Conner vs. The State.

therefor. Defendant also said he saw Jackson Tiner in Montgomery, Alabama, and the boy was then with him.

Defendant confessed, to Malta Scarborough, carrying the negro off, saying he supposed it was the general belief that he (defendant) had stolen the negro: that the negro had attempted to play him false and he took him to the bluff of Selma, and then that was the end of that damned negro. Defendant was neither drunk or sober, but drinking at the time he told this to Scarborough. He is rendered very foolish and often acts very foolish when drinking, more so than most persons. Witness Scarborough could not tell defendant's exact condition, and whether he was drunk enough to tell the truth or not.

Defendant also told James T. Holeman that he carried the negro Seaborn off, and, that after selling him two or three times he had killed him. This confession was voluntary. Defendant was drinking, but not drunk, and Holeman thinks he knew very well what he was talking about. Holeman, never saw defendant and the negro together, knew nothing of the delivery of the negro to defendant, and this was the first conversation he ever had with defendant on the subject, and he never knew of the matter until he saw the advertisement of John F. Markett in the newspaper.

Jackson Tiner testified that a few days before Christmas in 1854, he was going to Texas and saw defendant in Montgomery, Alabama, when defendant introduced him to a man from Dooly, whom he called Hicks. Hicks was a dark, rather chunky built man, appeared to weigh one hundred and fifty or one hundred and sixty pounds, seemed to have long black hair, and was about the height of Mr. McCay or a little taller. Tiner saw defendant and his companion leave in the Selma stage.

John F. Markett, again testified that the boy Seaborn was a bright mulatto, enough so to nearly pass for a white man, was about five feet ten inches high, and about one hundred and fifty or sixty pounds in weight, was a little taller than

Conner vs. The State.

Mr. McCay. White men who had visited witness Markett's house, had conversed with Seaborn and thought him a white man from his color. He had long black hair. The jury found the defendant guilty; whereupon his counsel moved in arrest of judgment, upon the following grounds.

1st. That the special presentment on which the bill of indictment was founded, was null and void because it charged the offence to have been committed on a day subsequent to the finding of the grand jury; that the special presentment being void, no bill of indictment could be founded thereon, upon which a trial could be had.

2d. That the bill of indictment charges the offence to have been committed, on a different day from that alleged in the special presentment, and that said variance is fatal.

The Court overruled the motion in arrest of judgment and counsel for defendant excepted.

Defendant's counsel then moved the Court for a new trial on the following grounds:

1st. Because the Court after objection by the prisoner, refused to set aside the array of jurors, on the ground that the array was summoned partly by bailiffs.

2d. Because the special presentment on which the bill of indictment was found, was not presented to the jury on the demand of the prisoner, the same being made after the jury were empanneled.

3d. Because the Court permitted testimony to be given to the jury after objection by the prisoner, the jury having been empanneled upon the bill of indictment without the special presentment.

4th. Because the Court refused to hear testimony to show that the prisoner was arraigned on the special presentment, and not on the bill of indictment, and refused the demand of the prisoner, that he be arraigned on the bill of indictment.

5th. Because the Court refused the arraignment as stated in the last ground, and permitted the trial to proceed

Conner vs. The State.

after motion by the prisoner to exclude testimony from the jury, until he was arraigned upon the bill of indictment.

6th. Because the Court, after objection by the prisoner, permitted James T. Holeman, to give testimony through an interpreter, the said James T. Holeman, being unable to speak loud enough to be heard by the jury, on account of temporary weakness and debility; said testimony being communicated to the Court and jury by Col. George M. Dudley, he being called upon by the Court after the witness had communicated it to him in a whisper.

7th. Because the Court refused to have the testimony of said James T. Holeman as taken down by the clerk, read over in his hearing so that he might correct any errors in the testimony as taken down by the clerk. Witness did not demand it nor desire it. The counsel for defendant desired to read the testimony as taken down, which request was granted. The Court did not understand counsel as insisting on its being read to witness.

Sth. Because the Court charged the jury, if they believed from the evidence, that defendant took and carried away the negro Seaborn, the property of Markett, from the 26th Court Ground or any other place in Sumter county, with intent to steal said negro, the defendant is guilty. That it made no difference whether others aided and assisted or not, if the defendant actually perpetrated the theft. That if Holeman and Phillips both be guilty, that does not help this defendant.

9th. Because the jury found contrary to evidence and to the weight of evidence.

The Court overruled the motion and defendant excepted. On these several exceptions error has been assigned.

W. B. GUERRY; and N. A. SMITH, for plaintiff in error.

JOHN W. EVANS; and McCAY & HAWKINS, for defendant in error.

Conner vs. The State.

By the Court.-LUMPKIN, J. delivering the opinion.

Overruling as we do, all the grounds in the writ of error, we deem it necessary to notice particularly a few of them only.

The first is, as to the taking down of the testimony as required by law in cases of felony. The old rule was, and we hold it to be the true practice in such cases, to read over carefully to each witness, the testimony as taken down by the amanuensis. If it be correct very well; otherwise let it be made so. If a disagreement takes place, in the course of the trial between counsel or in the jury box, let the witness be recalled if within reach-not to testify anew, but to repeat the evidence given in while under examination subject of course to the recollection of the jury. If the witness has left and cannot be recalled, then read from the written testimony as taken down It is the next best proof, to that given by the witness on the stand. The non-observance of these directions may or may not be sufficient to require a new trial, according to the peculiar circumstances of the case-ordinarily it is not a good ground of itself.

[2] As to the multifarious objections to the special presentment and indictment, jointly and separately, it is enough to say, they all come too late. But suppose they did not; and nioreover that it be true that an impossible day is alleged in the presentment, as the time when the offence was committed. Have not all the Courts both in England and in this country, settled it so long ago, that the memory of man runneth not to the contrary, that while some day must be stated, any other may be proven? Who does not see, that if it be immaterial to prove the day

as charged, that no day or an impossible day will do just as well?

But it will be replied, that it never was decided, but that the time charged must be before the accusation is preferred. And I concede this to be so, at least for the purposes of the argument. But let us look at the reason of the thing. Suppose

Conner vs. The State,

the day be laid subsequent to the finding of the grand jury; it is the same in effect as stating an impossible day, as the fortieth of May, and if it be correct that any day within the statute of limitations and before indictment found will suffice, it is quite clear that no day, or one that is impossible, will do just as well. But we fall back upon the position that this and all kindred objections came too late.

[3.] As to the objection, that the panel of jurors, were summoned partly by bailiffs, the record discloses no facts touching this point except what appears in the motion for a new trial, which was disallowed by the Court. It is true that the law requires that jurors shall be summoned by the Sheriff or his deputy; and if the Sheriff be interested then by the coroner or some other person appointed by the Court. If the bailiffs in this case acted, under the authority of the Sheriff, they were his deputies pro hac vice.

[4th.] If the witness, Jumes T. Holeman was unable from his physical condition to speak loud enough to be heard by the Court and jury, there can be no reason why his answers should not be communicated by Col. Dudley, an attorney of the Court, in the presence and hearing of the witness.

[5.] The Court charged the jury that if they believed from the evidence the defendant took and carried away the negro, Seaborn, the property of Markett, from the 26th Court Ground, or any other place in Sumter county, with intent to steal said. negro, the defendant is guilty, that it made no difference whether others aided and assisted or not, if the defendant actually perpetrated the theft; that if Holeman and Phillips, both be guilty, that does not help this defendant.

It is objected to this charge, that it is inapplicable to the the case, and calculated to mislead the jury. The point taken by the prisoner being, that if the jury believe the crime to have been committed and completed by others before the property was received by the prisoner, then he was only an

accessory.

We have examined the testimony carefully and think the