| Miss. | Oct 15, 1890
delivered the opinion of the court.
It is assigned for error that the court on the trial, and after one witness had been partially examined, permitted the counsel for the state, on motion, to amend the indictment, so as to conform to the undisputed fact proved, by substituting the true Christian name of the deceased for that which had been erroneously inserted by the grand jury. The identity of the offense charged was not disturbed and the real charge preferred by the indictment was not changed; and that Junius Bowman was the person alleged to have been murdered by the accused, and was the person intended to be named by the grand jury, is clearly shown and is not denied. There was no surprise to defendant by this substitution of the true Christian name of the deceased,'nor can we see any reason for holding that the trial of the accused was at all prejudiced thereby. The amendment appears to have been proper, and is abundantly supported by precedent in this state. Haywood v. State, 47 Miss.; Murrah v. State, 51 Ib.; Garvin v. State, 52 Ib.
It is next insisted that the court below erred in permitting the witness, West, to testify to the statement made by Polly Bowman, the wife of the deceased, to the effect that the accused had killed her husband, and that the accused had told her he had killed her husband, and that he would kill her if she disclosed it; and that he loved her and would take care of her; to which the accused replied that he would tell what he had to say about it at the magistrate’s court.
When we remember that the accused remained on the plantation where the homicide occurred from the date of the killing until the discovery by others of the dead body of Junius Bowman, eleven days afterwards, without ever saying a word on the subject of the homicide, or of Bowman’s disappearance (except to the wife of the
The third assignment of error goes to the action of the court in admitting the evidence of the witness Turner showing that during four of the eleven nights intervening between the killing and the finding of the body of the deceased, the accused and Polly, the wife of the deceased, slept in the same bed, and together, at witness’s house. Clearly this was a pregnant circumstance, taken with the other proofs, tending to show a motive for the crime on the part of the accused, and, indeed, to fix the charge itself upon defendant. Self-confessedly, the accused killed Bowman, and the fact that he at once and notoriously appropriated the deceased’s wife as his own concubine appears to us to be a circumstance properly given in proof to the jury.
The next ground relied upon for reversal is the ruling of the court whereby the magistrate, Jones, and the witness, Sims, were permitted to testify as to the statements made by defendant in the committing court, in the absence of any written account of the statement then taken down by the magistrate. The foundation for the introduction of this oral testimony as to the statement of the defendant had been laid, as we think, by the evidence of the magistrate, reasonably satisfying the court that the statement of defendant was not, in fact, taken down in writing. The magistrate more than once declared that his best recollection was that he did not reduce to writing the statement made by defendant in his court; that he remembered writing the judgment and the mittimus, but that he had no recollection of writing down the defendant’s statement. We are of opinion that it was. thus shown, with reasonable certainty, that the statement was not written out, and, therefore,
The 5th and 6th assignments of error go to the correctness of the instructions given and refused by the court, on both sides. It is sufficient to say that the very few and plain instructions given for the state are unobjectionable, and that the nineteenth instruction given on behalf of defendant stated the case with great fulness, and quite as favorably for the accused as could have been asked.
The verdict of the jury was abundantly warranted, and we decline to disturb it.
Affirmed.