
    William S. Goodwyn vs. the State.
    The record stated that “ on the 3d day of April, 1844, 'the following entry was made on the minutes of the court, to wit; The grand jurors returned into court an indictment against William S. Goodwyn, indorsed thereon a true bill, William M. C. Mims, foreman of the grand jury, and returned to consider of further presentments. Said indictment is in the words and figures as follows, to wit, ” &c. Held, these words show that an indictment was returned into court by the grand jury, and that the accused had been indicted in due form.
    The omission to state, in the minutes of the court, the character of the offence charged in the indictment, is no ground of error, especially if the omission be supplied by other parts of the record. It is a well settled rule that if there be an uncertainty in any part of the record, it may be explained by any other part of the record.
    The court was asked by the defendant to charge the jury “ that if they believed, from the evidence, that the deceased came to his death by means of the shot aforesaid,” it being in evidence that the deceased came to his death by means of the discharge by the accused of a shot gun loaded with duck shot, “ and not by one leaden bullet discharged from said shot gun, as alleged in the bill of indictment, they must find a verdict for the accused Which charge the court refused, but charged the jury, “ that the said proof was sufficient to sustain the said bill as alleged in the indictment.” Heldy that the charge asked was properly refused, and the charge given referred solely to the proof of the contents of the shot gun, and was not erroneous.
    This was indictment found by the grand jury of Lowndes county against William S. Goodwyn for the murder of Edmond N. Abbott, in Lowndes county, Mississippi, on the 21st day of March, 1844. The record shows that on the 14th day of February, 1844, a venire facias was issued by the clerk of the circuit court of Lowndes county, commanding the sheriff of that county to summon jurors, &c., and that on the first day of the April term of said court, fourteen of the jurors summoned were drawn by lot, and sworn as grand jurors, &c. The record then proceeds as follows: “And afterwards, to wit, on the 3d day of April, 1844, the following entry was made upon the minutes of said court, to wit: The grand jurors returned into court an indictment against William S. Goodwyn, indorsed thereon a true bill, William M. C. Mims, foreman of the grand jury, and returned to consider of further presentments. Said indictment is in the words and figures as follows, to wit, &c.” The indictment is set out in full, and on the same day the following entry was made upon the minutes of said court, to wit: “ This day came as well Henry Gray, Esq., the district attorney who prosecutes in behalf of the state, as the said William S. Goodwyn, who was led to the bar in the custody of the sheriff of Lowndes county,and being arraigned upon the indictment in this case, upon his arraignment pleads not guilty, and for his trial puts himself upon the country, and the district attorney for the state on the part of the state, doth so likewise. Whereupon the said William S. Goodwyn was remanded to the jail of this county.” And on the same day the following order was entered upon the minutes of said court, to wit: “This day came Henry Gray, Esq., the district attorney who prosecutes in behalf of the state, and on his motion, it is ordered that a special venire facias issue to the sheriff of this county, commanding him to summon fifty good and lawful men,” &c. “ to serve as jurors on the trial of the said William S. Goodwyn, who stands indicted upon a charge of murder,” <fcc.
    At the trial, which took place on the 11th day of October, 1844, George M. Mullin, the first witness introduced in behalf of the state, testified that he was at home about candle-light on the evening of the 21st day of March, 1844, when he heard the report of two fire-arms ; he opened his door and heard Abbott, the deceased, setting his dogs on some one. He went out and got on his fence, and saw some person get on a horse and go off at a rapid rate, the dogs followed him, and a loose horse which ran off at the same time. Witness went out in the street, and saw Abbott, the deceased, lying on the ground on his face, about fourteen yards from the middle of the road, in an open lot on the north side of the road or street, with his left hand under him, and a revolving pistol, with five or six barrels, lying a little to his right and near his right hand, two or three barrels of which had been discharged, the others were still loaded. The reports of the fire-arms were not simultaneous, but several seconds apart, Witness could not distinguish which was the loudest sound, nor could his wife, with whom he immediately afterwards conversed on the subject. The lot on which deceased was found is immediately north" of witness’s house, on the Tuscaloosa road. There is a gutter or ditch opposite his gate, which extends along said i’oad some distance, and is about four or five feet wide; the deceased was lying over said ditch, in said open lot, nearer to the south than the west side thereof. Deceased was wounded in the left side, just above the hip, and died in a very short time after witness reached him. The next morning witness found upon the ground a ramrod and the deceased’s whip, lying near together, one nearly upon the other, to the left of the deceased, as he was lying when witness found him. Deceased owned a large pack of dogs, twelve or fifteen, and used to run negroes with them; they were very fierce. From the nature of the wound, deceased could not have gone to the road to the spot where he was lying; he had time after he was shot. The firing seemed to the witness to be over the road from witness’s house, and in the lot where deceased was lying; the ramrod was indented on one side as though it had been bruised in the thimble of the gun in coming out. A person, in travelling the road from Swearingen’s, on the upper Tuscaloosa road to Columbus, would not have passed through the lot where deceased was found.
    Mrs. Swearingen was next examined, and testified that she was out in her yard, about a mile from Columbus, on the upper Tuscaloosa road, between sundown and dark, and saw two gentlemen meet — the defendant and deceased — the deceased was going towards Columbus, the defendant meeting him, they conversed together sometime on their horses; she turned and went towards the house, when a negro called to her to look ; she turned round and saw the defendant off of his horse, and running around flourishing his arm ; he got on his horse and rode off, andas he rode by, witness heard him say “I’ll be God Almighty God damned, if I don’t have your life, at the risk of my own.” Witness was alarmed and remained in the yard, and soon saw the negro who had just gone towards Columbus with the deceased, after Goodwyn, the defendant had left and gone towards Columbus, returning on horseback at full speed, the dogs and a loose horse following him. Witness is rather deaf and could not hear what passed between the defendant and the deceased, nor could she hear them talk at all. She did not know why the defendant was flourishing his hand. He was standing on the ground amongst the dogs of the deceased, but they neither attempted to bite nor bark at him. After the defendant rode off towards Columbus, as before stated, the deceased followed slowly with the negro and dogs. On cross-examination she stated that on the examination before the committing magistrate, she said the words spoken by the defendant were, “ I will have his life at the risk of my own,” and her reason for so doing was, that she was told by counsel that she need not repeat the oath; and that upon the application by defendant, before Judge Dickerson, for bail, she used the same language she did before the magistrate, and for the same reason. Witness was about sixty yards from the parties, and saw neither angry nor threatening gestures, nor any appearance of a quarrel, and did not notice them till the negro girl spoke.
    Mrs. Morris was next examined and testified that she was called to look by the negro girl, and had not observed the deceased and defendant béfore. She heard defendant say as he rode off, “I’ll be damned if I don’t have his life at the risk of my own,” but heard no other remark. Defendant was not addressing any one, when he made the above remark. Witness thought that there were two negroes with deceased, and that one of them had probably escaped when the defendant rode off in such haste. She heard the guns, and states that the first was the loudest; her attention was directed to the sound, anticipating, from what Mrs. Swearingen and the negro girl had told her, lhat .there would be murder — witness stood in the door fifteen or twenty minutes listening. This was on the 21st day of March last. On cross-examination witness stated that she had said nothing about the first gun being the loudest, because she was not interrogated as to that point.
    William Lester being next called, testified, that before he heard the report of the guns, the defendant came to his father’s lot, in a gallop, on the upper Tuscaloosa road, and inquired if he had seen Ned Abbott, the deceased, pass there; and, learning that he had not, he went on towards Swearingen’s. Shortly afterward he came back, in a gallop, and before he reached him said, “William! William! Sterling! Sterling! have you got a gun?” Witness replied that he had a gun, but neither powder or shot. Defendant then rode towards Wallace’s in a gallop, and soon after witness heard the report of two guns, and saw a negro on horseback, with the dogs and a loose horse following after him. Witness went to Mr. G. M. Mullins’s, •and there found the deceased killed. The report of the guns did not appear to come from the road, but from the open lot, where the deceased was found. On cross-examination, witness said he noticed no distinction in the sound of the two guns, and does not know, had there been any, that he would have noticed it.
    Doctor Lipscomb being then examined, testified that he was called, by the jury of inquest, to make a -postmortem examination ; that the wound was in the flank, just above the hip-bone, a little anterior thereto, the shot ranging at a little elevation towards the back bone, from the left side; that the clothing was torn, and the wadding of the gun and clothing were forced into the wound; the shot extracted were duck shot. The clothing about the wound was powder burnt. A man might have gone ten steps after receiving such a wound.
    Mr. Riddle was next examined, and testified that he was passing by defendant’s house, on the evening of the death of the deceased, and heard him call defendant, although he did not see the latter. Deceased was sitting on his horse at defendant’s gate, some one being with him, whom witness took to be a negro. Witness came to town by Major Dowsing’s house, on the Tuscaloosa road, and was overtaken by the defendant, who, after speaking about some fish witness had, inquired of him if he had seen Ned, or Ned Abbott ? (the deceased.) Defendant was riding fast towards town. Afterwards, when witness got to the edge of the town, he again saw the defendant cross the military road, in a gallop, going towards the house of Mr. Joseph Walláce. In a few minutes afterwards, witness heard the report of two guns, a few seconds apart, and heard deceased’s voice setting on his dogs, and some one riding off towards Lester’s, the dogs in pursuit, and horse following. Witness went to the place from whence the report of the guns came, and saw deceased, killed. On cross-examination, witness said he did not see defendant at his house; that he was about one hundred and fifty yards off, when he heard the reports of the two guns, and could not distinguish between them as to sound.
    C. Frazee was next examined, who testified that he was with Riddle, the last witness, and confirms his statement in all things.
    Mr. Wallace was next examined, and testified that he also was with Riddle and Frazee, and confirms their statement in all things, and added, that after hearing the defendant coming to his father’s gate, with his (witness’s) gun, defendant called witness, and set the gun down beside the gate; witness had not used the gun for some time, and did not know that it was loaded. The gun did not have the ramrod in it, when defendant set it down. Witness identified the ramrod spoken of by George M. Mullin, as having been found by the deceased, with his whip, as the ramrod belonging to his gun, and states that the gun is a common single-barrel shot-gun. The defendant resides two or three miles from town, and has a double-barrel shot-gun of his own, and a pistol, which he usually kept at home.
    Joseph Wallace being examined, testified that he loaded the gun some days previous, with middling size shot, (goose or duck shot); that the gun had not been discharged. The defendant owned a double-barrel shot-gun, and one or two pistols. Witness heard Mrs. Swearingen, before the committing magistrate, say, that the threat made by defendant, as he passed her house, was, “ that he would take his life, at the risk of his own.” Witness further stated, that he saw the defendant after the killing of deceased ; that the defendant was wounded in the right shoulder, with a ball; the ball descended from the shoulder towards the back, and witness savif it extracted from under the back bone. The tail of defendant’s coat was torn.
    Eli Abbott testified that on the 21st day of March, 1844, he appointed the deceased his special deputy, to levy an execution against the defendant, on which is the following indorsement, to wit: “ E. N. Abbott is hereby authorized to levy this Ji. fa., and return the same to me. Given under my hand and seal, this 21st of March, 1844. E. Abbott, Sheriff. (Seal).” To which, evidence the prisoner, by his counsel, then and there objected, on the ground that the appointment had not been filed in the proper offices, according to law, and could not, therefore, justify or authorize the deceased to do any act as special deputy. Which objection was overruled by the court, and the said fieri facias, and indorsement thereon, were read in evidence to the jury, to which the defendant excepted. The said witness further testified, that it is 1150 yards from the said Mullin’s house to Swearingen’s; 600 yards from Lester’s to Joseph Wallace’s; 400 yards from Mullin’s to Wallace’s. Witness examined the ground where deceased was killed, and saw a horse track across the ditch ; and states that the same negro which deceased had in custody, when killed, was in custody about twelve months since, and got away after court. Deceased caught him, and he was afterwards released by the plaintiff in execution. Witness further states that deceased usually went armed ; that he kept dogs to hunt negroes, and white persons also; that he weighed about one hundred and forty-five pounds, and was strong and active. Witness sent deceased to levy on the negro, because the negro knew him (witness) and his other deputies. Witness is sheriff of Lowndes county, and was at the time of the said appointment. He never knew the dogs to bite a white person, unless set on.
    Mr. Nell testified, that twelve months since defendant took him to his house, when he told witness the negro remained there seven or eight days, and that he had taken him away from this state, to avoid an execution against him ; that he did not intend to run him off, but only wanted to get a witness who was absent, by whom he could prove that the negro was not subject to the execution, arid that as soon as his witness returned, he intended to deliver the negro again to the sheriff. Witness saw the negro no more, till about ten o’clock next morning after the death of the deceased, when the boy came to his house with a pass, signed by Nash, and witness sent him back.
    Mr. Thomas, being examined, says he has hunted with defendant several times, and that defendant always shot left-handed, whenever he saw him shoot.
    Mr. Moore testified that he was present when the ball was taken out of defendant’s back ; when Dr. Winter attempted to probe the wound, the probe not entering readily, the defendant said, “ Let me raise my arm, doctor; it was raised when I was shot.”
    Doctor Wharton, the first witness introduced on the part of the defendant, testified that the dogs had pursued the defendant and himself on one occasion, when they had to get on a fence ; the defendant appeared to be agitated ; that on the arrival of the deceased, the dogs noticed them no further. Mr. Leverett and Maxey Hall stated substantially the same thing, in relation to themselves.
    Mr. Graham testified that on the evening of the killing, and before, one of the same dogs caught him by the pantaloons, in the street. S. G. Mills testified also as to the ferocity of the dogs. Dr. Winter testified that the wound on defendant’s shoulder was examined by him on the evening deceased was killed ; that the ball entered his right shoulder, near the point, and ranged back towards the spine. He probed the wound, and took out the ball, which, upon deceased’s pistol being shown to him, he said was of a size about suited to that. Defendant’s arm must have been raised when he received the wound. Dr. Smith saw the wound on defendant, and agreed with Dr. Winter in this description of it.
    Miss Wallace testified that on the evening the deceased was killed, between sundown and dark, defendant came to her father’s (Mr. Joseph Wallace) house and asked for a gun, and a servant handed him her brother’s gun. As he turned off, she asked defendant “What he wanted with it?” He replied, “ Nothing much; I only want to shoot a dog; ” and rode off.
    The defendant’s counsel asked the court to instruct the jury, “ That if they believed, from the evidence, that the deceased came to his death by means of the shot aforesaid, and not by one leaden bullet discharged from said shot-gun, as alleged in said bill of indictment, that they must return a verdict for the prisoner of not guilty, as charged in said bill of indictment.” Which instruction the court refused to give, but instructed the jury, “ That the said proof was sufficient to sustain the said bill, as alleged in the indictment.” To which opinion of the court, refusing to give the instruction asked, and charging the jury that the said proof was sufficient to sustain the said bill, as alleged in the indictment, the defendant’s counsel excepted, and filed a second bill of exceptions. The jury returned a verdict of manslaughter in the second degree, and the court sentenced the prisoner to seven years’ confinement in the penitentiary, to reverse which the defendant has brought the case to this court, by writ of error.
    
      Harris and Harrison, for plaintiff in error.
    1. The deceased was not an officer, and all his acts done under color of office were void.
    “ The sheriffs of the several counties within this state, shall have power to appoint one or more deputies, &c ; and every such appointment shall be in writing, under the hand and seal of the sheriff; and every deputy sheriff, before he enters on the duties of such office, shall take and subscribe before a justice of the county court, or justice of the peace of the county, an oath or affirmation, &c.; which appointment, with the certificate of the oath or affirmation thereupon indorsed, and attested by said justice, shall be by such deputy sheriff carefully filed, and securely kept in the office of the clerk of the county court, in and for the same county. And if any person shall proceed to execute the office of deputy sheriff, before he shall have received an appointment as aforesaid,, and taken the oath or affirmation of office, and filed the same appointment and certificate of such oath or affirmation of office, as aforesaid, then all such his acts and proceedings, done under color of office, shall be absolutely void.” How. & Hutch. Dig. 292, § 6.
    “No person, who may be deputed by any sheriff to do any particular act only shall be required to take the oath directed by this act to be taken by deputy sheriffs.” Ib. 296, §22.
    
    The two foregoing sections are parts of one general act, in relation to sheriffs and coroners. The act provides, among other things, for the appointment of “one or more deputies, who shall have full power and authority to do and perform all the several acts and duties enjoined upon their principals.” These are the regular deputies. And why this last provision, unless the legislature intended to regulate the whole matter by statute 1 At common law the sheriff had the right to appoint both regular and special deputies. Why, then, was the statute passed ? It was intended, 1st. To define and limit, to a certain extent, the powers and duties of the sheriff himself; for at common law the sheriff was a judge, a keeper of the king’s peace, a ministerial officer of the superior courts of justice, and the king’s bailiff. 1 Black. Com. 343. 2d. To authorize and empower the deputies to do and perform all the several acts and duties enjoined upon their principals. Not so in England. There the under sheriff usually performs all the duties of the office, a very few only excepted. 1 Black. Com. 345, &c. 3d. The common law did not prescribe that the appointment should be in writing, under the hand and seal of the sheriff, or that it should be filed in the clerk’s office, &c. This our statute has required in the most positive and explicit manner, and not only so, but, further, it was deemed proper to declare, in express terms, that unless the appointment is in writing, and filed, “ all acts and proceedings done under color of office, shall be absolutely void.” The language of the statute is of the most emphatic and imperious character, and the word “ absolutely,” used preceding that of “ void,” clearly shows that the lawgiver wished no doubt left as to his meaning. The words, “ under color of office,” were also inserted in an abundant caution, to preclude all arguments about officers de facto.
    
    But it has been contended, by those who represent the state, that the deceased, in the present case, was not a deputy sheriff; that he was “deputed to do a particular act only,” and that the aforesaid section 6 has no application to such a person ; that at common law even an under sheriff had a right to appoint an agent or bailiff, or depute a person to do a particular act only, and that, as a necessary consequence, the principal sheriff must have possessed the same power. In reply, it is insisted that the two sections are not only parts of the same statute, but that the second clause referred to makes direct mention of the first, and dispenses with only some of its requirements; that the latter clause is a mere limitation of the former one; that both classes are spoken of as deputy sheriffs; that when it is enacted that “no person who shall be deputed to do a particular act only shall be required to take the oath directed by this act to be taken by deputy sheriffs,” it is declaring, in totidem verbis, that the other directions and requisitions of the statute are to be complied with; that the express exclusion of one by direct terms is a direct inclusion of the other. The question also recurs, why the necessity of a provision by legislative enactment in either ease, if the matter was intended to be left as at common law 7 And if the legislature intended to prescribe the mode of appointment in one case, why not in the other 7 Nor does it follow that, because at common law an under-sheriff might appoint an agent or bailiff, (for he could not appoint a deputy sheriff) one deputed by the sheriff himself “ to do a particular act only,” is not a deputy sheriff. - He is a special deputy, if you please, but still a deputy sheriff. The word depute would also seem to imply as much. But, by whatever name he may be distinguished by gentlemen learned in the law, it is evident, from the statute, that such person deputed by the sheriff to do a particular act only, must be appointed in writing, and that appointment must be under the hand and seal of the principal sheriff himself, and filed in the clerk’s office. Further, the party in this case was deputed to serve a writ, or rather to levy an execution. By the seventh section of the same act (How. & Hutch. Dig. 292,) it is enacted, that the sheriff by himself, or his deputy, shall, from time to time, execute all writs, and other process, &c. Under our statute no agent or bailiff could, as we apprehend, levy an execution. The ninth section of the act supports the same idea. It commences thus : “ And to prevent disputes between sheriffs and their several deputies which of them may have acted in serving executions or other process,” «fee. The sixth section, already quoted, is express that “ every deputy sheriff, before he enters on the duties of his office,” &c. shall, &c. Unless there were different kinds of deputies intended, there would have been no necessity for the general expression or the limitation mentioned in the subsequent section. First, comes the general provision and after-wards the limitation by way of proviso. The statute evidently intends to limit and restrict the common law method of appointment, by requiring written evidence of the fact deposited in a public place, to be securely kept by a public officer.
    It was upon a similar view of our statute, we presume, that it was decided in the case of Welsh v. Jemison, (1 How. 160,) “ that a deputy sheriff by law has no power or authority to make servants or agents to perform the duties of the office required to be performed by him,” &c. “ He derives his authority” (says Chief Justice Sharkey, in delivering the opinion of the court,) “from the sheriff, to whom the power is expressly given by statute.” So also, under the Tennessee statute, Montgomery v. Scanland, 2 Yerg. 337.
    If this view of the statute be correct, the court below erred.
    2. The mortal wound is alleged to have been given with a gun loaded with powder and one leaden bullet. The proof was, that it was loaded with powder and a great number of small shot.
    
    
      “ If it be alleged, that the gun was loaded with powder and a bullet, it must be proved to have been loaded with a bullet, otherwise the defendant must be acquitted.” Rex v. Hughes, 5 C. & P. 126; Archb. on Indict. 422 (4th Amer. ed. 1840,) see tit. Murder; lb. 382, 383; 24 Eng. Com. Law R. 241; Rose. Crim. Ev. 651.
    
      Where an indictment stated that the defendant assaulted the deceased, and struck and beat him upon the head, and thereby gave him divers mortal blows and bruises, of which he died, and it appeared in evidence that the death was caused by the deceased falling upon the ground in consequence of a blow received on the head from defendant; it was holden that the cause of the death was not properly stated. Rex v. Thompson, 1 Mood. C. C. 139 ; Arch, on Ind. 382. And the same where an indictment charged that the defendant struck the deceased with a brick, and it appeared that he knocked the deceased down with his fist, and that the deceased fell upon a brick, which caused his death. Rex v. Kelley, 1 Mood. C. C. 113; Archb. on Ind. 383. See also the form of the indictment given in Archbold, 421, 422, “ loaded with powder and divers leaden shot.”
    The proof in the present case further shows that the wound was occasioned by divers leaded shot, and wadding also. The gun was fired almost immediately against the body of the deceased.
    
      John D. Freeman, attorney general for the state.
    The record states, that on a particular day of the term the grand jury returned into court an indictment against William S. Goodwyn, which indictment is in the following words; and then copies the indictment. It is difficult to conceive of a more explicit statement that the indictment against the defendant was returned into court by the grand jury. The record also shows that the indictment was indorsed “ a true bill ” by the foreman of the grand jury. This is full evidence of the finding by the jury.
    2. The record states that the sheriff of Lowndes county was the prosecutor in the case. This point is waived by opposing counsel.
    3. With regard to the venue, several of the witnesses state, that the offence was committed in or near Columbus; that the deceased was a deputy sheriff of Lowndes county, and was in the act of executing a fi. fa. on defendant’s slave at the time the killing took place. There is but one Columbus in this state, and the court judicially know that that Columbus is the county site of Lowndes county. See Kelly v. The State, 3 S. & M. 518. Besides, the bill of exceptions does not pretend to give all the evidence in the case; and this court will therefore presume that the venue was technically and fully proven.
    4. The point made in the written argument of Harris and Harrison, that the deceased was not a deputy sheriff, is not sustained by the facts in the case. The record shows that the deceased was appointed a special deputy to do a particular act, to levy the execution on which the appointment was indorsed. The statute gives the sheriff this power, and such a deputy is not required to take the oath of office. This appointment was made on the back of the execution to be served, and was therefore full notice to the defendant in the execution that the deceased was authorized to execute the same. This execution must necessarily be filed away in the sheriff’s office, and with it the appointment of the deputy must also be filed. Here, then, is a full compliance with the law. Had the appointment been on a different and separate sheet of paper and filed away, what the counsel contend for should have been done, the deputy would have had no authority with him to show the defendant in the execution that the deceased was authorized to levy the execution.
    5. The court below was right in refusing to charge the jury that if deceased was killed by duck shot, and not by one leaden bullet, as charged by the indictment, that then they should find defendant not guilty. Arch. Crim. Plead. 382.
    If it be proved that the deceased was killed by any other instrument than that charged in the indictment, capable of producing the same kind of death as the instrument stated in the indictment, the variance will not be material. Gilb. Ev. 231; 9 Co. 67 a ; 2 Hale, 115, 185; 2 Hawk. C. 23, sec. 84. Duck shot and bullets differ only in size; they are, in fact, small bullets.
    Mr. Yerger, in his oral argument, assumed that the court, in refusing the above charge, also charged erroneously, because the bill of exceptions says the court charge that the evidence was sufficient to sustain the indictment. The charge of the court does not refer to the guilt of the prisoner on the indictment, but simply amounts to this, that proof of shooting with duck shot would be the charge in the indictment of shooting with a leaden bullet. The language of the court must be construed with re-guard to the subject-matter before the court; that matter was, whether the proof sustained a particular charge in the indictment. The court decided that it did, and refused to charge the reverse.
    
      William Yerger, in reply.
    This case is brought up by writ of error to the circuit court of Lowndes county. Goodwyn was indicted for the murder of Edward Abbott, and was found guilty of manslaughter in the second degree. It is conceived that the judgment should be reversed for the following causes :
    1. The record does not show that the indictment upon which the defendant was tried was found by the grand jury. The minutes of the court should show every indictment that is found by the grand jury. This is necessary in order to guard a defendant against all imposition and fraud. This point has been expressly adjudicated in the state of Tennessee. Chappel v. The State, 8 Yerger, 166.
    
      2. There is no prosecutor marked on the back of the indictment. This court has decided this to be error, for which the judgment must be reversed. Codey v. The State, 1 Howard.
    3. The venue is not sufficiently proven. There is no proof that the offence was committed in Lowndes county.
    4. The court erred in permitting the testimony of Eli Abbott to be given to the jury in relation to the appointment of the deceased as a deputy sheriff. On this point I refer to the excellent argument of my coadjutors, Messrs. Harris and Harrison.
    5. The evidence did not justify the conviction. It is impossible to say, from the evidence, whether the defendant killed in self-defence or not; it is all vague, indefinite and uncertain.
    6. The court erred in charging the jury that the “ proof given before them sustained thej indictment.” This was evidently erroneous. It was an attempt upon the part of the court to charge the jury upon the facts, and to draw conclusions from the testimony which it is the sole province of the jury to find. A citation of authorities is not necessary to establish so well settled a rule of law, and one which is so essential to the safety of the citizen, and the right of trial by jury.
    7. It was error to permit the execution against the defendant in favor of A. Saltonstall. Nothing but the judgment itself should have been read to the jury.
   Mr. Justice Thacher

delivered the opinion of the court.

This was an indictment for murder, preferred against the plaintiff in error, in the circuit court of Lowndes county, which, upon trial, resulted in a verdict of manslaughter in the second degree.

The first ground of error taken is, that the record does not show that the indictment in this case was found by the grand jury. The record states that “ on the 3d day of April, 1844, the following entry was made upon the minutes of said court, to wit: The grand jurors returned into court an indictment against William S. Goodwyn, indorsed thereon a true bill, William M. O. Mims, foreman of the grand jury, and retired to’consider of further presentments. Said indictment is in the words and figures as follows, to wit,” &c. These words show that an indictment was returned into court by the grand jury, which shows that the accused had been indicted in due form by the grand jury. This entry is in the usual form, with the omission of the character of the offence charged in the indictment. This is always in general terms, as “for murder, for larceny,” &c., and does not further particularize the offence, and is not important. An indictment is no part of the minutes of the court. The clerk, in making up the record, of which the minutes and the indictment both form parts, must necessarily connect them together in the order of their occurrence in the court below. It appears from the record that an indictment, therein recited, was returned into court on the 3d day of April, 1844, against the accused; the record further states, that “on the said 3d day of April, the following entry was made upon the minutes of said court, to wit: this day came, as well Henry Gray, Esq., the district attorney, who prosecutes in behalf of the state, as the said William S. Goodwyn, who was led to the bar in the custody of the Sheriff of Lowndes county, and being arraigned upon the indictment in this case, upon his arraignment pleads not guilty,” &c.; it also further appears in the record, that on the same day a venire facias was ordered, to summon jurors to serve on the trial of said William S. Goodwyn, indicted for murder. It is a rule well settled, that if there be an uncertainty in any part of a record, it may be explained by any other part of the record. If it really be error in the first entry of the minutes, not to state the character of the offence charged in the indictment, the subsequent entries in the minutes on the same day, in the same case, and in reference to the same indictment, are too explicit to leave any doubt upon the minds of this court upon this point.

The only other technical objection which we deem requires comment, is that which has reference to the instruction given by the court below to the jury. It was in evidence that the deceased came to his death by means of a discharge by the accused of a shot-gun loaded with shot between the size of squirrel shot and small-sized buck shot, commonly known as duck-shot. Upon this evidence the court was desired to charge the jury, “ that if they believed, from the evidence, that the deceased came to his death by means of the shot aforesaid, and not by one leaden bullet discharged from said shot-gun as alleged in the bill of indictment, they must find a verdict for the accused.” This charge the court refused, but charged the jury “that the said proof was sufficient to sustain the said billas alleged in the indictment.” The charge requested was clearly properly refused. The instrument by which the death is caused need not necessarily be strictly proved as laid in the indictment, and proof of its having been caused by any other instrument capable of producing death in a similar mode, satisfies the indictment in that respect. The charge given by the court was but the negative of the charge requested. The language of the court referring to “ the said proof,” refers solely to the proof of the contents of the shot-gun, and its language when declaring the said proof sufficient to sustain the said bill as alleged in the indictment,” refers to the allegation in the indictment of the contents of the shot-gun. It was not, in our view, intended as a charge generally upon the evidence in the case, and, from the finding of the jury, could not so have been understood by them.

There is nothing in the circumstances attending the commission of the fatal act by the accused, as they are to us presented, that seems to warrant us to interfere with the judgment. The accused parted from the deceased, before the event, with a deadly threat against- some one, shortly returned to him armed, and an affray ensued, in which he shot the deceased. The evidence shows an inducing cause for excited but inexcusable feelings of passion in the arrest of his property in execution by the deceased in his capacity of a deputy sheriff, a threat, and finally an act of violence that resulted in the death of that officer by the hand of the accused. . The chain of evidence links the circumstances so together, that it is impossible for the mind to separate them, or to divest them of the stain of guilt. We are disposed to adopt the more mild interpretation of the jury, which mitigated the offence into a lesser degree of crime than the one charged in the indictment, but we find ourselves, after an anxious investigation of all the facts, unable to behold them in any other light.

The judgment of the circuit court of Lowndes county is therefore affirmed.  