afterwards, to wit, on the same day, it being the 4th day of November, 1853, and also a day of said October term of said court, the following arraignment and plea was entered on the minutes of said court, to wit." Immediately following this recital is the indictment upon which the prisoner was tried, and it appears upon its face to have been found, not at the October term, but at the November term of the said court; and it may be further remarked, that there is nothing in the record showing, with that degree of certainty required in such cases, that it is the same indictment which was returned into court by the grand jury. The error, therefore, being palpable, the case falls completely within the rule laid down in the case of Laura v. The State, 26 Miss. R., 174; and the motion in arrest of judgment should have been sustained by the court below.

Under the view which we have taken of the first assignment, the other alleged error is only important to show that the case was tried upon its merits in the court below; and the prisoner, having been acquitted of the charge of murder, will be entitled to his discharge, unless it shall appear that an indictment for manslaughter can be hereafter preferred against him.

The testimony connecting the prisoner with the homicide was entirely circumstantial; but it was, nevertheless, of that conclusive character which pointed to him, with almost unerring certainty, as the only person who could have committed the deed. Indeed, the question is not as to the person who committed the act, but as to the grade of the crime, if any.

It is not necessary to notice, in detail, the testimony, but only to state the prominent facts established.

The killing occurred near a spring in the woods, and near the residence of the prisoner, on a Sunday evening, between seven and eight o'clock, in the month of September, 1853. It appears that the deceased, a short time after sunset of that evening, rode up to the residence of old Mr. Hague, with whom the prisoner resided, and inquiring for the prisoner was informed that he was in the house. Whereupon the deceased requested the old man to call the prisoner out. Some reluctance being manifested, the deceased observed, "If you don't call him, I will." The prisoner soon thereafter came out of the house, went to the

VOL. II.-69

deceased; they appeared to meet on friendly terms, conversed a few minutes, and both started off together to the spring, about one or two hundred yards in the woods. They were seen together near the spring, and near where the body of the deceased was found. Soon thereafter a noise was heard indicating distress, which, alarming persons in the vicinity, caused them to go to the spring to ascertain the cause of distress, and on arriving there it was ascertained that the deceased had been stabbed in the breast, from which he died in a few moments. Nothing then appears to have been seen of the prisoner, though he appears to have been at home at ten o'clock that night. It also appears that blood was discovered in several places, on the leaves, on the ground, and on the bushes, and that about twentytwo paces from the blood a pistol was found; but what became of this pistol does not appear. One was exhibited in court which resembled one seen in the possession of the prisoner the day before the killing, but no effort was made to prove that this was the pistol found on the ground. Indeed, the inference is that it was not. This is, in substance, the testimony immediately connected with the killing. The prosecution, however, întroduced a number of witnesses who proved threats made by the prisoner as far back as the month of May, and, at subsequent times, similar threats were also shown to have been made by the deceased. It was, indeed, clearly established that the parties were very hostile to each other until a short time before the killing, when it appears they became reconciled.

It further appeared that the deceased, the night before the killing, held a conversation with one Wilson; that Wilson warned the deceased against the prisoner; told deceased not to trust him; that deceased remarked that they had made friends, but that he intended to have nothing to do with the prisoner.

Again, it appeared that some time in the afternoon of the day of the killing the deceased was at the house of a brother of the prisoner, living in the immediate vicinity; that this brother, the deceased, and one Joy went to Joy's house; that the deceased drank twice, while there, of whiskey, and took away with him a bottle of it. That the deceased, Joy, and the prisoner's together; that on reaching the brother's

brother left Joy's

house, the deceased was invited to remain to supper but declined, and went on to the house of the prisoner, when he was invited out, as already stated.

The jury, by their verdict, having acquitted the prisoner of murder, have in substance declared that he was not actuated by malice in committing the homicide. The effect of the verdict is to throw out of view all the antecedent menaces of the prisoner, and to put the merits of the case exclusively upon the testimony immediately connected with the killing, and, thus narrowed down, the case must be considered. The homicide being established, as well as the prisoner's agency in its commission, the law, in the absence of any proper explanation, would treat the crime as murder; or, in other words, would presume a fact; that is, that malice had prompted the party to do the deed. But as this is a legal presumption, originating in necessity, it but accords with reason that it should be indulged only while the necessity exists. As a general rule, all legal presumptions must yield to fact, or, in other words, to testimony which rebuts them. What, then, is the effect of the verdict in this case? Most clearly that the testimony outweighs the legal presumption. The law presumes murder in certain cases, but it never presumes manslaughter when the indictment is for murder, for the reason that manslaughter is a defense against a charge for murder, and can only be established by testimony. The law presumes that every man intends that which is the natural result of his acts, and if he kill another that he so intended. It never presumes that a man kills another in the heat of passion, or under the influence of great provocation; but these are facts to be established by testimony, and when so established, are held sufficient to rebut the presumption of malice, and are consequently a good defense against the charge of murder, although the party be guilty of a less crime. Legal presumptions out of the question, and looking alone to the testimony immediately connected with the killing, it is simply impossible to form any correct opinion on the subject; and if this cannot be done, how is it possible to convict a party of manslaughter in the first degree, when the crime can only be ascertained by comparing it with the facts proved? The circumstances are as strong, if not

stronger, to show that the deceased was the aggressor in the difficulty, if difficulty it can be called, than they are to implicate the prisoner. The deceased, not a day before, was warned against trusting the prisoner, and he then declared his intention to have nothing to do with him. If sincere in what he then said, why did he go to the house of the prisoner at an unseasonable hour, when visiting could not be presumed to have been his business, and manifest such anxiety to see the prisoner? The bottle of whiskey may have been provided for the very purpose of decoying the prisoner to the spring, which at that hour was a secluded spot. These presumptions, weak as they may appear, are nevertheless as strong as any presumptions, aside from the act of killing itself, which can be indulged against the prisoner. The pistol, which was found on the ground, and not shown to be the prisoner's, may have been one of the two of which the deceased was proven to have been the owner. This weapon may have been the origin of the difficulty. It is not probable that it was drawn by the prisoner; for, if so, he would probably have used it, or certainly would not have left it on the ground, especially if it could have been easily identified as his property.

The verdict, in our opinion, is not sustained by the evidence, and the judgment must, therefore, be reversed. Judgment arrested, and prisoner discharged.

EASTERLING V. STATE, 35 Miss. Rep., p. 210.

ILLICIT RETAILING OF INTOXICATING DRINKS.

The rule of evidence is, that when a fact is peculiarly within the knowledge of one of the parties, so that he can have no difficulty in showing it, the presumption of innocence or of acting according to law does not render it incumbent on the other side to prove a negative.

When there is nothing in the record to show what number of persons constituted a - grand jury, and nothing to show that the persons summoned and sworn were not residents of the county, it will be presumed, in support of a judgment, that the grand jury was composed of a lawful number of lawfully qualified persons.

The foreman of a grand jury whose name was Lazarus J. Jones indorsed a bill of indictment by his signature L. J. Jones, and it appearing that he was in fact the same person, the indorsement is held sufficient,

An incomplete, defective, or void judgment at one term of the court upon a verdict of guilty may be treated as a nullity, and the proper judgment and sentence rendered and entered at the next term; and until the proper judgment and sentence shall be so made, the defendant will be regarded as continuing in custody of the law.

Error to Jasper circuit court. WATTS, J.

George L. Potter, for plaintiff in error,

Cited, Chitty's Cr. L., 283a and 556.

T. J. Wharton, attorney general.

HANDY, J.:

This was an indictment for retailing spirituous liquors without license.

1. A motion was made in the court below to quash the indictment on several grounds: 1st, Because the grand jury consisted of more than eighteen persons; 2d, Because it does not appear that they were residents of the county; 3d, Because the indictment is not indorsed by Lazarus J. Jones, the foreman of the grand jury, but by the name of L. J. Jones. This motion. was overruled, and that is assigned for error.

As to the first ground of the motion, there is nothing in the record to show what number of persons constituted the grand jury; and it must, therefore, be presumed, in support of the judgment, that the objection was not well founded in point of fact. 2d, The indictment shows that the grand jurors were summoned and sworn to inquire in and for the body of the county, etc. In the absence of all evidence tending to show that they were not residents of the county, it must be presumed that they were duly summoned from the body of the county, and were competent to act as grand jurors. 3d, It does not appear by the record, or by any evidence, what was the name of the foreman of the grand jury; and it will therefore be presumed that the court acted properly in overruling this ground of objection. But even if true in point of fact, the objection is frivolous; for although the name of the foreman was Lazarus J. Jones, yet it was competent for him to indorse the bill under his signature of L. J. Jones, if, as appears to be conceded, he was one and the same person.

2. Upon the trial, the court instructed the jury that it did