The clarion. [volume] (Jackson, Miss.) 1883-1888, 1885-03-11


From the Circuit Court of Copiah Co,
t. J. Wharton, Judge.
H0Hlieide.- Various matters Of eridenee
and criminal procedure.
CAMPBELL, c. J.:
Appellant was indicted and tried for
the murder Of r. b. Rails, was found
guilty. and sentenced to be hanged.
During the trial, which lasted about
ten DAYS, a great number of exceptions
were taken. and embodied in bills OF
exception. and assigned for error here.
The first exception taken was to the
action of the court in drawing a special
venire, and fxisg day for the trial OF
this cause, while another capital case
was pending. This was not erroneous.
The case was taken up on the next
day after the day when the venire was
made returnable. The prisoners cleo
ted to sever, and the State elected to
try r g. Penn first. He made aiii-
davit for continuance, on account OF
the absence of certain witnesses. The
continuance was properly denied, under
Code 3059. Bowen, one of the absent
witnesses. was introduced on the trial
by the State, and testified that he knew
nothing of the case. The facts stated
in the affidavit, as provabie by the absent
witness. Roberts, were not admissible.
Yates. the other absent witness, resided
in an adjoining county, and might have
been Immediately obtained by attach
ment, as far as appears, and produced
during the trial, but he was not OBJ
tanned, nor was his affidavit, on the
hearing of the motion for a new trial;
and all that it was alleged could be
proved by him, that was competent tes-
timony, was testified to by others. The
court rightly refused to require the dis
trict attorney to admit that the absent
witnesses would testify as set forth in
the affidavit.
In the examination Of the jurors on
the U0H dire, the court required the
questioning to be concluded before pass
ing upon their competency. The prls-
oner's counsel ms sted upon the court
passing upon the jury, and the matter
being then submitted to the counsel ;
and the court not agreeing to this, they
declined to examine the jurors at all.
The action of the court on this point
was strictly correct. Opportunity was
given counsel for the prisoner to fully
examine the jurors As to their quallhca-
tions; and as the privilege was declined
when offered, it could not afterwards be
claimed. A juror named Candy, being
examined by the court, stated that he
had neither formed nor expressed an
opinion, but that he had converscd with
a witness for the State. Having no
opinion as to the guilt or innocence of
the prisoner, he was free from objection,
and was rightly pronounced competent
by the court. The panel was completed
and the trial proceeded.
| The prisoner excepted to the testimony
| of p. T. Ware, a witness for the State
by whom it was proposed to prove that
1 he had had a conversation with X. CT
Penn, on the night before Rials wa:
/ killed, in which Penn had given Ware g
! message to communicate to Rials. The
| admission of Wares testimony was
proper. 1t related to what was saio
/ between him and the prisoner in an in
/ terview sought by the prisoner, in which
the relations between the Penns anc
Rails was the subject of conversation
The testimony of one Wright was
offered by the State. 1t was to the effect
! that in saloon on the night before the
/ homicide, Rails had said to him, in ;
| low tone, in the presence of the Penns
/ but not in their hearing, Don't you
see those men? They are after me. They
intend to kill mep'-that he Wright
escorted him out, and they went t.
Falers Hall where the Penns also ap
peared shortly afterwards, and Rial
made the same remark, in their presence
but not in their hearing. This testimony
was improperly admitted, but could moi
harm the prisoner, because the course
and conduct of the Penns towards Rial
on that night was shown by many wit
nesses. 1t did appear that they were
pursuing him. After he had left Faler'
Hall, he was in front of store, and tn,
Penns arrived there, and the prisone
had a conversation with Ware abou
Rials and the difficulty" with him, anC
about shooting it out" etc, and re
quested him (Ware) to deliver a mes
sage to Rials on the subject. In little
while after this, Rails was found at th'
depot, and the Penns were there cursing
him and challenging bin to fight. Rial
shranlI from them, and signitied his de
sire to have a peaceful settlement, APP
pealed to Rev Mr.. AIillsaps, who wa
present, to say if he was not right il
desiring a friendly settlement, declared
he was not armed and had no frienC
there, and jumped behind Mr.. Millsap
to avoid his infatuated foes, when the
witness Wright interposed to insist. IL
behalf of fair play, that Rails should bt
allowed to 90 for arms and friend, anC
thus got him away from the Penns. /
is true, they did not kill Rials tina
night. What would have been the re
suit, if Wright had not interfered as h'
did to get Rails away, must be matte
for conjecture. As it was made 81
manifest that the Penns, on that night
were following Rials, intent on morta
combat, the error of permitting Rials
declarations to Wright to go to the jury
did not add anything to the array o.
evidence on this point.
The prisoner proposed to prove by c
G.. Birdsong, in opposition to Bostic, {
witness for the State, that Bostic hac
made certain declarations. This was
objected to by the State, and was prop
/ erly excluded, because by it the effort
was made to eontrovert Bostic, without
having laid the foundation by asking
Bostic if he had used the language at
tributed to him by 8irdsong al
/ the time and place mentioned. The
/ foundation was laid to contradict
Bostic as to what he said the next
day after the homicide to GrCome
but it does not appear from the re
cord that Groome was offered as 8
witness We do not decide that il
would have been erroneous to exclude
/ the evidence OF Birdsong, if the proper
foundation had been laid, but decline to
pass ON that question as not press nted
and put our decision on the ground
above stated. On the same ground
Lovelace's testimony was rightfully ex
cluded, and for the further reason that
/ it was irreievan1 to the issue. On the
ground last mentioned, the testimony OF
| Aiken and Berberovitch was rightfulIy
excluded. It would not hove thrown
any light on the issue to be tried.
/ The instructions given at the instance
of the district-attorney are free from
error; and the prisoner got the benefit
/ of all the instructions to which he was
entitled. After the court had fully
covered the case, giving the prisoner the
benefit of every principle of law applica
bic, it was not required to repeat the an
nouncement of the legal principles or to
incur the hazard of confusing the jury.
1t made no difference that the indict-
meat was not formally read to the Jury.
They were certainly well informed as to
the charge against the prisoner.
1t is to be regretted that the prisoner
counsel were not present when the yer
dict was received; but as the jury was
polIed, it cannot be said that any harm
resulted.
The verdict was in these words: "We
the jury find the prisoner guilty in