#### *Grayson v. The Commonwealth.

(Absent Field,* J.)

.Tune Term, 1850.

Criminal Law—New Trial—After Two Concurring Ver= dicts.†—A new trial granted to a prisoner convicted of murder in the first degree, after two concurring verdicts, approved by the judge who presided atthelrials; the evidence being wholly insufficient to sustain the verdict and judgment.

This is the sequel of the case reported in 6th Grattan, p. 712. The prisoner was again tried at the June term of the Circuit court of Culpeper county for 1850, when he was again found guilty of murder in the first degree, and sentenced to be hung.

The prisoner moved the Court to set aside the verdict and judgment, on the ground that the verdict was contrary to the evidence ; but the Court overruled the motion. Whereupon the prisoner excepted, and applied to this Court for a writ of error, which was awarded.

The facts spread upon the record are in most respects the same as those which appeared on the former trial; and they are stated fully in the report of the case in 6th Grattan. The only differences in the statement of the evidence are, first, as to the time when the young men left the store on the evening previous to the murder. It was stated on the last trial that two of them remained about fifteen minutes after the others went away; and when they left it was the darkest time of the night, the moon shining brightly all night. Second. The evidence as to the appearance of the prisoner at Huffman’s cabin, and his going out with another negro and a white boy, to hunt his spade and shovel, is wholly omitted. Third. It is proved that the spade and shovel were not, at 12 o’clock, on the day after the murder, in the spot where they were found at 9 o’clock *that night; that spot having been examined by some of the persons who were searching for them. Fourth. The pistol of the deceased, which was taken the night of the murder, was found in July or August 1849, when the prisoner was in close custody, near the house of George Jeffries, on the side of the path leading from his road gate to the house, in a place where it could not have remained long without discovery. Fifth. During the inquest, after the prisoner’s appeal to William Wood, he further said that a negro man named Tom, belonging to Woodford Settle, went with him to the store and saw him get the spade and shovel; and if Tom was brought he would prove it; but the said Tom came and denied it, said that he did not see him get the spade and shovel; that he went with him to the store, but did not go in; that being in a hurry to have a plough sharpened at William Wood’s blacksmith shop, he standing outside of the store, called to the prisoner to make haste, that he was afraid the blacksmith would be gone to bed; to which the prisoner replied, “You go on, I will come on presently;” and that this statement was not contradicted by the prisoner. Sixth. The judge certified that he considered the boy Huffman a credible witness, though he thought him mistaken in supposing he saw both the spade and shovel when sent by William Wood to see them at his house. Seventh. After the inquest had been taken and signed, the prisoner was directed to be committed to jail, when it was proposed—■ the certificate of facts says—by a gentleman present, as a means of finding out where the spade and shovel were to be found, that the prisoner should have his hands put into a vice, and by torture compelled to confess. 1-Iis hands were put into a vice and the force of the screw applied; but he persisted in the statement that he had before made, that he was drunk, had lost his spade and shovel, and did not know where they were.

*The case was argued in this Court by Bouldin and Cabell, for the pris*318oner, and the Attorney General, for the Commonwealth.

*

He had tried the cause in the Circuit court.

†

New Trial—Verdict Contrary to Weight of Evidence. —The principal case and Grayson v. Com., 6 Gratt. 712 (of which the principal case is the sequel), are cited several times as prominent among those cases in which verdicts of juries have been set aside by the appellate court because of the insufficiency of the evidence. Johnson v. Com., 29 Gratt. 817; Leath v. Com., 32 Gratt. 881; Martin v. Thayer, 37 W. Va. 59, 16 S. E. Rep. 496; *foot-note*to Smith v. Com., 21 Gratt. 809.

Evidence Conflicting—Refusal to Certify Pacts —To the point, that, when the evidence is conflicting, the court may refuse to certify the facts proved, see the principal case cited in Powell v. Tarry, 77 Va. 260. See also, *foot-note*to Caldwell v. Craig, 21 Grail. 132; monographic *note*on “Bills of Exception” appended to Stoneman v. Com., 25 Gratt. 887.

Criminal Law—Circumstantial Evidence.-—On the subject of circumstantial evidence in criminal cases, see the principal case, and Grayson’s Case, 6 Gratt. 712, cited in Cluverins v. Com., 81 Va. 853; Anderson v. Com., 83 Va. 329, 2 S. E. Rep. 281; Brown v. Com., 87 Va. 220, 12 S. E. Rep. 472; Brown y. Com., 89 Va. 379,16 S. E. Rep. 250. See also, on this subject, *foot-note*to Johnson v. Com., 29 Gratt. 796; *foot-note*to Dean v. Com., 32 Gratt. 912.

IJilGH, J.,

delivered the opinion of the Court.

The plaintiff in error, at the spring term in the year 1849, of the Superior Court of law and chancery for the county of Culpeper, was indicted for the murder of David W. Miller, and upon his trial was found by the jury guilty of murder in the first degree. He then moved the Court to grant him a new trial, but- his motion was overruled, and judgment rendered against him upon the verdict. This Court at the last term reversed the judgment, and directed that another trial of the case should be had. This trial has been had, and the same verdict and judgment have been rendered against the accused; and he has again applied to this Court to reverse this last judgment. The ground upon which he makes this application is, that the evidence introduced on the trial was wholly insufficient to prove that he was guilty of the murder, or in any manner connected with it. The evidence is set forth in the exception taken to the opinion of the Court refusing to award a new trial.

This Court is fully aware of the weight which ought to be given to two concurring verdicts, approved by the Judge who presided at the trials; and if in our opinions the evidence made even a probable case of guilt, we would be unwilling to disturb the judgment. But at the last term this Court was of opinion, unanimously, that the evidence introduced on the first trial was plainly insufficient to connect the accused with the murder. The evidence on the second trial is somewhat different from the evidence on the first trial, but this difference is favourable to the . accused; and after examining tlie testimony anew, we are again unanimously of opinion, *that it is wholly insufficient to sustain the verdict and judgment.

We do not deem it necessary to make a minute examination of all the evidence, because we think it plain that the circumstances relied on to prove the guilt of the accused are slight or are sufficiently explained. These circumstances, or rather the circumstances tending most strongly to prove the guilt of the accused are, that he was at the residence of the deceased, the place where the murder was committed, at, or just before, or just after dark of the night when the crime was perpetrated; that a shovel and spade were carried by the accused during the same night from the residence of the deceased; that the wounds inflicted on the deceased were made with some blunt instrument; that the shovel carried from the residence of the deceased had upon it, when it was found the night after the murder, spots of blood, and that the accused- said the morning after the murder, ‘ ‘that he did not know where the spade and shovel were.”

We cannot consider the fact thht the accused was at the residence of the deceased about dark of the night of the murder as furnishing any evidence of guilt; since he was there for a proper purpose, namely, to-redeem his spade and shovel, which had been taken possession of and detained by the partner of the deceased, to secure the payment of a debt or debts due by the accused. Besides, the accused remained on this occasion at the residence of the deceased but for a short period, as it is proved clearly that he was at the house of another person, half a mile distant, very early in the same night, and the whole evidence too, makes it altogether improbable that the murder was committed at so early an hour of the night. Nor do we think that the fact, that the spade and shovel ¡were carried from the residence of the deceased during the night, furnish any *stronger evidence of guilt that the fact above mentioned, as it is proved by an uncontradicted and credible witness that the accused carried with him both the spade and shovel, when he left the residence of the deceased at or about dark. The judge who presided at the trial, was of opinion that this witness was under some mistake, and that the spade was not then carried off. This opinion was founded on the fact, that the spade carried off was not the spade of the accused, but another spade belonging to the store, and upon the fact that the accused had not enough money to redeem both the spade and the shovel. There is certainly some evidence, namely, the condition mentioned in Parr’s order, and the fact that the deceased received that order as a payment, from which it may be inferred that the deceased delivered the spade as well as the shovel to-the accused, and as the spades were so much alike, we cannot regard, under the circumstances, the fact that the spade belonging to the store instead of the one belonging to the accused, was carried off, as important. However this may be, we do not think the circumstances which weighed with the presiding Judge, sufficient to justify us in disregarding the testimony of the witness. The strongest circumstance against the accused, is the appearance of drops of blood upon the shovel which he carried from the residence of the deceased. This circumstance would have been entitled to much weight, if it had appeared that the accused had retained the possession of the shovel throughout the night, especially if the spots of blood had appeared to have been recently made. But we think it sufficiently proved, that the accused had not the possession of the shovel throughout the night. The Commonwealth gave in evidence the declarations of the accused made the morning after the murder was committed, and these declarations were “that he (the accused) was drunk the night before; “'that he lost both spade and shovel in going from Wood’s to Huffman’s; and that he did not then know where they were.” Declarations of persons accused are not much to be relied, on; but in this case the truth of the declarations was persisted in under peculiar circumstances;— *319under severe torture, which we are sorry to say the bystanders, under the great excitement of the moment, forgetful of the mild spirit of our law, thought themselves at liberty to inflict. Besides, the declaration is so far supported, that it appears that at the time the declaration was made, both spade and shovel were in the possession of some other person. For both were found, two hours after dark of the night after the murder, in a place where they certainly were not at 12 o’clock of the preceding day, and of course they must have been placed where they were found by some other person, as during the whole period the accused was in close custody. There is too, other testimony which connects some other person with the murder. A pistol was carried from the residence of the deceased the night of the murder. This pistol was found at a place where it had been recently put, long after the accused was in close confinement, and it must therefore have been in the possession of some other person. The conduct of the accused is calculated, in some measure, to disprove the charge against him. He came to the place of the murder the morning after it had been committed, wearing the clothes which he had on the preceding night, and these had no stains of blood upon them. It is not at all probable that the accused changed his clothes during the night, and it is still less probable that the murderer escaped without marks of blood upon his clothes. For marks of blood were found on the floor of the room, on the counter and desk, sprinkled on the goods on the shelves, on the ground near the scene, and on a fence distant a few yards. Upon the whole case, we are of opinion *that the testimony is not only not sufficient to prove the guilt of the accused, but that it is hardly sufficient to raise a suspicion against him. The judgment must therefore be reversed and a new trial awarded.