#### THE STATE *vs.*GRIFFIN STEWART.

It is in the discretion of the Attorney General, on the trial of a capital case, to introduce on behalf of the State, only such witnesses as he may think proper.

If, on the trial of a slave for a capital offence, the counsel for the prisoner does not ask the Court to give to a mulatto witness, introduced on the part of the State, the charge required by the Act of Assembly, Rev. Stat. Ch. Ill, Sec. 51, advantage cannot afterwards be taken of the omission of the Judge to make such charge.

Whether such a charge was or was not given, cannot appear upon the record, unless placed there by the exceptions of one or the other party.

The case of the *State*v. *Martin,*2 Ire. 120, cited and approved.

Appeal from the Superior Court of Law of Nash County, at the Spring Term 1S49, his Honor Judge Settle presiding.

The prisoner was indicted for murder, in killing Penny Anderson.

*343The State proved, that the prisoner and Penny Anderson had lived together for several years, as man and wife, although not married: That in October 1848, Penny Anderson was, on Monday night, at home with the prisoner. Daring the night, blows were heard and much lamentation, as of a person suffering under a violent beat» ing and begging for mercy. The ©ut-cry was in the direction of the prisoner’s house, and the cries were in the voice of a female. The next morning Penny Anderson was missing ; and the prisoner, being asked where she was, said : “She had gone to one Hale’s,” who lived about ten miles off. Upon search, it was found she had not been at Hale’s, nor could she be found any where. In about six weeks afterwards, herbody was found, pai’-. tially buried in an out-of-the-way place, some five hundred yards from the house of the prisoner. The body, although putrid, exhibited many marks of violence, particularly about the throat, as if she had been choked to death. The body was identified by a ring on a finger, by several articles of clothing, by a broken finger, and by other modes of identification. The State proved many other circumstances, tending strongly to show, that the prisoner had murdered her.

The prisoner was of a black complexion. He had lived in the neighborhood about ten years, and during all that time he passed for, and was treated as, a free negro ; and the case states, that he was treated as a free negro daring the whole trial, and spoken of as such by the counsel. The jury found the prisoner guilty of murder.

It was in evidence, that no person was at the house of the prisoner on the night of the alleged mui’der, except the prisoner, the deceased, and a little boy, the grandson of the deceased, between seven and eight years of age. Several of the State’s witnesses were mulattoes. In tho opening address to the jury, the counsel for the pi’isoner *strongly*urged, that, as the State had not examined the *344boy, who was the only person present, every presumption should be made against the prosecution, because a witness was kept back, whom it was the duty of the State to have called and examined. The Attorney General was per. mitted by the *Court.to*interrupt the counsel and say: “the boy was in Court, he had examined him, and did not call him as a witness, because he was satisfied he was too ignorant to be competent, but the prisoner’s counsel was at liberty to offer him to the Court, that his capacity might be judged of, and to call him as a witness on the part of the prisoner.” The prisoner’s counsel declined the proposition, and moved the Court to instruct *the*jury, that' they should not convict upon circumstantial evidence,' as there was a person present at the alleged murder, who was a competent witness, so far as it judicially ’ appeared, and could give direct testimony. The Court refused to give the instruction.

The prisoner’s counsel moved for a new trial, because the Court refused to give the instruction prayed for, and “because the Court permitted the Attorney General to make the interruption.

*Attorney General,*for the State.

No counsel for the defendant.

Pearson, J.

There' was no error in refusing the instruction. The counsel for the prisoner fell into an error in supposing, that circumstantial evidence was *secondary,*evidence. In the *State*v. *Martin,*2 Ire. 120, it is held, “to- be in the discretion of the prosecuting officer, what witnesses he will examine.” “If other witnesses can shed more light on the controversy, it is competent for the prisoner to call them.” We think, it was entirely proper for the Court to allow the Attorney General to make the interruption, and it was proper for that officer, seeing the prisoner’s counsel had fallen into, an error, to *345set bim right, and give him an opportunity to. call the witness, if competent.

Another ground, upon which a new trial was asked'»was, that the prisoner, heing' *black,*was *•prima facie*a slave, and, if a slave, the Court had committed error, in not admonishing the mulatto witnesses, as required by law. This point was not made until after the trial — -it was then too late. If the prisoner- wished to be tried as. a slave, the question should have been started “in time.” There was evidence to rebut the presumption., and he was treated as a free negro during the whole trial. It would be trifling with the administration of justice, to allow a prisoner to pass himself off as a free negro, and take his chances for a verdictand then turn around and insist that he was a slave. Again, the Act of Assembly was intended for the benefit of the party, against whom mulattoes are called as witnesses, on the trial, of slaves consequently, the benefit may be waived, and the proper-course is, to object to the competency of witnesses, before they give testimony, if they had not been admonished.

Rut again, it does not appear from the record, that the mulatto witness were no,t admonished. The record need not show *affirmatively*all the incidents of the trial. The trial is presumed to have been conducted regularly and according to law, unless the party excepts, and has the act of omission or commission, complained of, spread upon the record-

Another ground was taken in this Court, that, if the prisoner was a slave, notice should have heen issued to his owner. The same reply is applicable to this object tion ; and further, it not appearing who the owner was, the Act provides, that the. Court may appoint counsel and proceed with the trial, as, if the owner had beep notified.

There is no error in the record, and we presume this js one of the cases, where an unfortunate prisoner, avail*346ing himself of the Act of Assembly allowing appeals, without security for costs, *appeals without hope.*

Peu Cuuiam. Ordered to be certified that there is no error in the record.