In error from the circuit court of Marshall county; Hon. Hugh R. Miller, judge.

On the 15th of May, 1849, the grand jury of Panola county indicted Samuel H. Nelms for the murder of Jesse Price, on the 25th of December, 1848.

Nelms had the venue changed to Marshall county, where he was tried. His trial commenced on the 24th of July, 1849, and on the 6th of August the jury found the prisoner guilty of murder. The prisoner moved for a new trial, which was refused, and he embodied the evidence in a bill of exceptions. Various other points were excepted to, which are sufficiently noticed in the opinion. The prisoner was sentenced to be hung on the 14th of September.'

Mr. Justice Clayton granted this writ of error.

Mr. Tarpley also filed a brief, in which, on the points,

1. Of the admissibility of the juror, he cited McGoivan's Case, 9 Yerg. 193; 3 Humph. 376; 4 lb. 196, 270.

2. On the refusal to allow the notes of the vice-chancellor to be read to impeach a witnes, he cited 2 S. & M. 58.

3. On the subject of the dying declarations, and the exclusion of the testimony to impeach them, he cited Greenl. Ev. 198; 4 Stark. Ev. 461; 2 H. &McH. 120; Rex v. Pike, 3C.&P. 598; 2 Phil (C. & H.) 611.

4. That the affidavits of the jurors were admissible; they did not tend to impeach their own conduct, but that only of the officer.

5. That the misconduct of the officer vitiated the verdict. He cited 10 Yerg. 241; 4 Humph. 38, 289; 7 Cow. 562.

6. That the jury found contrary to the evidence. On this point, Mr. Tarpley reviewed the proof.'

Argued the cause in reply; and, on the various points raised, referred to the following authorities :

1. As to the competency of the juror. Sam v. State, Ante, 189; 2 Leigh, 769; 3 lb. 785; 9 lb. 651, 661; 3 Stewart, 454; 2 Ya. Cas. 375; 4 How. 330; 5 Rand. 660, 665; 5 How. 730.

2. As to the exclusion of the proof to contradict the witness. 1 Greenl. Ev. § 463.

3. As to dying declarations of Price. Arch. Cr. Pi. 156; 24 How. St. Tr. 753; 1 Greenl. Ev. 509.

4. On motion for new trial. He cited 3 How. 429; 1 Greenl. Ev. § 160, and note; 2 Ev. Pothier Ob. 256, (294) App. No. 16.

5. With reference to misconduct of jury. 5 Pickens, 296 ; 3 How. 426, and cases cited; 4 Humph. 251; Stewart v. Small, 5 Mis. 535; 1 Chitty, Cr. L. 632, 633, 634; Graham on N. T., and cases cited.

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