The comet., 1879-11-29
T. M. CANNON,
The STATE.

Error to the Circuit Court of Claiborne
county, Hon. Ralph North, Judge.
Plaintiff in error was indicted, tried, ant
convicted of murder.
There was a motion in arrest OF judg
ment, on the ground that there was DO suf
ficient evidence of the finding and present
ment of the indictment by the grand jury
in court. On the upper right hand cornel
of the indictment was "No. 2S." Below
that, "May Term, 1877" claiborne Cir
cult Court"
Then the following:
estate, } IA true bill. s. S.
v. Murder. Neely, Foreman
FRANK M. CANNON. Grand jury"
1t was marked ''fled" by the Clerk.
The other questions presented are stated
in the opinion.
CAMPBELL, J.
Held
l. The evidence of the finding and pre-
sentiment in court of the Indictment by the
grand jury is sufficient, and the motion in
arrest of judgment was properly overruled.
2 An effort was made to show that Caro-
line Austin had testified before the Justice
of the PeBce, to certain matters, as to
which she testified differently on the trial
in the Circuit Court, and it was proposed
to show that the counsel for the accused
had commented, in the presence of Caroline
Austin, before the Justice of the Peace, on
the impossibility of the truth of her testi-
lnony in certain particulars, wherein it was
contended tfat she had, since hearing said
comments, varied her testimony. Tne OBJ
vious purpose of the evidence offered was
to suggest a motive in the witness for the
alleged variance, .. e. to escape on the ar
gument of the case in the Circuit Court the
criticism of her testimony which had been
made on the trial before the Justice of the
Peace Great latitude is allowable on cross
examination, to show bins and wrong mo-
tives in the witness with view to lessen
his credlbility, and answers of witness to
questions, as to bias and motives, may be
contradicted by evidence pertinent to show
the bias of the witness who denies it when
inlelrogated.
8. When it Is proposed to diseredit wit
ness by proving that on former occasion
he made statement inconsistent with his
statement, on some point material 20 the
issue, the fact of such contradictory state
ment, and not the reason for it, is the true
subject of inquiry.
4. The 10th instruction given for the
State was as follows: "Where express
malice is shown and the person against
whom such malice existed be afterwards
killed with deadly weapon by the person
harboring the malicious purpose, no mere
provocatiOn, at the time Of committing the
act, will relieve it of the character of a ma.
liciOus killing, but it is presumed to be in
consequence of the previous malice"
This instruction should not have been
given. II Is true that when premeditated
design TO kill or do other great bodily harm
is ascertained to have existed, and there is
q consequent unlawful killing, apparently
in pursuance Of such desigd, any provoca-
ton which Immediately precedes the act of
killing, is to be thrown out of the case and
70 go for nothing, unless it can be shown,
from the circumstances of the killing, that
the purpose 10 kill, or do great bodily
harm, was abandoned before the act was
done.
5. A mere grudge or malice, in its gen
eral sense, is not sufficient 10 bring a case
within the principle that where one having
express malice towards another kills thai
other, the killing is referable 10 the previous
malice, and not 70 q provocation at the
time Of killing. To do this there must be
. particular and definite intsDl 10 kin, 90