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McCann v. The State of Mississippi.

In 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 Carrollton. It was repeated at Pontotoc, and to a remark, that it was strange he had fled before he was accused, he made no reply.

He 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.

The 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 found 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 This safeguard would be shorn of half its strength, if it might be withdrawn or disturbed by the courts, unless in a case of palpable error, or of gross abuse.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.

There 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

McCann v. The State of Mississippi.

feet 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.

In 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.

The 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

McCann v. The State of Mississippi.

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." The instruction as given, propounds the law correctly. A late writer on evidence thus lays down the rule. "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.

The 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.

The 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.

An 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 lb. 339; Mitchell v. The State, 8 Yerg. 514.

These 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.

21 500 72 524

21 500

75 581

75 588

13s 500 79 580

Nelms v. The State of Mississippi.

Mr. 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.

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

SAMUEL H. NELMS V. THE STATE OF MIssissippi.

While it seems that a person who has formed or expressed an opinion as to the guilt or innocence of the prisoner, from mere rumor, is not absolutely disqualified as a juror, yet if he have formed or expressed the opinion from what he has heard one say some of the witnesses had told him, he is disqualified, though he himself had not heard any of the witnesses say any thing on the subject; and though he stated that his opinions were not such as would influence his verdict, but that he would be governed by the evi dence.

It is not competent, in order to discredit a witness, to introduce the statement of the witness as taken down by the vice-chancellor on a previous occasion, on the trial of a habeas corpus, involving the same matter; the statute does not make it the duty of the judge who tries the habeas corpus to take down the evidence, unless one of the parties desire it, and then he is only required to take down the material facts; unless, therefore, the statement thus made be read over to, and signed by the witness, it cannot be read to impeach his testimony given on another trial.

On the trial of a prisoner for murder, the dying declarations of the murdered man were offered in evidence; and the witness, who proved the precise words used by the dying man, was asked whether "the deceased did not so express himself as to convey the idea that it (what the deceased stated) was a mere opinion, and not a thing within the actual knowledge of the deceased:" Held, that inasmuch as the witness gave the exact words used by the deceased, it was for the jury to judge of their import; and that the witness could not answer the question; though it seems it would be otherwise if the witness were detailing merely the substance of what the deceased said, and not giving his exact words.

It is competent, when the dying declarations of a murdered man have been admitted, to show, by way of impairing their credibility, what he said on the same subject at other times. It is for the court to determine upon the com

Nelms v. The State of Mississippi.

petency of such evidence; and for the jury to adjudge its credibility; and to that end, it is important that all the deceased said touching the subjectmatter, should be before the jury.

On a trial of a prisoner, who was convicted of murder, after the jury had retired, two of the officers who had them in charge, spoke on the subject of the case in the hearing of the jury, one of them saying that "it was a worse case than D.'s; "the other, "that public opinion was against the accused: " Held, that on proof of this improper conduct on the part of these officers, the court below should have granted the prisoner a new trial.

An officer having a jury in charge in a criminal case, who, in violation of his oath, converses with the jury on the subject of their deliberations, should be subjected to the severest possible penalties.

It seems, that while the affidavits of jurors are incompetent to impeach their verdict by disclosing their own misconduct, or their motives or opinions, or those of their fellows, yet a juror may be admitted to testify to the improper conduct of the officer who had them in charge. Clayton, J., dissented from this proposition, and thought the testimony of the juror inadmissible.

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. Etelle, Mr. Tarpley, and Mr. Barton, argued the case orally for the prisoner.

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

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

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