to carry the dress into the wound, and make it somewhat larger. The bonnet of deceased was shown witness, being a light, thin cotton one, and witness thought that a pistol fired while touching it would be almost certain to burn it; and

John Trousdale, another witness, was of the same opinion. Several witnesses were then called for the state, who agreed that Thomas Wooley's character for veracity was bad, and stated that they would not believe him on oath ; one of these, Blackard, stated, however, that he had never heard his character questioned until after the killing of Miss Smith. This testimony was objected to for reasons stated in the opinion of the court. This was all the evidence.

The court, at the instance of the district attorney, instructed the jury as follows:

1. If the jury believe, from the evidence, that the defendant went to the house of R. J. Smith with intent to kill, or to commit some felony upon him or William Smith, or both, and that whilst there engaged in carrying out such intention, defendant shot and killed Susan Elizabeth Smith, the jury will find him guilty of murder.

2. Murder is the unlawful killing of a human being, in the peace of the state, with malice aforethought, or premeditated design, which is the same thing. Malice is either express or implied in law; express malice is where one person kills another with a sedate, deliberate mind, and formed design; such formed design being evidenced by external circumstances discovering the inward intention, as lying in wait, antecedent menaces, former grudges, and concerted schemes to do the party some bodily harm. And malice is implied by law from any deliberate, cruel act, committed by one person against another, however sudden.

3. If the act producing death be such as is ordinarily attended with dangerous consequences, as by the use of a deadly weapon, or be committed deliberately, the malice will be presumed unless some sufficient cause or provocation should be shown; for the law infers that the natural or probable effects of any act deliberately done were intended by the agent.

4. If the jury believe, from the evidence, that defendant shot

deceased with a deadly weapon and killed her, the law infers malice in the absence of proof showing the contrary; and unless the evidence shows something to excuse or mitigate the act, the jury will find him guilty of murder.

5. Every man is to be taken to intend that which he does, or which is the immediate or necessary consequence of his act. A mortal wound, given with a deadly weapon in the previous possession of the slayer, without any or upon very slight provocation, is prima facie wilful and premeditated killing, and in the absence of further excuse or explanation, is murder.

6. No affront by base words or gestures, however false or malicious, and aggravated with the most provoking circumstances, will free the party from the guilt of murder. If, therefore, the jury believe from the evidence that the defendant, for mere affront by words uttered at the time of killing, or at any other time of killing, or at any time, by deceased, or by any other person, unlawfully killed deceased with a deadly weapon, they will find him guilty of murder.

7. If the jury believe, from the testimony, that the defendant was endeavoring to kill William Smith, or commit a felony upon him, and killed in that attempt the deceased, either accidentally or wilfully, they will find him guilty of murder.

The following instructions were given, as asked by the pris

oner:

1. If the jury have any reasonable doubt, from the testimony, that the prisoner is guilty of murder, they may acquit him of murder and find him guilty of manslaughter.

3. In all criminal cases whatever, it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for this purpose, unless it generates the full belief of the fact, to the exclusion of every reasonable doubt.

4. In a charge of murder, the guilt to be established is not the killing only, but also the killing with premeditated design to effect the death of any human being; and the evidence must generate the full belief of the fact, to the exclusion of every rea

sonable doubt, or the jury cannot find the defendant guilty of murder.

5. If the jury believe the defendant killed the deceased without a design to effect death, in a heat of passion, but in a cruel and unusual manner, such killing will not be murder, but manslaughter.

6. The law presumes malice from the use of a deadly weapon, but this presumption may be rebutted by proof from the circumstances under which the weapon is used.

7. The law presumes every man innocent until his guilt is established; and it devolves upon the state, in the present case, to prove the defendant guilty of murder, to the exclusion of all reasonable doubt from the minds of the jury, or they must acquit.

8. If the jury believe, from the evidence, that the defendant took the life of Susan Elizabeth Smith, but the act was committed in a sudden transport of passion, and without malice, then the said defendant cannot be convicted of murder, but only of manslaughter.

11. If the jury believe, from the testimony, that the confessions were made from fear, threats, or hope of benefit, such confessions do not warrant a verdict of guilty.

13. The killing a human being without a design to effect death, in a heat of passion, but in a cruel and unusual manner, unless it be committed under such circumstances as to constitute excusable or justifiable homicide, is manslaughter only,

and not murder.

14. If the jury believe, from the evidence, that the deceased was shot by some other person than the defendant, he cannot be held responsible for the act, unless they further believe from the testimony that such killing was effected by some one jointly engaged with the defendant in the commission of a felony, and that such killing was done strictly in prosecution of the purpose for which the party was assembled.

The court refused to give the following instructions as asked by the prisoner, but gave them with the subjoined modifications, made by the judge.

"2. If the jury from the whole body of the evidence are con

vinced of the killing by defendant, but are not convinced beyond reasonable doubt that it was done with malice, they cannot find the defendant guilty of murder, but may find him guilty of manslaughter."

The judge modified this as follows: "By killing with malice is meant not through hatred or revenge, but a killing with intent to kill, and without lawful excuse; and such malice is presumed when the killing is done with a deadly weapon, and without lawful excuse."

"9. If the jury believe from the evidence that the defendant went to the premises of R. J. Smith with the intention of committing a felony, and after this intention was consummated he accidentally shot and killed the deceased, they cannot find him guilty as charged."

The judge modified the 9th charge as follows: "Unless the accidental killing happened so nearly in connection with the execution of the original design, as to constitute one continuous transaction; in that event it would be unlawful killing, in the perpetration of felony, and would be murder."

"10. It is essential to the conviction of the accused that all the facts of the case, and all the testimony introduced, should be entirely consistent with the hypothesis of his guilt, and all the circumstances should be of a conclusive nature and tendency; and unless the jury believe from the testimony that the circumstances tend to show beyond a reasonable doubt that the defendant killed the deceased, and that the killing was with a premeditated design to effect death, they cannot find the defendant guilty of murder.”

Which was modified as follows: "That is, the body of the proof must be of conclusive character, and must lead to the conclusion of his guilt to the exclusion of all reasonable doubt."

"12. If the jury believe from the evidence that the defendant had gone to the house of the prosecutor with the intention of committing a felony on William Smith, and after such intention had ceased, and while defendant was fleeing, he shot and killed deceased, upon sudden heat of passion, and without the premeditated design to effect death, he is guilty of manslaughter only, and not of murder."

Which was modified as follows: "Unless, as already stated in explanation of defendant's 9th charge, the killing took place so nearly in connection with the commission of the felony upon the person of William Smith, as to constitute one continuous transaction; in that event the killing would be properly considered as having happened in the attempt to perpetrate a felony, and would be murder."

"15. Confessions of the accused in capital cases are the weakest species of evidence, and must all be taken together, as well those which make in favor of the prisoner as those which make against him."

Modification by the court: "The confessions of the defendant are to be taken altogether, it is true, but the jury are not bound to credit them all, but may treat them as other evidence, crediting all or none, or crediting a part and disobeying a part, as in their judgment is right and according to the truth."

The jury found the defendant guilty of murder.

He moved for a new trial: 1. Because the verdict is contrary to law and the evidence. 2. The court gave improper instructions for the state. 3. The court refused proper instructions. asked by defendants, and made improper modifications of them. 4. The court refused to continue the case. And, 5. The court suffered improper evidence to go to the jury.

This motion was overruled, and sentence of death pronounced; and the defendant sued out this writ of error.

H. W. Walter and J. W. Clapp, for plaintiff in error, Cited, 1 Russ. on Cr., 423; McDaniel v. State, 8 S. & M., 401; Cotton v. State, 31 Miss. R., 401; 1 Stark. Ev., 182, 183.

T. J. Wharton, attorney general,

Cited, Philips v. Kingsfield, 19 Maine R., 375; 2 Russ. on Cr., 539 and 869; 4 Black. Com., 200; 4 Mass R., 396; State v. Zellers, 2 Halstead R., 220; 2 Stark. Ev., 524; 4 S. & M., 118; Bolls' case, 9 ib., 284; Cicely's case, 13 ib., 210; Green's case, 28 ib., 688; Jolly's case, 13 S. & M.; McCann's case, ib. 497; Wharton's Crim. Law, 2d edit., 378.