switches and whip Taylor, which witness did not do; but, at the request of Ely, he caught hold of Taylor's legs to pull him off, when Taylor cursed him and kicked him in the stomach. Ely then caught hold of a bush and pulled himself up. The parties continued wrestling until they got some distance down the hill, near a tree, when Taylor threw Ely on his face and cried out, "Come on, boys; I've got him." Ned then ran up with an axe in his hands, but before reaching the place where they were, Ely cried to Ned not to kill him with that axe. Ned made no reply, but struck Ely with the sharp edge of the axe across the upper lip, holding the axe in both his hands, and striking seemingly with great force. The axe penetrated to the teeth, severing but not cutting the lip entirely off. Witness did not think any teeth were knocked out. After striking the first blow, Ned reversed the axe and struck him on the back part of the head with the eye of the axe, which broke his skull. The deceased bled profusely, and the accused covered up the blood with leaves. The fight occupied about fifteen minutes. The accused then consulted for some time as to what they should do with the body, and concluded to throw it into the lake. Ned took the head and shoulders of the deceased, and Taylor the feet. Blood was still dripping from the head of the deceased, which hung rather over the shoulders and on the breast of Ned. In that position they carried deceased to the lake, when they laid the dead body on a log, after stripping off all the clothes except a shirt. They went down the lake after a canoc, and after placing the deceased in it, rowed down the lake some distance, then cast the body out in the water; after which they washed the blood from the canoe and log. The accused said they would bury the clothes, to prevent detection, and told witness that if he ever looked as if he knew anything about it, they would kill him. They went back to the place where Ely was killed, and covered up the blood with the leaves. Witness did not inform on the accused until the following Tuesday. His master told him he knew about this matter, and struck him one "lick" to compel him to divulge it; but he denied all knowledge on the subject; but afterwards his master tied him, and he confessed all. Witness was sure that the sun was not

more than one hour high when he and Ely left the negro quarter. Ely had at that time a hatchet in his hand.

Bob, a slave, for the state, testified that he was at Pickett's on the Sunday alluded to; that he saw Ned, one of the accused, leave the quarter with Ely, about two or three hours by sun; that he remained there until the sun was about an hour high, and saw nothing more of Ned or Ely.

The state here closed.

Mary, a slave, for the defense, testified that on the Sunday that Ely was killed, Ned came to her cabin and borrowed a coat; this was just before sundown.

Washington, a slave, for the defense, testified that he saw Ned about an hour before sundown on the Sunday Ely was killed; he was at the well at Pickett's quarter; had on a coat; his appearance was natural; and witness saw no unusual excitement about him.

Annie, a slave, for the defense, testified that she is a sister of Taylor; that her cabin is near the house of the overseer of Pickett; that on the Sunday Ely was killed she observed Taylor, one and a half or two hours by sun, scraping an axehandle; he was so engaged until about an hour by sun, when the horn blew for the ploughmen to go to the lot and feed their horses; that Taylor went to the lot, and after feeding, returned to her cabin, and remained there until called up late at night to search for Ely. She knew that Taylor went to the lot to feed, for if he had not gone he would have been whipped, and he had not been whipped. Witness' cabin is about one hundred and fifty yards from the lot.

Jordan and Tom, slaves, stated they saw Ned, on the Sunday above referred to, just before sundown; and Suky, a slave, saw him about two hours by sun.

William M. Pickett, for the defense, testified that he had never whipped the witness, Sam, that he remembered of, but may have struck him one "lick;" that he told his negroes that some of them had killed Ely; and that he (witness) would find out who did it; and whoever did it should be hung. Having heard that Sam was last seen with Ely, he took him up, and

told him he knew who killed Ely, and that he must tell. Sam at first denied it; but witness afterwards tied him, and told him to say who killed Ely. Sam never varied materially in the statements he made concerning the matter; they were the same in substance as he had related from the witness-stand. Witness and Mr. Herrett were carried by Sam to the spot where he said Ely was killed, and after removing some leaves or brush, they found something which looked like blood.

Perry C. Dixon, for the defense, testified that several years ago he had overseen a plantation on which the accused were, and that they were both well behaved, obedient, and humane

negroes.

The state, in rebuttal, introduced A. F. Cason, who stated that he was overseer for Pickett, and that the regular feedingtime on Sunday evening was about sundown; that he never whipped Sam about the killing of Ely, nor did he know that his master had.

Dick, a slave, for the state, testified that he saw Ned on the Sunday evening of the killing about sundown; that he had an axe on his shoulder; his pantaloons were wet, but witness saw no signs of blood on them.

The state also made formal proof of the venue. At the time Cason was offered as a witness for the state, the prisoner objected to his being sworn, because his name did not appear to be marked on the indictment as a witness, nor had he been summoned to testify in the cause. This objection was overruled, and the witness was sworn and permitted to testify, as above stated.

The jury convicted the prisoners of murder. They made a motion for a new trial, for the reason stated in the opinion of the court. On the trial of this motion, certain witnesses were introduced, and testified as set out in the opinion of the court. The motion being overruled, and the sentence of death pronounced on the prisoners, they sued out this writ of error.

R. Bowman, for plaintiff in error,

Filed an elaborate brief, reviewing the evidence, and insisting that it was insufficient to sustain the verdict of conviction. On

the point that a new trial should be granted, on account of the juror Holmes, he cited Boles v. State, 13 S. & M., 400; Hare v. State, 4 How. Miss., 187; McCann v. State, 9 S. & M., 466. T. J. Wharton, attorney general.

On the point made, that the conduct of the juror Holmes was irregular, and vitiated the verdict, cited Boles v. State, 13 S. & M., 400; Nelms' case, ib., 500; 5 Miss. R., 25; 11 Leigh's R., 633, 714; 10 Yerg. R., 529; 4 Humph., 27; 5 Ire., 58; 12 Pick., 496; 3 Bibb, 8.

Q. D. Gibbs and George B. Wilkinson, on same side, filed an elaborate brief.

SMITH, C. J.:

This writ of error is prosecuted to reverse a judgment of the circuit court of Yazoo county, in which the plaintiffs were convicted and sentenced for the murder of Ely, a slave. A motion was made for a new trial on the following grounds, to wit: 1. Because the verdict was contrary to law and the evidence. 2. Because witnesses who should have been excluded were allowed to testify at the trial. 3. Because the court erred in charging the jury. And, 4, on the ground of improper conduct of one of the jurors.

The second and third grounds assigned in support of the motion seem to have been abandoned, as they have not been pressed upon our attention in the argument of the counsel for the prisoners. We have, however, examined them; and pass them with the single observation, that in our opinion they are clearly untenable.

The prisoners were slaves, the property of William M. Pickett; and Sam, another slave of the same master, was the principal witness examined for the prosecution. In fact, he was the only witness who was present at the commission of the alleged homicide. He was examined without objection; and, if credible, there is not the slightest pretence for saying that the finding of the jury was against the preponderance of the evidence. The effort is to discredit them; and it is conceded that, excluding his testimony, the verdict was unwarranted.

This witness (Sam), after having given a very and minute account of the killing, testified that the "accused threatened him that, if he ever looked as if he knew any thing about the matter, they would kill him; that he did not inform on the accused until the following Tuesday. His master told him he knew about the matter, and had struck him one lick to compel him to divulge it; but he denied all knowledge. But afterwards his master tied him, and he confessed all." William M. Pickett, the master, in his testimony, gave substantially the version of this part of the transaction. He stated that "he had never whipped Sam that he remembered; may have struck him with a whip one lick; but that he had told the negroes that some of them had killed Ely, and that he would find out who did it; and that whoever did it should be hung. Having heard that Sam (the witness) was last seen with Ely, he took him up, and told him he knew who killed Ely. Sam at first denied it; but he afterwards tied him, and told him to say who killed Ely. Sam never varied materially in the statements which he made in reference to the murder. They were the same as related from the witness-stand." The statements of this witness, on this occasion, were made in July, and the trial was had in the November following. And it does not appear that any menace or other means was subsequently used to induce the witness to persevere in his account of the transaction. From aught that appears from the record, his testimony at the trial was fairly given, and without the slightest appearance of constraint arising from any cause whatever. This conclusion is unavoidable; for otherwise the prisoner's counsel would, doubtless, have objected to the examination of the witness, or have moved to rule out his testimony, upon the ground of incompetency, or the court, at their instance, would have given to the jury proper instructions on the subject.

In the state of the case presented by the record, the exception applies exclusively to the credibility of the witness. His competency was conceded by the prisoner's omission to object to the introduction of his testimony. And whether the witness was credible or not, was a question which lay within the peculiar province of the jury.