| Miss. | Jul 1, 1872
This was an indictment in the circuit court of Lowndes county for murder. The prisoner was convicted upon circumstantial evidence, and has brought his ease to this cburt for revision.
There are but three acts of the circuit court complained of by bill of exceptions; one, the admission of certain testimony; the others, the refusal to give two charges asked by the counsel of the defendant. Upon these we shall remark in conclusion, and shall first consideT the refusal to grant a new trial.
• This point has been pressed with great earnestness, and it has been insisted with much zeal, that the verdict is without any suf
It is certainly true, that great care and caution should be used in the investigation of such testimony. This is true also of every other kind. All human testimony may be false. Our own perceptions may be wrong; our own senses may deceive us. Whilst this should teach us caution in the forming of our opinions and deliberations in adopting conclusions, it should not make us carry our doubts too far, because we should thereby be rendered unfit for all the practical duties of life. Such is the state of things which surround us in life, that in all which concerns ourselves and our highest interests, we are compelled to act upon testimony, and often upon that testimony which circumstances afford. The same rule is carried into judicial proceedings. Circumstantial evidence has been received in every ago of the common law, and it may rise so high in the scale of belief, as to generate full conviction. When, after due caution, this result is reached, the law authorizes its ministers to act upon it.
After a careful review of the subject, Starkie lays down the only rule which can be regarded of practical application. “What circumstances will amount to proof,” he says, “can never be matter of general definition ; the legal test is the sufficiency of the evidence to satisfy the understanding and conscience of the jury.” “ On the one hand, absolute metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature.” 1 Stark., 577.
We shall proceed, in connection with this rule, to consider the evidence most material in this cause, without dwelling on some of the facts which have a more remote bearing. It is in proof, that on the day of the murder the deceased went from his residence to the town of Columblis, a distance of twelve miles; that he rode a small horse, and from age stooped forward as he rode; that on his way home he crossed the ferry at Columbus, about an hour before sunset; that, in point of fact, he never reached
It was in proof, that the prisoner lived with his father near the deceased ; that he also went: to Columbus on the day of the murder, starting after the deceased did; that he was seen there on .several occasions during the day, in company with J. F. Toland, a son of the deceased; that they spent a great part of the day together in a billiard room attached to a grocery, in which there was no other person at the time;. that they were not engaged at play, but apparently upon business; that upon being invited to dinner, young Toland at first declined, saying that his father was in town, and that he did not wish to be seen by him, but that ^he afterwards consented to go.
; .That the, prisoner crossed the ferry about two hours before sunset,.consequently about an hour before the deceased; about sunset the prisoner overtook two -witnesses* Sandifer and Biddle,
There is no direct trace of the prisoner, except in his own declaration, after he left Sandifer and Riddle, until he reached his father’s house some half hour after dark, according to the testimony of his brother. The murder occurred near Cross’ lane, one and a half miles from McCann’s. Some ten, or twenty, or perhaps thirty minutes after the report of the gun Or pistol, Lyon, who lived near the road leading from the Gilmer road to McCann’s, heard a horse galloping, and observed that he left the road and took an unfrequented path, not likely to be known by any except those who lived near, leading through the woods in the direction to old Mr. McCann’s. Nicholas Morgan makes the same statement, with the addition that he-saw a rider ort the horse.
The next day the body was found, and a jury of inquest held, as already stated. : During the same morning J. F, Toland went to the house of old Mr. McCann. Towards two o’clock of the
There was ho proof that the prisoner had any pistol or other arms on the day of the murder.
These are the most material facts to be gathered from the testimony on both sides. We shall proceed to consider their effect, in order to determine wdiether they sustain the verdict of the jury.
It is almost certain that the murder was committed with a pistol; the smoke and powder upon the surface and edges of the wound, and upon the hat, show that it was fired in immediate contact with the person. The blood upon the right stirrup-leather, which was the side next the woods, connected with the impression upon the tree, goes to show that he was shot upon his horse, and the range of the ball likewise shows that the person who fired was on horseback. The impression of the ball upon the side of the tree next the road, and the finding of the flattened ball at the foot of the tree, prove that the shot did not proceed from a person concealed in the woods. It is very certain that the ball could not have killed him, after it struck the tree and fell upon the ground. It is a fair conclusion, then, that the pistol was fired by some one on horseback in the road, very near to the decedent, who was higher than the deceased, bending forward on his small horse, and that the ball entered the neck, passed through the lower part of the head, and came out on the right side, detaching a portion of the bone, and having nearly spent its force, struck the tree, and fell at its foot. As it was after night, the murderer had to be near his victim to be sure of his aim. It will be remembered that the prisoner rode a good sized horse, and if he perpetrated the deed from his saddle, was elevated enough above the decedent to gi ve the ball the direction it took. Soon after the report of the gun, the rapid galloping of a horse was heard, going from the direction
These are the circumstances as developed up to the time of the killing, and however much they point to the guilt of the prisoner, they may leave room for a reasonable doubt. But the evidence does not close here. By far the strongest portion has been furnished by the conduct and declarations of the prisoner, subsequent to the deed.
There are no circumstances which require comment on the morning after the murder, until the interview with J. F. Toland. That interview appears to have prompted his immediate flight. He stated at Carrollton, that the children of Toland had fur
It was probably on the night of the same day, that he was at the Noxubee turnpike. He had been lost in the swamp, as he stated; for the reason, probably, that after parting with his brother, he still endeavored to make his way through the woods.
His conducta! Carrollton is not easy, to reconcile with a belief of his innocence. He exhibited great fear of being arrested; put his hand upon his pistol, and threw himself into a defensive attitude, when a stranger, entered the room in which he was. He then stated the fact of the killing, and of .the finding of the body eaten up in part by the hogs, and said he had left, because he was the last person seen behind the-old man, near Cross’ lane, before he was killed, and that It would be hard for him to prove himself clear. This declaration is decisive of his fate. It brings him to the very theatre of the murder, at the time it was committed, and if he did not do the deed himself, it is almost certain, that he would have seen the person who did. He might then,have saved himself by disclosing the real murderer. How
By his own confession he was not at home, but near Cross’ lane, behind the old man, when drawing to the very scene of the murder. The declaration, thus made, to give an appearance of innocence to the circumstances of his flight, puts the seal of guilt upon his act.
In Lafayette county he denied his name, in order to elude arrest, but after he was apprehended, he voluntarily made the same explanation in substance which he had made at Carrollton. It was repeated at Pontotoc, and to a remark that it was strange he had fled before he was accused, he made no reply.
He has in this way furnished the most undeniable evidences of his guilt. If the jury has acted upon them, he has no human being to blame but himself, and his doom is upon his own head. They place his guilt beyond all reasonable doubt. They are entirely consistent with that conclusion, but utterly at war with all experience and with all our knowledge of the ordinary motives of human conduct, if we are to believe him innocent.
The case does not call for any elaborate attempt to define the limits of the power of this court in granting new trials in criminal cases, upon the testimony. Doubtless, it is a power wThich may be exercised where the jury has gone wide of the mark, and found a verdict against the decided preponderance of the testimony. But it is a power which should be exercised with great caution, because our constitution and laws have provided the trial by jury as- the safeguard and protection of the lives and liberties of the citizen on the one hand, and of the safety and interests of the commonwealth on the other. It is placed by the constitution beyond the reach of legislative interference. This safeguard would be shorn of half its strength, if it might be withdrawn or disturbed by the courts, unless in a case of palpable eiTor or of gross abuse. This is not a case of such a character. On the contrary, after carefully considering all the testimony, and listening to all which the ingenuity of counsel
There were but three exceptions taken during the progress of the trial. The first was to the admission of the testimony of John P. Krecker. This witness stated, that some eight or ten days before the murder he saw the prisoner and J. F. Toland in conversation on the Columbus bridge, some twenty or thirty feet within the bridge. Witness did not hear the conversation ; the prisoner had his back towards witness; put his hand in his pocket, and when he saw witness looking at him, pulled some papers out of his pocket and put them in another pocket; again put his hand into his pocket and pulled out something. J. F. Toland took something out of his pocket that looked like a powder-gourd, put it to his mouth, and pulled out the stopper, and poured something into prisoner’s hand which he supposed to be powder. The part of the bridge on which they were was a retired place; they remained about twenty or thirty minutes.
In cases depending upon circumstantial evidence, a number of links often occur in forming the chain. It cannot be said what bounds are to circumscribe the inquiry. All which may tend to elucidate the transaction, should be admitted. 1 Starkie’s Ev., 561, et seq. The proof of the guilt of McCann, in some degree, depended upon establishing a combination between him and J. F. Toland. Apart from such combination, no motive is shown to have existed to lead to the perpetration of the crime. With such combination a motive is furnished, dark and hideous, it is true, and one which, for the honor of human nature, we should be glad to deem incredible, but which the records of crime show sometimes have found place in the bosom of the child, and have prompted to the murder of the parent. This circumstance, then, separated only by an interval of ten days from the fatal tragedy, might be an important aid in fixing the relation of the parties and in disclosing their real intentions and purposes. We cannot, therefore, say its admission was erroneous.
The remaining charge excepted to was as follows : “ In criminal cases the mere union of a number of independent circumstances, each of which is inconclusive in its nature and tendency, cannot afford a just ground for conviction, unless-the combination is conclusive.” ’ This was given in lieu of one asked by the counsel of the defendant, which laid down the converse of this proposition.
The instruction as given is not liable to objection. The union and concurrence of various detached circumstances may produce' full conviction, when .either One of them standing alone might leave room for much doubt. l.Stark., 570.
. An objection was taken to the indictment, that it charges the offense as at common law, whilst the punishment is inflicted
These are all the points made in the argument which it is deemed necessary to notice. A careful examination of the testimony and of the points involved has disclosed to us no error in the proceedings of the court below. It only remains to say that the judgment is affirmed.
Mr. Potter, in behalf of the prisoner, filed ; a petition for a re-hearing upon the point, principally, of the error in the refusal of the instruction asked by the prisoner’s counsel with reference to his confessions.
The re-hearing was refused and the prisoner sentenced to be hung.