Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-04-02

Burr1ll on circumstantial evidence, p.5lS.)
The charge objected to does not say that
manner. The proof Of An alibi is the proof
OF 8 fact utterly inconsistent with that Of
guilt. II is an affirmative proposition.
Commonwealth VS. Webster, 5 Cush 324 }
This fact cannOt possibly be proven by
less than prepondersting evidence.
Less than pre%ponderating evidence may
generate a reasonable doubt, not in favor
OF, but slwsys against the affirmative
proposition Again, If the testimony to
the abb is in equipoise, il is not proven,
and the doubt which 1t suggests is
AGAINST h PRISONER.
In the celebrated case OF the Common
wealth vs.. Webster, reported in 5 Cush-
ing's Mass. Report, before q full bench,
it was determined that the evidence in
favor Of the alIbi set up in that case,
should preponderatsthe evidence that the
defendant WIS present when b murder
was committed.
The p~hrsseology of Chief Justice Shaw,
who delivered the unanimous opinion, is
almost identical with that of the Court,
criticised by counsel. He says: Eli,
therefore, the proof Of the alibi does not
outweigh the proof that he was at the
/ place when the offense was committed, it
is not sufficient" Such is the decision Of
confessedly one of the sblest tribunals in
the land. The
CHARGE OF THIS COURT
upon this point is almost literally
in the language of that high authority.
From the nature of an alibi and It's great
liability to mistake, perVersiOn and abuse,
and the difficulty of disProYing the same,
we think this portion Of the charge is not
stated too strongly, but
FOUNDED IN JUSTICE
and reason, fortified by precedent, and
sanctioned by the most approved element
airy authors. But the evidence of an slibi,
along with the other evidences in favor OF
innocence, were submitted to the jury on
the on hand, and the evidence in favor of
guilt were submitted on the other hand,
and then the jury we're expressly told to
look at the entire proof IN the cause, and
if a~reasonable DOUBT then arise out of the
whole body Of proof, it was then their
duty to acquit. We cannot see how there
could have been any misconception of the
charge so as to mislead the jury. 1t was
INCUMBENT ON THE STATE
to show o only that they were present,
but guilty present, at the time and place
Of hanging; and if the proof failed to
show this beyond the existence of a rea-
sOnabls doubt. the Court distinctly
charged that they should be acquitted.
Other objections to the charge have been
urged, we think, with much less force and
plsusibility; and, while disclsiming any
discOurtesy for counsel for not noticing
them at length, we would state that they
have been duly considered, and in the
judgment of the Court thought unsvail-
able.
6. The next ground for this application
Is, that
THE INDIN OF THE JURY
was based upon extrinsic facts, and not
upon the law and evidence; that the re-
commentator TO the extreme mercy of
the court they were induced to believe
from the statements of some of their own
body, equivalent to the finding of mitigs-
ting circumstances; that this case falls
within the spirit Of the rule announced in
Crawford VS.. State, q Yerg., CO., That was
a verdict of guilty of murder in the first
degree, with a recommendation of mercy
to the Governor. New trial was asked
upon the ground that, upon the sfidavits
Of several jurors, it appeared that they
DID NOT BELIEVE THE PARTY GUILTY;
that ono of them refused to render 8 YER
dict of guilty unless there was the recon-
mendatiOn of mercy to the Governor, and
the belief that it would be effectuaI alone
induced him to assent to the verdict, " as
he was not at all satisfied of the guilt of
the prisoner rs to murders; - that it was
suggested THAI at any rat il might as well
be rendered, for there could be no doubt of
q new trial, and it was not worth while to
nave the jury confined; that one of them
never did agree till the recommendation
Of mercy was added TO the verdict, and the
idea OF u new trial advanced. In this case
several jurors swear that they thought,
upon such q recommendation, the court
had the power to
COMMUTE THE PUNISHMENT To IMPRIsoN-
MINT FOR LIFE.
But, unlike the case in 2 Yerg, 60, no one
of them states he was not satisfied of the
guilt Ofthe defendants then, dissatisfied
with his verdict now, and without such a
recommendation he would not have as
to il. IL is true that two of the
jurors, Taylor and Thomas, state they do
believe the verdict as it now stands
would have been rendered without the
recommendation added, yet neither one
Of them states he himself would not 9TH
have agreed to verdict as reported.
II is much more suppOsable that q Juror
and will state his " mind, than
he knows correctly the minds of his
fellow jurors.
The case of Cochran VS.. State, 7 Hump,
was very similar to Crawford VS..
state, end between the two, said Judge
it was
DIFFICULT To DRAw A DISTINCTION.
The affidavit of the Juror upon motion
or q new trial states, unlike the evidence
n this case that he did not believe the pTiS-
)neT guilty; that he was induced to be-
ieve by some of the jurors that there were
atal defects in the proceedings when
would keep the prisoner from the peni-
eDtisry; that they would find him guilty
nd recommend him to the mercy of the
jOurt, and this recommendation being sent
o the Governor would procure his par
$50 ALaH 81 LA-
ration could have induce him to render
he verdict. The
FACTS INDUCING H VERDICT
q this and the cases citsd are, we think,
ntirely dissimilar.
There is no evidence that any juror in
his case has expressed a dissatisfaction
nth the verdict, either at its finding or
ny lime thereafter.
NO MITIGATING CIRCUMSTANCES.
The verdict is not a return of mitigs-
.ng circumstances If the jury thought
therwise, and we will take this for
ranted, we apprehend it was a miscon-
option OF the law, Of which the prisoner
an take mo advantage. Says Judge
reen, in Norris VS.. the State, 8 Hamp.,
IS: mo case has occurred
A NEW TRIAL HAs BEEN GRANTED
D the ground that a Juror has rendered a
upon q mistaken opinion of the q
W or the facts. II a Jurors affidavit
his opinion of the law, as the
dye had expOunded 1t, or the facts as he
the Witnesses, wers to be held
to set aside a verdict-prOYided
turn out that he was mistaken in
particular-scarcely any verdict could
and, besides the probability that in few
ses of any intricscy all the jurors would
perfectly all the
PRINCIPLES OF LAW
pounded to them, it would be extreme
easy for 8 Juror who had been tempered
to swear that he had founded his
rdict upon such grounds as would in
re a new trial, and it would be impOssi-
to detect and punish his perjury.
/. Another objection, that
Il VERDICT Is NOT SUPPORTED BY THE
EVIDENCE
d contrary to the law of the cases.
have examined with a deep sOliei
the law, and we believe thai the
srge is a correct exposition of the same.
ring the progress of the case nearly one
ndred witnesses have been examined.
Q have analK z9d the testimony, and in
lderness TO human life we have weighed n
, same with a painful painstsking, and y
driven st last by the resistless logic of
lOl 10 bue AnpNAsaDAp opASau9AOh Suhh ZIG
dict must stand. We have examined
the grounds for a new trial with a pa
Mt care and a heartfelt anxiety, out
st conclude that these defendants have
not only
RIGHTFUDLY CONVICTED,
that their conviction has been riqbe-
" reached. It was said by counsel du.
9 the discussion OF this motion that !
vas probable public opinion had in ~.
ed itself into the charge of the court, TO
o there was no consciousness of the
!, and no error il true, for it then but 4,
with the law. This court, in U3