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Coon v. The State of Mississippi.

On arriving at Mobile, the witness, Mr. Smith, as the agent of Mr. Stewart, found the prisoner in jail, under an arrest upon a suspicion of having committed a theft of the negro man Cæsar. He also found the negro in custody. After having seen the negro, he went to see the prisoner, who pretended not to know him at first. The witness stated to Coon "that he had come to get the negro that had been stolen from James A. Stewart." Coon replied, "that he had not stolen the negro, but had bought him from a man named John H. Scott, who lived in Wilkinson county." Upon being told by Smith that he had never known or heard of John H. Scott, prisoner said Scott was a horsedrover who was sometimes in Wilkinson and sometimes in Amite county. Prisoner desired to be taken back to Wilkinson, "because he could not get a fair trial in Mobile; that they had arrested him upon the charge of stealing the negro in question." While there, the prisoner informed witness that he had sold the negro to some one in Mobile for $350. Davis and Lewis, who, from their positions, were likely to know whether such a person as John H. Scott was a resident of Wilkinson, swear that they know of no such person, either as a resident or otherwise.

These statements of the prisoner were before the jury, with the opposing evidence of Davis and Lewis. It was for them to give such weight to the whole of the statements as, in their judgments, they merited. It was their duty to consider them together; but if they did, in fact, give credit to such parts of the statements of the prisoner, which, in their opinion, were sustained by other evidence in the cause, or disregard such other parts as were opposed by the testimony of the witnesses, they exercised but a legitimate function of their office. We believe the evidence warranted the conviction, and affirm the judg

ment.

JUDGES DURING THE TIME OF THESE REPORTS.

HON. WILLIAM L. SHARKEY, LL.D., CHIEF JUSTICE. HON. A. M. CLAYTON,

HON. C. P. SMITH,

}

JUSTICES.

D. C. GLENN, Esq., ATTORNEY-GENERAL.
WILSON HEMINGWAY, Esq., CLERK.

22*

CASES

ARGUED AND DETERMINED

IN THE

HIGH COURT OF ERRORS AND APPEALS

FOR THE

STATE OF MISSISSIPPI.

JANUARY TERM, 1850.

SAMUEL STOUGHTON vs. THE STATE OF MISSISSIPPI.

The statute (Hutch. Code, 893), which makes instructions of the circuit court parts of the record without bill of exceptions, does not apply to criminal

cases.

It seems doubtful whether, if a mortal blow were given in one county, and the death happened in another, the party killing could be indicted at common law in either county.

However that may be, in this state, by express statute, Rev. Code (Poindexter), 314, the party may be indicted in the county wherein the death took place; and, in the absence of clear authority at the common law for indicting him in the county where the mortal blow was given, an indictment there could not be sustained.

And a prisoner convicted under such an indictment would be remanded to the county where the death occurred, for a new indictment.

In error from the circuit court of Perry county; Hon. A. B. Dawson, judge.

F. Anderson, for plaintiff in error,

On the point of the jurisdiction of the circuit court of Perry county to try the offence, cited and commented on 1 Hale, P. C. 425, 426. This authority is not sustained by reference to any

138 255 Id83 2951

Stoughton v. The State of Mississippi.

decisions, and is not supported by the reasoning of the author. 1 Hawk. P. C. 93, 94; 2 Ib. 301, 302, 303, vide § 40; 2 Hale, P. C. 262; Ib. 162, 163; 1 East, P. C. ch. 5, § 128, 361; 2 Hale, 66; 2 Pickering, 550; 2 Eng. St. at Large, 422; 4 Blackstone, 303.

D. C. Glenn, attorney-general for the state,

In reply to Anderson, contended that Congress made the common law in force in the Mississippi territory. 2 Stewart, 362. English statutes, passed before the emigration of our ancestors, which are in amendment of the law and applicable to our situation, constitute a part of our common law. 3 Peters, 559; 1 Mass. 61; 2 Ib. 535; 13 Ib. 354; 1 Dall. 67, 75; 8 Pickering, 309; 9 Ib. 532; 3 Greenl. 162; 6 Ib. 55; 3 Gill & Johns. 62; Charlton, 167; Coxe, 338, note.

Chief Justice SHARKEY delivered the opinion of the court.

The prisoner was convicted, in the circuit court of Perry county, of the murder of J. A. Harvey. He moved for a new trial, because the verdict was contrary to law and evidence, and because the court erred in refusing charges asked by the prisoner, and in giving those asked by the district attorney. On these points we need make no comments. Indeed, on the charges we could not; they are not presented by bill of exceptions, but noted by the clerk as having been given or refused. The law of 1846, which provides for so noting charges that may be given or refused, and makes them part of the record, without bill of exceptions, applies only to civil cases. Hutch. Code, 893.

The case must turn on a different point; the wound was inflicted in Perry county, where the prisoner was indicted, but the death occurred in Harrison county. In such cases there is an express statutory provision requiring that the indictment should be found in the county where the death occurs. Poindexter's Code, 314. This statute seems to have been overlooked in the subsequent compilations, though it is not repealed, at least we have found no act repealing it. It simply provides that the indictment, found in the county in which the death may happen,

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