
    Henry vs. The State.
    [Circumstantial evidence.]
    Henry, a slave, was indicted in the circuit court of Williamson county, for the murder of J. G. Eelbeck. The case was submitted to a jury, under the direction of Maney, the presiding Judge. He was found guilty, and judgment entered on the verdict.
    He appealed.
    
      J. Marshall, & R. C. Foster, sr. for the plaintiff in error.
    
      Attorney General, D. Campbell & S. Venable, for the State.
   McKinney, J.

delivered the opinion of the court.

The slave, Henry, was convicted in the circuit court of Williamson, of the murder of John G. Eelbeck, and sentence of death having been pronounced upon the verdict, he has appealed in error to this court.

The able counsel, assigned by this court, to defend the prisoner, have not been able to raise any question of law upon the record of his conviction : we have carefully reviewed it, and certainly no such objection could be made : the proceeding as exhibited in this record, has been conducted with the most careful and scrupulous regard to all the legal rights of the defence.

The murder, with the circumstances attending the act, is fully proved; as to that there is no question; and the only question is, who was the murderer?

On Sunday, the 24th February 1850, about eleven o’clock, at night, John G. Eelbeck and Wm. P. Barham were~slain in the street at Franklin, at the same place and by the same hand. The act was done by a single stab in the breast of each, with a bowie or butcher’s knife, the wounds going to or near the heart of each, of which they almost instantly expired, without uttering a word or an exclamation. The surgeons who examined the wounds, are of opinion, that they were inflicted by a powerful and skilful hand, well acquainted with the seat of the vital organs ; and from the manner and direction of the wounds, it was: intended to strike at the heart.

- As we have said, the only question is one of identity- — -is the prisoner the person who did the act ? We shall review such portions of the evidence, as we deem most material to' a just and true solution of this question.

It appears that on the night of the murder, the person who committed it, had stolen four hams of bacon from the housé óf Woodson Harrison, on Main-street, in the town of Franklin; he passed with it from Dr. Ewing’s corner, at the intersection of Main and Margin-streets, across the street to the corner of the Presbyterian Church, and thence started on a rock way, across Margin-street in direction to McConnell’s : here he was encountered by the two deceased. At this time a number of negroes were passing on Main-street from Hannah Henderson’s where they had been at a prayer meeting. Oney, slave of Henry Bridges, was one of the number, and she says, that when she got to the corner of the pavement at the said Church, she saw two white men and a black man standing together on the rock-way, between the Church and McConnell’s, about fifteen steps from said corner — the backs of the whit e men to the Church, their sides to witness, the black man was standing in front of them, all standing still. She thought the black man was Henry, the prisoner : she knew him well, he wore his beard and whiskers long at this time, the black man had on a dark frock coat and a black cap; that as she was crossing the street over to Dr. Ewing’s corner, she heal’d some negro say, Look there, they are about to take that negro:” when she got to Ewing’s corner, she saw the three men scuffle, and thinking they were about to whip the negro, she pushed on home.

Malinda, slave of Dr. Ewing was also going from the meeting home to Dr. Ewing’s. She saw at some distance, a man pass before her, with a load on his shoulder, and when she got to the corner of the pavement at the Presbyterian Church, that man had got on the rock-way leading to McConnell’s, and was there met by two other men; as she turned off to Dr. Ewing’s, she heard one of them say, “ we must see about this;” when she got to Ewing’s corner, she saw a scuffle between the three men, the two men had taken hold of the man she saw pass, who then dropped his load, and presently the smaller of the two men that met him, turned and ran down the street, the man who dropped the load ran in an opposite direction up the turnpike, and the larger man of the two that encountered him, pursued him for a short distance and fell heavily upon the ground. She thought the man she saw pass, with'the load on his shoulder was a black man, from his dress, and walk and form: he had on a sack coat, and black cap, and was a low, thick, chunky man : she thought the other two men were white : one of them was small, the other large.

Jenney, another slave of Dr. Ewing, was with Malinda, and gives the same account of the matter : she believed the man who killed the other two was a negro, from his shape and dress : he had on a dark gray sack coat and black cap.

Amanda, a slave, was going from the meeting, and saw the man retreating up the turnpike : she says, he was a low chunky man, with a black cap and sack coat, and thinks he was a negro.

Fanny, a slave testifies to the same effect; Peter, a slave, Sam, a slave, and Henrietta, a slave, to the same effect. In a short time Doctor Ewing and others, having come on the ground, they found the two men dead and slain in the manner before stated. Barham had a stick in his hand as he lay on the ground: it was of apple or plum tree, about three feet long, with thirteen trimmed knots, and a split in the large end of it. The four hams of bacon were found lying on the ground, where the parties met.

Such is the description given of the murder and of the person that committed it. It is in proof, that it was a very bright moonlight night. Oney, states that she passed within fifteen steps of where the men stood, and that she believes it was the prisoner, that encountered the two men : she' knew1 him well, and describes his appearance, dress and figure, and from her knowledge of the man and seeing him as she passed, she states it as her belief and opinion, that it was the prisoner. Henrietta saw from his face, that it was a negro.

Wow, is the direct evidence of the witness Oney, supported by the other facts and circumstances in the case ? we are of opinion, that it most unquestionably is.

In the first place, all the witnesses who saw the slayer that night, agree in their description of his person and dress : and in the opinion that the man was black. Oney, whose view was more distinct or attention more fixed, goes further, and identifies the man. The description they give of the slayer, corresponds with that of the prisoner, as it appears in the proof, that he is a low thick, heavy man of powerful frame : that at the time, he wore his beard long, a very long goatee, as some of the witnesses call it, and this is one of the identifying facts referred to, by the witness Oney.

On Sunday, about one o’clock, the day of the murder, Tom, a slave, met Henry, the prisoner, at Ragsdale’s gate and en-quired where he was going; he replied, to the Campbellite Church, to prepare for the sacrament; he had on a figured bosom shirt, and roundabout coat; in adjusting his coat, witness observed in his left bosom a butcher’s knife. Bill, a slave, also saw Henry, the prisoner, on the same day; he, the prisoner, was playing cards at Ragsdale’s shop ; and witness observed a large knife in his bosom, whilst he was en- ' gaged playing at cards. This witness met Henry again, at Park’s corner the same evening, at 7 o’clock, it being then night, and talked with him about ten minutes. He then had on a sack coat and black cloth cap, the coat was like the one, then produced in court to the witness, a dark and dirty coat of the prisoner’s, which was found at the tanyard. Henry was then hired to work at the tanyard, which is on the Columbia turnpike, in the direction the slayer ran, and about two hundred yards from where the murder was committed. Before that time, the prisoner had been engaged in the business of a butcher.

Again, it is proved by Mourning, a slave, of Mrs. Doyle’s, that Henry, the prisoner, came to Mrs. Doyle’s for Tennis-wood’s supper, as was his custom, about sun down of the evening that the murder was committed, and remained from fifteen to thirty minutes; witness noticed, that he had a stick; her foot struck it and knocked it down, and she picked it up and set it back. It was a rough stick, knots cut off, split, &c. The stick found in the hand of Barham as he lay dead on the ground, was produced, and witness identifies it, as the same she had seen in the prisoner’s possession. He took it with him when he left. It is proved by two or three witnesses, who saw Barham and Eelbeck, after 10 o’clock, in the street that night, that neither of them had any stick. Such are the leading identifying circumstances, that appear before the act was committed. We may observe briefly, upon these facts, that Henry, the prisoner, was seen that day with a butcher’s knife concealed in his bosom, and the murder was committed by an instrument of that description : at night he had changed his roundabout, for the sack coat he used at the tanyard : the man who slew the deceased was dressed in a coat of that description; he wore a black cap, and so did the slayer; the remarkable stick seen in his possession at sun down, was found in the hand of the man that was slain, as though he had wrested it from the slayer at the commencement of the rencounter, for it is in proóf, that the deceased was seen without any stick, but a few minutes before. The form and figure of the prisoner correspond with the description given of the slayer. Henry, from his former occupation of butcher, was skilled in the use of the knife, and it appears in the proof, that he is a man of great physical force and energy: we have seen, in the evidence of the surgeons, who examined the dead bodies, that the wounds must have been inflicted by a powerful and skillful hand, and with deadly purpose. These facts and inferences do, in our judgment, tend most cogently to confirm the direct swearing of the witness Oney.

In the next place, we shall briefly notice some of the facts and circumstances, that occurred immediately after the murder was done. Upon the hypothesis, that Henry did it, we may observe, that he was apparently on his way, with his stolen property, to the house occupied by his wife, Susan, on McConnell’s premises; when he encountered the two men, he was going in that direction and was not far from it. After the deed was done, he fled in direction of the tanyard, his place of labor, no one at the time being there to observe him, and where doubtless he left his sack coat, usually worn at the yard, having probably gone there for it early in the evening, when he exchanged his roundabout coat for it. He then went promptly to the house of his wife — where he was next seen— as the place least liable to suspicion. He could very probably go from the tanyard there, at that hour of the night, without observation. If he had ran ofF, it would have been an avowal of his guilt, and he could hardly hope to escape. As the men he had slain, had fallen silently, without a word of distress or outcry, he no doubt supposed that they had instantly expired, and that their lips were sealed. Isabella, a slave, was the first to call at Henry’s door; this was twenty minutes after she had seen the dead bodies. She knocked three or four times and stood three or four minutes, when Susan, Henry’s wife, asked “who was there.” Witness replied, Isabella, and told her that two men were killed in the street. Witness then went to McConnell’s door and waked him; he went to the kitchen door and made a considerable noise in opening it, Henry and Susan were apparently asleep. When Isabella presently returned, she found Henry and wife at the fire; he made no inquiry about the men that were killed, and said not a word about the matter. This total apathy and unconcern about so exciting an occurrence as the murder of two men in the streets, within fifty yards of his door, is certainly very remarkable to say the least of it. It is remarkable also, that after being informed of the murder, by Isabella, he should be found asleep, in a few minutes after, by McConnell.

His conduct next morning was suspicious. When King met him, he enquired if he had heard of the circumstance of th.e night before; Henry replied “no, what circumstance?”

Jeff saw him at King’s grocery that morning, engaged sweeping it — witness observed him go to the door four several times and look in the direction where the murder was committed — when witness passed the dooor, he looked in and said to Henry, “times are pretty warm this morning,” to which Henry made no reply. When Tenniswood went to the tan-yard that morning, he found Henry there, washing something white in witness’ bowl; he seemed in a flurry, and threw out the water and soap; witness observed them to have a reddish colour. Henry immediately retired to the back shop. These circumstances are to be taken in connexion, with the leading facts before referred to. We shall go no further into detail; but it may be observed, that there is not a single fact or circumstance, stated in the record, that is not entirely consistent with the prisoner’s guilt; there are very few of any importance, that are consistent with his innocence.

He has given no account of his movements on the night of the murder: he was not with the other negroes of the town at the meeting.

He was seen by the witness Bill, at Parks corner at 7 o’clock at night, dressed in his sack coat and black cap; and it does not appear that he was seen by any one after that, until the time when the murder was committed. After the most careful and vigilant exertions to ferret out the murderer, no fact or circumstance has appeared, to involve any other person in the guilt, or in the slightest suspicion of it. The prisoner was defended in the court below, by the same able counsel, that defended him here, and he was convicted under a most favorable charge of the court.

We are satisfied with the verdict, and think it the inevitable result of the proof in the case.

Judgment affirmed.  