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McCann v. The State of Mississippi.

murder 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.

There 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.

The 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.

McCann v. The State of Mississippi.

Toland, but 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 him, 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.

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

These 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.

There 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.

McCann v. The State of Mississippi.

It 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 went to the house that night. The prisoner reached home, according to the testimony of his brother, about half an hour after dark, which was about the time of the report of the gun, according to the other witnesses. If there were any certainty as to the precise time of these several incidents, and the exact moment was fixed at which each took place, then it would be established that the prisoner was at home when the deed was committed. All experience, however, proves that but little reliance can be

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McCann v. The State of Mississippi.

placed 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.

These 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.

There 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

McCann v. The State of Mississippi.

did 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.

It 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.

His 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 in 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.

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