Garvin v. State

52 Miss. 207 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court.

There is nothing in the objection that the indictment was-amended by the grand jury, at the first term, by inserting the word “ dollars ” alter the words “thirty-five.” It is expressly authorized by Code, § 2794.

Nor is it perceived how the fact that the grand jury came into open court and made said amendment in the presence of the court and petit jury could have prejudiced the prisoner with the latter, as is argued by counsel. Neither is there any force in the position that the arraignment on the indictment, before amendment, constituted such a putting in jeopardy as to bar a prosecution after the amendment was made.

' The prisoner was charged with haying stolen the property of Sophia Roberts. The proof developed the fact that it was the property of Sophia J. Roberts. The court did not err in permitting the district attorney to make the necessary correction in the indictment without the intervention of the grand jury or the consent of the accused. The power is given in § 2799 of the Code.

There was no statute similar to this at the time McGuire’s case (35 Miss., 366), relied on by counsel, originated. The indictment charges the prisoner with the larceny of a “ heifer ” of the value of $35. The verdict fixes the value of the “ cow ” stolen at $27.50. There was no variance in this. A heifer is defined to be a young cow.

No error is perceived in the charges. By one of them the jury were instructed that inasmuch as the indictment described the defendant as being a colored person he must be shown to be such by proof, but that actual profert of him before them was sufficient if they were satisfied, from their inspection, that he was colored. It is urged that this was erroneous, because it is said that the jury can know nothing except by the testimony of witnesses. This is not true as to physical facts, which may be brought to their attention by ocular demonstration. It would not be necessary to prove by other testimony than profert of the party that he was “ a person,” ora“ man,” if ■so described in the indictment.

Under certain circumstances jurors may use their eyes as well as them ears. In criminal cases a jury may form their opinion as to the genuineness of a document, alleged to be forged, by a comparison of it with other writings admitted or proven to be genuine. Roscoe’s Cr. Ev. (7th ed.), 4.

Let the judgment be affirmed.