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Law School Case Brief

Woods v. State - 186 Miss. 463, 191 So. 283 (1939)


A request for a peremptory instruction is available and is sufficient to raise the point that the proof is not sufficient to sustain the charge as laid in the indictment when an amendment is not allowable to make the indictment conform to the proof; for, obviously, if the amendment to conform to the proof cannot be made, there is no object to be accomplished in giving an opportunity to amend, which when given cannot be availed of under the law.


Defendant was convicted for the crime of burglary of a dwelling house. The evidence showed that the building in question, although intended for a dwelling house, had only recently been erected, and had not yet been occupied as a dwelling at the time of the crime. Relying on a prior decision, defendant argued on appeal that this evidence could not have supported a conviction for burglary of a dwelling house. The state argued, however, that defendant did not preserve the argument because he failed to raise it before the trial court.


By failing to raise the argument about the meaning of dwelling house, did the defendant fail to preserve the same?




The Court ruled that the argument was properly preserved because defendant requested and was refused a peremptory instruction on the issue. The Court found that the request for a peremptory instruction took the place of a demurrer to the evidence. The Court further ruled that the indictment could not have been amended to change the charge from burglary of a dwelling house to burglary of an unoccupied house. The Court concluded that the two crimes were separate and distinct.

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