Public-domain · open source
OpenJurist

52 Miss. 207

Garvin v. State

Mississippi Supreme Court

Decided April 15, 1876

Mississippi Supreme Court · decided 1876-04-15

Hon. J. A. Orr, Judge. The facts in this case are sufficiently stated in the opinion of the court. The assignment of error is substantially as follows : 1. The court erred in withdrawing the case from the jury. 2. In allowing the indictment amended. 3. In the action shown by 2d bill of exceptions. 4. Same set out in 3d bill of exceptions. 5. In forcing defendant to trial on amended indictment. 6. In not discharging defendant. 7.

Key passage — most relied on by later courts

““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,’ ‘a man,’ if so described in the indictment.” See, also, Warlick v. White, 76 N. C. 175 , 179.”

quoted by 1 later decision, including United States v. Hung Chang

Good law ✅— No negative treatment on recordhow we know

Decided 1876-04-15

How this case has been cited

Cited by 23 later decisions — most recently November 2012

1 federal appellate · 22 state decisions — followed in 13 states

80187618801890190019101920193019401950196019701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Chalmers, J.,

¶1delivered the opinion of the court.

¶2There 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.

¶3Nor 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 *209with 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.

¶4' 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.

¶5There 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.

¶6No 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.

¶7Under 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.

¶8Let the judgment be affirmed.

/52/miss/207 · .json · Public domain