As the common

had no legal interest in the event of the suit. grantor of both parties, he was equally bound on his covenants, and if he had any interest at all, it was balanced. 1 Greenl. Ev. $ 381, 399, 420; 1 S. & M. 494.

Mr. Justice CLAYTON delivered the opinion of the court.

This was an ejectment for two lots in the town of Quitman. The plaintiff claims title under one Calvin Ludlow, who derived title from John and Thomas Watts. Their deed to Ludlow conveys parts of two quarter sections of land, amounting to eightyfour acres, but excepts from its operation "all the lots which had been previously sold in said town, and which would more fully appear by reference to the map of said town."

The defendants introduced John Watts, one of the grantors in the deed, and proved by him, that the lots in controversy, Nos. 22 and 23, were a part of those excepted from the operation of the deed to Ludlow, and that they were marked upon the map as having been sold, at the time of the conveyance, to Ludlow.

The defendants also claim under a deed from Watts, subsequent to the deed to Ludlow; but having relation to a sale, according to the testimony of Watts, made before the sale to Ludlow, and marked upon the map, and thus reserved from the sale to Ludlow. This testimony was objected to upon the trial; and the principal question is as to its competency.

It cannot be doubted, but that the exceptions in the deed of Ludlow were to be identified in some other mode, than by the deed itself. Parol evidence is of necessity admissible to give identity and locality to the land granted, if the description in the deed or patent be not so definite as to point it out without further aid.

But in this case, special reference is made in the deed itself to a map, to show what lands were excepted from the operation of the deed. Parol testimony was therefore not admissible, unless in explanation of the map, or unless it had been previously shown that the map could not be produced. That was not done, and for this reason the evidence was inadmissible.

A further question is made as to the competency of Watts.

Brantley et al. v. The State of Mississippi.

It is insisted that he was competent, because his interest either way was equal. We do not think so. By proving that the lots did not pass to Ludlow, and thus enabling the defendants to succeed, he is relieved from his direct and express covenants to them. In any action of covenants which Ludlow might bring against him, unless it were established that these lots were embraced in his deed, and not comprehended in the exceptions, he would fail. The interest therefore is not equal, because in one case it is direct and certain; in the other uncertain and dependent upon a contingency. He was called in support of the direct interest, and should have been excluded. See Harmon v. James, 7 S. & M. 119.

It is not intended to exclude the introduction of the map, and of any competent parol testimony, which may be necessary to fix the identity of the lots excepted from the operation of the deed to Ludlow.

Judgment reversed, and new trial granted.

JAMES R. BRANTLEY ET AL. vs. THE STATE OF MISSISSIPPI.

Under the statute in this state, (Hutch. Code, 983, § 22,) which provides, " that upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty of the offence charged, but guilty of an inferior degree of such offence," a jury may find a defendant indicted for an assault with intent to commit murder, guilty of a common assault and battery; and therefore, since that statute, however it may have been at common law, it will not be improper to join in the same indictment a count for each offence.

Where a party indicted in two counts, is found guilty only on one, objections to the count on which he is acquitted, will not be available to him.

It seems that where counts are improperly joined in an indictment, the objection can only be reached by motion to quash, or to compel the prosecutor to elect on which count he will proceed.

Where no exceptions in the court below are taken to the grand jury, either by

plea or otherwise, the high court of errors and appeals will not, after a plea of not guilty, and trial without objection, go back to look for defects in the organization of that body.

Brantley et al. v. The State of Mississippi.

IN error from the circuit court of Yalabusha county; Hon. Francis M. Rogers, judge.

James R. and William Brantley were indicted in two counts, The body of the indictment was in these words, viz.: "The grand jurors of the state of Mississippi elected, empannelled, sworn, and charged, to inquire in and for the body of the county of Yalabusha, upon their oaths present that James R. Brantley and William Brantley, late of said county, laborers, on the first day of May, in the year of our Lord one thousand eight hundred and forty-eight, in the county aforesaid, in and upon one Jefferson Russell Tribble, there being, an assault did make, and the said James R. Brantley and William Brantley, then and there each having large clubs and bowie knives, the same being then and there deadly weapons, then and there with the clubs and knives aforesaid, the said Jefferson Russell Tribble did beat, bruise, wound, cut, and ill treat, and other wrongs to the said Jefferson Russell Tribble, did, with intent him, the said Jefferson Russell Tribble, then and there wrongfully, maliciously, feloniously, and of his malice aforethought, to kill and murder contrary to the statute in that case provided, and against the peace and dignity of the state of Mississippi.

"And the jurors aforesaid, upon their oaths aforesaid, further present that the said William Brantley and James R. Brantley, late of said county, laborers, on the first day of May, in the year of our Lord one thousand eight hundred and forty-eight, in the county aforesaid, in and upon one Jefferson Russell Tribble, there being, an assault did make, and him the said Jefferson Russell Tribble then and there did beat, bruise, wound, and ill treat, to the great damage of him the said Jefferson Russell Tribble, and against the peace and dignity of the state of Mississippi."

The defendants demurred to the first count, and the demurrer was overruled. A trial was had on the plea of not guilty; and the jury found them not guilty as to the first count, and guilty on the second. A new trial was refused; the court fined them one hundred dollars and costs; and they sued out this writ of

error.

Brantley et al. v. The State of Mississippi.

Acee, for the plaintiff in error,

Cited Hutch. Code, 960, § 33; Hildebrand v. State of Missouri, 5 Mis. Rep. 548.

Mr. Justice CLAYTON delivered the opinion of the court.

This was a bill of indictment preferred in the circuit court of Yalabusha county against the defendants. It contains two counts, the first of which charges them with an assault and battery, with intent to murder; the second with an assault and battery only. There was a demurrer to the indictment, which was overruled. The defendants were then tried, acquitted upon the first count, and found guilty upon the second.

It is insisted that this joinder of counts is error, for which the judgment should be reversed. There seems to have been some want of uniformity in the decisions on this point at the common law, and in the different states of the Union. See 1 Chit. Cr. Law, 250, and notes. But in this state, there is a statute which clearly governs the case. Hutch. Code, 983, $ 22. But at common law such an objection could not have been made available, either upon demurrer, or in arrest of judgment, but only upon a motion to quash, or to compel the prosecutor to elect, on which count he would proceed. Chitty, 248.

By the statute referred to, it is provided "that upon an indictment for an offence consisting of different degrees, the jury may find the defendant not guilty of the offence charged, but guilty of an inferior degree of such offence, and such conviction shall be a bar to any other indictment for any degree of the same offence." Sec. 22 and 23. If, for example, there had been but the first count in this indictment, the jury might have found the defendant not guilty of the assault with intent to kill, but guilty of the assault and battery. The second count can do no harm, because, although the jury found upon it, they only found what they might have done, under the statute, without such count. At most it was but surplusage, and ought not to be allowed to vitiate. But we think there is now no impropriety in the joinder.

The other objections made to the indictment are not available,

McCann v. The State of Mississippi.

especially as they are directed against the first count, and the defendants were acquitted upon that, and found guilty on the second.

No exceptions were taken to the grand jury, in the court below, either by plea or otherwise. We cannot in this court, after a plea of not guilty and trial without objection, go back to look for defects in the organization of that body.

The evidence in the case is rather of an unsatisfactory character. It shows that some suspicion was cast upon the principal witness for the prosecution. But the jury gave him credit, and it is not our province to say they did wrong in this respect. The judgment is affirmed.

JAMES MCCANN vs. THE STATE OF MISSISSIPPI.

Circumstantial evidence has been received in every age of the common law; and it may rise so high in the scale of belief as to generate full conviction; when, after due caution, this result is reached, the law authorizes its ministers to act upon it.

Where a conviction depends upon circumstantial evidence, the legal test of its sufficiency for that end is its power to satisfy the understanding and conscience of the jury. It is sufficient if the circumstances produce moral certainty, to the exclusion of every reasonable doubt.

In this case the prisoner was convicted on circumstantial evidence; no one saw him commit the fatal act; the court review the proof on which the prisoner was found guilty, and reach the conclusion that the circumstances proved were sufficient to justify the finding, and uphold the verdict of the jury. While if the verdict of a jury, in a criminal case, were against the decided preponderance of the testimony, the high court of errors and appeals would set it aside and grant a new trial; yet it is a power which that court would exercise with great caution.

In cases depending upon circumstantial evidence, every thing which may tend to elucidate the transaction should be admitted.

It was held therefore on the trial of a man for murder, where there was no positive proof of the prisoner's guilt, but circumstances had been shown, connecting the son of the murdered man with the murderer, as his abettor in