BEFORE ROY NOBLE LEE, ROBERTSON and ANDERSON
ROY NOBLE LEE, CHIEF JUSTICE, FOR THE COURT:
Willie Earl Griffin was convicted in the Circuit Court of Bolivar County for aggravated assault upon Hilbert Cook and was sentenced to eight (8) years in the custody of the Mississippi Department of Corrections with three (3) years suspended. He has appealed to this Court and assigns four (4) errors in the trial below.
The appellant operates a construction business specifically pertaining to sandblasting and spray painting commercial buildings such as grain elevators. On August 19, 1986, he finished a job at Tutwiler Grain, Inc., in Tutwiler, Mississippi, received a check from the company and cashed it at the Bank of Tutwiler to obtain money for the purpose of paying his employees their weekly salaries. The cash amounted to approximately $2,000. For security and protection, appellant was carrying a .357 Magnum revolver in his pocket.
At the end of the workday, appellant loaded the employees in his van, drove to Cleveland, where he and the employees lived, paid them the wages due, and took them home. As he proceeded down Chrisman Street toward his own residence, he observed a large crowd of people and several police cars in an area which had the reputation of being the roughest neighborhood in Cleveland. It was located only five or six blocks from appellant's home.
Appellant, being curious, stopped his van and got out to speak with the police officers at the scene to find out the trouble. He learned that two youths had struck a third youth in the head with a 2 x 4 (piece of lumber), rendering him unconcious. Appellant began to talk with other men at the scene about the violence in the area. An argument broke out between two men in another group, i.e., Ernest Walker and Hilbert Cook, the victim. Griffin interceded in the argument as peacemaker and he and Cook began to exchange words. Cook's sister grabbed him by the arm and attempted to pull Cook from the crowd and lead him up the street. Appellant turned from the crowd and started toward his van. At that point, Cook broke away from the sister and headed back toward appellant. As a result, appellant and Cook came together in the middle of Chrisman Street, appellant drew the .357 Magnum from his back pocket and hit Cook on the head, which caused the revolver to discharge. Cook fled the scene and Griffin proceeded to his van and drove home, not knowing that Cook had been injured. Witnesses for the State and the defendant were in agreement that the discharge of the revolver was accidental.
Cook was taken to the East Bolivar County Hospital
where he was examined and treated. The treating physician testified at trial that the only injury suffered by Cook was a graze wound to the back of his neck. Shortly after the incident, appellant was arrested and was released on bond. On September 7, 1986, he appeared for a preliminary hearing before Justice Court Judge Inge to determine whether or not there was probable cause to bind him over for Grand Jury proceedings. Appellant was exonerated at the preliminary hearing and was not bound to await the action of the Grand Jury. However, on October 21, 1986, he was indicted for aggravated assault and was tried on December 11, 1986, the trial resulting in his conviction.
The appellant contends (1) that the lower court erred in denying his motion for a directed verdict on the charge of aggravated assault, since the undisputed evidence reflects that the gun was intentionally used in the alleged assault as a blunt instrument and that the discharge of the gun was accidental, and (2) the lower court erred in denying appellant's objection to the district attorney's motion to substantially amend the indictment at the close of the prosecution's proof, which was an amendment of substance.
Mississippi Code Annotated 97-3-7 (Supp. 1986), defines" simple assault "and" aggravated assault "as follows:
(1) a person is guilty of simple assault if he (a) attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or (b) negligently causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm; or (c) attempts by physical menace to put another in fear of imminent serious bodily harm.
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm.
The original indictment read in pertinent part:
did unlawfully, wilfully, and feloniously, purposely and knowingly, cause bodily injury to Hilbert Cook, Jr., with a deadly weapon, to-wit: a pistol, by shooting the said Hilbert Cook, Jr., in the head.
At the close of the State's case, the district attorney moved to amend the indictment in pertinent part as follows:
did unlawfully, wilfully, and feloniously, purposely and knowingly, cause bodily injury to Hilbert Cook, Jr., with a deadly weapon, to-wit: a pistol, a means likely to produce serious bodily harm.
Counsel for appellant objected strenuously to the amendment on the grounds that (1) the amendment was substantive and not merely technical, and (2) the gun, if used as a blunt instrument, would not support an aggravated assault charge and was improper. The court allowed the amendment. Prior to the district attorney's motion to amend, appellant expressed to the court his desire to file a motion for directed verdict. The lower court permitted amendment of the indictment as indicated above, and then overruled the motion for ...