1. CRIMINAL LAW. Absent contrary proof, appellate court assumes last indictment certified by clerk was correct and that first one was made by mistake.
When a record is certified to this court containing the date of filing of an indictment by a clerk at a term subsequent to the term at which the indictment was found, and subsequently the clerk sends another certified indictment showing the indictment to have been filed by the clerk at the term at which the indictment was found, the court will assume, in the absence of proof to the contrary, that the last certified is the correct one, and that the first was made by mistake, and that the clerk on discovering the mistake or having his attention called to it, presented the second as a true copy of the indictment.
2. CRIMINAL LAW. Insufficiency of indictment for court's failure to mark it "filed" will not be considered, when raised for first time on appeal.
Where an indictment is not marked "filed" by the clerk, and a case proceeds to trial in the court below, and no question is raised in that court as to the sufficiency of the indictment, but it is sought to be raised in this court on appeal for the first time this court will not hold such indictment insufficient because of failure to mark it filed by the clerk. Wooten v. State (Miss.), 125 So. 103, cited.
Ethridge, P.J., delivered the opinion of the court.
Paul Bailey was indicted, tried, and convicted of burglary, and appeals.
The principal assignment of error is that the indictment was returned at the September, 1928, term of court and was not marked "filed" until the September, 1929, term of court. Since the record came here, the clerk has certified another copy of the indictment which shows that it was filed by the clerk on the 5th day of September, 1928, the term at which it appears on the face of the indictment to have been found. The last certificate is dated January 31, 1930, and the original was dated the 25th of October, 1929. We assume that the first indictment was erroneously copied, and that the clerk discovered his mistake, or his attention was called to it, and that he sent the true copy in the last certified. But, regardless of whether this be the fact or not, the point was not raised in the court below at any stage during the trial, and, under the case of Hugh Wooten v. State (Miss.), 125 So. 103, it cannot be raised here for the first time.
It was argued that the testimony is insufficient to support a conviction. We have carefully read the testimony, and think it is ample to sustain a conviction. Therefore the judgment of the court below will be affirmed.
Affirmed.