The testimony of this witness bears upon its face very strong evidence of its truthfulness. It vindicates itself, and leaves no ground to doubt that he was an eye-witness of the transaction which he described. There is, however, a conflict between Sam and some of the other witnesses, arising from his statement of the time of day when he and the deceased left the plantation on their way to the lake, and their statements as to the time when the accused were seen at the quarter. But these were facts in regard to which the witnesses might have been most easily mistaken, and hence the greater probability that their statements would not agree. But Sam's testimony, in several important particulars, is corroborated by facts deposed to by other witnesses. Upon the whole, we cannot doubt that the jury were fully justified in giving full credit to his testimony.

The remaining ground, claimed as a cause of reversal, refers to the conduct of Holmes, one of the jury who returned the verdict. The facts relied on, as demonstrating the illegal conduct of Holmes, while acting as juror in the case, are stated in the testimony of the witnesses, who were examined on the trial of the motion.

The testimony of these witnesses is substantially as follows, to wit:

F. W. Battailé testified, that he was walking on the pavement, and opposite the court-room, about the time the cause. was on trial; said Holmes, one of the jury, put his head out of the window, called to him, and asked witness to tell his (Holmes') wife to send him his supper. To which he replied, "Well," and afterwards delivered the message to Mrs. Holmes. The jury-room, where Holmes was, might have been sixty feet from the pavement, where witness was when called to by Holmes, and twenty feet from the ground.

Dr. Wilson to the same in substance, and in addition stated that Holmes' request and Battailé's reply was all that passed between them.

W. H. Mangum, an officer in attendance upon the jury, stated that, to his knowledge the jurors conversed with no one. That Holmes' son brought a note to Holmes, which the witness would not allow to be delivered, but took it from the bearer,

and told Holmes that he could receive no message from his wife.

And George W. Jones, special bailiff in charge of the jury, testified in addition to facts sworn to by the other witnesses, that the little son of Holmes, and a little negro boy, brought up Holmes' supper; they both came into the room where the jury were with the supper; but witness received the supper from their hands, and sent them to the opposite side of the room from the jury, at a distance of about sixty feet.

The general rule recognized by this court, and applied to questions similar to that which is before us, is, that if the verdict was rendered under circumstances in which its purity might have been affected, it must be set aside; and if it could not have been affected, it will be sustained. Hall v. The State, 4 How. Miss. Rep., 194.

Applying this rule to the case under examination, it is very clear that the evidence shows that there was no improper tampering with, or sinister influence brought to bear, upon the jury. It goes further, and renders it certain that there could have been none.

The judgment will therefore be affirmed.

NORRIS v. STATE, 33 Miss. R., 373.

SLAVE STEALING.

Under the Constitution, "in all criminal prosecutions, the accused hath the right to demand the nature and cause of action against him." And this right so secured requires that the facts which constitute the alleged crime, should be stated in the indictment with sufficient certainty to enable the accused to know with what offense he is charged, and to prepare his defense, both by plea of not guilty and of former conviction or acquittal.

An indictment under the statute, Hutch. Dig., § 4, p. 981, which provides that "every person who shall feloniously steal the property in another state or country, and shall bring the same into this state, may be convicted and punished in the same manner as if such larceny had been committed in this state," &c., must allege the stealing in such other state or country, and a bringing of the property into this state; otherwise it will be defective, and should be quashed. HANDY, J., dissented.

If the indictment merely charges the accused with a felonious stealing of property in the county in which it is preferred, he cannot be convicted of an offense under the fourth section of the act (Hutch. Dig., 981), because the indictment does not sufficiently charge the offense. Such indictment does not give the accused "the nature and cause

of the accusation against him," and precludes him from pleading a former conviction or acquittal in the state or country where the property was stolen. HANDY, J., dissented.

Error to Madison circuit court. HENRY, J.

Franklin Smith, for plaintiff in error,

Cited, Hutch. Dig., p. 1006, §§ 72, 73; Const. U. S., art. 4, § 1 and § 2, 2; ib., art. 5, 6, amended; ib., art. 3, § 2, ¶ 3; Const. Miss., art. 1, § 10; People v. Gardner, 2 Johns., 477; People v. Schenck, ib., 478; Simmons v. Commonwealth, 5 Binn., 617; Sarah v. State, 28 Miss., 269, 275; State v. Brown, 1 IIay, L. & E., R., 100; Green v. State, 23 Miss., 513; Vaughn v. State, 3 S. & M., 554; Ligon v. State, 8 ib., 699; 2 Mass., 23, note a; 2 East P. C., 771; Nightingale v. Adams, 1 Show., 89; Butler's case, 13 Coke, 53; Commonwealth v. Deacon, 10 S. & R., 125; Const. Ark., p. 19, §§ 10, 11, 24; Rev. Stat. Ark.,

252.

T. J. Wharton, for the state,

Cited, Bishop Cr. Law, §§ 595-600; ib., §§ 650-655; 2 East P. C., 771, 772; 1 Hawk., P. C., ch. 33, § 9; 1 Mass., 115; 2 ib., 14; 5 Binn., 619, et seq.; People v. Burke, 11 Wend., 129; 4 Humph., 456; State v. Seay, 3 Stew. (Ala.), 123; Murray v. State, 18 Ala., 727; Hemmaker v. State, 12 Missouri, 453; Fox v. Ohio, 5 How. U. S. R., 410.

FISHER, J.:

This was an indictment in the circuit court of Madison county, charging the defendant with stealing a certain slave.

The indictment, consisting of several counts, charges the offense to have been committed in Madison county, and the court was accordingly asked on the trial to instruct the jury that unless they were satisfied the offense was committed in said county they should acquit the defendant; which instruction the court refused to give, and which refusal presents the most important question arising out of the evidence for our decision.

The evidence tended strongly to show that if the defendant were guilty at all of the larceny, he had stolen the slave in the state of Arkansas, and had brought him to the county of Madi

son in this state; and the court, no doubt believing the defendant under this evidence could be convicted under a provision of the statute, which will be hereafter noticed, refused the instruction on the ground that it confined the action of the jury merely to one branch of the testimony, when it was believed to be competent for them to consider it as a whole, and if they believed it as a whole to be true, to convict instead of acquitting the defendant. The statute above referred to is as follows: "Every person who shall feloniously steal the property of another, in any other state or country, and shall bring the same into this state, may be convicted and punished in the same manner as if such larceny had been committed in this state; and in every such case such larceny may be charged to have been committed in any town, city, or county into or through which such stolen property shall have been brought." "Every person presented under the above section may plead a former conviction or acquittal for the same offense in another state or country." Hutch. Code, § 4, 5, p. 981. The indictment in this case merely charges the defendant with larceny in the county of Madison, and makes no mention of an offense in another state, and a bringing of the stolen property into this state.

The question, therefore, is not whether the testimony establishes an offense bringing the defendant within the provisions of the statute, but whether the indictment sufficiently charges him with the commission of such offence; for if not, it matters not how clear the proof may have been, it could not, under any just rule, establish more than the indictment itself charges. An indictment for a larceny committed in the county of Madison, in this state, in the usual form, and containing only the usual averments of such an indictment, wholly fails to give the defendant the least notice of an offense against the statute above quoted; for to constitute an offense against the statute there must be both a stealing of the property in another state or country, and a bringing of it into this state; and these facts both being necessary to constitute the offense, must be sufficiently set forth in the indictment in order not only to conform to a well-established rule of pleading, that the facts which constitute the crime or cause of action must be alleged with suffi

cient certainty, but that the accused may know what it is that he is called on to answer, so that he may prepare for his defense accordingly. Such, certainly, is the spirit of the Constitution, and the right which it intended to secure to the accused in criminal prosecutions when it declares that "he hath a right to demand the nature and cause of the accusation" against him.

The government, in engrafting this provision upon its organic law, did not, as is by some erroneously supposed, proceed upon a principle of tenderness for those actually guilty of crime, but upon a more wise and humane principle, sanctioned by the experience of ages, that an innocent person may be unjustly accused of crime, and to afford him an ample opportunity, when so accused, to vindicate his innocence. If government could be absolutely assured that none but the really guilty would ever be put upon their trial for crime, it would perhaps not trouble itself to prescribe rules to govern such trials; but as this is utterly impossible, it must act upon the principle, as far as possible, of protecting the innocent, and punishing only the guilty; and almost all the rules which govern courts on the trials of criminal prosecutions, have their origin in this principle.

The object is not to screen the guilty, but to protect the innocent; and, by departing from a rule supported by the clearest dictates of reason, while it may be true that the guilty will but seldom, if ever, escape punishment, yet it may be equally true, that the innocent may, with almost equal facility, in many cases, be convicted, and unjustly suffer a punishment designed by the law for criminals only. It is, however, said, that the indictment in this case conforms to the provision of the statute which declares that the party may be indicted for a larceny at the place to which he shall have brought the property. This provision must be construed with reference to the other provisions of the statute. For instance, this is a good common law indictment, charging the defendant with a larceny committed in Madison county, but saying nothing concerning a larceny committed in another state. Now suppose the defendant had interposed a plea to the indictment, that he had been tried in a certain court in the state of Arkansas in regard