidence of either kind of abuse, Shive continued to check anyway.
Following his indictment and trial, the jury returned a verdict of guilty. Shive filed a motion for judgment of acquittal notwithstanding the verdict or, in the alternative, motion for a new trial. These motions were overruled, and Shive subsequently perfected this appeal.
We address the issues presented to us in turn, and find that none merit any lengthy discussion.
As to the trial judge's failure to permit appellant to amend his indictment for the trial below, so that it might charge him with simple assault rather than gratification of lust, we note that in Mississippi, an indictment may only be amended for matters of form but not of substance. Copeland v. State, 423 So. 2d 1333 (Miss. 1982); Miss. Code Ann. 99-7-21 (1972). Further, the trial court cannot amend an indictment so as to change the charge made in the indictment to another crime, except by the action of the grand jury who returned the indictment. Jones v. State, 279 So. 2d 650 (Miss. 1973); Bullock v. State, 391 So. 2d 601 (Miss. 1981).
Finally, we add that an amendment to the indictment would well prove to be merely an idle gesture: what Shive actually desired was submission of the lesser charge for ...