Thurmond v. State

Citation94 Miss. 1,47 So. 434
CourtUnited States State Supreme Court of Mississippi
Decision Date09 November 1908
PartiesJOHN THURMOND v. STATE OF MISSISSIPPI

October 1908

FROM the circuit court of Holmes county, HON. SYDNEY SMITH, Judge.

Thurmond appellant, was indicted, tried and convicted of murder, and appealed to the supreme court. The facts are stated in the opinion of the court.

Affirmed.

A. M Pepper, for appellant.

The record presents a case of an indictment for the murder of one man, and a conviction under the same indictment for the murder of another man. The accused is indicted for one offense and convicted for another. There was no "misdescription of the person" whom the accused is charged with having murdered. His identity and existence and whereabouts are clearly proved, establishing the facts that William Johnson still lives and had not suffered death at the hands of appellant, as alleged in the indictment.

The question then arises, can a man be tried for the murder of one person and convicted thereof on an indictment that charges the accused with the murder of another entirely different man? If this can be done, what becomes of the constitutional provisions which declare that "the accused shall have a right to demand the nature and cause of the accusation against him?" "And no person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury." "Nor deprived of life, liberty or property without due process of law."

In this case the testimony of witnesses as to the death or killing of William Brown was admitted over appellant's objection before the indictment was amended, and afterwards. This proposition is elementary and under no rule of evidence could testimony of the killing of a different and distinct person from the one named in the indictment, be heard on the trial, on the indictment then before the court. This indictment as amended was not a "presentment or indictment of a grand jury," but an indictment found and returned by the court at the request of the district attorney.

George Butler, assistant attorney general, for appellee.

It will be noted that the witnesses for the state stated they did not know the name of deceased; that William Johnson and William Brown came there together, and that deceased was known as "Twelve." Each witness for the state in response to the interrogatory of the district attorney as to what they knew about the killing of "William...

To continue reading

Request your trial
6 cases
  • Vance v. State
    • United States
    • Mississippi Supreme Court
    • September 12, 1938
  • Collier v. State
    • United States
    • Mississippi Supreme Court
    • May 27, 1929
    ... ... and the amendment was properly made ... Blumenberg ... v. State, 55 Miss. 528, text 530; Knight v. State, ... 64 Miss. 802; Sec. 3081 of the Code; Peebles v ... State, 55 Miss. 434; Miller v. State, 53 Miss ... 403; Winston v. State, 101 Miss. 101; Thurmond ... v. State, 94 Miss. 1; Smith v. State, 112 Miss ... 248; Smith v. State, 103 Miss. 356; Freeman v ... State, 108 Miss. 818; Graves v. State, 148 Miss. 62 ... The ... refusal of request for continuance, after amendment of ... indictment, was proper ... Knight ... v ... ...
  • Kemp v. State
    • United States
    • Mississippi Supreme Court
    • March 8, 1920
    ...by section 1508 sub-division five above set out, viz: In the ownership of any property named or described therein. Coming next to Thurmond v. State, 94 Miss. 1, the therein is specially authorized by this section and in our sub-division number three, viz: "In the name or description of any ......
  • Gillespie v. State
    • United States
    • Mississippi Supreme Court
    • May 10, 1954
    ...with Code Section 2532 have been approved in a number of cases. Wood v. State, 1887, 64 Miss. 761, 773, 2 So. 247; Thurmond v. State, 1908, 94 Miss. 1, 47 So. 434; Mackguire v. State, 1907, 91 Miss. 151, 44 So. 802; Miller v. State, 1876, 53 Miss. 403; Miller v. State, 1890, 68 Miss. 221, 8......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT