Volume 2 — Morris's State Cases

Henry, J. 1. The circuit court erred in admitting the confessions of the prisoner to John A. Durden, his master, that he burnt the gin, to go to the jury. For a master cannot give evidence of the confessions of his slave to him, because, from the relations existing between them, the slave is always presumed to be under the influence and coercion of the master. State v. Charity, 2 Dev., 543; Wheeler on Slavery, 214. 2.

Henry, J. M. 0. Sharkey was indicted in the circuit court of Attala, for betting with one Matthews on the result of the election for electors for President and Yiee-President of the Hnitéd States, held in the state of Kentucky, in November, 1856. The defendant demurred to the indictment, and his demurrer being overruled, he excepted, and sued out this writ of error. It is not a violation of the statute to bet on the result of an election to be held in another state.

Iu error from the circuit court of Attala county. lion. E. G. Henry, J. The record of this case presents two questions. Held: made the bet mentioned. Upon this state of facts, defendant asked the court to charge the jury, that if the bet was made after the election had been held, and not upon an election to be held, they should acquit the defendant.

<p>In error from the circuit court of Tippah county. Scruggs, J.</p> <p>Cited, pamphlet Acts of 1854, p. 468; Hutch. Dig., p. 887, § 5; McQuillen v. State, 8 S. and M., 587; Rawle v. State, 24 Miss. R., 621.</p> <p>Cited, Weeks v. State, 31 Miss. R., 490.</p>

In error from tbe circuit court of Yazoo county. Henry,, L, Tbe plaintiffs in error were indicted in tbe court below fortbe murder of Ely, a slave. Upon the trial, W. M. Pickett,, for-the state, testified tbat he was owner of tbe defendants, Ned and Taylor, and also of Ely, tbe deceased.

<p>Slave Stealing.</p> <p>Under the Constitution, “ in all criminal prosooutions, the accused hath the right to demand the nature and cause of action against him.” And this right so secured requires that the facts which constitute the alleged crime, should bo stated in the indictment with sufficient certainty to enable the accused to know with what offense he is charged, and to prepare his defense, both, by plea of not guilty and of former conviction or acquittal.</p> <p>An indictment under the statute, Hutch. Dig., § 4, p. 981, which provides that “ every person who shall feloniously steal the property in another state or country, and shall bring the same into this state, may be convicted and punished in the same manner as if such larceny had been committed in this state,” &c., must allege the stealing in such other state or oountry, and a bringing of the property into this state; otherwise it will be defectivo, and should bo quashed. Handy, J., dissented.</p> <p>If the indictment merely charges the aooused with a felonious stealing of property in the county in which it is preferred, he cannot be convicted of an offense under the fourth section of tho act (Hutch. Dig., 981), because the indictment does not sufficiently charge the offense, Such indictment does not give the accused “the nature and cause of tlie accusation against Mm,” and precludes Mm from pleading a former conviction or acquittal in the state or country where the property was stolen. Handy, J., dissented.</p>

<p>Sileriee.</p> <p>Judgment nisi against a sheriff for failing to return a bench warrant is void if entered without notice.</p>

Henry, J. At the April term, 1856, of the circuit court of Holmes county, Lewis Ogle was indicted, tried, and convicted of the murder of one W. P. West. A new trial was granted, and at the following October term he was again tried and found guilty of manslaughter in the first degree.

<p>Error to Hancock circuit court. Hancock, J.</p> <p>Argued the case, and cited Story on Conflict of Laws, 39.</p>

Harris, J. In this case there was no bet or wager on the result of any game of chance. It was a game of billiards, played in -a regularly licensed billiard saloon, and according to the rules of such saloon the loser of the game was required to pay a fee to the owner for use of the table; and this cannot amount to gaming.

<p>Gaming.</p> <p>The manner of selecting the grand jury from those summoned to attend as grand jurors, and who are in attendance, is left to the discretion of the court; and it will not be improper for the court to cause them to be sworn and empaneled in the order in which their names are returned by the sheriff, until a sufficient number are sworn to constitute the grand jury. ></p> <p>A grand jury, under the statute, composed of more than eighteen, and less than thirteen persons, is illegal, and an indictment found by them is void and should be quashed.</p>

<p>Homicide.</p> <p>Where the record states that the indictment was returned on the 4th of November, during the October term, and the indictment appeared on its face to have been found at the November term, and nothing in the record identified the indictment on which the indictment was had, a motion in arrest-of judgment should be sustained. Laura v. State. 26 Miss. R~ W4.</p> <p>In the absence of all proof of the facts or circumstances attending a homicide, the law presumes it to have been malicious, and therefore murder.1 But under such circumstances the law never presumes it to have been manslaughter.2 Such a presumption would be error.</p>

<p>Illicit Retailing of Intoxicating Drinks.</p> <p>The rule of evidence is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law does not render it incumbent on the other side to prove a negative.</p> <p>When there is nothing in the record to show what number of persons constituted a grand jury, and nothing to show that the persons summoned and sworn were not residents of the county, it will bo presumed, in support of a judgment, that the grand jury was composed of a lawful number of lawfully qualified persons.</p> <p>The foreman of a grand jury whose name was Lazarus J. Jones indorsed a bill of indictment by his signature L. J. Jones, and it appearing that he was in fact the same person, the indorsement is held’ sufficient.</p> <p>An incomplete, defective, or void judgment at one term of the court upon a verdict of guilty may he treated as a nullity, and the proper judgment and sentence rendered and entered at the next term; and until the proper judgment and sentence shall he so made, the defendant will he regarded as continuing in custody of the law.</p>

<p>“Error to circuit court of Adams' county. Posey, J.</p> <p>Cited, The State v. Hawkins, 8 Porter, 461.</p> <p>Cited, Bandal v. State, 4 S. & M.; Coon v. State, 13 ib., 249,</p>

<p>Gaming.</p> <p>An indictment for betting on the. result of an election of presidential electors in a certain state, is not sustained by proof of a bet on the result of the presidential election in that state.</p>

<p>Misdemeanor.</p> <p>The court Ras no power to amend an indictment as to matter of substance without the concurrence of the grand .jury .by whom it was found, though amendments as to mere informalities may be made by the court. 1 Chitty Or. Law, 297.</p> <p>Li indictments for misdemeanors, if a demurrer be sustained to the defendant’s plea in abatement, the judgment is respondeat ouster.</p>

<p>Gaming.</p> <p>All existing acts against gaming were repealed by tbe code, and ceased to operate on tbe first of November, 1857, except as to prosecutions then pending. Rev. Code of 1857, 43, art. 2.</p> <p>Upon a conviction of gaming, after the revised code went into operation, under an indictment found and returned before that time, the district attorney is entitled to a foe of ten dollars only, and not to the fee allowed by the code.</p>

Scruggs, J. The plaintiff was convicted a second time, in the court below, of the murder of Susan Elizabeth Smith, the first verdict having been set aside by this court. See 32 Miss. B., 405. The following is the substance of the evidence: Eor the State. — William Smith is a brother of the deceased, who was about sixteen years of age at the time she was killed.

Scruggs, J. The plaintiff in error was indicted for the larceny of ten bank-bills, each of the denomination of five dollars, and the… Held: that on a prosecution for receiving stolen goods, where a confession had been improperly drawn from a prisoner, in the course of which he described the place where the goods were concealed, evidence might be given, that he did so describe the place” (the italics are the author’s), “ and that the goods were afterwards found/ there.

William L. Haréis, J. Argued the ease orally. Cited, The Commonwealth v. Boby, 12 Pick., 496; Taylor v. Manly, 6 S. & M.,> 305; 9 ib., 115; Organ v. The State, 4 Cush., 78. There are only two points requiring 'the consideration of the ■ court: . 1st. The improper influence exercised by the bailiff, one of the officers of the court, over the minds of the jury, while he had them in chargp.

This was a writ of error prosecuted to revise the judgment of the Hon. John Watts, a circuit judge, rendered in an action refusing the prisoner’s application for bail. The substance of the evidence appears to be; That the prisoner was the owner and keeper of a grocery in Scott county; and that his brother, Benjamin Moore, was employed by him as assistant and clerk.

McNair, J. William Price, the plaintiff in error, was indicted and convicted in the court below, of an assault and battery on one Judge M. Hart, with intent to. kill and murder said Hart.

•Error to Clarke circuit court. Hancock, J.: The plaintiff in error and one N. Shotts were jointly indicted in the court below for the larceny of six slaves, which, in one count of the indictment, were alleged to be the property of Mrs. Elizabeth Peterson; and in the second, the property of the children (naming them) of Mrs. Peterson; and in the third count they were alleged to be the property of Mrs..Peterson ' and her children.

Watts, J. The plaintiff in error, at the March term, A. D. 1856, of the court below, was indicted for retailing without license. • The indictment charged, that the defendant, “ on the 10th day of December, A. D. 1855, with force, &c., at the county aforesaid, to wit, in the city of Jackson, in the county aforesaid, did sell vinous and spirituous liquors, in less quantity than one gallon, without then and there having a license,” &c. The defendant first moved to quash the…

Hancock, J. James Hightower, Thomas Morgan Lynes, Thomas Lynes, and Samuel Lynes, were indicted for the murder of one Charles Landrum, the first as principal, the second' for aiding and abetting the… Held: and Hightower and the plaintiffs in error were in custody as witnesses. They were examined and kept- separate from each othei’.

<p>Conspiracy oe Slates. -</p> <p>The sufficiency of a pending indictment, which has been adjudged sufficient in the circuit court, cannot he inquired into on habeas carpus. That judgment, until set aside, is the law of the ease. But the evidence on which the indictment was found may he adduced, and if it appear that accused should not he held in custody, he may bo discharged.</p>

<p>Grand Laroent.</p> <p>The judgment of the circuit court upon an appeal from the decision of a justice of the peace and five slaveholders, convicting a slave of an offense not capital, is final, hut not revisahle in the High Court of Errors and Appeals.</p>

McNair, J.: The plaintiff in error was indicted and convicted in the murder of Norvall, another slave. During the progress of the trial, Moses M. Curtis was introduced as a witness for the state, to prove certain confessions alleged to have been made by the prisoner while in jail, and in the presence of the witness, who was jailor.

, McNair, J. It appears from tbe record that the prisoner was arrested about the middle of the forenoon, and in a few moments thereafter made the confession, as stated in the opinion of the court.

Watts, J. The plaintiff in error was indicted in the court below for the murder of one Coleman. He was arraigned and plead not guilty. A special venire was drawn, from which a jury was selected for the trial of the prisoner. The prisoner moved to quash this venire, because it was not taken from the body of the county of Hinds, and for other reasons.

Henry, J. The plaintiff in error was indicted in the court below for a rape on a female slave. His counsel moved the court to quash the indictment, which was overruled. He then pleaded not guilty, and was convicted and sentenced to be hung. The crime of rape does not exist in this state between African slaves. Our laws recognize no marital rights as between slaves; their sexual intercourse is left to be regulated by their owners.

■ Error to Panola circuit court. Thompson, J. The plaintiff in error was indicted in the court below, for an assault and battery on one John Ballentine, a free white person, with intent to till, and in resistance of legal chastisement. In the first count Ballentine was described as the master, and in the second as the employer of the plaintiff in error. To this indictment the prisoner pleaded not guilty.

Acker, J. The prisoner was indicted for the murder of William G. Eord. He pleaded not guilty to the indictment, and the case was submitted to the jury.

<p>' Error to Tippab circuit court. Scruggs, J.</p> <p>Argued the case orally.</p>

Henry, J. This was an indictment in the court below for retailing vinous and spirituous liquors, without license, to one John Hobart, and to divers others to the grand jurors unknown, in the first count.

Thompson, J. M. J. McGuire was indicted in the court below for selling vinous and spirituous liquors in less quantities that five gallons, within five miles of the University of Mississippi, under the Act of 28th February, 1848, Rev. Code, 156, § 4.

<p>Error to Marshall circuit court. Thompson, J.'</p> <p>Cited, Bishop Cr. Law, 224-254; 10 Johns., 443; '2 Taylor Ev., 93.</p> <p>Cited, 1 Greenl. Ev., Ill, 112; Rex v. Almin, 1 Leading Cr. Cases, 241; Rev. Code, 199, art. 9.</p> <p>Cited, Rex v. Meddle, 6 Carr. & Payne, 292; Rex v. Gutch, M. & M., 433; 1 Leading Cr. Cases, 247.</p>

Ackee, J. - Tyra Gr. Newcomb was indicted in tbe court below for the murder of John Erieze. Tbe indictment charges “that Tyra Gr.

Cushman, J. Hnder the provision in Rev. Code, 497, art. 126, Yarbrough was an incompetent juror, and the verdict, therefore, was eiToneous and invalid. Carpenter v. State, 4 How., 163; Bone v. McGinley, 7 How., 671. The fact that the defendant was not aware of the incompetency of the juror, and made no objection, does not lessen the strength of the foregoing rule. Seal v. State, 73 S. & M., 286. ■ The objection to the juror came too late.

Cushman, J. The nature of the indictment is fully set out in the opinion of the court. The plaintiff in error moved the court to quash the first count in the indictment, because the clause in the charter of the Mississippi Central Railroad Company, upon which it was based, was not iu force, but had been superseded and repealed; and the court overruled the motion, and the plaintiff in error excepted. The plaintiff in error Was then arraigned, and pleaded not guilty.

Acker, J. Tbe opinion of tbe court contains all tbe facts of tbe case. 1. It is insisted for plaintiffs in error that botb James Marshall and William Marshall were competent witnesses to prove tbe innocence of Grizzle and Strawhern, and that tbe court erred in ruling to tbe contrary. Jones v. State, 1 Kelly, 610; 1 Greenleaf Ev., § 379. 2. Tbe court erred in refusing tbe instructions asked by tbe defendant.

Ter&er, J. Edward Gipson, the plaintiff in error, was indicted for an assault on Jacob Webster, with intent to kill and murder; and was convicted of an assault in the attempt to commit man-' slaughter.

Yerger, J. The plaintiff in error was indicted arid convicted in the court below of bigamy. The opinion of the court contains a sufficient statement of the case. In prosecutions for bigamy, the death of a person (if the fact of his being alive is material in defense of the accused), will not be presumed from mere lapse of time, unless the period elapsed goes beyond the ordinary habits of human life.

<p>Error to De Soto circuit court. Cushman, J.</p>

<p>Forfeiture of Recognizance.</p> <p>The order of the court admittmg a party to bail on an indictment pending against him, is not properly a part of the record in the matter of recognizance; and a defect in ■such order must be taken advantage of by plea, and not by demurrer to the scire facias.</p>

Cassidy, J. A recognizance was taken by a justice of the peace for the .appearance of one McKeevin to answer a charge of forgery. Curry, the plaintiff in error, was surety.

Cothran, J.: By au act, approved March 2, 1854, the board of police of Yalobusha county were prohibited from granting license to any person to sell vinous and spirituous liquors in the town of Grenada, or at any place within three miles thereof; and it was further enacted, “that it shall not be lawful for any person or persons to sell vinous or spirituous liquors in the town of Grenada, or within three miles of the corporate limits of said town, in any quantity whatsoever; ”…

Cothran, J. The instructions asked by the defendant, and refused, are based upon the idea that there must have been an intent to commit a battery. Held: were cases in which there was a declared intention not to do harm at the time. The present case is one of a different character.

Thompson, J. George ~W. Oliver was indicted in the court below for tbe murder of bis slave, John.

McNair, J. Elijah Cothran, the plaintiff in error, was indicted in the court below for perjury, alleged to have been committed by him as a witness in a cause tried in the circuit court of Pike county, wherein he was plaintiff, and A. J. Andrews was defendant. It was an action of trespass, to recover damages against Andrews for taking away from Cothran a slave named Wiley, in January, 1860.

Acker, J. Frederick Kohlheimer was indicted in the eomt below for murder. The caption of the indictment showed that twenty persons, to serve as grand jurors, were summoned by the sheriff, without any writ for that purpose; that they were selected by him in equal numbers from each of the police districts of the county. They were organized, empaneled, and sworn as a grand jury. This body returned the bill of indictment into court.

Cothran, J. 1. The term offense, as used in a legal sense, is relative, and is applied indiscriminately to any violation of criminal law. Held: that but one penalty could be recovered.” The State v. Benham, 7 Conn., 414. In Barrett’s case, Kent, C. J., says : “ The indictment does not contain a venue in that part of it which avers that the defendant made a fraudulent pretence, in pursuance of the conspiracy previously and at another day formed.

Yerger, J. Tbe plaintiff in error and one Josephine, botb slaves, and belonging to La Fayette Jones, were jointly indicted for murdering, by poisoning, Lelia Yirginia Jones, who, at tlie time of her death, was about eighteen months old. There were two counts in tbe indictment; the first charging both parties as principals, tbe second charging J osephine as principal, and George as accessory before tbe fact.

Thompson, J. The plaintiff in error, Jeff, a slave, was indicted for an assault and battery on one John Ballant-ine, his master, with intent to till and murder. Upon a former trial he was convicted, and upon a writ of error to this court the judgment was reversed and remanded. He was again arraigned in the court below for trial on the plea of not guilty. The evidence on both trials was the same, which will be found fully set forth in a report of the first ease, 37 Miss., 321.

Yergeb, J. At the May term, 1857, the plaintiff in error was indicted jointly with a slave named George, for the murder of Lelia Virginia Jones, by poisoning. Tbe murder was alleged to bave been committed on February 27,1857. At the November term, 1857, of tbe court, tbe plaintiff in error was tried separately, and the jury failing to agree were discharged, and a .mistrial entered by the court five minutes before the expiration of the term of the court prescribed by law.

Watts, J. The court erred in refusing defendant’s instructions, and modifying them to the effect that the jury could find the defendant guilty, if he aided Richard Harrell before Telfair Harrell died, if he was “ in a dying condition ” when Richard left.

Watts; J. The plaintiff in error was indicted in tbe court below for burglary, and pleaded not guilty. On the trial Austin Morgan, for tbe state, testified tbat in October, 1860, a day or two after his bouse had been entered and robbed, be found tbe prisoner at tbe calaboose in Jackson under arrest.

J. S. Yerger, Judge of the third judicial district, in refusing bail to Thomas T. Beall, the plaintiff’ in error. It appears from the record that Dr. Thomas T. Beall, the plaintiff in error, was indicted both for the murder of Dr. Selser and Mr. Griffin; that he had been once tried, before suing out the writ of habeas corpus, on the indictment for the murder of Sélser, and that the jury had been discharged on account of their being unable to agree.

Hamm, J. The plaintiff in error was indicted in the court below for the murder of William Moore. The prisoner had, on a former trial, been convicted, and a new trial had been granted by this court. Held: and all the negroes on William Kidd’s plantation were arrested, and confined, and examined separately, but no clue to the murder was discovered other than herein stated.

Watts, J. The opinion of the court contains a sufficient statement of the facts of the case. The court erred in permitting witness Hudnall to testify as to the statement of Lemly to witness that the wagon used for hauling the cotton alleged to be stolen was his, and that accused was the driver hired by him. Lemly being a competent witness, evidence of his statement was clearly open to all the objections to hearsay.

<p>Larceny.</p> <p>After tbe act of secession of 1861, tbe state of Mississippi was a government “ de fado et de jure ; ” its constitution and laws remained the same, except so far as altered by its own acts; rights of property are to be governed, contracts to be construed, and crimes to be tried and punished by the same laws that existed before the date of the act of secession, or that have been enacted since. Green v. Sizer, 40 Miss., 530; Hill v. Boylan, ib., 618.</p> <p>The laws of the state of Mississippi, as they stood at the date of the ordinance of secession, continued in force afterwards, precisely as before, unaffected by that ordinance, or by the war’, by the deposition of the state magistrates in May, 1865, or by their restoration in the fall of that year. Offenses against the criminal laws, committed during the war, or during the occupation of the state by the armed forces of the United States, are indictable and punishable now, as if these events had never occurred.</p> <p>The jurisdiction over crimes, conferred by law upon the county courts, is not an exclusive jurisdiction, but concurrent with that of the circuit courts.</p>

Foote, J. Pleasant Bowler was indicted at the February term of the-circuit court of Lowndes county for obtaining money under false pretenses.

<p>Error to La Fayette circuit court. Clayton, J.</p>

<p>Larceny.</p> <p>In criminal cases the corpus delicti must be proven by direct and independent testimony ; and without such proof of the corpus delicti, evidence of a confession is inadmissible.</p> <p>When counts for grand larceny, and for receiving stolen goods, are joined in the same indictment, and the jury return a verdict of guilty generally, and assess the value of the property at such a sum as reduces the offense under the first counts to petit larceny, the court cannot properly render a judgment on such verdict.</p>

Error fo Hinds circuit court. Watts, J. Frank Wharton, the plaintiff in error, was indicted for grand larceny in the court below, and was convicted.

Hancock, J. The court should not have sustained the demurrer. The first presents as a defense tbe emancipation of the slave by the paramount authority of the state. The plaintiff had entered into the recognizance only as the master of the then slave. In this capacity, and in this only, he had a right to control him. He was not the slave’s surety. But he was bound as principal in the recognizance, and in no other manner could he have been bound.

Clayton, J. The opinion of the court contains a sufficient statement of the facts of the case. Insisted that the Eev. Code, 197, regulating the grant of license to retail, and which requires the applicant to be recommended by a majority of the legal voters of the town, city, or police beat, as a suitable person, &c., does not apply to this case. That this general act has been repealed by a subsequent act, at least in its application to Holly Springs.

<p>Illicit Retailing oe Intoxicating Drinks.</p> <p>Under the act of the legislature of November the 4th, 1865, the corporate authorities of all cities and towns in this state have the exclusive right to grant or refuse license to retail vinous and spirituous liquors within their corporate limits. Upon license so granted, the boards of police of the county may order and fix the amount of taxes to be assessed and collected.</p>

Hancock, J. At the March term, 1869, of the circuit court of Davis county, plaintiff in error was indicted for an assault and battery with intent to kill and murder Dick Smith.

Campbell, J. At the September term, 1867, William Shines (f. m. c.) was indicted for the larceny of two “ yearling calves, of the value of fifteen dollars each, and in the aggregate of thirty dollars in value, being the personal property of John-D. Hart.” • At the same term of the court the plea of “ not guilty ”■ was entered.

Clayton, J. The opinion of the court contains a statement of the case. Under the statute, Art. 8, Rev. Code, 573-4, the plaintiffs in error were tried and convicted. The phraseology of the act is too plain to admit of a doubt. The court below seemed to concur with us in this charge: “ That occasional instances of sexual intercourse, even if the jury from the evidence believe that such did occur, are not sufficient to justify a verdict of condemnation.

<p>Error to Jasper county court. Calhoun, J.</p>

Olayton, X Samuel White, the plaintiff in error, was indicted in the court below for grand larceny. At the September term, 1868, he appeared and pleaded a pardon, granted May 4th, 1868, in bar of the indictment.

' McGarb, J. On the 1st of March, 1867, plaintiff in error was indicted for passing counterfeit money. An mstcmter capias was issued, plaintiff in error arrested, and released on recognizance. At the November term, 1867, of the court below, plaintiff in error appeared in open court, waived a formal arraignment by his attorney, and pleaded “ not guilty as charged in the bill of indictment.

Smiley, J. Elias Unger, the plaintiff in error, was indicted in the circuit court of Claiborne county, on the 21st of October, 1865, for the larceny of two bales of cotton, the property of D. W. Humphreys. At the December term, 1867, during the trial the indictment was amended, changing D. 'W. Humphreys into D. G. Humphreys. The jury returned a verdict of guilty, and upon the prisoner’s motion for a new trial being overruled, he excepted and sued out this writ of error. 1.

Boone, J- Cady was indicted by tbe grand jury of Monroe county, at the July term, 1870, for the murder of Minerva Ligón; - and -at the same term was tried and convicted of the crime as charged in the indictment.

Legal writers liave established tbe principle, that circumstantial evidence, so seldom of a conclusive nature, is of secondary value, when direct evidence is attainable; by the latter the.former is to be tested and measured.

<p>' In criminal cases the record should show distinctly, leaving as little as possible to inference or presumption, all the proceedings iu the several stages of the prosecution, trial, and sentence.</p> <p>The record in a capital case being silent as to all the intermediate dates between the 9th and 24th of the month, at one term; and between the 14th of one month and 5th of the next, at another; and failing to show distinctly that the grand jury was organized; or that the grand jury presented the indictment; or that the prisoner.was present in proper person at the trial; or that, after being found guilty of murder, was ashed if he had anything to say why sentence of death should not be pronounced against him, is so defective as to vitiate a conviction and entitle the prisoner to a new trial.</p>