Miller v. State

• Decision Date: 03 November 1890
• Citation: 8 So. 273,68 Miss. 221
• Court: Mississippi Supreme Court
• Parties: JIM MILLER v. THE STATE

8 So. 273

68 Miss. 221

JIM MILLER v. THE STATE

Supreme Court of Mississippi

November 3, 1890

FROM the circuit court of Washington county, HON. GEORGE WINSTON Judge.

The appellant was indicted for the murder of one Bowman. During the examination of the first witness on behalf of the state it developed that the true Christian name of Bowman was Junius Bowman, whereas it appeared in the indictment as James Bowman. Thereupon the court, upon motion of the district attorney, and over the objection of the defendant, ordered the indictment to be amended by substituting the true Christian name for that erroneously written in the indictment. The record does not disclose that there was any actual amendment noted on the face of the indictment. No special grounds of objection to this action of the court were urged by the defendant, but his exception was in general terms, and it does not appear that any application was made for a continuance of the cause on the ground of surprise to the defendant caused by such amendment.

The state's case against the defendant rested mainly on circumstantial evidence, coupled with certain admissions made by the defendant in the committing court, and evidence of certain incriminating remarks made by the defendant at the time of his arrest, which were not denied.

The accused and the deceased, both colored men, lived near to each other on the same plantation. It was shown that after the mysterious disappearance of Bowman, the appellant and the wife of Bowman began to cohabit as man and wife, and during the eleven days which elapsed before the finding of the body they stayed at a neighbor's house, and the state, over the objection of the defendant, was allowed to prove that they slept during these nights in the same bed. On the eleventh day after the disappearance of Bowman his body was found in a stream or bayou, immediately in front of the appellant's cabin, and the back of his head was crushed in, as if by an ax or other heavy instrument. Suspicion pointed to appellant, and he was arrested.

The circuit court permitted state's witness, West, to testify, over defendant's objection, that after the arrest, while the defendant was under guard, and in the presence of a crowd of persons, the wife of the deceased stated to the defendant, "You killed my husband, and told me you had killed him, and that if I told it you would kill me; that you loved me and would take care of me."

One Sims, a witness for the state, was asked upon the trial if he had heard the defendant make any statement before the justice of the peace in the committing court, and if so what the defendant said on that occasion in reference to the charge against him. Counsel for the defendant objected to this question, because no proper foundation had been laid for the introduction of such evidence by proof that the statement of the defendant had not been reduced to writing. Thereupon the district attorney asked and obtained leave to introduce the justice of the peace, who testified that to the best of his recollection he did not reduce the statement of the defendant to writing; that he did recollect writing the judgment and mittimus, but not the statement. Thereupon the state was allowed to prove that the defendant, when arraigned before the magistrate, admitted that he killed Bowman. His version of the killing, as given by himself on that occasion, was that he had gone to the stream to put in a fish box, and that while engaged about this Bowman came up to him with an ax and a quarrel ensued; that Bowman stuck his ax in the ground or in a log, and pulled a knife from his pocket and started at him; that defendant thereupon seized the ax and knocked him into the stream.

The evidence offered in behalf of the defense disclosed that there had been a difficulty between Miller and Bowman resulting in bad feeling between them. The defense also gave in evidence certain threats made by Bowman that he would kill the appellant, which threats were communicated to the appellant.

This statement of the facts taken in connection with the opinion will be sufficient for an understanding of the points decided by the court.

The defendant was found guilty of murder, and his punishment fixed at imprisonment in the penitentiary for life.

Affirmed.

D. C. Wasson, for appellant.

It was not sufficient to order the indictment to be amended. The making of the order does not constitute the amendment, but the indictment itself must be changed by striking out such words as are ordered by the court to be stricken out. Code 1880, 3081; Miller v. The State, 53 Miss. 404. The amendment was improper. Ex parte Bain, 7 U.S. S.Ct. Reporter, 871.

The evidence that the defendant and the wife of the deceased cohabited after the killing was not competent for any purpose, and only served to prejudice defendant's case. It was not part of the res gestae and could not serve to show motive. Its only effect was to cause the jury to infer that the defendant had killed the deceased in order to obtain his wife. It was equally incompetent to prove by parol evidence the statement of the defendant at the committal trial. There was no foundation laid for the introduction of secondary evidence. It is conceded that it devolved on the state to show that the statement of the defendant was not reduced to writing. I submit that the testimony of the justice of the peace does not sufficiently show this. He is uncertain about it.

The statements of Polly Bowman as detailed by the witness West are clearly hearsay, and should not be admitted. The majority of cases hold that...