is too late to remedy it by amendment after trial. The law of amendments does not
apply to criminal cases.-Moore v. State, 464.

2. The court has no power to amend an indictment as to matter of substance without
the concurrence of the grand jury by whom it was found, though amendments as to
mere informalities may be made by the court.-McGuire v. State, 1097.

8. Under the statute, Rev. Code, 615, Art. 262, the indictment may be amended by
striking out certain descriptive words from it.-Rocco v. State, 1280.

4. The right and power to amend an indictment for a felony in a material matter, after
the expiration of the term of court at which it is found, and without the consent of
the accused, is questionable.—Unger v. State, 1584.

APPEAL.

See Writ of Error.

1. In criminal cases, an appeal does not lie to the High Court of Errors and Appeals.
Such cases can only be removed by writ of error.-Toumey v. State, 180; Loftin v.
State, 420.

2. The judgment of the circuit court upon an appeal from the decision of a justice of the
peace and five slaveholders, convicting a slave of an offense not capital, is final, and
not revisable in the High Court of Errors and Appeals.—Minor v. State, 1220.

3. The remedy of "appeal" in the county court law is given from that court directly to
the circuit court, and limited to that court; therefore no appeal or writ of error lies
from a judgment of the county court to the High Court of Errors and Appeals.-Daw-
kins v. State, 1574.

ARRAIGNMENT.
See Practice.

1. Where a former judgment of the circuit court has been reversed for errors occurring
during the trial, and not affecting the plea, and the cause remanded, it is not neces-
sary to arraign the prisoner again on his second trial, inasmuch as the former plea still
remained.-Byrd v. State, 73.

2. In criminal cases the defendant cannot waive an arraignment, and he must plead in
person to the indictment; he cannot plead by attorney; and where it is shown that
the "defendant appeared by attorney and pleaded not guilty," the judgment will be
arrested and the verdict set aside.- Wilson v. State, 1581.

ARREST OF JUDGMENT.

See Grand Jury, Indictment, Record.

1. A motion in arrest of judgment is confined to defects upon the face of the record
itself, and which make the proceedings apparently erroneous; and no defect in evi-
dence, or improper conduct on the trial, can be urged under this motion.-Covey v.
State, 349.

2. Irregularity in the jury is not proper ground for a motion in arrest of judgment.—
McCann v. State, 399.

8. Where a motion in arrest of judgment is overruled in the court below, and sustained
in the appellate court, on the grounds of a defective indictment, the prisoner must be
remanded for a new indictment.-Jones v. State, 418.

4. A motion in arrest must be made on the grounds of defects appearing on the face of
the record; the fact that the offense was committed twelve months before the finding
of the indictment is no ground for such motion.-Heward v. State, 465.

5. It is an irregularity to charge distinct felonies in different counts of the same indict-
ment. But this does not constitute a ground for a motion in arrest of judgment.-
Wash v. State, 517.

6. Objection to an illegal grand jury may be made by motion in arrest of judgment.→→→
Miller v. State, 1042.

7. Other indictments of like import pending against the same party, will not be allowed
to sustain a motion in arrest of judgment. He must plead to those indictments, and
may set up his former conviction or acquittal.-Miazza v. State, 1205.

8. Motions in arrest must be made on the ground of some defect appearing on the face
of the record. Hence the fact that one of the jury was not a householder or a free-
holder, or was otherwise incompetent, is no ground for a motion in arrest of judg-
ment.-Frank v. State, 1474.

ARSON.

The corpus delicti in a case of arson is the burning of the house; and if that fact be estab-
lished by evidence aliunde, the confessions of the accused are admissible to show that
the burning was done feloniously, and that he was the criminal agent.—Sam v. State,

1037.

ASSESSOR OF TAXES.

1. The duties imposed by law upon the assessor of taxes in this state cannot be per-
formed by an agent; and there is no statute which authorizes the assessor to act by
deputy.-Stokes & Johnson v. State, 634.

2. A list of the persons liable to jury service, returned by a person acting as deputy
assessor of taxes, is invalid, and a valid grand jury cannot be drawn from it.—Ib.

ASSAULT WITH FELONIOUS INTENT.

1. Where the indictment charges a shooting with a felonious intent, it must be proved
on the trial that the gun was so loaded as to be capable of doing the mischief alleged
to be intended.-Vaughan v. State, 245.

6

2. An indictment that charges an "assault and battery with a deadly weapon upon a
certain slave, with intent to commit manslaughter,'" can only be construed to charge
an aggravated assault.—Bradley v. State, 416.

8. Evidence of a single witness, that the defendant was seen with a knife in his hand,
in pursuit of a slave, when he was stopped by the witness, and that he made threats
against the life of the slave, is insufficient to warrant a conviction for an assault with
intent to kill.—Ib.

4. An indictment for assault with intent to kill, without alleging an assault upon a par-
ticular person with an intent to kill that person, is defective, and may be taken advan-
tage of by motion in arrest of judgment.-Jones v. State, 418.

5. It is a universal principle of evidence, that a man shall be understood to intend that
which he does, or which are the natural consequences of his acts.-Morgan v. State,
452.

6. Where a general felonious intention is sufficient to constitute the offense, it is no
ground of excuse where a party who intended to commit one felony has committed
another.-Ib.

7. The specific intention of killing the particular person alleged to have been shot at, is
an essential ingredient of the offense charged in the indictment, and proof of a general
felonious or malicious intention is not sufficient. It is incumbent on the state to prove
the specific intent charged.—Ib.

8. An indictment, charging in one count an assault with intent to kill, and a second
count charges an assault and battery, is good, and the jury may acquit the accused as
to the first count, and find him guilty as to the second.-Brantley v. State, 484.
9. No fact which enters into the essence of the offense, save that of criminal intention,
can properly be denominated an assault with intent to commit a crime. It is a sepa-
rate, distinct offense, created and defined by statute.-Laura v. State, 700.
10. The unlawful use of a deadly weapon by a slave, in an assault and battery on his
-master, employer, etc., is not of itself the same as, or conclusive evidence of, the intent,
to kill which constitutes the gist of the offense under Rev. Code, 248, art. 59, but it is

prima facie evidence of such intent, which will prevail, unless rebutted by the other
proof in the cause.-Jeff. State, 1253.

11. An indictment for an assault and battery with intent to kill and murder, must state
that the offense was committed with a deadly weapon, or other means or force likely
to produce death.—Williams v. State, 1557.

ASSAULT AND BATTERY.

1. A prosecutor in an indictment for an assault and battery, with intent to murder, who
has commenced a civil suit for the injury, will not be compelled to elect or abandon
the civil suit, or the prosecution; but both may be sustained, the first for damages to
the injured individual, the second to avenge the public wrong.-State v. Blennerhas-
sett, 1.

2. A prosecutor in an indictment is a competent witness for the state upon the trial,
though liable for costs if the prosecution be frivolous or malicious.-I.

3. Defendants separately indicted for the same assault and battery, may be tried jointly,
although they may have claimed the right to be tried separately.-Ib.

4. Where two defendants are tried together on indictments for the same assault and bat-
tery, one of the defendants is not a good witness for the other upon the trial, unless no
proof of guilt is offered against the person proposed as a witness.—Ib.

5. The voluntary withdrawal, during the trial, of a witness subpoenaed, but not exam-
ined on behalf of the state, is not sufficient ground to grant a new trial, especially
where his testimony is not shown to be material for the defendant.—Ib.

6. Where the jury assess a fine, the court will not grant a new trial, unless the amount
of the fine is so excessive as to evince partiality or corruption in the jury.—Ib.

7. Express malice is not an essential ingredient in the offence of assault and battery
upon a white person by a slave with intent to kill. Hence it is unnecessary to allege
it in the indictment or prove it on the trial.-Ike v. State, 578.

8. Although, at common law, a husband has the right to chastise his wife, he may still
be convicted of an assault and battery upon her.-Bradley v. State, 20.
9. Where the indictment charged that the prisoner, "with force and arms in the county
aforesaid, in and upon the left arm of him, the said Alson Shelby, then and there
feloniously and maliciously did, with a certain drawn knife, stab and wound, with
intent, then and there, feloniously, wilfully, and of his malice aforethought, the said
Alson Shelby, to kill and murder," the indictment was held bad, because it did not
allege that the prisoner "did assault and beat, and because it did not charge that the
instrument was a deadly weapon.”—Ainsworth v. State, 183.

10. An assault is any attempt or offer with force or violence to do a corporal hurt to
another, whether from malice or wantonness. The offer or attempt must be inten-
tional. If it can be collected that there was not a present purpose to do an injury, it
is not an assault.-Smith v. State, 1369.

11. A mere purpose to commit violence, however plainly declared, if not attended by an
effort to carry it into immediate execution, falls short of an actual assault. Handy, J.,
dissented.-Ib.

12. When an unequivocal purpose of violence is accompanied by any act which, if not
stopped or diverted, will be followed by personal injury, the execution of the pur-
pose the battery is attempted.—Ib.

BAIL.

See Homicide, Recognizance.

1. It is competent for the circuit court, in all offenses, except those of a capital nature,
to take bail after conviction, to secure the appearance of the prisoner, to receive and
abide the sentence of the law. The power to take bail in certain cases after convic-
tion existed at common law.-Davis v. State, 205.

2. Where the sheriff executes a bench warrant, and takes bail, he should so state it, and
return the facts in full to the court.-Overaker v. State, 268.

8. By the constitution of this state, all prisoners, before conviction, are bailable by suffi-
cient securities, except for capital offences, where the proof is evident or presumption
great.-Dyson, ex parte, 641.

4. The circuit courts of this state now possess and may exercise the power of bailing
after conviction in all cases not capital, whenever a sound discretion will warrant it.-
Semble: In cases of misdemeanor, whenever the party obtains a writ of error and
supersedeas, this discretion ought always to be exercised in favor of bail.—Ib.

5. In cases of bail each case must depend upon its individual merit. And, after a full
inspection of the case, if the court does not find the existence of those special circum-
stances which ought to exist, bail will be refused.-Ib.

6. All prisoners shall, before conviction, be bailable by sufficient securities, except for
capital offenses, where the proof is evident or presumption great.—Wray, ex parte,

875.

7. Bail, in capital cases, is a matter resting in the sound legal discretion of the court;
but if the offense is not shown by proof evident, or great presumption, to be such as
deserves capital punishment, bail is not a matter of discretion in the court, but of
right in the prisoner.-Ib.

8. A party in custody of the sheriff under indictment for felony, and in whose case a
mis-trial has been had, and the jury disagreed, must be considered as remaining in
custody till legally discharged; and the sheriff has authority, under the act of 1822
(Hutch. C., p. 444, § 13; Rev. C. 1857, p. 127, art. 129), by virtue of an order of the
court, to take bail or recognizance at any time before such legal discharge.-State v.
Brown, 926.

9. A prisoner has a right to a writ of error to revise a judgment on habeas corpus refus-
ing him bail.-Moore v. State, 1163.

10. In determining in this court that a prisoner shall or shall not have bail, the court
does not mean to prejudice his case so as to influence a jury who may afterwards try
the issue of his guilt. He may be refused bail, and afterwards acquitted; or granted
bail, and afterwards convicted of murder.-Ib.

11. A jury may, and perhaps ought, in some cases, to find the defendant guilty of mur-
der, even after this court has allowed him bail.-Ib.

12. Under the liberal principles of our constitution and laws, in cases of homicide, bail
should be granted, even in cases where the jury might, and perhaps ought, on the
same evidence, to render a verdict of guilty of murder. Moore v. State, 36 Miss. 137,
cited and reaffirmed.-Beall v. State, 1483.

13. At common law, the court of king's bench and its judges had the power to bail in all
felonies, before or after conviction, without regard to the nature of the crime or pun-
ishment. But the practice was not to bail where the facts made it highly probable
that the accused had committed a felony.-Street v. State, 1591.

14. The discretionary power to bail, at common law, was rarely exerted after indictment
for a felony, except in special circumstances, arising generally after indictment.-Ib.
15. The bill of rights makes bail a matter of right for all crimes except capital felonies,
where the presumption is great or proof evident. The original of this provision is a
clause in the ordinance of 1789, for the government of the territory north of the Ohio
river. From this original it has been copied into most of the state constitutions and
statutes.-Ib.

16. The courts of many of the states hold the indictment for murder as furnishing the
"presumption great," and decline to hear testimony to reduce the grade of the crime
from murder to manslaughter.-I.

17. In this state for many years the practice varied. But since the decision in the case
of the State v. Wray, the practice has been to receive testimony aliunde the indict-
ment.-Ib.

18. On a writ of error in habeas corpus proceedings, the supreme court exercises purely
a revisory and correctionary jurisdiction. The judgment reviewed is presumptively
correct, and error must be shown. The supreme court have no larger discretionary
power to bail than the court of original jurisdiction.-Ib.

19. If the testimony be conflicting, or the credibility of witnesses involved, the appellate
court would regard the circuit judge who heard it orally as in the most favorable con-
dition to come to a correct conclusion, and would not disturb his decision.-Ib.
20. If the testimony make the impression on the mind of the supreme court that the
petit jury would be warranted in a verdict of guilty, the judgment of the circuit judge
denying bail would be affirmed.-Ib.

21. If the return to this writ is that the relator is in custody, to answer an indictment
for murder, lawful authority for the detention is shown; and if no testimony were
offered to show a lesser grade of felonious homicide, or that the accused ought not to
be convicted of any offense, it would be the duty of the judge to remand.—Ib.
22. A defendant to indictment being at large on bail, may, at any time, be surrendered
by his bail to the sheriff of the county in which the indictment is pending; and the
sheriff may again admit him to bail or recognizance with new sureties.-Kellogg v.
State, 1619.

23. The conditions of a recognizance being that a defendant shall appear before the cir-
cuit court of the county, on the 4th Monday in May, that being the time fixed by law
for the commencing of the court, and no year being specified, held sufficient to fix the
liability of the surety in case of default at the next term of the court.-I.

BIGAMY.

1. Where a man marries a woman whose husband by a former marriage has been absent
and unheard of for five years previous to such second marriage, the law presumes that
such first husband is dead, and that the second marriage is valid.—Gibson v. State,
1351.

2. The legal presumption of the death of a husband or wife who has been absent without
being heard from for five years, and the consequent validity of a second marriage con-
stracted by the abandoned party, after the expiration of that period, will be acted on in
a prosecution for bigamy against one of the parties to such second marriage who sub-
sequently, and during the life of the other, has contracted another marriage.—Ib. ⠀

BILL OF EXCEPTIONS.

1. A party, in order to present the question of error in the decision of the court upon
the competency and relevancy of evidence, offered on the trial of a cause, or of any
matter of fact brought to the consideration of the court, not appearing by the plead-
ings, should except to the opinion and embody the evidence or facts in the bill of
exceptions. If this be not done, the judgment of the court below upon the subject,
will be regarded as correct.-Woodsides v. State, 95.

2. The bill of exceptions should set forth the precise grounds of exception, otherwise
the court cannot take cognizance of the subject-matter.--Friar v. State, 114.

3. When reference is made in the bill of exceptions to a paper by a particular mark,
as being part of the bill of exceptions, this reference must clearly appear, or the
court will not presume the paper in the record to be the same referred to in the bill.
The evidence, if to be reviewed by the appellate court, must be certified by the court
below, in a bill of exceptions.-Oliver v. State, 157.

4. When the bill of exceptions purports to contain all the evidence adduced on the trial,
and is so certified by the judge of the court below, this court will presume it to be true.
-Vaughan v. State, 245.

5. In criminal as well as civil cases, the rule is that the party who complains of the
judgment must make the error apparent; and if it is some part of the proceedings not
appearing on the face of the record, it must be placed there by the bill of
exceptions.-McQuillen v. State, 358.

6. When the judge of the circuit court refuses to sign a bill of exceptions, it may be
signed by two of the attorneys of said court, and be in compliance with the statute.-
Rawle v. State, 368.

7. The high court of errors and appeals cannot notice the instructions given or refused