
    (50 South. 483.)
    No. 17,838.
    STATE v. BEHLER.
    (Oct. 18, 1909.)
    Criminal Law (§ 912%*) — Indictment and Information (§ 101*) — New Trial — Grounds.
    A bill of information, under which a prosecution is conducted, may, with leave of the court, be amended during the trial, and, if the defendant makes no objection and pleads no surprise at the time, such objection and plea will not avail him, after conviction, as grounds for a new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2136; Dec. Dig. § 912% ;* Indictment and Information, Cent. Dig. §§ 516-523 ; Dec. Dig. § 161.*]
    (Syllabus by the Court.)
    Appeal from Criminal District Court, Parish of Orleans; Frank D. Chretien, Judge.
    Tony Behler was convicted of crime, and appeals.
    Affirmed.
    Loys Charbonnet and P. M. Gilmore, for appellant. Walter Guión, Atty. Gen., St. Clair Adams, Dist. Atty., and Warren Doyle. Asst. Dist. Atty., for the State.
   MONROE, J.

Defendant was prosecuted, by bill of information, and convicted of in- ■ cest, and presents his case to this court upon a bill of exception, reserved to the overruling of a motion for new trial; the ground relied on being that, it having been charged that the crime was committed on May 15, 1908, the prosecuting witness testified, on the trial, that it was committed on May 27, 1908, and the district attorney was permitted to amend the bill of information accordingly, and over the protest of the then counsel for defendant, who was taken by surprise, and that, had defendant been charged originally with the commission of the crime on May 27th, he would have been prepared to establish his innocence.

No bill was reserved when the amendment was allowed, and no surprise suggested. The objection, bill of exception, and plea of surprise came too late in the motion for new trial. Marr’s Criminal Jurisprudence, §§ 249, 483, 489; State v. Terrebonne, 45 La. Ann. 25, 12 South. 315; State v. Robinson, 37 La. Ann. 673; State v. Green, 115 La. 1042, 40 South. 451; State v. Hauser, 112 La. 313, 36 South. 396; State v. Henderson, 113 La. 232, 36 South. 950; State v. Michel, 111 La. 438, 35 South. 629.

Judgment affirmed.  