People v. Hamilton

• Decision Date: 11 July 1889
• Citation: 76 Mich. 212,42 N.W. 1131
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HAMILTON.

42 N.W. 1131

76 Mich. 212

PEOPLE v. HAMILTON.

Supreme Court of Michigan

July 11, 1889

Error to circuit court, Newaygo county; PALMER, Judge.

How. St. Mich. �� 9523, 9534, 9537, are as follows: "� 9523 sec. 34. No indictment shall be quashed or deemed invalid nor shall the trial, judgment, or other proceedings thereon be affected, (1) by reason of the omission or misstatement or the occupation, estate, or degree of the defendant, or of the name of the city, township, or county of his residence; or (2) by reason of the omission of the word 'feloniously,' or of the words 'with force and arms,' or any words of similar import; or (3) by reason of omitting to charge any offense to have been committed contrary to the form of the statute or statutes; or (4) by reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant." "� 9534. No indictment for any offense shall be held insufficient for want of the averment of any matter unnecessary to be proved, *** nor for stating the time imperfectly, nor for stating the offense to have been committed on a day subsequent to the finding the indictment or any impossible day, or on a day that never happened." "� 9537. Any court of record in which the trial of an indictment is had may forthwith allow amendment in case of variance between the statement in the indictment on which the trial is had and the proof *** in all cases, whenever the variance between the facts alleged in the indictment and those proved by the evidence are not material to the merits of the case."

An information for murder alleged the commission of the crime under a videlicet as on December 4th, on which charge the examination was made before the magistrate. The proof, as in the preliminary examination, showed that the child alleged to have been murdered died December 7th. After the jury was impaneled the court allowed the information to be amended by changing the date to the 7th, to agree with the proof to be offered. Held, that under How.Ann.St. �� 9523, 9534, 9537 allowing the amendment of indictments in matters of form and in cases of variance where no rights of the defendant are prejudiced thereby, the amendment was properly allowed.

W. D. Fuller, for appellant.

George Laton, for the People.

SHERWOOD C. J

The respondent in this case was tried in the Newaygo circuit on an information charging him with murder, and the jury found him guilty of murder in the second degree, and on the 21st day of March, 1888, he was sentenced by the court to imprisonment for life. He was charged, and found guilty, of whipping his little girl, about 20 months old, with his hands and whips, in such a cruel manner that she died of the injuries thus received. It is alleged that the whippings occurred between October and the 4th day of December, 1887, and that the child died in convulsions on the 7th day of December. The record shows the mother of the child died on the 22d day of June, 1886, and about six weeks after the child was born. From the 7th day of August, 1887, the father hired Mary Marston, living in the township of Goodwell, in Newaygo county, to care for and board the child and with whom she remained until she died. The respondent worked at a place near by Marston's, called Sheridan's Mill, and visited the house nearly every evening after he had finished his day's work. Mary Marston at the time she kept and cared for the child lived in a shanty house. She testifies she was a married woman at the time, and that she had never been divorced from her husband, who was still living, and that she was then living with one Eugene Ellsworth, as his concubine. It also appears that these two persons are the main witnesses in the case, upon whose testimony the conviction was had. The record shows that the complaint and warrant upon which the respondent was arrested charged him with the commission of the crime of the 4th day of December, 1887, and upon which charge the examination was had before the magistrate. The information, as originally drawn, and upon which he was arraigned in the circuit court, and to which he pleaded not guilty, pro forma charged the commission of the offense as of that date. After the jury was impaneled, and the prosecution had offered testimony to prove that the death of the child occurred on the 7th of December, 1887, objection was made by respondent's counsel that the proof offered was not of the offense charged at the time stated in the information, but three days later; that "the people seek here to show a series of acts, culminating in the death of the child, three days after the time charged in the information." The prosecuting attorney then asked leave of the...