21 Miss. 471

McCann v. State

Decided January 15, 1850

Mississippi Supreme Court · decided 1850-01-15

In error from the circuit court of Lowndes county; Hon. F. M. Rogers, judge. At the September term, 1848, 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, deceased.” It contains two counts. The first against McCann, charging him with the murder of Andrew Toland, by shooting him with a pistol on the back of the head, on the 1st of April, 1847. It is in the common law form, and concludes, “ against the peace,” &c. The second count charges John F. Toland as accessory before the fact. On the same day, McCann was arraigned and plead not guilty, and it was ordered that Toland be tried separately, on his motion. It is not necessary to notice the further progress of the case until the March term, 1849, when, .on the 26th of that month, he was put on his trial. On the part of the state, James J. Toland deposed, that on the 14th of April, 1845, on Monday night, in said Lowndes county, Andrew Toland was killed; the body was found on Tuesday morning; he saw the body ten or twelve feet from the road, the left foot over the right one; he was lying on his back; from his eyes down all the face was gone; his head was connected with the body by the skin of the back part of -his neck; all the face bones and neck bones were gone ; all the brains eaten out of the skull by the hogs; the hogs were eating the body when found; knew it was the body of Andrew Toland from the clothing and bones of his foot; deceased was his uncle; the body was found about eleven miles from Columbus near Profitsfield, on the right of the Gilmer road, near Cross’s lane, some two or three hundred yards from the mouth of the lane, in a thicket of bushes. Witness was acquainted with the Gilmer road; it leaves the Robinson road beyond Westport; Whitfield’s plantation is on it, four miles from Columbus; Mills’s house is to the left of the road seven or eight miles, and Gilmer’s plantation to the right, ten miles from Columbus; Cross’s plantation to the right, and Profit’s on the left side of the road; McGowan’s on the same road twelve miles from Columbus; Lyon resides west of the road about a mile from the Gilmer road. The McCann road intersects the Gilmer road at the corner of McGowan’s field; there was a road running off from the Gilmer road, just this side of where the body was found, towards McCann’s, by Lyon and Smith’s lane, and a path turns off at the corner of Smith’s field through the woods, which leads into the McCann road, which leads to Mc-Cann’s house. ' A map of the road was here shown to witness, (which was copied in the record,) and he proved its correctness. Newsom lived about a quarter of a mile from Mills’s to the left of the,road, and a thick wood was between the house and road; woods all the way from Gilmer’s to where the body was found, and about three hundred yards beyond to Cross’s lane, from that on to McGowan’s lane a mile; about one and a, half miles to where Toland lived; near where the body was found, there was the mark of a ball on a sapling six feet from the ground, the ball struck the sapling diagonally from the road; knocked the bark off and fell; Hamilton’s lane is six miles from Columbus, Rowland’s over six miles; it is three quarters of a mile from Gilmer’s quarter to where the body was found; witness knew the body and helped to lay it out, and had never seen Andrew Toland since; the face was entirely gone, and there was a wound in the back of the neck; it looked like a slit three quarters of an inch long when the skin was stretched, but when the skin was placed in a natural position it looked like a hole; thought it a bullet wound; his hat was powder burnt, and blood on it; it was a new chip hat; there was plenty of blood under his head, in his clothes, and on the ground; no other wounds on the body, except where the hogs had broken the skirl on his fingers. The soil was red potash land. There. was a saddle on the ground with blood on the right stirrup leather. Witness thought that a single ball would not have carried away all the face, but that the hogs had eaten it; the hogs could not have made the wound in the back of the neck, could not have got at it to make it; saw no bones that the hogs had chewed; don’t think that a ball had blown it away; that a musket loaded with twenty or thirty buckshot could not have done it. The .skull was sound above the eyes, and the head held on to the body by the skin of the back of the neck ; a good many persons were on the ground when witness got there; he left home about twelve o’clock; .a part of the skull-bone on the. right side was detached. John P. Krecker testified, that he saw-McCann, the prisoner, Frank Toland, an Irishman named Kinch, and another by the name of Mallory, eight or ten days before the murder, on the Columbus bridge, in conversation together, some twenty or thirty feet on the bridge; Kinch was leading a horse; did not hear the conversation ; McCann had his back towards witness ; he put his hand in his pocket, and when he saw witness looking at him, pulled some papers out of his pocket and put them into his other pocket, again put his hand into his pocket and took out something, and turned his back on witness; saw Frank Toland take something out of his pocket like a powder gourd, put it to his mouth and pulled out the stopper, and poured something into McCann’s hand; supposed it to be powder; thought their actions strange; the bridge was a retired place; they stood about there some twenty or thirty minutes; witness was bridge keeper, and called them to pay the toll, Kinch and Mallory passed on over, and Toland and McCann returned and paid toll; witness saw and knew McCann four or five days afterwards; didn’t know every one that crosses the bridge; has often seen men take out a gourd and pour powder into their own hand, but not into another’s; the gourd was about the size of an orange; the singularity of their conduct attracted his attention; not usual for persons to act as they did that day. Sam T. Sappington testified, that between nine and twelve o’clock on the day that Andrew Toland was said to be murdered, Toland and McCann came to his grocery, and remained most of the day till about three o’clock in the afternoon. They were a great part of the time in the billiard room up stairs in conversation together; at that time the billiard room was a private place, there being no billiards played there then ; about one o’clock a young man by the name of Bird invited them to dine with him at Mr. Fletchall’s; Toland at first refused to go because, he said, his father was in town, but afterward went; did not know what they were doing up stairs; they appeared to’ be transacting business; they were very friendly and frequently visited his house; saw a pistol in his grocery that day or day or two before; don’t know who left it, neither of the two shown him is the one. E. B. Gaston testified, that he saw the prisoner with Frank Toland, the day before news of the death of Toland reached town, near Sappington’s, in an alley between the drug store of Lincecum and the cabinet shop, some ten or twelve feet from the street; saw them from his store through the.window; from their gesticulations thought them quarrelling, came to his door to see, and found them very friendly with arms around each other’s neck. Henry Sullivan testified, that he was ferryman at Columbus; on the day of the murder, McCann crossed the ferry going home two hours by sun, Andrew Toland, the deceased, one hour by sun, and Frank Toland when the sun was some twenty minutes high, or about sunset; does not recollect all who crossed the ferry that day; Mr. Mize and many others crossed; recollects about old Mr. Toland, Frank Toland, and McCann’s crossing, it being called to his mind so soon afterward ; Mr. Toland spoke to him about it, and he expected to be called to testify about it; don’t recollect whether McGowan’s wagon crossed that day, nor all who crossed, it is so long ago; McCann, Andrew Toland, and J. F. Toland, crossed the river going in the direction of the Gilmer road. Sandifer testified, that he was in Columbus the day the old man was killed; was riding along the Gilmer road in company with Riddle, when McCann overtook them at Whitfield’s lane, and rode on with them some three or four miles; stopped at Mills’s.and got water; saw deceased near Rowland’s, riding behind a wagon; after riding about a quarter of a mile from Mills’s, McCann turned off to go down to Newsom’s about dark; overtook them about sundown; witness and Riddle kept the Gilmer road, and went some five or six miles miles beyond prairie hill; all passed the wagon together about seven miles from Columbus; McCann drank water at Mills’s; from Mills’s to Newsom’s was some three or four 'hundred yards; rode pretty much together, sometimes scattering; McCann was a little ahead when they parted; Newsom’s is about one hundred yards from the road, with woods between the road and the house; don’t think McCann said any thing about supper; about a mile from Newsom’s, at Gilmer’s gate, a man passed us at full gallop; he was dressed in black, and had a cap on; don’t recollect any body being with old Mr. Toland when we passed him, he was riding just behind the wagon; crossed at the ferry when the sun was an hour or an hour and a half high; no other white person overtook us that night after we passed Gilmer’s gate. Riddle testified, that he thought it was in the spring of 1845, a gentleman rode up to us some three or four miles from Columbus; said his name was McCann; we rode on together to Mills’s and got water; went on together to Newsom’s, where McCann said he was going to get supper, and asked me if I would go down and get supper; we saw old Mr. Toland at Hambleton’s gate; there were several of ns together; I left town about an hour by sun; McCann overtook me where the sandy land meets prairie, and rode on to Newsom’s together; I rode some four or five miles an hour; think old Mr. Toland rode not half so fast, that he was travelling slow behind a wagon ; McCann told his name when he came up; he had whiskers, and wore a black hat; after McCann left us, a man rode by us very fast, a small man with a cap on; we passed old Mr. Toland’s house that night as we went on, but saw no horse standing in the yard. Robert Profit testified, that he saw old Mr. Toland on the morning of the day of the murder; he met him in the road coming to Columbus, riding a small sorrel sway back mare ; he stooped considerably, and rode in that way; heard the report of a gun or rifle an hour or half an hour after dark, in the direction his body was found; it is near half a mile from my house to the place; met deceased at the north-west corner of my field, and about half a mile behind him met McCann coming towards Columbus; first saw McCann in the narrow lane between Cross’s and McGowan’s; passed the residence of deceased that morning, but did not stop; saw, before I got to the house, Frank Toland and his mother standing in the yard in apparently close conversation; when I came up opposite the house they parted; Frank was dressed in black with a cap on. Old Mr. Toland was dressed in a light summer coat and broad crown hat; McCann was riding a pretty good sized sorrel horse, not very tall, but good sized; I saw the body and examined it, all, except the top, of the head had disappeared; there was a wound on the back of the neck marked with powder, the hat was. powder burnt; saw the ball mark on the tree six feet from the ground; saw no other wound on the body; could see no appearance of horse tracks on the ground; other people were there before me; the body was thirty or forty feet from the road, in a clump of post-oak bushes; there were tracks to the right of the road along the road, but none traceable that turned out of the road; witness was on the jury of inquest, and no accusation was made against any one; met on the ground about twelve o’clock, and commenced the investigation about dark, and got through about ten, P. M.; the wound was about one inch long, and appeared as if made by a bullet, when the head was down the wound was round; the hogs had eaten away the face; all the face bones were gone; nothing left but the skull; witness heard the report of the gun about half an hour or an hour in the night; there was no horse in the yard when witness passed old Mr. Toland’s in the morning. Josiah S. Morehead testified, that he saw the body of Andrew Toland, after he was killed, near the road-side at Profit’s fence; saw hogs eating him; was riding along the road, coming to town; first saw the hat, and got down to take it up, when my horse scared, and thus I first discovered the body; saw the prisoner and his father that morning, four or five miles from there, going to witness’s father’s house; stopped to talk with them ; they were going to witness’s father’s to get bail, the grand jury having found a true bill against them for an assault with intent to kill; prisoner appeared to hurry his father, and urged him to go on; when witness picked up the hat, saw that there was blood and smoke on it, and blood in the road under witness’s feet; saw where the body was dragged, as if to throw it between logs, and then drawn to the thicket, the body lying on the back, with hands on the breast. George E. Lyon testified, that he lived a mile and a half from Cross’s lane; heard the report of a gun in the night awhile, half an hour or an hour after dark, in the direction where the body was found; some ten or twenty minutes after the report, heard a horse running from that direction; it might have been twenty minutes or half an hour after the report; the horse was galloping; did not see it; went in south-westerly direction, through Smtih’s lane, and turned off at a corner of the field, through the woods path that intersects the McCann road; prisoner lived with his father at the time; witness was at his shop at the time, about fifty yards from the road; Smith’s lane is one half a quarter long; report of gun was loud; heard it distinctly; thought it was some one shooting turkeys; it was moonlight, except flying clouds; one not acquainted with the neighborhood would not have taken that direction. James Whitfield testified, that he was of the inquest; saw the ball mark on the tree; saw the hat, a new chip one, and powder-burnt; deceased had an old round top hat in one of his pockets; the wound on back of the neck powder-burnt, and skin black or dark. O. H. Millican testified, that he was of the inquest; saw the ball mark on a small tree, and a twig cut off therefrom, on the side next to the road, about on a level with the mark; examined the wound on the back of neck; the face was all gone. John Cross deposed, that Morehead found the body and came and told him; went to see it, and then went to inform neighbors ; did not get back till after dinner; body lying on ihe back, and the feet from the road; was there before the jury; no one was accused of the murder at the time. -Morehead deposed, that the prisoner was at his house between seven and eight o’clock the morning the body was found; appeared natural, and staid an hour or three quarters; came with his father, and and Wanted his father to go after sitting a few minutes; after sitting a while longer, he again wished his father to go; the father said, “ Don’t let us be in a hurry — it is not often we get with our friends;” the bottle was handed round, and the old man took two drinks; prisoner said again, “Let us go, if you don’t I will; ” and got up and looked out to where the horses were tied; can’t say why prisoner tried to get his father off; has seen the old man pretty merry. Jos. Morehead deposed, that he saw prisoner next day after the murder at his house; appeared to be very uneasy; got up and went to the door, and looked up and down the lane twice; witness took the bottle out and treated the old man; McCann lived four miles from him; McCann twice asked his father to go, and then said, with an oath, if he would not go, he would leave him. Henry N. Jones deposed, that he examined the wound on the body at the of back the neck; it was powder-burnt; the flesh about the thickness of a man’s hand, and as his hand ; some powder burnt inside of the wound, and a blackness about where the ball struck and entered; saw the tree where the ball struck. Nich. Morgan deposed, that he heard the report of a gun in the direction where Toland was killed; shortly after the report, he heard a person riding up Smith’s lane; first heard the riding in the lane between Lyon’s and Smith’s field; heard Lyon’s dogs break out; the rider turned off into the woods, at.the corner of Smith’s field intersecting the McCann road, in direction of Mc-Cann’s ; from where the horse turned oif, at the corner of Smith’s field, to the neighborhood road leading out toward McCann’s, is not far; a stranger would hardly have seen the neighborhood road; witness was about a mile from the place of killing when he heaz’d the gun distinctly; the sound of the report was ordinary ; could not see the horse distinctly; saw a glimpse of him, and some one on him; could not tell whether the report was that of a pistol, or what; it was a still night. Henry Quarles testified, that on the day the body was found, he saw McCann going westwardly; had the appearance of going off; had no saddle-bags, that witness recollects; it was three or four miles from Cross’s Lane, between twelve and two o’clock; his brother Pat was with him; they were going through the woods, not in a road, and riding fast for going through woods; witness had not then heard of the death of Andrew Toland ; heard it about an hour after. Jeremiah Dowsing deposed, that some day or two after the murder, heard some one at Noxubee turnpike about two o’clock: at night, calling out; from the voice, thinks-it was McCann; did not see him; had known him before; said he wanted to buy corn and fodder for his horse, that he had been lost in the swamp; Noxubee turnpike is ten or twelve miles from Prairie Hill. Wiley Ross deposed, that the second week of the Carroll court at Carrollton, he saw the prisoner; don’t recollect the day; witness had business with Mr. Gilder; went into Judge Johnson’s office; went upstairs, and as witness struck the landing, the prisoner rose up from a bed where he was lying behind Mr. Gilder; prisoner put his hand to his bosom, and backed into a corner; saw the butt-end of a pistol in his bosom; Gilder said witness was no officer; the prisoner kept his eyes on witness, until Gilder said that; witness had a paper in his hand for Gilder; witness asked what it meant, and Gilder replied that old Mr. Toland had been killed, and McCann had left on account of it; in the mean time prisoner had returned to the bed, and knelt down on it; witness put his hand on McCann, and told him if he had killed Toland, he had better leave; he replied he had not killed him, but was accused of it, and in proof that he had not killed him, said that Toland’s children had given him money and weapons to leave, an4 promised to write to him; he further said, old Mr. Toland had been found killed and nearly eaten up by hogs; that it would be very hard for him to prove his innocence, as he was the last man seen by an overseer that' night behind Toland, near Cross’s lane, before Toland was killed; witness told him he had better leave; prisoner sold his horse in Carrollton; it was after twelve o’clock when witness first saw him, and the sun was about two hours high when he left, on foot, with his saddle-bags on his arm, and took the road to Williams’s landing; it was agreed that the day when witness saw McCann was Thursday, second week of Carroll court, 1845. Elijah W. Smith deposed, I first saw prisoner aboard of the stage on the Jackson and Memphis road, in the county of Lafayette ; I pursued and overtook him at the dinner stand, eight miles from Oxford, toward Memphis; I went in, took hold of and arrested him for James McCann, when he replied that it was not his name, that he had never known any body of that name, that his name was Wilson, or some such name; that he did not wish to be detained, that he was on his way to Tennessee to see his relations; I searched his pockets, and found receipts in the name of James McCann, and the same name on his shirt; I told him he would have to go back with me, and on my way back, three miles from Oxford, he acknowledged his name was McCann; said he had heard Toland had been killed, and that he did not know he could prove himself clear; at first he wanted to go back to Lowndes county; he was examined and committed to prison in Oxford; when I went to take him back to Columbus, he seemed to change his mind, and wished to be tried in Oxford; stated as reason why he did not wish to go back, that it would be a damned long tedious case; he requested me to write to Frank Toland, or let him write; when arrested, he had a pair of pistols, (shown on examination in court, and proved by witness,) and powder and ball. Champion deposed, that he saw the prisoner in custody of Smith, when taking him back to Lowndes county, at Pontotoc; his cousin was with him and knew McCann; witness spoke to prisoner, and told him they• had him in a tight place; he replied that he thought not,, and asked what people said about it here; witness replied that they said he had killed To-land; he said he knew he was accused of it, and that was the .reason he left; witness’s/ cousin remarked to prisoner that it was strange he left before he was accused, to which he made no reply. L. W. Ward deposed, that he was one of the inquest; saw the body lying twenty-five or thirty feet from the road, head toward the road, the skirts of his coat in the rear of. his head; it was a Kentucky jeans coat, with velvet collar; was acquainted with deceased; he was fifty or sixty years old; don’t recollect seeing marks .where the body was dragged; it was after twelve when he came to the ground. James McGowan deposed, that he heard the report of the gun or pistol on the night of the killing; it was near a mile from where the body was found to his house; it was about three quarters of an hour after daylight; heard report distinctly; it was nearly all prairie between where the body was found and witness’s house; thinks a gun could be heard distinctly that distance; witness was sitting on his portico at the time, and thought it was some one shooting turkeys; went on the ground about eleven; saw the mark on the tree where the ball struck ; told some one to search about the root of the tree for the ball, and it was picked up by some one in witness’s presence, (a ball shown, him in court, which he thinks the same;) don’t recollect seeing McCann or Toland on the day of the death; heard but the one report of a gun or pistol that night. This was all the proof on the part of the state. -Riddle deposed, that he travelled with prisoner the night of the killing, several miles, and saw no pistol or gun on him; did not see any weapons with him. Henry N. Jones deposed, that he saw no pistol on prisoner; ~ was not close to him; he rode past witness; did not think of pistols; supposes he might have had pistols, and witness not see them. Patrick McCann testified, that he was brother of prisoner; has seen one of the pistols shown him; gave it to prisoner the day he started away; had it in his trunk four or five days before; got it from Frank Toland to give to Chandler; was at home the night of the murder; prisoner returned about half an hour after dark ; don’t know that Frank Toland was at witness’s father’s house the day the body was found, but saw him riding by the field where witness was at work, planting corn or ploughing; spoke to him, but held no conversation with him; it was about 10 o’clock; prisoner was away from home with his father at the time; he started away from home two or three hours after witness saw Toland; witness went with him to go to Wallace’s; prisoner said he was going away; rode sometimes in the road, and sometimes through the woods; he told witness he was going away because he was indicted for assault with intent to kill, and he did not intend they should make him give security; did not say where he was going when we parted; bade me goodbye; he rode a chestnut sorrel horse; he started from home the day of the killing, after breakfast, to go to town; witness’s father was at home when prisoner and he left; Frank Toland and prisoner were very friendly, like most young men, and once went to South Carolina together; witness was not intimate with Frank Toland; was acquainted with old man Toland. -McCann testified, that he was a brother of prisoner; was at home the night of the killing; prisoner returned home about a half hour in the night. Walter Troup deposed, that he went to old Mr. McCann’s the day the body was found; was within one hundred and fifty yards of the house, and saw a gentleman riding towards the house; it was about twelve o’clock; he had black clothes and cap or low-crowned hat on; was afterwards satisfied it was Frank Toland; witness was then talking with Patrick McCann, who was then ploughing near the stable in the field; witness’s business was with old Mr. McCann, and Patrick told him he was not at home; witness was not nearer than, three hundred yards to the person who was so going to the'house, and left before he got to it; saw a gentleman at the time, sitting in the passage; does not know who it was. This was all the proof. Numerous charges-were asked and given for both sides, andaré found in the record, but not embodied in any bill of exceptions; they are not, therefore, farther noticed. Another bill of exception shows that the prisoner asked this charge, viz.:. “ That all the declarations of the prisoner, brought out by the state, are to be taken together, as well that in his favor as what is against him, and that the portions favorable to' him are to be regarded by the jury as being, true, unless impossible in their nature, or inconsistent with other evidence in the cause; ” but the court refused to give it, and charged, “ That in confessions by a prisoner, all must be received, as well that which is in his favor, as that which is against him ; but that the jury are the sole judges of the truth of confessions, and can receive a part and reject a part; ” and defendant excepted. Another bill of exception shows that the defendant asked this charge: “ That, in criminal cases, the mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency,- cannot afford a just ground of conviction,” — which the court refused, and charged, “That, in criminal cases,dhe mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency, cannot afford a just ground of conviction, unless the combination is conclusive,” — and defendant excepted. The court charged for the state, “That, when the state proves the fact of killing, they are not bound to prove motive.” The jury found- the prisoner guilty. His counsel moved for a new trial, assigning various grounds; the motion was overruled, and exceptions stated, embodying the evidence, as heretofore set out. The prisoner’s counsel then moved in arrest of judgment, because, 1. The indictment was insufficient; and 2. There was a misjoinder of counts and alleged offenders; the motion was overruled, and the prisoner sentenced to be hung on the 25th day of May, A. D. 1849. Chief Justice Sharkey ordered, on McCain’s application, this writ of error. 1. It was not proven that deceased was killed by shooting, as alleged in the indictment. At most, it is shown he was shot and wounded in the neck; but the nature and character of the wound is not at all explained, and there is nothing to show it was mortal. From the proof, it is impossible to say how the mortal wound was inflicted, whether by the bullet, by the fall from his horse, or by blows causing a fracture of the skull, or how otherwise. In such a case, a conviction upon an indictment for murder by shooting, cannot be supported. Arch. Cr. PI. 315, et seep 2. The evidence was wholly insufficient to convict the prisoner, upon this [indictment, even if the killing had been proved. On this point he elaborately reviewed and commented on the testimony, and insisted earnestly that the proof did not sustain the verdict. He cited Arch. Cr. PI. 123; Rex v. Isaacs, 2 Russ. 617, n. (g. 3. There is manifest error in the ruling of the court. The judge refused to charge, on behalf of defendant, that the entire statement of the accused, when offered in evidence by the state, is to be taken as true, unless impossible in its nature or inconsistent with other evidence in the cause, but charged that although the whole confession must be received, as well the parts in favor as those against the prisoner, yet the jury could receive’ a part and reject ajrart. It was thus left to the arbitrary discretion of the jury to determine, and without regard to the other evidence in the cause or the character of the confession, to reject any part of it. Brown’s Case, 9 Leigh, 633 ; Wilson v. Calvert, 8 Ala. 757; Borren v. State, 5 Mis. 364; Tipton v. State, Peck. 308; Young v. State, 2 Yerg. 292; Steptoe's Case, 19 Eng. Com. Law. 440; Higgin’s Case, 14 lb. 476; Jones’ Case, 12 lb. 292 ; 2 Cow. & Hill’s Phillips’ Ev. 226, where the rule in civil cases is illustrated by many cases. 4. We also object to the charge given for the state, that the prosecution need only prove the fact of killing, and is not bound to prove the intent to kill. If we understand the charge, it amounts to a declaration that every killing is, prima facie, murder; that, in all cases of killing, the law infers a felonious intent to kill. Is such the rule under our'statute? The statute, in effect, declares that a mere killing shall not be held proof of murder. It provides that a killing without authority of law, except it be done under circumstances showing a case of manslaughter, or excusable or justifiable homicide, shall be murder. Hutch. 954. It prescribes the penalty for murder and prohibits punishment for the crime, as an offence at common law. Hutch. 954, Tit. 2, § 1; lb. 956, § 24, (Prohibition); lb. 982, § 14. The penalty of death to the murderer is thus made a statute punishment, and the fact that it is the same penalty as that declared by the common law, does not change its character. The true test is, whether, apart from the statute, the courts can inflict a penalty for the crime; and if not, then it is no crime apart from the statute. If the prisoner, is not liable, under the statute, to the penalty for murder, then the judgment of the court is without sanction of law, for the common law penalty in such case is prohibited. If the law affixes no penalty for the doing an act, it is in law no offence; and if the statute alone declares the penalty, the act thereby punished is a statute offence, a crime only by force of statute law. The crime of murder is therefore a statute offence in this state. Now the statute does not declare that every killing shall be held to be, prima facie, murder; it contains exceptions, specifies large classes of cases in which it shall not be held murder to kill. Those exceptions are contained in the very clause which declares what shall be the crime of murder, the enacting clause; and the rulo in such cases, is, that the state must show, negatively, that the subject of the indictment does not come within the exception. Arch. Cr. PL 53. If this be so, then the state was bound to prove 1! motive.” And such too is the rule at common law; the killing must appear to have been done with malice, or it is no murder. It is true the jury may presume malice from the act of killing; but then, again, they may not, if the instrument used be not deadly; then malice must be shown by further proof than the mere killing. Roscoe, Crim. Ev. 579. 1. That the verdict was right on the merits; and they reviewed and commented on the proof. 2. That the refusal to give the charge asked by the prisoner, was right, and the charge given correct. They cited 1 Greenl. on Ev. § 218; Arch. Cr. PL 3, p. 114; Roscoe, Cr. Ev. 51; Young v. State, 2 Yerg. 292. 3. So the refusal to charge that the mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency, cannot afford a just ground of conviction. 1 Starkie, 506; 2 Phillips, Cow. & Hill’s Notes, 308, 313, note 303. 4. What circumstances will amount to proof, can never be a matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury; it is sufficient if they produce moral certainty to the exclusion of every reasonable doubt. 2 Phillips, Cow. & Hill’s Notes, 308; 1 Starkie, 514, side. Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of any reasonable doubt, constitutes full proof of the fact. 1 Starkie, 449. Mere preponderance of testimony is sufficient if it exclude all reasonable doubt. 1 Starkie, 451, side. ■ To establish an hypothesis as being true, it is not necessary that all others should be impossible. 1 Starkie, 483, side; 2 Phillip's, Cow. & Hill, 311; 115. 309. The law has no scales, &c. 1 Starkie, 444, side. 5. The indictment was sufficiently formal. Hutch. Code, 954; McDaniel v. State, 8 S. «fe M. 418; 2 Yirg. Cases, 88; People v. Enoch, 13 Wend. 163; 11 lb. 165 ; Barlow’s Criminal Treatise, 271; Fuller v. State, 1 Blackf. Rep. 65 ; Jerry v. State, lb. 396; see also 3 McCord, Rep. Law, 543. 1. A new trial will seldom, if ever, be granted where there have been two concurrent verdicts, and no rule of law has been violated. 5 B. Monroe; 1 S. & M. 512. There have been two concurrent verdicts, and this is the second time defendant has been in the court of appeals. McCann v. State, 9 S. <fe M. 465. 2. The presiding judge, before whom the case was tried, and who is presumed to have been familiar with all the facts and circumstances which transpired at the time of the trial, has, in the exercise of his discretion, refused a.motion for a new trial in the court below, and it must be a very clear case of error in law, or a very naked bald case as to the facts, which will authorize this court to interfere in a criminal case where the jury are made the judges of both the law and of the facts. Jones v. State, 1 Kelly, Rep. 618. 3. Where the judge who presided at the trial, who has heard all the evidence, and has witnessed the proceedings and the manner of conducting the cause before the jury, is satisfied with the verdict, and refuses a new trial, a supervising authority when it exists, but which cannot have equal opportunities of forming a just judgment, ought not to interfere without the strongest reasons for so doing. See, particularly, Pattison v. Ford, 2 Grattan’s R. 24, 25. 4. A very learned judge says, in regard to the insufficiency of proof, “Had’.the court been in the position of the jury, they might have come to a different conclusion from this. But one witness swore positively to the perpetration of the crime by the defendant. If they believed her, they but acquitted their consciences in finding the defendant guilty, and after their verdict has undergone the revision, and received the sanction of the circuit court on a motion for a new trial, we do not feel at liberty to disturb it on a question of the eredibility of the testimony.” Weinzorpflin v. State, 7 Blacltf. (Ind.) R. 198.

Decided 1850-01-15

Mr. Justice Clayton

¶1delivered the opinion of the court.

¶2This was an indictment in the circuit court of Lowndes county, for murder. The prisoner was convicted upon circumstantial evidence, and has brought his case to this court for revision.

¶3There are but three acts of the circuit court complained of by bill of exceptions; one, the admission of certain testimony; the others, the refusal to give two charges asked by the counsel of the defendant. Upon these we shall remark in conclusion; and shall first consider the refusal to grant a new trial.

¶4This point has been pressed with great earnestness, and it has been insisted with much zeal, that the verdict is without any sufficient testimony. The inconclusiveness of circumstantial proof, and the danger to be apprehended from convictions upon that species of evidence, have been dwelt upon with much force.

¶5It is certainly true that great care and caution should be used, in the investigation of such testimony. This is true also of every other kind. All human testimony may be false. Our own perceptions may be wrong; our own senses may deceive us. Whilst this should teach ns caution in the forming of our opinions, and deliberation in adopting conclusions, it should not make us carry our doubts too far, because we should thereby be rendered unfit for all the practical duties of life. Such is the state of things, which surround us in life, that in all which concerns ourselves and our highest interests, we are compelled to act upon testimony, and often upon that testimony which circumstances afford. The same rule is carried into judicial proceedings. Circumstantial evidence has been received in every age of the common law, and it may rise so high in the scale of belief as to generate full conviction. When after due caution this result is reached, the law authorizes its ministers to act upon it.

¶6After a careful review of the subject, Starkie lays down the *490only rule, which can be regarded of practical application. “.What circumstances will amount to proof,” he says, “ can never be matter of general definition; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury.” “On the one hand, absolute metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature.” 1 Stark. 577. ■

¶7We shall proceed, in connection with this rule, to consider the evidence most material in this cause, without dwelling on some of the. facts which have a more remote bearing. It is in proof that, on the day of the murder, the deceased went from his residence to the town of Columbus, a distance of twelve miles; that he rode a small horse, and from age stooped forward as he rode. That on his way home, he crossed the ferry at Columbus, about an hour before sunset. That in point of fact he never reached home alive, but his body was found the next day in a small clump of bushes, some thirty or forty feet from the road, and rather more than a mile from his house. There was a wound in the back of the neck, occasioned by a ball from a gun or pistol ; there was powder in the inner surface of the wound, and the skin around it, as well as a straw or chip hat which he wore, were blackened with smoke and powder. The face from the eyes down had been eaten up by hogs, but no other part of the body had received much injury. The body had been dragged into the bushes thirty or forty feet from the road. There was an impression made by a ball upon a tree near the spot, some six feet from the ground on the side next the road, and the ball was found at the foot bruised and flattened. The skull above the eyes was sound-,' except that a part of the bone on the right side was detached. There was a saddle found on the spot, with blood upon the right stirrup leather. There were several traces of blood on the ground and the clothes. The murder was committed on a private road leading to the house of the deceased, a little distance from the public road. A report of a gun or pistol *491was heard by several of the neighbors, about half an hour, or an hour after daylight down. The body was found’ about ten or eleven o’clock the next day; a jury of inquest was held, which terminated its sitting about ten o’clock at night, and up to that time no one was accused of the murder.

¶8It. was in proof that the prisoner lived with his father near the deceased; that he also went to Columbus on the day of the murder, starting after the deceased did. That he was seen there on several occasions during the day, in company with J. F. To-land, a son of the deceased. That they spent a great part of the day together, in a billiard-room attached to a grocery, in which' there was no other person at the time. That they were not engaged at play, but apparently upon business. That on being invited to dinner, young Toland at first declined, saying that his father was in town, and that he did not wish to be seen by him, but that he afterwards consented to go.

¶9That the prisoner crossed the ferry about two hours before sunset, and consequently about an hour before the deceased. About sunset the prisoner overtook- two witnesses, Sandifer and Riddle, some five miles from Columbus, and rode with them three or four miles. He was riding a horse of good size. He conversed freely with the witnesses, and told them his name. About seven miles from Columbus they overtook the deceased, who was riding very slowly in the rear of a wagon. At the house of Mills, near by, eight miles from Columbus, they got some water. A short distance from that point, the prisoner said he was going to Newsom’s to get supper, and asked Riddle to go with him. Newsom lived about one hundred yards from the road, and there were thick woods between the road and his house. The witness did not go. McCann left them, but whether he went to Newsom’s does not appear from the- evidence. About a mile from Newsom’s, near .Gilmer’s gate, a man passed these two witnesses at full gallop, whom they did not recognize, but who, from other-testimony, is shown to have been J. F. Toland. After they passed Gilmer’s gate, they were not overtaken by any other person. The road to the residence of old Mr. Toland leaves the Gilmer road a short distance beyond his gate. The *492murder was committed on this road, not very far from the Gilmer road, in a wood which extends from Gilmer’s to the spot where the body was found. Near this place, there is a road leading from the Gilmer road to McCann’s.

¶10There is no direct trace of the prisoner except in his own declaration, after he left Sandifer and Riddle, until he reached his father’s house some half hour after dark, according to the testimony of his brother. The murder occurred near Cross’s lane, one and a half miles from McCann’s. Some ten, or twenty, or' perhaps thirty minutes after the report of the gun or pistol, Lyon, who lived near the road leading from the Gilmer road to McCann’s, heard a horse galloping, and observed that he left the road and took an unfrequented path, not likely to be known by any except those who lived near, leading through the woods in the direction to old Mr. McCann’s. Nicholas Morgan makes the same statement, with the addition that he saw a rider on the horse.

¶11The next day the body was found, and a jury of inquest held as already stated. During the same morning J. F. Toland went to the house of old Mr. McCann. Towards two o’clock of the same day, the prisoner was seen in company with his brother, some three or four miles from his home. They were riding rapidly through the woods, and prisoner appeared to be going off. His brother states that he went with him several miles, and that they travelled sometimes in the road, and sometimes in the woods; that the prisoner told him he was going away, because the grand jury had found a true bill against him for an assault with intent to kill. A witness states that a day or two after the murder, he heard some one at the Noxubee turnpike, about two o’clock at night, calling out, and from the voice thought it was McCann. He did not see him, but had known him before. He wanted to buy corn and fodder for his horse, and said he had been lost in the swamp. This was twelve or fifteen miles from the place of the murder. The next place he was seen, so far as the proof shows, was at Carrollton. He there exhibited great apprehension of being arrested. He told a witness that he had not killed old Mr. *493Toland, bat he was accused of it; that the body had been found nearly eaten up by the hogs, and that it would be very hard for him to prove his innocence, as he was the last man seen by an overseer that night behind Toland, near Cross’s lane, before Toland was killed. He also stated that Toland’s children had given him money and weapons to leave, and had promised to write to him. The same evening he left Carrollton on foot, having sold his horse. A few days afterwards he was arrested in the county of Lafayette, and voluntarily stated after his arrest, that he had heard that Toland had been killed, and that he did not know he could prove himself clear. Before his arrest he had denied his name; said that his name was Wilson, and that he was on his way to Tennessee to see his relations. After his arrest, and whilst on his way to Columbus, a witness at Pontotoc remarked to hitn, that he was in a tight place; he replied, that he thought not. To another remark, he said he knew he was accused of killing Toland, and that was the reason he left.

¶12There was no proof that the prisoner had any pistol or other arms on the day of the murder.

¶13These are the most material facts to be gathered from the testimony on both sides. We shall proceed to consider their effect, in order to determine whether they sustain the verdict of the jury.

¶14There is an absence of all effort, on the part of the prisoner, to explain two circumstances in the early part of the transaction, which have some bearing in the case. The first is the failure to show where he was, from the time he crossed the river, until he overtook Sandifer and Riddle at sunset. The other is, that he did not show whether he went to Newsom’s to supper, as he said he intended to do. These are considerations of great force against him. 1 Stark. 574, 575. They seem to indicate, that he crossed the river before the decedent, so as to be sure that he should see him, and that having waited until he passed, he pursued his way homeward; that having overtaken the deceased upon the road, he again stopped, until he got in his rear, where he remained until the commission of the deed.

¶15 *494It is almost certain that the murder was committed with a pistol; the smoke and powder upon the surface and edges of the wound, and upon the hat, show that it was fired in immediate contact with the person. The blood upon the right stirrup leather, which was the side next the woods, connected with the impression upon the tree, goes to show that he was shot upon his horse, and the range of the ball likewise shows that the person who fired was on horseback. The impression of the ball upon the side of the tree next the road, and the finding of the flattened ball at the foot of the tree, prove that the shot did not proceed from a person concealed in the woods. It is very certain that the ball could not have killed him, after it struck the tree and fell upon the ground. It is a fair conclusion, then, that the pistol was fired by some one on horseback in the road, very near to the decedent, who was higher than the deceased; bending forward on his small horse, and that the ball entered the neck, passed through the lower part of the head, and came out on the right side, detaching a portion of the bone, and having nearly spent its force, struck the tree and fell at its foot. As it was after night, the murderer had to be near his victim to be sure of his aim. It will be remembered that the prisoner rode a good sized horse, and if he perpetrated the deed from his saddle, was elevated enough above the decedent, to give the ball the direction it took. Soon after the report of the gun, the rapid galloping of a horse was heard, going from the direction of the place of the murder towards the house of old Mr. McCann; ’a rider was seen upon him, and he took an unfrequented bypath through the woods, which led in a more direct course to the house than the road. It is not shown that any one else Avent to the house that night. The prisoner reached home, according to the testimony of his brother, about half an hour after dark, Avhich was about the time of the report of the gun, according to the other Avitnesses. If there were any certainty' as to the precise time of these several incidents, and the exact moment Avas fixed at which each took place, then it Avould be established that the prisoner Avas at home when the deed was committed. All experience, however, proves that but little reliance can be *495placed upon the recollection of witnesses, as to the exact moment of any occurrence. Men generally take so little note of the passing of time, that an approach to accuracy is all that can be expected. The killing took place about a mile and a half from McCann’s. It is clear that but little time was spent at the spot by the murderer. The body was dragged a few paces from the road, and no attempt was made either to bury it, or carefully conceal it. The saddle and hat of the deceased were left where they fell. There was no appearance of the trampling of a horse, as if he had been tied and detained. It was the work of only a moment or two, followed by immediate flight to avoid detection. A rapid gallop, such as Lyon and Morgan describe, would have carried a person from the scene to McCann’s certainly in fifteen minutes. The early hour at which the prisoner reached home, almost precludes the belief that he stayed at Newsom’s to supper, if indeed he went there at all.

¶16These are the circumstances as developed up to the time of the killing, and however much they point to the guilt of the prisoner, they may leave room for a reasonable doubt. But the evidence does not close here. By far the strongest portion has been furnished by the conduct and declarations of the prisoner, subsequent to the deed.

¶17There are no circumstances which require comment, on the morning after the murder, until the interview with J. F. Toland. That interview appears to have prompted his immediate flight. He stated at Carrollton, that the children of Toland had furnished him with money and weapons to leave. He saw none of the children, so far as the evidence discloses, except Frank. If he had no agency in the act, it is not at all probable that he could have been bribed or induced by Frank Toland, as has been argued, to fly before he was accused. A consciousness of innocence would have led him to abide the issue, and to see whether time would not disclose the real perpetrator. But he fled on the instant, and he must be content to bear whatever weight this circumstance furnishes against him. The consequences of his own act must fall on his own head. He was on his way before two o’clock of that day. The jury of inquest *496did not return their verdict until ten o’clock of that night, and up to that time, no whisper had been heard that he was accused or suspected. His fears induced flight before the voice of accusation' was raised. The excuse which he offered to his brother for leaving, was, that an indictment had been found against him and his father, for an assault and battery with intent to kill. But he had been the previous day to Columbus, the .county town, and had not been disturbed. It does not appear that any process had issued upon the indictment, or that there was any necessity from that source for such sudden flight.

¶18It was probably on the night of the same day, that he was at the Noxubee turnpike. He had] been lost in the swamp, as he stated; for the reason, probably, that after parting with his brother, he still endeavored to make his way through the woods.

¶19His conduct at Carrollton is not easy .to reconcile with a belief of his innocence. He exhibited great fear of being arrested; put his hand upon his pistol, and threw himself into a defensive attitude, when a stranger entered the room in which he was. He then stated the fact of the killing, and of the finding of the body eaten up iri part by the hogs, and said he had left, because he was the last person seen behind the old man, near Cross’s lane,- before he was killed, and that it would be hard for him to prove himself clear. This declaration is decisive of his fate. It brings him to the very theatre of the murder, at the time it .was committed, and if he did not do the deed himself, it is almost certain that he would have seen the person who did. He might then have saved himself by disclosing the real murderer. How did he know that he was the last person seen behind the old man before he was killed, unless he was the real murderer himself? And this statement clears up all the doubt which might otherwise have existed from the different opinions of the witnesses, as to the time of the act. By his own confession he was not at home, but near Cross’s lane, behind the old man, when drawing to the very scene of the murder. The declaration thus made, to give an appearance of innocence to the circumstances of his flight, puts the seal of guilt upon his act.

¶20 *497In La Fayette county he denied his name, in order to elude arrest; but after he was apprehended, he voluntarily made the same explanation in substance, which he had made at Carroll-ton. It was repeated at Pontotoc, and to a remark, that it was strange he had fled before he was accused, he made no reply.

¶21He has in this way furnished the most undeniable evidences of his guilt. If the jury has acted upon them, he has no human being to blame but himself, and his doom is upon his own head. They place his guilt beyond all reasonable doubt. They are entirely consistent with that conclusion, but utterly at war with all experience, and with all our knowledge of the ordinary motives of human conduct, if we are to believe him innocent.

¶22The case does not call for any elaborate attempt to define the limits of the power of this court, in granting new trials in criminal cases, upon the testimony. Doubtless it is a power which may be exercised, where the jury has gone wide of the mark, and fcjund a verdict against the decided preponderance of the testimony. But it is a power which should be exercised with great caution, because our constitution and laws have provided the trial by jury, as the safeguard and protection of the lives and liberties of the citizen on the one hand, and of the safety and interests of the commonwealth on the other. It is placed by the constitution beyond the reach of legislative interference. This safeguard would be shorn of half its strength, if it might be withdrawn or disturbed by the courts, unless in a case of palpable error, or of gross abuse. This is not a case of such a character. On the contrary, after carefully considering all the testimony, and listening to all which the ingenuity of counsel could suggest, we are not at all prepared to say, that if we had been of the jury, we should have come to a different conclusion. To set the verdict aside, under such circumstances, would be an unwarrantable invasion of their province.

¶23There were but three exceptions taken during the progress of the trial. The first was to the admission of the testimony of John P. Krecker. This witness stated, that some eight or ten days before the murder, he saw the prisoner and J. F. Toland in conversation on the Columbus bridge, some twenty or thirty *498feet within the bridge. Witness did not hear the conversation; the prisoner had his back towards witness; put his hand in his pocket and when he saw witness looking at him, pulled some papers out of his pocket, and put them into another pocket; again put his hand into his pocket, and pulled out something. J. F. Toland took something out of his pocket that looked like a powder gourd, put it to his mouth and pulled out the stopper, and poured something into prisoner’s hand, which he supposed to be powder. The part of the bridge on which they were, was a retired place; they remained about twenty or thirty minutes.

¶24In cases depending upon circumstantial evidence, a number of links often concur in forming the chain. It cannot be said what bounds are to circumscribe the inquiry. All which may tend to elucidate the transaction, should be admitted. 1 Starkie’s Ev. 561, et seq. The proof of the guilt of McCann, in some degree depended upon establishing a combination between him and J. F. Toland. Apart from such combination, no 'motive is shown to have existed, to lead to the perpetration of the crime. With such combination, a motive is furnished dark and hideous, it is true, and one which, for the honor of human nature, we should be glad to deem incredible, but which the-records of crime show sometimes have found place in the bosom of the child, and have prompted to the murder of the parent. This circumstance then, separated only by an interval of ten days from the fatal tragedy, might be an important aid in fixing the relation of the parties, and in disclosing their real intentions and purposes. We cannot, therefore, say its admission was erroneous.

¶25The other exceptions relate to the refusal of the court to give certain charges asked by the counsel of the prisoner. The first of these instructions was as follows : “ That all the declarations of the prisoner brought out by the state are to be taken together, as well those in his favor, as those against him, and that the portions favorable to him are to be regarded by the jury, as being true, unless impossible in their nature, or inconsistent with other evidence in the case.” This was refused, and the following given in its place : “That in confessions by a prisoner, all must be taken together, as well that which is in his favor, as that *499which is against him, but that the jury are the sole judges of the truth of confessions, and can receive a part and reject a part.” The instruction as given, propounds the law correctly. A late writer on evidence thus lays down the rule. 1£ If what the prisoner said in his own favor is not contradicted by the evidence offered by the prosecution, nor improbable in itself, it will naturally be believed by the jury; but they are not bound to give weight to it on that account, but are at liberty to judge of it like other evidence, by all the circumstances of the case.” 1 Greenl. 263, § 218. Roscoe says: ££ It must not be supposed, that every part of a confession is entitled to equal credit. A jury may believe that which charges the prisoner, and reject that which is in his favor, if they see sufficient grounds for so doing.” Crim. Ev. 51; 1 Stark. Ev. 283; Clewes’s Case, 4 Car. & P. 221; 3 Phil. Ev. 927; Coon v. The State, Ante, 246.

¶26The remaining charge excepted to, was as follows: “In criminal cases the mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency, cannot afford a just ground for conviction, unless the combination is conclusive.” This was given in lieu of one asked by the counsel of the defendant, which laid down the converse of this proposition.

¶27The instruction as given is not liable to objection. The union and concurrence of various detached circumstances may produce full conviction, when either one of them standing alone might leave room for much doubt. 1 Stark. 570.

¶28An objection was taken to the indictment, that it charges the offence as at common law, whilst the punishment is inflicted under the statute. This objection cannot prevail. Vance v. Commonwealth, 2 Virg. Cases, 162; Ib. 378; White v. Commonwealth,. 6 Bin. 179; Commonwealth v. Searle, 2 Ib. 339; Mitchell v. The State, 8 Yerg. 514.

¶29These are all the points made in the argument, which it is deemed necessary to notice. A careful examination of the testimony and of the points involved, has disclosed to us no error in the proceedings of the court below.- It only remains to say, that the judgment is affirmed.

¶30 *500Mr. Potter, in behalf of the_ (prisoner, filed a petition for a rehearing upon the point, principally, of the error in the refusal of the instruction asked by the prisoner’s counsel with reference to his confessions.

¶31The rehearing was refused, and the prisoner sentenced to be hung.