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McCann v. The State of Mississippi.

the crime, not to be error to allow proof of an interview between this son and the prisoner, in which the former seemed to be giving the latter some powder in a somewhat retired place; the murder having been committed

with a pistol shot. On the trial of a prisoner for murder, the court below instructed the jury,

“that, in confessions by a prisoner, all must be taken together, 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 : " Held, that the instructions propounded the law correctly. The court below refused to instruct the jury, " 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 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 : Held, that the instruction

was properly refused. The following instruction was asked, and held to have been properly given,

viz. : “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 be conclusive." An indictment for murder, charging the offence as at common law, whilst the

punishment is inflicted under a statute, is not therefor liable to objection.

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.

McCann o, The State of Mississippi. 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 McCann'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;

McCann u. The State of Mississippi.

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 skin 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 McCann v. The State of Mississippi. 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

McCano v. The State of Mississippi. 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

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