
    
      The State vs. Wiley Freeman.
    
    1. Where the allegation in an indictment for murder, was, that the prisoner in and upon one M. P. &c., feloniously, &c., did malte an assault with a certain gun called a rifle gun, &c., then and there charged with gun powder and two leaden bullets; which said gun, he, &c., had and held, at and against the said M. F., then &c., feloniously, &c., did shoot off and discharge, and that the said W. F., with the leaden bullets aforesaid, by means of shooting off and discharging the said gun, so loaded, to, at and against the said M. F., as aforesaid, did, &c., feloniously, &c., strike, penetrate and wound the said M. F., in and upon the leftside of the'said M. F., &c., giving to her, the said M. F., &c., with the leaden bullets aforesaid, by means of shooting off and discharging the .said gun, so loaded, to, at and against the said M. F., and by such 'striking, &c., the said M. F. as aforesaid, one mortal wound in and upon the left side of the said M. F., &c.
    2. On a motion to arrest the judgment, on the ground that there was no sufficient averment that the gun was shot off, or that the contents were discharged — held that the inference seems to be one of absolute certainty, that the contents of the gun were shot off and discharged, for there is nothing else to which the. words “did shoot off and discharge” with a gun charged with gunpowder and leaden bullets, could be applied.
    3. Words, other than technical terms, used in tin indictment, are to be understood in their ordinary and usual acceptadon.
    4. The deceased said to a witness on the evening before the morning of her death, “Mr. Freeman has killed me,” and to another about the same time, “I am dead, Mr. Freeman has killed me.” The prisoner, after his arrest, upon being interrogated why he had killed his wife, replied, “because I loved her,” — and said further, “I killed her because she loved another better than me.” To a fellow prisoner in jail, he said, “he had killed her, but if it was to do again, he would not do it.” These declarations by the deceased, and admissions of the prisoner, Held admissible in evidence.
    
      Before Earle, J., at Edgefield, Fall Term, 1842.
    The prisoner was indicted for the murder of Mary Freeman, his wife, from whom he had béen separated more than a year; she lived in Edgefield, he in a neighboring county in Georgia. The prisoner, on being arraigned, informed the court that he would be ready for trial on a later day in the term. When brought up for trial, a motion was made on his behalf, to continue the cause until the next succeeding term, supported by an affidavit, which will be exhibited to the court with this report. The presiding Judge overruled the motion for continuance, and ordered the trial to proceed.
    On the day of the death of Mary Freeman, the prisoner passed the ferry on Savannah river, a few miles from the residence of the deceased; he was armed with a rifle, and said to the ferryman and another, that he was going after his child, which had been stolen from him, and he intended to have it, or would have blood. He crossed the river about noon, and was no more seen in the neighborhood; but was arrested some time after in the wilds of Baker county, Georgia.
    In the evening of the same day on which the prisoner crossed the ferry, several of the neighbors visited the house of the deceased. Those who first arrived, found her weltering in her own blood, within and across the threshold, mortally wounded by a rifle ball, which had passed entirely through the body. She died the next morning. When Mary Stone approached the bed on which she had been placed, and accosted her, the deceased threw her arms around the neck of her visitor and said, “Mr. Freeman has killed me." Mary Stone said, “I hope you will be better when the doctor comes." The deceased replied, “I shall never be any better in, this world.” She was then very feeble, and continued to grow weaker until she died. To Nicholas Cook, who saw her about the same time, she said, “I am dead, Mr. Freeman has killed me.” What the deceased said to these two persons, was admitted in evidence as her dying declarations. Admissions of the prisoner were likewise given in evidence against him. After his arrest in Georgia, he was asked by some one of the party, why he killed his wife % His reply was, “because I loved her.” The person rejoined, that’s a pretty tale; to which the prisoner made the further reply, “I killed her because she loved another better than me.” After his confinement in the jail, he made a further admission to a fellow prisoner, who talked with him about the death of his wife. The prisoner said, “he had killed her, but if it was to do again, he would not do it,” and seemed very sorry for what he had done. His Honor saw nothing in the circumstances under which these admissions were made to make them inadmissible, and the objections were overruled ; as were likewise the objections to the indictment. And the cause was committed to the jury, who in a few minutes returned a verdict of guilty.
    
      The State of South Carolina, ) T ■ . Edgefield District. )
    
    At a Court of Sessions, begun to be holden in and for the district of Edgefield, in the State of South Carolina, at Edgefield court house, in the district and State aforesaid, on the fourth Monday in March, in the year of our Lord one thousand eight hundred and thirty-eight, the jurors of and for the district of Edgefield aforesaid, in the State of South Carolina aforesaid, that is to say:
    Upon their oaths present, that Wiley Freeman, laborer, on the tenth day of April, in the year of our Lord one thousand eight hundred and thirty-seven, with force and arms, at Edgefield court-house, in the district and State aforesaid, in and upon one Mary Freeman, in the peace of God and this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that the said Wiley Freeman, with a certain gun called a rifle gun, of the value of ten dollars, then and there charged with gun powder and two leaden bullets, which said gun he the said Wiley Freeman in both his hands then and there had and held, at and against ibe said Mary Freeman, then and there feloniously, wilfully, and of his malice aforethought, did shoot off and discharge, and that the said Wiley Freeman, with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said Mary Freeman, as aforesaid, did then and there feloniously, wilfully, and of his malice aforethought, strike, penetrate and wound the said Mary Freeman, in and upon the left side of the said Mary Freeman, below the left breast of her the said Mary Freeman, giving to her the said Mary Freeman, then and there with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said Mary Freeman, and by such striking, penetrating and wounding the said Mary Freeman, as aforesaid, one mortal wound in and upon the left side of the said Mary Freeman, below the left breast of the said Mary Freeman, of the depth of four inches, and of the width of one inch, of which said mortal wound the said Mary Freeman, on and from the said tenth day of April, in the year of our Lord one thousand eight hundred and thirty-seven, until the eleventh day of April, in the year of our Lord one thousand eight hundred and thirty-seven, at Edgefield courthouse, in the district and State aforesaid, did languish, and languishing did live, on which said eleventh day of April last aforesaid, about the hour of five o’clock in the morning, she, the said Mary Freeman, at Edgefield court house, in the district and State aforesaid, of the mortal wound aforesaid died; and so the jurors aforesaid, upon their oaths do say, that the said Wiley Freeman, her, the said Mary Freeman, in manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the same State aforesaid.
    And the jurors aforesaid, upon their oaths aforesaid, do further present, that Wiley Freeman, labourer, not having the fear of God before his eyes, but being moved and seduced by the instigation of the devil, on the tenth day of April, in the year of our Lord one thousand eight hundred and thirty-seven, with force and arms, at Edgefield courthouse, in the district and State aforesaid, in and upon Mary Freeman, in the peace of God and this State then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault, and that he the said Wiley Freeman, with a certain gun of the value of. ten dollars, then and there being charged with gun powder and a leaden bullet, which gun last aforesaid, he, the said Wiley Freeman, labourer, then and there in both his hands had and held, at, against, and upon her the said Mary Freeman, then and there feloniously, wilfully, and of his malice aforethought, did discharge and shoot off, her the said Mary Freeman, in and upon the left side of the said Mary Freeman, a little below the left breast of the said Mary Freeman, then and there feloniously, wilfully, and of his malice aforethought, did strike and wound, giving to the said Mary Freeman, then and there, with the leaden bullet aforesaid, out of the said 'last mentioned gun aforesaid, discharge and shoot off, in and upon the said the left side of the said Mary Freeman, one other mortal wound, of the breadth of one inch and of the depth of seven inches, of which the said last mentioned mortal wound, thekaid Mary Freeman, on and from the said tenth day of April last aforesaid, in the year last aforesaid, until the eleventh day of April last aforesaid, in the year last aforesaid, at Edgefield courthouse aforesaid, did languish, and languishing did live, on which said eleventh day of April, in the year last aforesaid, about the hour of five o’clock in the morning, she the said Mary Freeman, at Edgefield court-house, in the district and State aforesaid, of the mortal wound aforesaid died; and so the jurors aforesaid, upon their oaths do say, that the said Wiley Freeman, her,thesaidMary Freeman, in manner and form last aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder, against the peace and dignity of the same State aforesaid.
    Caldwell, Solicitor.
    
    The State of South Carolina, ) Edgefield District. $
    I, George Pope, Clerk of the Court of General Sessions, for the district and State aforesaid, do hereby certify the foregoing to be a correct copy of an indictment against Wiley Freeman for murder, of which said Freeman was convicted at fall term, 1842, in the said court, at Edgefield court-house.
    Given under my hand, at Edgefield court-house, this 19th day of November, 1842.
    Geo. Pope, c. c. g. s.
    The State vs. Wilev Freeman.
    The defendant makes oath, that Newman Mathis, William Gooldsby, and Vincent Lockheart, are residents in Lincoln county, in Georgia, and are witnesses material to his defence; that about 4 o’clock, P. M. of the day on which Mary Freerpan was slain, the said witnesses saw this defendant in the county of Lincoln aforesaid, and at the distance of about fifteen miles from the spot where the said Mary was slain; that this defendant, when seen by said witnesses, was peaceably employed in a wood and blacksmith shop of his own ; and that the killing of said Mary, with which the said defendant stands charged, occurred, as this deponent is informed and believes, about sunset of the day aforesaid. This deponent further swears, that since his arrest, he has not had the pecuniary means' to employ legal counsel, and has therefore been without the benefit of their advice — that he is an ignorant man, utterly uninformed of the means given to him by the law, for securing the attendance of witnesses — that he has been in close and rigorous confinement since the last day of July last past — and that if now forced to trial, this defendant will be subjected to great disadvantage and perhaps irreparable injury.
    Wiley Freeman.
    Sworn to before me, the 22d October, 1842.
    Geo, Pope, c. c. p.
    The prisoner now moved the Court of Appeals to arrest the judgment against him, on the grounds:
    1. That neither of the counts of the indictment sets forth, with sufficient precision, the means by which the death of the deceased was effected.
    2. That neither of the counts alleges that the gun was shot off or discharged, or that the bullets or other dangerous contents were sent forth from the gun.
    Failing in this motion, the prisoner will move the Court of Appeals for a new trial, on the grounds above, and also on the grounds following:
    1. That the dying declarations of the deceased were admitted in evidence against the prisoner, without previous proof that the deceased, at the time of making these declarations, was in apprehension of death.'
    2. That the confessions of the prisoner while under arrest and in prison, were admitted in evidence against him.
    3. That there was no proof that the deceased came to her death by the means alleged in the indictment.
    
      4. That the presiding Judge erred in ruling the prisoner to trial under the circumstances of the case.
    Mr. Carroll, for the motion,
    cited Hawkins P. C. 2 B. 261; 2 Cow. Rep. 675; the second count does not conform to precedent. Steph. on Plead. 392; B. & A. Rep, 448 ; 3 Chit. C. L. for a precedent, 752.
    The term gun is too general, 2 M Cord’s Rep. 378.
    Clerical or grammatical errors which do not obscure the sense will not vitiate an indictment, 2 Hawkins P. C. 324. No intendment or implication of any thing material will be sufficient. The objection to the first count is, that the assault is alleged to have been committed with a gun called a rifle gun, whereas the assault was with the balls sent forth by shooting off the gun. 3 Chit. C. L., 374, 375. In Vaux’s case, 4 Reports, 44, the indictment was insufficient, because it was not expressly alleged that the said Bidley received and drank the said poison,” for the indictment was praed Nit. ncsciens praed. potrnn cum veneno fere intoxicatum, sedfidem adhibens diet, personam dicti W. recepit et bibit per quod” &c. for that it doth “not appear tohat thing he drank, for these words venenum praed, are wanting, and the subsequent words scilicet per quod praed, et immediate post receptionem veneni praed, Sc., which words imply receipt of poison, are not sufficient to maintain the indictment, for the matter of the indictment ought to be full, express, and certain, and should not be maintained by argument or implication, because the indictment is found by the oath of laymen.”
    
    Caldwell, Solicitor, contra.
    There is no analogy between the indictments in Vaux’s and Freeman’s cases; The exception to the former was, that the words venenumpraed, (the poison aforesaid) were wanting; and the poison was not alleged to have been administered by the prisoner; nor that Ridley received and drank it, recepit et Mbit,” and there was nothing that could supply this defect, as it was material to allege that the poison was received and drunk, and inference could not be substituted for the statement of the fact. In the latter case, the indictment expressly charges that Freeman “did feloniously, <fec., strike, penetrate and wound the said M. F. in and upon the left side, <fec., giving to her, the said M. F;, then and there with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said M. F. and by such striking, penetrating and wounding the said M. F. as aforesaid, one mortal wound,” (fee. Here the mode and means of inflicting the injury are stated so as to exclude doubt, and to render the facts as definite and certain as words can express, and there is no need of implication to understand what is. meant. Neither common or statute law prescribes or requires any particular form of an indictment for murder, so that the offence be charged with sufficient certainty of time, place and circumstance, and it be alleged that it was done “feloniously, wilfully and of his malice aforethought.” Nor 'would a variance in the evidence as to the kind of gun, vitiate the verdict, or be sufficient ground to arrest the judgment. Thus this indictment would sustain a case of killing by a pistol, shot gun, or air gun, but not by hanging, starving, strangling or poisoning. See the cases in 1 East P. C. 341; 2 Hale P. C. 185; Roscoe’s Grim. Ev. 577. But if precedent be important, the form of this indictment is in conformity to the indictment in the Coalheaver’s case, 1st Leach Gr. Gases, 776; and is also sustained by a form in 3 Chit. C. L. 751, and is almost a literal copy of the indictment in the King vs. Lord Ferrers, 19 vol. Howell’s State Trials, 891. In a late case reported in 3 .British G. C. 257, The Queen vs. Brady and Cooney, the assault is alleged to have been committed “with a certain gun of the value of, (fee.”
    As to the sufficiency of the,averment that the killing was effected by means of discharging the bullets from the gun, see the case of The King vs. Taylor and Shaxo, 1 Leach C. C. 398.
    As to dying declarations, see Woodcock’s case, 1 lb. 500; Ros. Grim. Ev. 25, 26, 27; Confessions, lb. 29, 30, 31.
   Curia, per

Earle, J.

The grounds of the motion in arrest of judgment may well be considered together.

The rules of criminal pleading are very well settled; all the facts and circumstances which constitute the offence, should be stated with such certainty and precision, that the defendant may clearly see what he is charged with. And in cases of homicide, the manner of killing, and the means by which it is effected, should be described. On a careful examination of the indictment before us, we do not perceive that it is defective to the extent supposed. The allegation is, that the prisoner, with a certain rifle gun, charged with gunpowder and two leaden bullets, which in his hands he had and held at and against the said Mary Freeman, then and there, feloniously, <fcc. did shoot off and discharge; and it is urged that here is no sufficient averment that the gun was shot off, or that the contents were discharged. But we think otherwise. To say “with a gun, did shoot off and discharge,” maybe an unusual form of expression; but we cannot say that it is inaccurate; and certainly it is not senseless. When it is added that he did shoot off and discharge with a gun, charged with gunpowder and leaden bullets, the inference seems to be one of absolute certainty, that the contents of the gun were shot off and discharged; for there is nothing else to which these words could be applied. The allegation in substance is, that the prisoner, with a gun charged with powder and bullets, did shoot and discharge at the deceased, Mary Freeman. The same form of expression is used in the indictment of Earl Ferrers, 19 How. St. Tr. 891. The next allegation of the indictment is, that the prisoner, with the leaden bullets aforesaid, by means of shooting off and discharging the said gun so loaded, to, at, and against the said Mary Freeman, did then and there strike, penetrate and wound the said Mary Freeman, and by such striking, <fec. Here too, we conceive that there is a substantial and sufficient allegation, that the gun was discharged at the deceased, that the contents were propelled by force of the gunpowder against her person, and that the mortal wound was thereby inflicted. Words, other than technical terms, used in an indictment, are to be understood in their ordinary and usual acceptation. And when it is said that a wound is inflicted by leaden bullets, by means of shooting off and discharging a gun loaded with gunpowder and bullets, there does not seem to be room for the slightest ambiguity. The court is therefore of opinion, that the first count of the indictment sets forth the manner of killing, and describes the means by which it was effected, with adequate precision and certainty, and that the motion in arrest of judgment cannot prevail. The court is likewise of opinion, that the points of evidence on the trial below, both in regard to the dying declarations of the deceased, and the confessions of the prisoner, were correctly ruled. The other grounds for new trial were not pressed, and require no further remark.

Extract from the Edgefield Advertiser. — Wiley Freeman was, agreeably to his sentence, executed on Friday, 17th February, 1843, between the hours ofl and2 o’clock, P M., about one mile and a half from Edgefield village. After taking his stand under the gallows, he addressed the spectators in a clear and distinct voice, acknowledging the justice of his sentence, and expressing a willingness to forgive all his enemies.

The motion for new trial, and in arrest of judgment, is refused.

O’Neall, Evans, Butler and Wardlaw, JJ., concurred.  