Volume 1 — Morris's State Cases

<p>The defendants were separately indicted, at tbe March term, 1818, of tbe Claiborne Superior Court, for an assault and battery, with an intent to murder one John Hays, on the 4th of February, 1818. In each indictment there was also a separate and distinct count for a simple assault and battery. Upon the affidavit of the defendants that they did not believe they could have a fair and impartial trial in Claiborne county, by the reason of the exertions of John Hays, the prosecutor, to influence and excite the public mind against them, of the prejudices of many men of weight and influence, and of the malice and ill-will of the sheriff of the county against the defendants, the indictments were transferred to Jefferson county, to be tried by a jury of that county. The defendants were tried jointly upon their several pleas of not guilty, although they claimed the right to be tried separately; and were both found guilty by the jury, and a fine of eight hundred dollars assessed against Harman Blen-nerhassett and of two hundred dollars against Dominic. The defendants moved the court for a new trial, and assigned the following reasons, viz:</p> <p>1. Because the court ruled the said defendants into a trial of the indictments found against them in the above cases, without compelling the prosecutor, John Hays, who had instituted a civil suit for damages for the same assault and battery, to make his election either to proceed in the civil or criminal cases, but not in both, though an application to that effect was made by defendants’ counsel and overruled by the court.</p> <p>2. Because the court admitted the said John Hays, who is indorsed on the indictments as the prosecutor, and who may be liable for the costs, to be sworn and examined as a witness upon the trial of said indictments, though the counsel for the defendants took and urged an exception against his competency.</p> <p>3. Because the court ruled the said defendants to be tried jointly and by the same jury, though the indictments were several, and though they claimed and urged by their counsel a right to be tried separately on the several indictments against them.</p> <p>4. Because the court refused to permit ^he said Dominic Blennerhassett to be examined as a witness on behalf of the said Harman Blennerhassett who produced the said witness and claimed that he should be examined on his behalf.</p> <p>5. Because the defendants were surprised at the trial by the absence of Thomas Rogers, a witness summoned on behalf of the state, who was material for them, and who, they believe, was procured to absent himself by the malpractice of the prose-cutoi’, John Hays.</p> <p>6. The verdict was contrary to law and the evidence.</p> <p>This motion for a new trial was, by the Superior Court of Claiborne county, referred to the Supreme Court for their decision.</p> <p>It is not denied, that an individual who has sustained an injury, such as the prosecutor in this case is alleged to have received, has a right to call in the public arm to avenge his wrongs; but he ought not to be permitted, at the same time, to pursue the defendant by a civil suit, to recover damages for the same injury. Neither reason, policy, nor authority will sanction such a proceeding. If an individual be permitted to carry on a public prosecution and a civil suit, against the same defendant for the same offense, and be also permitted to testify in behalf of the state in the public prosecution, will not the testimony which he shall then give, disguised and disfigured by his real or imaginary sense of injury, have a tendency to operate greatly to the prejudice of the defendants on the trial of the civil suit ? If the court tolerate a proceeding of this kind, they will afford but too much scope and too much encouragement for the exercise of malignant and vindictive passions. No man ought to be twice punished for the same offense; and although it may be said that the fine in the public prosecution is a punishment for a breach of the peace, and for the violation of the majesty of the laws, and that the verdict in the civil suit is a remuneration to- the prosecutor for the injury which he has sustained; yet, both are in fact punishments upon the defendant, and he has in truth committed but one offense. The case of Rex v. Fielding, 2 Bur., 719-20, goes strongly to support the doctrine contended for. The court refused to grant an information against the defendant, a justice of the peace, for malpractice in office, .until the prosecutor would discontinue a civil suit which he had instituted for the same offense. And the court then observe, that if the prosecution had been commenced in a manner strictly legal, by indictment, the attorney general would, and ought, to enter a nolle prosequi upon the indictment, unless the prosecutor would enter a discontinuance of the civil suit. In the case of State v. Blythe, 1 Bay, 166-7, the court declare it to be the set-tied practice in South Carolina to compel the prosecutor to make his election. That was an assault and battery. In Rex v. Storrs, 3 Bur., 1702, the attorney general admits that it is the practice in assault and battery, etc., for the prosecutor to elect whether he will proceed by indictment or civil suit. In the case of the Territory of Mississippi v. Peper, Judge Simpson decided that the prosecutor must make his election. I think, therefore, that in our first point we are fortified both by reason and authority.</p> <p>2. If the prosecutor were absolutely liable for costs upon failure of the prosecution, he would unquestionably be an incompetent witness. A liability to pay costs goes to the competency, and not to the credibility of a witness. Hence a proohein ami, by whom an infant sues, cannot be a witness for the infant, nor the bail for his principal, because, being liable for costs, he is interested. 2 Stra., 1026. He has a direct interest in the event of the suit. 1 Term R., 164; 2 Esp. N. P., 347, 703; 1 Bin., 444. By our statute, it is made the duty of the attorney general, to indorse the name of the prosecutor upon all bills of indictment ; and if the government fails in the prosecution, and it appears to be frivolous or malicious, it is the duty of the court to render a judgment for costs against the prosecutor. Dig., 237. It is a general rule, that he who is to be the gainer or loser by the event of a suit cannot be a witness. 2 Haw., 610; 2 Hale, 279, 280; 1 Hale P. O., 302-3. And that which exempts a witness from a charge or loss which he may incur on the event of the suit, is as much an interest, as the prospect of positivevadvantage. 2 Esp. N. P., 347, 703. In this case the prosecutor may, upon a conviction of the defendant, avoid the payment of costs, which he might incur by failure of the prosecution; he is, therefore, directly interested, and his interest renders him an incompetent witness.</p> <p>3. In this case the attorney general might have indicted the defendants jointly. Had he done so, the court, in their discretion, might, perhaps, have directed them to be tried together; but as he has caused several indictments to be found against them, they are entitled to separate trials. No case, it is believed, can be produced, in which two defendants who have been severally charged in distinct indictments, have been compelled, against their will and consent, to unite in their trial. By our constitution, every man accused of a crime or misdemeanor, is entitled to a speedy and public trial, by an impartial jury of his country. Although in this case, the right to challenge any number of jurors peremptorily does not exist, the offense not being capital, yet each defendant might challenge any number of jurors against whom he could show good cause of challenge. If one defendant show good cause of challenge against a juror, to whom the other defendant has no legal objection, and in whom he has the utmost confidence, what course would the court pursue ? They must deprive one of the defendants of that fair and impartial trial secured to him by the constitution. If the challenge be disregarded, the challenger is tried by a juror who is not impartial; and if it be allowed, the other defendant is deprived of a juror in whose uprightness and integrity he has great confidence, and to whose services as a juror he had an unquestionable right from the moment that the name of the juror was entered on the panel, and he was called to be sworn. Where several individuals are indicted for a joint offense, either a joint or several venire facias issues, but it is not the preferable mode to issue a several one. 2 Hale P. C., 173, 263; 2 Haw., 407; Trials Per Pais, 46, 47. By ruling the defendants to be tried jointly, one defendant was deprived of the testimony of the other on his trial. If it can be shown, that one of these defendants would have been a competent witness for. the other, if they had been tried separately, and that this right was denied them upon a joint trial, it would seem to follow as a legal deduction, that the court erred in compelling them to be tried together, and, therefore, a new trial ought to be granted.</p> <p>4. No good reason can be assigned why an accomplice, who is indicted separately, shall not, before conviction, be a witness for his associate. He is not interested in the event of the trial; the judgment of acquittal or conviction of his associate could not be given in evidence for or against him on the trial, and he is not rendered infamous until after conviction. Why, then, should his testimony be rejected ? His credibility may be impeached from the circumstances of his being an accomplice, but his competency cannot be denied. An accessory before or after the fact may be a witness, for or against the principal felon, unless tried with him by the same jury, which he is not bound to submit to, if they were indicted separately. If three persons be separately indicted for perjury in swearing falsely to the execution of a bond, and one traverse the indictment and be put on his trial, the other two may be witnesses for him. If two persons be severally indicted for the same assault and battery, they may be witnesses for each other. Foster, 360; 2 Esp. N. P., 393,126; 2 Hale P. C., 280 ; 2 Haw., 620; McNah, 204; Peake Ev., 144; 1 Term, 301; 1 Wash., 181.</p> <p>5. It appears from the affidavit of the defendants that the testimony of Thomas Rogers was material for them, of which they were deprived without any fault in themselves. Rogers had been summoned by the state, and had been attending during the trial, but left the court without the knowledge of defendants, before the testimony on behalf of the state was closed, and before the defendants could call upon him to testify. The defendants knowing he had been summoned by the state, and seeing him in attendance upon the court during the trial, could not deem it necessary for them to summon, and were, therefore, taken by surprise when they discovered that he had left the court. Surprise is a good ground for granting a new trial. If the absence of Rogers was procured by the prosecutor, it is such a fraud upon the defendants that the court will grant a new trial. 6 Bac. Abr. 611-2.</p> <p>6. If the court are satisfied that the verdict is against law or evidence, or that justice has not been done the defendants, they will not hesitate to grant a new trial. 1 Bur. 390; 3 Black. Com. 387. If death in this case had ensued, the defendants would, at most, have been guilty of manslaughter only. In that case the defendants could not have been mulct in a larger sum than five hundred dollars. Dig. 244. And the jury in this case having assessed a fine against Harman Blennerhassett of eight hundred dollars, affords very good reason for the conclusion, that the verdict is so unjust, and the fine so unreasonable, that the court willl grant a new trial.</p> <p>1. It is important to every government that all breaches of its penal laws should be punished. It would be better not to enact laws, than to permit them, when enacted, to be violated with impunity. This is a much more penal offense than a simple assault and battery. It was attended with circumstances of peculiar aggravation and atrocity. The prosecutor was very severely wounded, and it was little less than a miracle that he escaped with his life. Can it be seriously contended that the government ought to wink at offenses of this kind, because the prosecutor is seeking a pecuniary remuneration for the atrocious injury which he has sustained? Should such be the decision of the court, there will be no longer any security for life or liberty; the government and laws will justly fall into contempt, and become a “laughing stock, and a bye-word among the people.” The prosecution is not carried on for the benefit of the prosecutor alone; the whole community are deeply interested in it. It is important for them that offenders, like the present defendants, should be severely punished, that others of similar dispositions may be deterred from committing the like outrages. The prosecutor cannot be deprived of his action for damages. It is secured and guaranteed to him as well by the principles of eternal justice, as by the express provisions of the constitution. 3 Black. Com. 121; 4 ib. 156 ; 3 Bac. Ab. 156, Ass’t and Bat. D.</p> <p>The cases cited by the counsel for the defendants do not support the principles for which they contend. The case of Rex v. Fielding is very distinguishable from the present. That was an application to the court for leave to file an information against a magistrate, who had conducted illegally in the execution of his office. The court was satisfied that the magistrate had acted honestly, that no corrupt or evil intention could be imputed to him, that application was made by the prosecutor from malicious and vindictive motives, and, therefore, in the exercise of a just discretion, they rejected the application, until the prosecutor should discontinue a civil suit which he had instituted for the same misconduct or misdemeanor. There is no English case, where the prosecution was by indictment, in which the court have required the prosecutor to make his election. In some cases of a trifling nature, or where the prosecutor appears to be instigated by malice, the attorney general will enter a nolle prosequi, unless the prosecutor will discontinue the civil suit. The case in Bay’s Reports cannot be considered as entitled to much weight, when put in competition with several English cases, and a decisión of the Supreme Court of Massachusetts expressly in point. 1 Bac. Abr. 245-6; 1 Bos. & Pul. 191; 2 Mass. R. 372.</p> <p>2. It is generally true in criminal as well as civil cases, that a person who may gain or lose by the event of the suit cannot be admitted as a witness; but in robbery or larceny, where the prosecutor is entitled, upon conviction of the defendant, to a restitution of the goods stolen, and in cases where a reward is offered to the prosecutor, by statute,.by proclamation, or by a private person, he is, notwithstanding, a good witness. Phil. Ev. 86, 91; 1 McNal. 61. It is not pretended, that the prosecutor in this case is interested in the event of the suit, except that he may be liable for costs, upon certain contingencies, if the state should not succeed in the prosecution. He is not entitled to any reward, in case the defendants shall be convicted, nor can the verdict and judgment be given in evidence for him in the civil suit. Should the state fail in the prosecution, he is not liable for costs unless, in the opinion of the court, the prosecution is frivolous or malicious. His liability then depends upon two contingencies, future and remote. This is not such a liability as will disqualify him from being a witness, or exclude his testimony. To render a witness incompetent, his interest must be legal and fixed, not depending on any contingency. Phil. Ev. 39; Salk. 283; 1 Term R. 163.</p> <p>3, 4. All offenses are several as it- respects the offenders. If two or more individuals are jointly concerned in the commission of the same offense, the attorney general may, at his pleasure, indict them jointly or separately. 2 Hale’s P. C. 173 ; 2 Haw. 342. It is not denied by the counsel for the defendants, that they might have been tried together, if they had been jointly indicted. What good reason can be given, why two persons jointly indicted, may, in the discretion of the court, be tried together when, if they had been charged with the same offense, in separate indictments, they must be separately tried. It is conceived there is none. It is not the circumstance of their being jointly indicted that authorizes the court to put them upon trial together; but that of their being jointly concerned in the commission of the offense. The evidence against the one, goes to disclose the guilt or innocence of the other. No injury can, therefore, result to either of the defendants from a joint trial. But it is said, that by denying the defendants a separate trial they are deprived of the testimony of each other. It is very clear that one defendant cannot be a witness for another, unless there is no evidence given against him; and in that case, when they are tried together, the court will send up an issue for the one against whom no evidence has been given, and upon the return of a verdict of acquittal, his testimony will be received on behalf of the other defendant. 1 McNal. 56 ; Phil. Ev. 74. Belmore’s case is very distinguishable from the present. The perjury of one man is not that of another ; and although they may have sworn falsely in regard to the same circumstance, they cannot be joined in the same indictment. As to the other principles relied on by the defendants’ counsel on this point, they are the mere dicta of McNally and the American editor of Espinass’ JVisi Prim, not supported by any adjudged cases.</p> <p>5. It does not appear from the affidavit of defendants that the testimony of Rogers, if it could have been procured, would have been material for their defense. They swear that they could have proved by him, an offer of a compromise or reference with the prosecutor, prior to the assault for which they are indicted, and an assault upon them by the prosecutor, on the morning of the same day on which they committed the assault upon him. These facts, if true, would not be material for their defense, nor could they be legally given in evidence upon the trial; and if they could have been given in evidence, the verdict must have been the same. There is no evidence that the absence of Rogers was procured by the prosecutor, except the belief of the defendants ; and the affidavit of Mills goes strongly to show the fallacy and improbability of that belief. The defendants did not summon Rogers; and if they relied upon him, they were guilty of laches in this respect. The attorney general is not bound to keep, till the end of the trial, all the witnesses whom he may have summoned. He may dismiss them when he pleases, and the adverse party will have no cause of complaint.</p> <p>6. The verdict is neither against the law nor the evidence. The assault was most atrocious and aggravated, and the jury showed their good sense by inflicting a heavy fine upon Harman Blennerhassett-</p>

<p>Gband LAECENY.</p> <p>On an indictment for grand larceny, the jury not being able to agree, up to the last moment, when the term of the court ceases by limitation of law, may be discharged without the consent of the accused, and he maybe lawfully remanded to jail for trial at the nest term of the court.1</p> <p>Even in capital cases, when a striking necessity exists, the jury may be discharged.</p> <p>The clause in the constitution of the united States, “Nor shall any one he subject for the same offense to be twice put in jeopardy of life or limb,” is binding in the courts of the States, as well as of the United States. Under this clause in the constitution, the prisoner is not put in jeopardy till after verdict.</p>

<p>Assault and Battery.</p> <p>Although, at common law, a husband has the right to chastise his wife, he may still be convicted of an assault and battery upon her.</p>

<p>An indictment for stealing a negro man not called a slaye is insufficient. A trial and acquittal on an indictment for stealing a negro man, is no bar to a subsequent prosecution for stealing a negroman, slave. A conviction or acquittal, or an invalid indictment, is no bar to a second prosecution.</p>

<p>The udge of the criminal conrt may re-examine the canses of commitment, and remancor discharge the prisoner, according to his own belief of his innocence or guilt.</p>

<p>Homicide.</p> <p>A juror cannot be asked, either by the State or the accused, whether he has brined or expressed an opinion as to the guilt or innocence of the prisoner befo» he is challenged. j</p> <p>A hypothetical opinion, or one formed upon rumor, subject to bo changecby the evidence on the trial, does not disqualify a person from serving a3 jurorln the case. j</p>

<p>The commissionere of public roada are liable to a criminal prosecution for any neglect of duty.</p>

<p>Libel.</p> <p>The office of an indictment is to connect the libel with the extrinsic facts, to show the meaning and bearing of words and phrases used in it, and is necessary, when the words published would not be libellous, unconnected with such facts.1</p> <p>The court will regard the use of fictitious names and disguises, in a libel, in the sense that they are commonly understood by the public.2</p>

The formation and expression of an opinion does not disqualify a juror, without express favor or express malice. The English authorities on this point are full and uniform. Co. Litt., 157, a; Trials per pais, 185, 189 ; 4 Hawk., b. 2, ch. 43 §28; 3 Bacon, 757; 1 Chitty, Cr. Law, 442, top of page; 4 B. & A., 470; 6 Eng. C. L. R., 502. In this country the same doctrine is sanctioned by the highest authority; and no case can be produced which overrules it.

In this case the only question is, whether the court erred in overruling the motion for a new trial. There was but one motion made, and that was for arrest of judgment, and for a new trial, which was treated by the court below simply as a motion for a new trial. .

This cause came up on writ of error from Warren county. The prisoner, a free man of color, was indicted at the Warren court as an accessory to the murder of Joel Cameron, committed by a slave named Daniel. The indictment further charged, that said Daniel had been convicted at a previous term of the county court, and that said Byrd did counsel, hire and procure said slave, Daniel,to murder the deceased.

Smith,^T. The plaintiff in error was indicted in the court below for the murder of Benjamin Turbeville, and on trial tbereof, was convicted, and be brings the case to this court. He made a motion in arrest of judgment, which was overruled, and for error assign the following: 1. The writ of venire is defective in this: The sheriff is commanded to summon a jury from a particular part of the county.

This case originated in the circuit court of Warren county, at the February special term, 1833, thereof, and was brought to this court from the February term, 1834, of said circuit court, and reversed and remanded by this court to the circuit court for further proceedings.

<p>Error to Warren circuit court, Montgomery, J.</p> <p>The facts of tbe case are sufficiently stated in the opinion of the court.</p>

This was an indictment against Damewood for larceny of a pocket-book and certain bank notes on the Planters’ Bank, the property of J. Caldwell. The facts are sufficiently set forth in the assignment of errors, and the opinion of the court. The counsel for plaintiff in error assigned the following errors: 1.

This was an indictment in Wilkinson county, against Bryant, for practicing medicine without a license from the board of medical censors, and came up to this court on writ of error.

<p>Error to Wilkinson circuit court. Willis, J.</p> <p>The opinion of the court contains a sufficient statement of the facts of the case.</p> <p>Cited Rev. Code, 134; 1 Chitty, 270; 4 Hawkins; Peck’s R 310; Eev. Code, 116; 1 Chitty, 419; Jury Law, Acts Legislature 1830; 1 Coke, 156, A; Leach 87; Chitty, 165.</p>

At the January special term of the Copiah Circuit Court, 1835, the grand jury found a true bill against William P. Hose for an assault committed on the 25th of said month, on which a bench warrant issued. Hose was taken on the 16th of January, 1836, and entered into bond with the defendant, Young, as surety, in the sum of two hundred dollars. At the May term of said court, 1836, a soi/re faoias issued against Young.

<p>MURDER.</p> <p>The statute points out the method hy which those who are to compose the panel shall be selected, and prescribes their qualifications; and it will be presumed that the court intrusted with this duty has performed it, by placing on the panel none but such as are good and lawful men of the county, in accordance with the provisions of the act. The party can only rebut this presumption by challenge and proof before trial. The question cannot afterwards be raised in another court.</p> <p>It must appear by the record that the grand jurors were sworn ; and if the record slR>ws that one of them was “ sworn as foreman,” it will be sufficient evidence of appointment as such. 1</p> <p>The record, without any notice of the original venire, stated that fifteen persons, naming them, were drawn as a gTand jury, and that A. E. D. (one of the number) was sworn as foreman of the same. There is no statement that he was appointed foreman by the court, nor that the remainder of the jurors took the oath required by law of grand jurors. Held, that the indictment was fatally defective</p> <p>The 69th section of the act “ for the punishment of crimes and misdemeanors,” Sev. Code, S09, requires the district attorney to mark on all bills of indictment, the name of the prosecutor; an omission to do so is fatal to the indictment.</p> <p>Where a juror, upon being interrogated by the court, “ denied that he had formed or expressed any opinion of the prisoner’s caseand it "was proved that, after he had been summoned by the officer to attend as a juror, he had said that, if he should be on the jury, “ he did not think he could clear him, but should be bound to find him guilty,” he was held to be clearly incompetent as a juror, and a new trial ought to be granted on that ground.</p>

This was an indictment against Overstreet for living in fornication. Plea, not guilty. On the trial the attorney for the state proposed and offered to prove, that it “ was common report in the neighborhood, that the defendant and one Sarah Hamilton lived together in fornication,” which proof was objected to by the prisoner’s counsel. The objection was overruled and exceptions taken to this opinion of the court.

<p>Error to Adams circuit court.</p> <p>Cited, Acts of 1836, p. 25; Rev. Code, 106; 1st Session of Acts of 1830, ch. 15. § 5 ; Chitty Cr. Law, 640; 1 Salk, 384; 1 Comp. 276; Rev. Code, 109.</p>

<p>Error to Marshall circuit court.</p>

<p>Hi URDES.</p> <p>Where it appears that neither the witness nor any one else, at the time, placed any particular motive of temporal advantage or fear before the mind of the prisoner, but simply told him to tell all he knew concerning the murder of the deceased, and he then, without any compulsion or any promise, made his statements, they were held to be competent evidence to go to the jury, It is a well-settled rule, and it must clearly appear to the court, in order to exclude them, that the confessions were superinduced by promises of temporal advantage or threats of temporal punishment. 2 Starkie, 27.</p> <p>Where the record shows that the indictment was found and returned into court by the whole panel, the special appointmeut of a foreman is not necessary.1 The indictment, however, will be fatally defective if it have not the name of the prosecutor endorsed upon it.2</p> <p>Where the appellate court reverses the judgment of; he court below for the want of form in the indictment, the indictment will be considered sufficient prima facie evidence of guilt to remand the prisoner. 3</p>

The defendant, Samuel A. Carpenter, was tried and convicted of perjury, at the August term of the Hancock circuit court. The foundation of the indictment was an affidavit made by Carpenter before a justice of the peace, of Hancock county.

At the May term of said court, 1839, William Hare, tbe plaintiff in error, was tried and convicted of tbe murder of Robert Sharp. A motion was made for a new trial by the prisoner, which was overruled. The motion was supported by affidavits which disclosed these facts.

<p>KeTAILING WITHOuT LICENSE.</p> <p>A count in an indictment on the statute, charging that the defendant did unlawfully sell and retail vinous and spirituous liquors, to wit; wine, rum, gin, hrandy and whiskey, in a less quantity than one gallon, to persons to the jurors unknown; and that the said defendant did then and there suffer and permit the said vinous and spirituous liquors, so retailed and sold in less quantities than one gallon, as aforesaid, to be drank and used in and about the house of him, the Baid C. contrary, to the form of the statute, etc,, was held to he good.</p> <p>A count charging that the defendant, as a tavern and inn-keeper, did unlawfully, gratuitously, and without special charge therefor, offer, give, and deliver vinous and spirituous liquors, etc., in less quantity than one gallon, to divers persons to the jurors unknown; which said persons were then and there the guests of the said C. contrary to the statute, etc., was held to he good.</p> <p>A count charging that the defendant, inn-keeper, etc., did then and there, by evasion, etc., violate the plain intent and meaning of an act, etc., is too vague and uncertain, and will not warrant a conviction. When the indictment contains several counts, and one of them is good, it will sustain the verdict of “ guilty.”</p> <p>It is a well established rule of law, that a hypothetical opinion of the court, given in its instructions to the jury, is no ground of error.</p> <p>No one can excuse himself from the operation of penal statutes, on the mero ground that he acted only as agent for another person.</p>

<p>Error to Jefferson criminal court.</p>

<p>Forfeiture of Becognizance.</p> <p>Judgment on the forfeiture of a recognizance for appearance, will he reversed if there is a material variance between the recognizance, the scire facias, and the judgment of the court.</p>

<p>LARCENY.</p> <p>The time of the commission of the offense laid in the indictment is not material, and it does not confine the proof within the limits of that period; the indictment will be satisfied by proof of the offense at any anterior day.1</p> <p>The act of 1S39 guards against the effect of repealing the act of 1822, bnt expressly providing that it shall not affect any case subject to punishment under the act of 1822, or any former law.</p> <p>When reference is made in the bill of exceptions to a paper by a particular mark, as being part of the bill of exceptions, this reference must clearly appear, or the court will not presume the paper in the record to he the same referred to in the bill. The evidence, if to be reviewed by the appellate court, must be certified by the court below.</p> <p>On the trial of the prisoner on an indictment, the evidence taken before the committing magistrate cannot be legally introduced.</p> <p>Where a prisoner has been found guilty on a charge of larceny, and the court below pronounced an illegal sentence, the appellate court wUl reverse the sentence, and pronounce judgment in conformity to the statute.</p>

Rawlings, J.: At the December term, 1837, of the criminal court, the plaintiffs in error were indicted for burglary. The venue was changed to Jefferson county, and at June term, 1838, they were tried and found guilty.

The defendant was indicted in the circuit court of Tishomingo county for the crime of robbery.

<p>RetailiNG Without License.</p> <p>In criminal cases, an appeal docs not lie to the High Court of Errors and Appeals. Such cases can only be removed by -writ of error.</p>

Tbe prisoner was indicted under tbe act of 1839, in tbe words following, to wit: “ That Sampson Ainsworth, late of the county aforesaid, laborer, on the 20th day of September, 1839, with force and arms in tbe county aforesaid, one Alson Shelby, in and upon tbe left arm of him, tbe said Alson Shelby, then and there feloniously and maliciously did, with a certain drawn knife, stab and wound, with intent then and there, feloniously, wilfully, and of his malice aforethought, the…

<p>Error to the criminal court of Adams county.</p>

<p>Error to Adams criminal court.</p>

The plaintiff in error was indicted for the murder of James M. Farrar, and found guilty of manslaughter at the November term, 1839.

Indictment against Isham, a slave, for the murder of Wilford Hoggatt. On the trial, Richard B. Sessions, the owner of Isham, was offered as a witness for the prisoner, but was excluded by the court on the ground of interest. The counsel for the accused excepted to the action of the court. The chief question is, whether Sessions, the owner of the defendant, and who was offered as a witness for the prisoner, was properly excluded.

Moss and Gwin were indicted in the circuit court at November term, 1839. A bench warrant issued returnable during the same term, commanding the sheriff to have the defendants before the court on the 12th of December, (a day of the same term), and fixing the amount pf bail at two hundred dollars.

The prisoner was indicted, tried and convicted at the May term, 1841, of said court, of the murder of Samuel Harvey. The presiding judge of the court having been formerly interested as counsel for the accused, by consent of counsel for the prisoner and for the state, C. McClure, Esq., was selected, under the acts of 1840 and 1841, to preside at the trial of the cause; and that is now assigned as error.

At the November term, 1836, of the circuit court, an indictment was found against I. Gr. Davis for larceny; upon, which he was tried and convicted. After conviction, the court admitted him to bail, taking his recognizance, with William Davis as his surety, conditioned that he would attend upon the court from day to day and abide by and perform the judgment of the court when rendered.

RolliNS, J. John White was indicted for perjury, in this, that he, in a petition to the judge, which was sworn to before a justice of the peace, stated that on a trial of him, said White, before said justice, for harboring a negro, “ that he was forced into a trial late on Saturday night, without giving him an opportunity to produce his witnesses,” when in fact, he was not so forced into trial, but that he demanded a trial at the time specified.

The defendant was indicted at the November term, 1842, of the Circuit Court of Madison county, for “ unlawfully retailing spirituous liquor to a negro man slave, without the permission then and there, of the master, etc., of said slave, contrary to the statute,” etc. Plea “ not guilty,” and verdict “ guilty.” A motion was made to set aside the verdict, which was overruled, and the exceptions and evidence were embodied in the bill of exceptions.

On tbe 14tb day of August, 1840, M. C. Eolkes, as mayor of Vicksburg, took the recognizance of N. J. Dean, as principal, and of David Dean and J. H. Van noy as sureties, tbe former in tbe sum of 1500, and the latter in the sum of $750 each, conditioned for the appearance of said N. J. Dean “ before tlie judge” of tbe circuit court of Warren county, at tlie court house thereof, on tbe third Monday of October following, to answer tlie charge of feloniously taking, stealing,…

This case is brought, by writ of error, from the judgment of the Hon. Stephen Adams, judge of the ninth judicial district, upon a writ of habeas corpus, upon the application of the prisoner, then in custody of the sheriff of Itawamba county. The petition for the writ was dated April, 1843, and stated that the prisoner was in custody, under the charge of having murdered Geo. W. “Wiley, late of Pontotoc county.

Indictment November term, 1841, of circuit court of Ponto-toc county, against William Mann, for selling spirituous liquors in less quantities than one gallon.

At the April term, 1844, of the Smith county circuit, the grand jury found a joint bill of indictment against Kelly and Little for the murder of “ Jack, a slave of… Held: and the indictment found, is in figures ; and the whole caption, in relation to the empanelling of the jury and the finding of the indictment, is in the past tense. The sheriff cannot be removed from office unless in cases specified in the constitution and laws. Const., art. 4, sec. 28; art. 5, sec. 19.

Tbe defendant was indicted in the circuit court of Lowndes county for shooting with intent to kill and murder one Henry R. Owen. The weapon alleged to have been used was a shotgun, loaded with gun powder and divers leaden shot. The plea was “ not guilty.” The evidence is substantially stated in the opinion of the court.

” The petition for the writ submitted by the district attorney, stated that at the June term, 1843, of the Hinds circuit court, an indictment was found by the grand jury against the defendant, Anderson, for stealing, etc., upon the testimony of one Theodore Younger, whose name was marked on the indictment as prosecutor. That at the March term, 1844, of the court, said cause came on to be tried, the defendant having plead “not guilty ” to the indictment.

Peter, the slave of James Harrington, was indicted at the April term, 1837, for the murder of Samuel Harvey. The case upon change of venue was tried at the Lawrence circuit court, and a mistrial resulted. The presiding judge at a subsequent term, having been of counsel in the case, the venue was again changed to Copiah county. The case not having been transferred, at a subsequent term, by consent of parties, a member of the bar presided.

The prisoner was indicted at the November term, 1844, of the circuit court' of Jasper county, for stealing a negro, Sam, slave of William Bridges. Plea, “ not guilty.” On the trial, Wm. Bridges testified, on the part of the state, that Sam, the person named in the indictment, is his slave; that he ran away from his overseer in February or March, 1844, in the county of Jasper, and remained absent about five months, when he was caught in the woods up in a tree.

Tbe plaintiff in error was indicted by the grand jury of Lowndes county, at the April term, 1844, for the murder of Edmund N. Abbott. On the 14th February, 1844, a venire facias was issued by the clerk of the circuit court of Lowndes county, commanding the sheriff to summon, etc., and that on the first day of April term of said court, fourteen of the jurors summoned were drawn by lot and sworn as grand jurors.

There were four records filed in this court against tbe same parties', the condition of the records in the several cases is nearly the same, and the opinion delivered in each case is nearly a transcript of the opinion in each of the others. One case only is therefore reported. The facts are fully stated in the opinion of the court. The plaintiffs assigned the following errors: 1.

Three cases against the áecused were submitted together. At the circuit court of Hinds county, the grand jury found a true bill of indictment against the prisoner for forgery of an auditor’s warrant. The warrant was in these words : No. 48. $115. State of Mississippi, Auditor’s Office. Pay to Daniel Thomas, or order, the sum of one hundred and fifteen dollars, on account of the appropriations for 1840 department, and for so doing this shall be your warrant.

Caption of tbe record. “ State of Mississippi. Pleas before, etc., at a circuit court beld in and for Warren county, at tbe court-bouse, on 24tb May, 1845. Be it remembered, that at a circuit court begun, etc., on 21st Oct., 1844, a grand jury of inquest for tbe body of this county was empanelled, viz: John Cl. Parham, (and nine others,) of tbe regular venire, which being exhausted, the following persons, by-standers, were summoned by the sheriff, viz: Robt.

The defendant, Peter G. Johnston, was indicted by the grand jury of Hinds county; the indictment charged, “ That Peter G. Johnston, late of the county of Hinds, aforesaid, laborer, on the 30th day of May, A. D. 1843, in, etc., did play at a game at cards for money, contrary to the form of the statute.” Yerdict, guilty; sentence, a fine of twenty dollars.

On the trial, Robert Brown testified on the part of the state, that he saw faro-dealing in three rooms of the Eagle Hotel, in Jackson, kept by the defendant, during the previous winter, while the legislature was in session; saw the dealing both day and night, but did not see defendant in either of the rooms or about when the dealing took place.

John Domingos, baring been indicted for the murder of James H. Holmes, was tried and found guilty at the April term, 1845, of the circuit court.

At tbe May term, 1845, of tbe circuit court of Warren county, Isaac Tourney was indicted by tbe grand jury, for a rape upon tbe person of Mary Eolkes, on tbe first day of September, 1844. Tbe venue was changed to Clairborne county, where at tbe June term of the circuit court, he was tried and found guilty, and sentenced to twenty years in tbe penitentiary.

Joseph Jolly was indicted for having sold spirituous liquors to a certain slave, named John, without permission of his master, etc. He was tried and found guilty, and thereupon moved for a new trial, but the motion was overruled, and exceptions taken.

Ephraim E. Wilbome was indicted for grand larceny; the indictment contained two counts; the first charged him with feloniously stealing, taking, and carrying away, one gray mare, value seventy dollars; saddle, value ten dollars, money, banknotes, and other articles.

Coalter, J. James M. McDaniel was indicted in tbe court below for the murder of Alexander Frazier, was arraigned and pleaded not guilty at the April term of the court, 1846. He made application for a continuance on the ground that two witnesses, residents of the county of Hinds, were absent without his procurement or consent, whoso evidence would be material for him, as they would testify to facts which he could not prove by others.

Coalter, J. The opinion of the court contains a sufficient statement of the facts of the case. The plaintiff in error assigned as cause of reversal, the overruling by the court below of the motion in arrest of judgment, which motion was made on the following grounds, to wit: 1. Because the court, from inspection of the defendant, will find that he is a descendant from the African race, and therefore, •primafacie a slave. 2.

Willis, J. This was an indictment in the court below, found by the grand jury of Copiah county, at the November term, 1846, against Joel Swinney.

Coaltee, J. The record in this case discloses the following facts, to wit: On the 13th day of September, 1845, the clerk of the circuit court, and the sheriff of Washington county, drew from the box containing the names of persons liable to sit on juries, the names of thirty-six persons to attend and serve as jurors at the October term, 1845, of the circuit court of Washington county ; that a writ of venire facias was issued, and the same was returned executed. «At the…

The opinion of the court contains a sufficient statement of the facts of the case. 1. It was error to exclude (upon the trial of the plea in abatement) the writ of venire facias, and the testimony of the witnesses offered by the defendant. The plea was a good defense in avoidance of the indictment, and evidence in support of it should have gone to the jury. 4 Bac. Abr., 525, 530, tit. A; 1 Chitty Cr.

Coaltee, J. Tbis was an indictment preferred by the grand jury of Hinds county against Patrick Donnaher for a nuisance, in digging and subverting large quantities of dirt in the streets of Jackson, and thereby obstructing the same. The defendant pleaded not guilty. The case was submitted on the following state of facts, to wit: In 1836, the legislature passed an act incorporating the president and directors of the Jackson and Brandon .Railroad and Bridge Company.

Coaltee, J. The opinion of the court contains a sufficient statement of the facts of this case. The statute prohibiting the sale of vinous and spirituous liquors in less quantities than one gallon, appropriates to the city of Yicksburg, for the use of a hospital, all fines and forfeitures from a breach of its provisions, within the limits of said city. Acts of 1842, 109, sec. 2.

Millee, J. The plaintiff in error was indicted in the court below for the murder of Lewis Smith. The defendant was arraigned on the 14th day of September, 1846, and pleaded not guilty. On the trial, Isaac Bennett, a witness, testified, that on the morning of the 20th of March, 1846, he saw the defendant about a half a mile from his own house, with blood on his hands.

Rogers, J. The plaintiff in error was indicted in the court below, at the April term, 1846, for forgery. The indictment contained four counts: 1st. “ Making and forging a promissory note, commonly called a bank bill,” reciting the same, “ with intent to defraud the Bank of the State of North Carolina 2nd.

Co altee, J. The plaintiff in error was indicted in the court below for the murder of David, a slave,, and being tried was found guilty. During the empanelling of the jury, William A. Haynes, one of the venire, summoned in the case, was called and sworn, and tendered by the court to the district attorney, who, being satisfied with the juror, turned him over to the prisoner, who accepted.

Coaltee, J. The plaintiff in error was indicted in the court below for the murder of one Donohoo. On the 1st day of May, 1847, the prisoner was arraigned, and, on a plea of not guilty, was found guilty, and sentenced to be hung. He moved the court for a new trial: 1st, Because the court overruled a challenge for cause to a juror ; 2d,* The eourt erred in giving instructions to the jury; 3d, The verdict was against the law and evidence.

DawsoN, J. The plaintiff in error was indicted in the circuit court of Lowndes county for the murder of Andrew Toland. A trial was had in Lowndes county, and the jury being unable to agree were discharged.

Coaltee, .J. The grand jury of Hinds county at the November term of the circuit court, 1846, found an indictment against Jack Fountain Silas, as principal, and Henry Keitliler as accessory, of the murder of Benjamin G-. Sims, on the 6th of July, 1846.

Dawson, J. The plaintiff in error was indicted in the court below, at the April term, 1847, for having “ with a dirk knife, being a deadly weapon, cut, beat, bruised, maimed, and ill-treated, with intent, in and upon one Isliam, a slave of William Cozant, wilfully and maliciously, and feloniously, to commit manslaughter.” The case was tried, and the prisoner found guilty; and the court sentenced him to jail for a period of two years.

Adams, J. In this case a recognizance was taken by the vice chancellor, conditioned that James Wofford should appear at the next term of the circuit court to answer a charge of stealing a slave. Wof-ford did not appear; judgment nisi was taken, and, on return of' the scire facias, the recognizance was quashed, on motion of the sureties, on the ground that the vice-chancellor had no jurisdiction to take the recognizance, and the district attorney appealed.

DawsoN, J. The plaintiff in error was indicted in the court below for an assault with intent to kill, in the following words of the… Held: at and against one Cornelius L. Mixon, then and there being, feloniously, wilfully, maliciously, and unlawfully, did shoot with intent, then and there, and thereby feloniously, wilfully, maliciously, and unlawfully, and of his malice aforethought, to kill and murder, contrary,” etc. The prisoner pleaded not guilty; was tried and…

Asa Loftin was indicted at the September term, 1847, of the court, as an overseer of the road, for not keeping it in repair. He pleaded not gnüty.

Coaltee, J. At the June term, 1845, of the circuit court of Hinds county, the grand jury indicted Sidney S. Erwin and Daniel O. Williams, for betting two hundred dollars on the result of the presidential election, which took place on the first Wednesday in December, 1844. The case was dismissed as to Erwin, and in November, 1846, a trial was had on the plea of not guilty by Williams.

Posey. J. At the March term, 1847, separate indictments were preferred by the grand jury of Amite county against George H. Barney, Jacob Halfin, Augustus W. Forsyth, William B. Carter, Edmund I) ray fus, and David Jewett, for playing for money at a game of cards, commonly called “ poker.” At the preceding term of the court, each of them pleaded in abatement to the respective indictments found against them, for the want of legal qualifications in one of the grand jurors,…

Coalter, J. On the 6th of March, 1846, Miles C. Folkes, mayor of the city of Yieksburg, recognized William Mayhew, Joseph Butler, J. J. Rawls, Robert Wilson, Frederick Rogers, Henderson Markham, andW.

Coaltee, J. The plaintiff in error was indicted on the first Monday in April, 1848, at the court-house, in Tallula, in the circuit court of Issaquena county, for the murder of Absalom H. Barrow. At the October term next, the, venue was changed to Warren county.

Habéis, J. In October, 1848, the grand jury indicted Cicely, a slave of Andrew MeAlpin and Thompson Wells, administrators of Achilles Wells, for the murder of Anne Longon. The prisoner was arraigned, and upon the plea of not guilty, was convicted and sentenced to be hung. The prisoner made a motion for a new trial, which was overruled, and she sued out a writ of error and brings the ease to this court.

Habéis, J. The plaintiff in error was indicted, and convicted of the manslaughter of a slave named Jim, tbe property of John L. Downs. His motion for a new trial being overruled, be sued out this writ of error. Cited State v. Tackett, 1 Hawks, N. C. R., 210, 217, 218; 8 Peters, 658; 1 Blackf., 205; Yan Ness v. Packard, 2 Peters, 144; State v. Buchanan, 5 Har. & Johns., 356; Wilford v. Grant, Kirby, 117; Pawlett v. Clarke, 9 Cranch, 333.

Harris, J. The plaintiff in error was indicted in'the court below for an assault and battery with intent to kill one James Poster. He was tried and found guilty. He made a motion in arrest of judgment for various alleged defects in the indictment, which was overruled. Several instructions were given and refused on both sides, and a bill of exceptions was sealed by the prisoner, who, after being sentenced, sued out this writ of error. Cited Hutch.

Posey, J. William C. Coon was indicted and tried at the December term, 1848, of the court below, for the larceny of Caesar, the slave of James A. Stewart. He was found guilty, and his motion for a new trial being overruled, he embodied the evidence in a bill of exceptions, and brings his case to this court by a writ of error. The opinion of the court contains all the evidence. Contended, 1.

DawsoN, J. The opinion of the court contains all the material facts of the ease. On tbe point of tbe jurisdiction of tbe circuit court of Perry-county, to try tbe offense, cited and commented on 1 Hale P. C., 425, 426. This authority is not sustained by reference to any decisions, and is not supported by the reasoning of tbe author. 1 Hawk.

<p>Selling Liquoe to Slaves.</p> <p>The essential ingredient of the offense of selling liquor to a slave consists in the want of the permission of the master, and such want of permission must be proven to warrant a conviction.</p> <p>The material allegations of the indictment, or those which charge the facts Constituting the offense alleged, must in every case be sustained by sufficient proof.</p>

<p>Error to Adams circuit-court. Willis, J.</p> <p>Cited, Cody v. State, 3 How., 27; ib., 433; and contended that a fatal defect in an indictment could not be cured by amendment.</p> <p>Cited, Hutch. Code, 1005, § 65; 1 Chitty Cr. Law, 298.</p>

<p>Homicide.</p> <p>The statute of limitations declares, that no person shall be prosecuted, etc., for any offense, wilful murder, arson, forgery, counterfeiting, and larceny excepted, unless the indictment, presentment, or information for the same be found within one year next after the offense shall be committed. An indictment for murder includes an indictment for manslaughter, and the statute will apply precisely as though the prisoner had been indicted for manslaughter.</p> <p>A motion in arrest mnst be made on the grounds of defects appearing on the face of the record; the fact that the offense was committed twelve months before the finding of the indictment is no ground for such motion.</p> <p>An instruction that charges the jury that if the offense did not amount to murder, but only to manslaughter, and was committed more than a year before the finding of the indictment, they must acquit the defendant, is correct, and should be.given.</p>

<p>Assault and Battery with Intent to Kill.</p> <p>There is a plain distinction between express and implied malice; the one is characterized by a sedate, deliberate intention and formed design, evidenced by external circumstances; the other is the offspring of sudden impulse.</p> <p>It is a general rule that aU indictments upon statutes, esp ecially the most penal, must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it. They must also pursue the precise and technical language employed in the statute in the description of the offense.</p> <p>The evidence and the verdict must both be confined to the charge in the indictment, otherwise the administration of the law becomes uncertain, and the prisoner is deprived of the protection which a knowledge of the precise charge is calculated to throw around him.</p>

<p>Selling Liquok to Slaves.</p> <p>Instructions granted for the state, not excepted to at the time they were given, nor made grounds for a new trial, will not he considered on error to the high court of errors and appeals.</p> <p>If, from the evidence, the jury should he of opinion that permission is given to a slave hy the master, mistress, owner, or overseer, to buy liquor, then the offense is not committed, thougli the permission is given to the slave and not to the sellers. But if they should he of opinion that permission was not given to buy, but that the slave was sent to ascertain and flxtl^e fact that the defendant would sell without permission, and the sale took place under these circumstances, then the offense is consummated.</p> <p>An employer’s delivery of an article to a slave, and afterwards standing by to detect the offender who may trade with the slave, does not legalize the trading.</p>

IIaeeis, J. The plaintiff in error was indicted in the court below for gaming, and was found guilty. The other facts of the case fully appear in the opinion of the court. Cited Carpenter v. State, 4 How. 168; H & H., 490; 5 How., 32; 8 S. & M., 297. Cited 1 Chitty Cr. Law, 388 ; 3 How. R., 28; S. & M., 598; State v. Friar, 3 How. R., 422.

Coaltee, J. The plaintiff in error was tried and convicted of murder for the second time, and his case was once before in this court, and was reversed and remanded to the court below. See 9 S. & M., 284. The opinion of the court contains a sufficient statement of the case. 1. On the discharge of the juror, cited Hutch. Code, 1007, art. 7, § 1. 2.

Kogers, J. The facts of the case will be found in the opinion of the court. Insisted that there were fatal defects in the record, which he pointed out; and among others, no prosecutor is marked on the indictment.

<p>Error to Franklin circuit court. Posey, J.</p> <p>Dempsey B. Cain was indicted, for betting on an election, in the court below; the indictment contained two counts. On the first there was a verdict of acquittal; on the second, which charged that the defendant, “ on the 1st day of October, 1848, did bet a certain valuable thing, to wit, a certain fine coat, upon the result of a certain election to be holden on the 7th day of November, a.d. 1848, (according to law,) in the State of Mississippi, for six electors for said state to vote for a president and vice-president of the United States of America,” he was found guilty.</p> <p>The substance of the testimony adduced on the trial is as follows:</p> <p>Willis Byrd testified that he and the defendant did not bet on the result of the election of six electors, but that he promised, in the county of Franklin, on the day charged in the indictment, to make a present to the defendant of a nine or ten dollar coat if Cass got two thousand more votes than Taylor, and if Cass did not get that majority, defendant was to make a present of a nine or ten dollar coat to witness; that he voted for six electors, and that there was .an election at which the electors were voted for at Jones’s Precinct, where he voted; that Cass and Taylor were candidates for president, and the persons for whom the six electors to be elected were expected to vote; that there was nothing up in the hands of the stake-holder at the time, and that defendant afterwards, in Adams county, paid him nine dollars ; that this was in lieu of the present he expected to receive, on account of it being conceded that Cass did not get two thousand votes in the State of Mississippi more than Taylor. The way it was determined who had the present to pay, was by knowing the majority received by the electors in the state ; and there was a dispute about the amount of the present.</p> <p>The state then introduced a writ of election, directed to the sheriff of that county, directing him to hold an election of six electors for president and vice-president, and proved by the sheriff that an election was beld on the day mentioned in the indictment.</p> <p>The court gave certain instructions for the state and refused» those asked by the prisoner; but the instructions were not. embodied in the bill of exceptions, though copied by the clerk into the record.</p> <p>The defendant moved the court for an arrest of judgment because the indictment did not charge that the election had been holden. This motion was overruled. He then moved for a new trial, which was also overruled. The court fined him twenty dollars and costs, when he sued out this writ of error.</p> <p>Cited Hutch. Code, 951, 953; 1 Chitty Cr. Law, 662; 4 Black. Com. 325 ; 3 Burr, 901; 1 East, 146; Poster, 194; 3 Inst., 41; 2 M. & S. 386; 2 Leach, 594; 1 Chitty Cr. Law, 382, 114.</p> <p>Insisted that the indictment was sufficiently certain, and the proof conclusive of guilt.</p>

Bogers, J. James B. and William Brantley were indicted in tbe court beloAv for an assault with intent to kill one Jefferson Bussell Trible, in the first count of the indictment, and in the second for an assault and battery upon the said Trible. The defendants demurred to the first count, and the demurrer was overruled. A trial was had on the plea of not guilty, and a verdict of not guilty as to the first count, and guilty on tlie second, was brought in by the jury.

Ro&ees, J. At the September term, 1848, of the court below, the grand jury returned into court, through their foreman, an indictment against James McCann, for murder, and John F. Toland for being accessory to the murder of Andrew Toland. The indictment contained two counts. The first against Mc-Cann, charging him with the murder of Andrew Toland by shooting him with a pistol on the bach of the head, on the 1st day of April, 1847.

Miller, J. The plaintiff in error was indicted in the circuit court of Pa-nola county, at the May term, 1848, for the murder of Jesse Price. He obtained a change of venue to Marshall county, where at the July term be was tried. The jury found him guilty on the 6th day of August. He moved for a new trial, whicli was refused, and he sealed a bill of exceptions embodying the evidence, and sued out this writ of error.

<p>Rape.</p> <p>In criminal prosecutions no alleged error in tlie instructions to the jury will be noticed, unless they are embodied in the bill of exceptions, and thus made a part of the record.</p> <p>The same indictment against the same individual may contain counts for several felonies of the same degree, and it is no ground for either demurrer or motion in arrest of judgment; hence, if several felonies of the same degree be-included in the same indictment, and there be a general verdict, judgment may be given on any or all the counts, according as they may be supported by the evidence.</p> <p>It is an irregularity to charge distinct felonies in different counts of the same indictment. But this docs not constitute a groundfor a motion in arrest of judgment.</p> <p>In prosecutions for misdemeanors, where there is a general verdict of guilty, and there is any good count in the indictment, it will be referred to that and supported.</p>

Bogers, J. The facts of the case as presented by the record are, that at the March term of the circuit court of Yalobusha county, Miss., 1850, a presentment was found by the grand jury of said county against James Baker, for unlawfully keeping a tavern without license for that purpose.

Error from Jones circuit court. Haréis, J. This was an indictment for perjury. The offense alleged in the indictment, consisted in his falsely swearing to the correctness of an account introduced by him as an offset in the trial of a suit against him, before a justice of the peace, while giving testimony as a witness in said suit.

<p>Mayhem.</p> <p>A prosecuting attorney has tlie discretion to quash an indictment or enter a nolle prosequi at any time before the jury is empanelled and the prisoner arraigned for trial.</p> <p>The statute of limitations does not run in favor of fugitives from justice.</p> <p>when, after an offense has been committed, an act of the legislature changes the punishment, the accused, on conviction, has the option to select the punishment prescribed by the new or old law.</p>

<p>Homicide.</p> <p>The guilt or innocence of the accused is in no degree dependent upon the question of his or the deceased’s title to the land or fence, which had caused the dispute between them and ended in the killing of deceased. If either killed the other with a deadly weapon in order to prevent a trespass in the removal of the fence, such homicide would be murder in the absence or proof that would tend to rebut the presumption' of malice arising from the weapon used.</p> <p>The competency of dying declarations is exclusively for the consideration of the court, and having once decided on its competency, it then becomes the province of the jury to decide upon its credibility, who are at liberty, in doing so, to consider all the circumstances under which they were made, and give to the evidence only such merit as they may think it deserves.</p> <p>Where the court has admitted the dying declarations as competent evidence for the jury, the law raises a presumption that they were made by the party under a due sense of impending dissolution.</p> <p>It is proper for the court to modify instructions as asked by counsel, so as to make them conform to his own views of the law, yet, it is the safer rule, to give instructions as asked by the accused, provided the court believes them to be the law, and if any explanations are necessary, to give them afterwards.</p> <p>Objections to the admission of dying declarations must be made on the trial; it is too late to object on error.</p> <p>The Bill of Bights, which declares that “the accused shall be confronted by the witnesses against him,” does not apply to the admission of the dying declarations of the deceased, in cases of homicide.</p> <p>Dying declarations are not entitled to the same degree of credibility, tfs if the deceased had sworn to the same facts in open court, as a witness; and an instruction to that effect is erroneous.</p>

Miller, J. The opinion of the court and the briefs of counsel contain a sufficient statement of the facts of the case. The bill of indictment charges that defendant, Wesley Bruce, bought of a slave seventy-five pounds of cotton, without the authority of the master, &c., in writing. See Acts, December, 1850, p. 100, § 1.

<p>Error to Monroe circuit court. Watts, J.</p> <p>The facts of the case are sufficiently stated in the opinion of the court.</p> <p>Cited Parmilee v. McNutt, 1 S. & M. 179.</p>

HARRIS, J. The opinion of the court contains a sufficient statement of the facts of the case. The indictment charges the criminal act to have been committed on Eliza Oonely / the proof is, that the act was committed on Eliza Conerly. 2 Russ, on Crim. Ev., 714-716 ; Roscoe, Crim. Ev. 97, 98 ; R. & R., 351; 5 Taunt., 814; Whart. Am. Grim. L., 72, 156-158 ; 1 Chitty PL, 216 ; 7 Serg. & R., 469. That the defendant Í8 “ a slave,” is a material averment, and must be proved. Hutch.

Posey, J. The facts of the case are stated in the opinion of the court and the briefs of counsel. Contended that the indictment was not in accordance with the statutory requirements. Hutch. Code, 521, sec. 52; ib., 532, sec. 1, 2. Indictments must have a precise and sufficient certainty. 4 Black. Com., 206. The indictment ought to be certain to every intent, without any intendment to the contrary. Cro. EL, 490; Cro. Jac., 29.

Millee, J. The facts of the case as shown by the record are, that Addison Portis, at the March term, 1850, of the circuit court of Tippah county, was indicted by the grand jury of said county for playing a game of cards for money.

Tompkins, J. The facts in substance, are, that Mr. Banks, the first witness introduced, proves that, as a physician and surgeon, he examined the body of the negro killed, who was found dead near a wagon on the road; was sure he was killed by choking with a rope that was then found around his neck; had heard that negro billed belonged to Eegune Lowe, but did not know it. The dead negro’s pockets had been rifled after death; there were cuts on the hands and fingers.

Pebby, J. The opinion of the court contains a statement of the facts of the case, where also will be found the instructions given and refused. 1, The replication and issue, in short, is conclusive ou plaintiffs in error. The court below admitted the proof complained of; and this court, in the absence of contrary proof, will presume it did so correctly. 2 Howard, 174; 3 ib., 205, 422. 2.

<p>FORFEITURE OF RECOGNIZANCE.</p> <p>A recognizance is an obligation of record entered into before a court or officer duly authorized for that purpose with condition to do some act required by law.</p> <p>The sheriff is only authorized to take a recognizance from a person whom he may arrest on the process of a circuit court of law, charged before such court with any crime or misdemeanor, not punishable with death.</p>

Miller, J. This was a scire facias issued from the circuit court of La Fayette county upon a forfeited recognizance given by Wesley Bruce for his appearance at the next term of said circuit court, to answer a charge of trading with a negro slave without legal authority, in which D. P. Borroum, Sims McNeely, and Nathaniel G. Dacus were his securities.

This was an application by James H. Dyson, who had been convicted of manslaughter in the circuit court of Panola county, and sentenced to fifteen years in the penitentiary, to be discharged on bail… Held: that “ the court should exercise the power with great caution, and only in minor offenses.” Davis’ case, 6 Howard, 399. 6.

BaRNEtt, J. The plaintiff in error, John Hurt, was indicted in the circuit court of Hinds county, to which indictment several pleas in abatement were filed by defendant (Hurt), alleging the illegal organization of the grand jury which found the indictment, because some of tlie said jurymen who found the bill of indictment were summoned from the bystanders and were not of the regular venire. All of these pleas were demurred to by the state, and the demurrers sustained.

Watts, J. The plaintiff in error, Preston, was convicted of the murder of David Turner, at the May term, 1852, of the circuit court of Greene county.

<p>Error to Madison circuit court. Perry, J.</p> <p>Tbe facts of tbe case are contained in tbe opinion of ■ tbe court.</p>

Habéis, J. The facts of this case are, that Barnardo Algheri was indicted in the circuit court of Harrison county for the murder of Bar-tolo St. Andrew, who was found dead in the town of Biloxi, with two wounds on his left breast, and one in his back beneath the left shoulder blade, which seemed to have arrested the instrument.

Harris, J. The accused (Abram) was indicted for murder in the circuit court of Copiah county, and he was, at the June term, 1852, of said court, found guilty of the charge alleged in the indictment, and upon a motion being made for a new trial, and refused by the court, the plaintiff in error brought the case to this court by writ of error. 1. Every caption of an indictment should show that the in-dictors were of the county for which the court was holden. 5 Bac.

The only question in this case arose on a writ of habeas corpus, which was obtained by George H. Adams, to be released from imprisonment; and in his petition he alleged that he was illegally held in custody by John P. Oldham, the sheriff of Hinds county.

Rogees, J. James Riggs was indicted in tbe circuit court of Monroe county for tbe murder of Joel E. Hunt, and at the-March term, 1853, of said court, sentence of death was pronounced against him by tbe court, after conviction by tbe jury.

Miller, J. The defendant was indicted in the circuit court of Pontotoc county for an assault with intent to commit murder, and he filed several pleas in abatement to the bill of indictment, and among them he pleaded, in substance, that thirty-six persons were not drawn and summoned, as directed by law, to serve as jurors for the first week of the term of the circuit court of Pontotoc county, from which, by law, the grand jury for said term were to be selected; but that forty…

Barnett, J. Madison Organ was indicted in the circuit court of Hinds county, for an assault and battery, with intent to kill J. M. Cur-rie, and at the September term of said court, 1852, he was found guilty as charged in the indictment. A motion was made for a new trial, but refused by the court below.

<p>irror to Warren circuit court. BaRNEtt, J.</p> <p>The opinion contains the facts of the case.</p> <p>Cited Hutch. Code, 271, § 4; ib., 270, § 2; Legori v. State, 8 S. & M., 697.</p>

BakNett, J. Bicbard Stringfellow was indicted in the circuit court of Issa-quena county for the murder of Decatur Whitley, and at the November term, 1852, of said court, the accused was found guilty of murder, and sentenced to be hung.

Miller, J. The plaintiff in error, a slave, was indicted in the court below for conspiracy and plotting, with two other slaves, the murder of John D. Watkins, and was convicted and sentenced to death. The record contained a copy of the indictment, but it was not referred to as the one upon which the conviction was had, nor did it identify the indictment as a copy of the one returned into court by the grand jury that indicted the prisoner.

Watts, J. William Jones, the accused, was indicted in. the.circuit court of Lauderdale county, for stealing a saddle, the property of William C. Burton. It was proven that the saddle was found in the house of Elijah C. Jones, some time in May, 1853, but it had been taken from the shop of Burton, in December, 1852, and it was proven that William Jones, the accused, brought the saddle to the house of E. C. Jones in the month of July or August, 1852.

<p>Homicide.</p> <p>It is not necessary that the record should set ont the oath prescribed to the jury.2 Dyson v. State, 26 Miss., 362.</p> <p>II the record show that an “officer was sworn to take charge of the jury,” it is suf-ficients Dyson y. State, 26 Miss., S62.</p> <p>Where the organization of the court at the term the trial took place is fully shown by the caption of the record, it is not necessary to show the caption of a previous one.</p> <p>The name of the same juror appearing twice on the venire, without any collusion or improper design, and without any injury shown to have been done the prisoner by it, is no ground of error.</p> <p>The regular venire is a matter of record, accessible to the accused, and he is not entitled to a copy of it. But by the statute, he is entitled to a copy of the special venire.</p> <p>It is the duty of the court to see that a competent, fair and impartial jury is em-panelled, and nothing can interfere with this duty hut the right of ttye parties of peremptory challenge, or of challenge for cause good and sufficient in law, to he judged of by the court.</p> <p>The high court of errors and appeals will give no countenance to objections to the grand jury, when no complaint was made in the court below, and the accused submitted himself to trial, and was convicted.</p> <p>If a party be present with the intention of giving assistan&é, if necessary, in the killing, he would be an aider and abettor, and a principal in the second degree, though his assistance might not be called into actual requisition. Presence and intention to aid in killing amount to participation.</p>

Milleb, J. James H. Dyson was indicted in the circuit court of Panola county for killing Samuel H. Nelms, and was found guilty of manslaughter in the first degree, and sentenced to fifteen years’… Held: that before jurors, elected by the prisoner, have been sworn, and the jury fully made up, they need not be committed to the care of an officer, 11 Leigh,' 714.

Harris, J. The facts of the case are sufficiently set forth in the opinion of the court and the briefs of counsel. The indictment is fatally defective, because it does not charge, either directly or by necessary implication, that the burning was malicious. As a preliminary question to this, it is necessary to determine whether, upon the one hand, the statute upon which these proceedings are based (Hutch.

Baenett, J. 1. To sustain an indictment under the 53d section of Hutch» Code, 521, it must appear in proof that the poison or medicine was prepared or administered by the defendant under the pretense that it was a medicine; and proof that the defendant merely prepared or administered poison “ with intent to kill,” will not sustain the indictment. The latter offense is punishable under the succeeding section of the same page.

IIeniíy, J. Tbe plaintiff in error was indicted under the law approved March 6th, 1850, entitled, “ An act to suppress trade and barter with slaves, and for other purposes.” The indictment was found at the October term of the court below, 1854, and avers, “that Daniel W. Murphy, late of the county aforesaid, yeoman, on the 18th day of April, A. d., 1854, with force and arms at the county aforesaid, unlawfully, did then and there sell spirituous liquors, namely, whisky, rum,…

Henry, J. 1. The statute requires the assessor to return to the court “ a list of the names of all freeholders, being citizens of the United States, within his county, and householders,” etc. Hutch. Code, 886, § 1. No person can be subjected to punishment for the same offense unless a conviction be had upon an indictment found by a grand jury of the county in which the offense was committed. Laura v. State, 26 Miss., 176.

R. Miller, J. George N. Green was indicted in the circuit court of De Soto county, at the November term thereof, for the murder of William L. Mormon; and subsequently the venue was changed to Marshall county, where Green was convicted of murder and sentenced to be hanged.

<p>The record is the only evidence of the organization of the grand jury, and whether the proper oath was administered or not, is never ground for a plea in abatement, and such plea should be disregarded by the court.</p> <p>Where the issue on a plea in abatement is an immaterial one, and the plea is quashed by demurrer, the defendant should be allowed to plead over.</p>

<p>Error to Perry circuit court. McNair, J.</p>

Iíaebis, J. 1. The court bad no right to render a judgment by default, while there was a plea filed in the action to which no objection was taken. Vide 3 S. & M., 120. 2. The record shows that judgment nisi was rendered for $100, and judgment final for $150. The judgment is therefore inconsistent with itself, and of course, erroneous. , 3.

In error from the circuit court of Monroe County. Hon. FeaNk M. Rogers, Judge. Tbe plaintiff in error, as bail for one Richard B. Doutbit, entered into a recognizance, conditioned for tbe appearance of said Richard B. Doutbit, at tbe term of tbe court, as prescribed by law, to answer an indictment against him for larceny. The said Richard B. Douthit made default; and judgment nisi was rendered against him and the plaintiff in error, his bail.

Watts, J. The plaintiff in error was , indicted in the Jones circuit court for the murder of a slave. On application, the prisoner obtained a change of venue to Jasper county, where he was tried and found guilty of manslaughter. He made a motion for a new trial, which was overruled; whereupon he was sentenced by the court to twelve years’ imprisonment in the penitentiary. Which judgment he sued out a writ of error to this court, to have reversed.

He:nry, J. Young C. Bovard, the plaintiff in error, was indicted in the circuit court of Yazoo county, for the murder of his wife, on the 20th day of November, 1855, and was convicted. The defense relied on was, that the act of homicide was committed whilst the prisoner was insane. The opinion of the court contains the facts of the case. cited and commented on Commonwealth v. Rogers, 7 Mete., 500; The State v. Gfard-ner, Wright, Ohio R., 392; State v. Spencer, 1 Zab.

Habéis, J. The plaintiff in error was convicted in the circuit court of Yalobusha county, of manslaughter in the second degree, upon an indictment purporting to be found in the circuit court of Tallahatchie county; it being alleged that the venue was changed from Tallahatchie county. The judgment must be reversed for several errors: 1. The record contains no evidence, that the circuit court of Yalobusha county had jurisdiction of the cause.

GuioN, J. Tbe plaintiff in error was indicted in tbe conrt below for tbe murder of one William J. Sims, was tried by a jury, and convicted of manslaughter in tbe first degree. On tbe trial, the persons who were summoned on tbe special ve-nire as jurors, were called and sworn to'answer questions, and were examined by the court as to their competency to try the cause, without their first being tendered to or challenged by either the state or the prisoner.

<p>Error to Pontotoc circuit court. Sceuggb, J.</p>

Habéis, J. James Higgs was indicted in the court below, for the murder of one Joel E. Hunt, which was alleged in the indictment to have been committed on the 21st day of September, 1852. At the September term, 1854, of said court, he was tried and convicted of murder; a motion for a new trial was made and overruled, and tfie prisoner sentenced to be hung. A bill of exceptions was filed to the judgment of the court, and the case comes to this court on writ of error. 1.

<p>Error to Lauderdale circuit court. Watts, J.</p>

HeNry, J. John D. Browning and Gaston E. Browning were indicted in the circuit court of Sunflower county for the murder of one John W. Néal. Upon application of the prisoners the venue was changed to the county of Holmes. At the November term of the court below, the court having allowed the defendants to sever in the trial, Gaston E. Browning was tried and found guilty of murder.

Phineas T. Sceuggs, Judge of the Seventh Judicial District, on habeas corpus, refusing bail to Jacob K. Wray. The material facts of the case will be found in the opinion of the court and the dissenting opinion of Mi*. Justice íLustdy.

<p>The record should show affirmatively that the grand jury who found the indictment was duly sworn. The formal statement in the indictment itself, that they were oworn, is insufficient.</p>

In error, from the circuit court of Madison county. Henry, J. Tbe indictment was founded on the statute for cruel or unusual punishment of slaves. Hutch. Code, 519.

In error from the circuit court of Warren County. Yeegeb, J. The prisoner Was indicted for murder in the circuit court of Issaquena county, at the November term, a. d. 1855, thereof; which court was holden before the Hon. John M. Moore, who had received a temporary appointment from the governor, to supply the vacancy occurring from the death of the Hon. J. I. Guión. At a subsequent term of the court, holden by the Hon. J. S. Yerger, the prisoner pleaded in abatement to the…

Henby, J. The plaintiff in error was indicted in the court below, at the September term thereof, a.d. 1855, for the murder of one Willis Norris, and at the same term was convicted and sentenced to be hung, The record recites, “ that the sheriff returned into open court a list of the following named persons, good and lawful men, citizens of the United States and residents of said county of Winston, summoned by him, according to law, to serve as grand jurors during the present…

Hehey, J. John Cotton, the plaintiff in error, was indicted in the circuit court of Yazoo county, for the murder of one John Smith. At the February term, a. d. 1854, of said court, he was tried and convicted of murder, and sentence of death pronounced against him, which judgment this court, on a writ of error, reversed, and awarded the prisoner a new trial.

In error from the circuit court of De Soto county. Hon. P. F. Sceugg-s, Judge. argued the case and submitted a brief, in which he made the following points and cited the following authorities, viz: I. The sheriff had in his hands no process authorizing him to take the recognizance. Overraker v. The State, 4 S. & M., 738; The State v. Pace, 3 Cushm., 54. 2.

In error from the circuit court of De Soto County. Scruggs, J. The grounds of error relied upon in this case are these : First. The admission of the confession of the accused, which was obtained by threats and violence. Second. The overruling of the motion for a new trial. 1. That the confession of the accused was not under the circumstances admissible in evidence ; see Barb. Cr. L. 419-21.

<p>In error from the circuit court of Marshall County. Scruggs, J.</p>

In error from the circuit court of Lafayette County. Sceuggs, J. The facts will be found in the argument of the counsel for plaintiff in error, and the opinion of the court.

In error from the circuit court of Marshall county. Held: in South Carolina, not a sufficient cause for change of venue. State v. Williams, 2 M’Cord, 383. The fourth ground of error alleged by the accused is, that the witness, Jonas Smith, was permitted, to testify as to a remark made by Henry Wooley, who was not upon his trial.

In error, from the circuit court of Tippah county. Soeug&s, J. was indicted in tbe circuit court of Tippah county, for tbe murder of one John Tatum. At tbe September term, a. d. 1856, he was tried and convicted of manslaughter in tbe second degree, and was sentenced to tbe state penitentiary for five years. It appeared that tbe deceased was shot on the evening of tbe 11th day of May, a. d. 1854, and died on the 23d day of the same month.

Heotsy, J. The plaintiff in error was indicted with bis son, Gaston E. Browning, for tbe murder of John W. Neal. Held: Browning, who was a justice of the peace, acting as coroner.