(dissenting).
The majority opinion holds that the judgment of the magistrate’s court is void, hence the circuit court acquired no jurisdiction to try the appeal de novo.
If the judgment of .the magistrate’s court is void it must be from: (1) Want of jurisdiction over the offense charged (which includes power to render the particular sentence imposed as punishment), or (2) want of jurisdiction over the person charged with the offense. See, 14 Am.Jur., Criminal Law, Section 214; 22 C.J.S., Criminal Law, § 108.
The proceedings show that appellant appeared in the magistrate’s court to stand trial on a warrant charging him with selling beer to minors. KRS 244.080. Upon trial there was testimony appellant had committed the offense of vending beer without a license. KRS 243.040. The magistrate, sua sponte, and without objection, amended the warrant to charge the latter offense and thereafter entered judgment convicting appellant under the amended warrant.
Since the offenses charged in the warrant were merely misdemeanors for which the statutes prescribed limited punishment, KRS 243.990 and 244.990, unquestionably the magistrate had jurisdiction of these offenses. See, KRS 25.010.
The majority- opinion stares that the magistrate never acquired jurisdiction over the person of the appellant because at the time of the trial no warrant had been issued charging him with the particular offense of which he was convicted. However, by the express provision of Section 330 of our Criminal Code no warrant or written information was necessary. See, Bitzer v. Com., 141 Ky. 58, 132 S.W. 179. Moreover, a warrant had been issued by the magistrate charging appellant with the commission of a misdemeanor which was amended without objection to embrace the misdemeanor upon which appellant was convicted. This Court has frequently held that a warrant issued in a misdemeanor case may be amended, and an amendment may be made in the circuit court when the case has been appealed there from an inferior court. Pabst Brewing Co. v. Com., 107 S.W. 728, 32 Ky.Law Rep. 1010; City of Louisville v. Wehmhoff, 116 Ky. 812, 76 S.W. 876, 79 S.W. 201.
*357THe warrant was amended by the magistrate on sworn testimony that was introduced upon the trial. Such procedure is authorized by Sections 31, 326 and 327 of our Criminal Code. No doubt, the magistrate could have issued a summons or a new warrant based on-this testimony charging appellant with the offense of which he was convicted. Vogt v. Field, 195 Ky. 401, 242 S.W. 361. Since the appellant was before the magistrate in open court when the charge against him was amended, it is obvious that the formality of issuing a summons or warrant to be served upon him was rendered unnecessary because he was then and there before the magistrate and had legal notice of the charge. Prater v. Com., 216 Ky. 451, 287 S.W. 951. To resolve any further doubt about this question, I quote from Darden v. Com., 277 Ky. 75, 125 S.W.2d 1031, 1032, wherein this Court said:
“ * * * Because the court in this instance did not issue a warrant for the arrest and apprehension of appellant, his counsel contends that the revoking order of Judge Mix was void for want of jurisdiction over the person of appellant thereby overlooking the well recognized rule that any litigant — in either a criminal prosecution or civil action — may come into court or appear therein and enter his appearance, either expressly or by entering into the proposed investigation — summary or otherwise — without objecting to the way and manner by which he was brought into or before the court. Furthermore, such one may and can expressly consent, or by failing to object enter into an immediate trial or investigation of the matters proposed to be investigated. When such a course is pursued in either, i. e., (a) method of appearance or (b) entering into immediate trial, then the party so waiving or consenting may not thereafter rely on any of such defects and errors, though they might have been available to him if he had invoked them at the , proper time. * *
In common parlance the case was "docketed or booked for trial.” Certainly by his failure to object to the proceeding, appellant entered his appearance. Ritchie v. Com., 229 Ky. 654, 17 S.W.2d 738; 14 Am. Jur., 15, Criminal Law, Section 214. Under the facts appearing, jurisdiction of the magistrate’s court over the person of the appellant was plainly established. Darden v. Com., 277 Ky. 75, 125 S.W.2d 1031; Ritchie v. Com., 229 Ky. 654, 17 S.W.2d 738; 22 C.J.S., Criminal Law, § 147; 14 Am.Jur., Criminal Law, Section 214.
. The procedure in inferior courts .of amending warrants with consent of the defendants is an established practice. The case of Commonwealth v. Adams, cited in the majority opinion to the effect that a judge cannot change an indictment, is not authority militating against the amending of a warrant. A circuit judge does not have authority to return an indictment, therefore he has no authority to amend one. A magistrate does have authority to issue a warrant. I shall not further belabor the distinction.
Any error in the summary manner in which appellant was convicted in the inferior court was corrected on the appeal to the circuit court where he had a trial de novo before a jury.
As concerns appellant’s guilt or innocence, the record reflects that he stipulated upon his trial in the circuit court that he did not have a license to sell beer. I think the proof was sufficient to support the jury’s verdict on the issue of whether he had sold beer. It is not the judgment of the magistrate’s court that inflicts punishment upon the appellant, but the judgment rendered on the verdict of the jury in the circuit court.
For the reasons stated, I dissent from the majority opinion.