
    Jim, a slave, vs. The State.
    Murder. Circumstantial evidence. 
    
    Jim, a slave, was indicted in the Circuit Court of Dekalb county, for the murder of Isaac, a slave.
    He was tried by Judge Caruthers and a jury of Dekalb, at the April term in 1843, and convicted. He appealed, and the judgment was reversed. See 4 Humphreys, 289. He was again tried, at the April term, 1844, by Judge Caruthers and a jury, and condemned to be executed.
    He appealed from this judgment
    
      S. Turney, Bryan and Haynes, for plaintiff in error.
    
      Attorney General, for the State.
    
      
      This case and the succeeding one, to wit, Bill vs* State, are deemed worthy of preservation, as illustrating the principles of circumstantial evidence and exhibiting the state of facts on which the supreme court have felt themselves bound to affirm convictions in cases of capital felony,—Reporter'.
      
    
   GreeN, J.

delivered the opinion of the court.

It appears, from the bill of exceptions, that Isaac, a slave, the property of William Avant, was murdered in the kitchen of William Williams, in the county of Dekalb, on Saturday night, the 14th of January, 1843. The plaintiff in error, Jim, also a slave, has been indicted and convicted for said murder, in the Circuit Court of Dekalb county, and sentence of death has been pronounced upon him; from which judgment he has appealed to this court.

No question is made as to the regularity of the proceedings, nor was there any exception to the charge of the court to the jury; but the evidence is all set out in the bill of exceptions, and it is insisted that the proof did not authorize the verdict of the jury-

The proof shows, that a negro George, against whose owner executions were in the hands of the sheriff, and the defendant Jim, against whose owner an attachment had issued, were both in the same neighborhood, concealing themselves in the woods? and were'harbored and concealed by persons living near the place where Isaac was murdered.

The persons having the executions against George, had employed Isaac to catch George, that their executions might be levied. Both George and the defendant Jim had heard, and believed, that Isaac had engaged to betray them, and they both made frequent threats that they would take his life. Both were armed: Jim had a large rifle-barreled pistol, and George had two large smooth-bored horseman’s pistols.

Jim and George were well acquainted, — were connected? George’s wife being Jim’s cousin; and while concealing themselves, to elude the service of process, they were much together, and were both heard, several times when thus together, to threaten the life of Isaac. On one occasion, shortly before the death of Isaac, Sam, a slave, heard the prisoner say he intended to kill Isaac, and enquired whether Isaac would be passing next Saturday night. George was present at this time, and said, “If Isaac was one of the' sort that would betray black people, he would be none too good to hurt him.” George “agged” the prisoner, Jim, to kill Isaac. George and the prisoner both had large pistols at this time.

Violet says, she heard Jim say he intended to “lay for the deceased, if he froze, the next Saturday night.” This was some time after Christmas. Rose and Violet say, that some time before the murder, and after Christmas, Isaac was at their house, and Jim and George came there together: Jim came in and called Isaac up and talked with him some time, and then told him to go to bed, he was done with .him. During this conversation between. Jim the prisoner, and Isaac, George remained out of the house at the door. Jim said, when he came in, he was a traveler and had seen the light. Jim staid at their house on the night before the murder was committed. Isaac was killed in their house.

Nancy, a slave, says she was at Cindy’s house the night of the murder, and saw Jim there trimming two bullets.

• Cindy says, George is her husband and Jim is her cousin. She has heard both George and Jim threaten Isaac. They were both at her house the night of the murder. They came there about night, and both went out together. Jim returned alone. She heard a gun fire about eight or nine o’clock. The prisoner was in her house at that time. She heard another gun fire about midnight, in the direction of William Williams’s. The prisoner was not at her house when the last gun fired. Some time before the last gun was fired, she and the prisoner saw a light in William Williams’s field, and prisoner said he thought it must be Isaac, and then remarked, “Oh my Ikey, if you only knew whht was depending.” After the last gun fired, the ■prisoner came into her House again, and told her that he had shot the damned rascal, through a crack at William Williams’, and that he was lying on the floor before the fire when he shot at him.

Violet, a slave of William Williams, states that Isaac was in her house the night he was killed, sleeping on the floor with his feet towards the fire; that the shooting of the gun waked her, and Isaac asked, “who did that:” she answered, she did not know. Isaac died in about an hour.

William Williams states, that Isaac came to his house about dark on Saturday the 14th January, 1843, the night he was killed; that the witness was waked by the firing a gun or pistol; that he immediately went 'into his kitchen, where his negroes sleep, and found Isaac on the floor, rolling about in great pain, and that he soon died. There were two bullet holes in his belly.

'There is a crack in his kitchen near the door, through which a gun might be fired so as to shoot a person lying on the floor by the fire.

Doctor Fresón examined the body of Isaac after his death, and found two bullets in the body, one pewter and the other lead: one was a cut bullet, and smaller than the other. They entered the body about four inches apart: the wound produced by either was sufficient to cause death.

William Williams and William Avant found tracks fifteen or twenty steps from the kitchen where Isaac was killed, the next morning. The night had been cold, and the tracks were only visible at a mud-hole near the kitchen and at the spring branch. These tracks had been recently made by a person running. At the .mud-hole, the water above the tracks had been formed into ice, but the ice was not so thick over the tracks as it was in other parts of the mud-hole. There was a mark on the inside of the right track that showed there was a deficiency in the sole of the shoe that made it: on examining the prisoner’s shoes, a piece was wanting in the sole of the inside of the right foot. The tracks were measured, and on applying the measure to the prisoner’s shoes, it corresponded with the width, but was about half an inch shorter than the shoe.

David Koger says, he has run and seen the track measured carefully, and found that the tracks-would be from one half inch to an inch and a half shorter than the shoe that made them. The tracks would be shortest in soft ground.

Francis L. Boyd arrested the prisoner, on Sunday morning after the death of Isaac, in a cave about half a mile from William Williams’s house. The prisoner denied that he had any pistol; he said he had sold his pistol to Peter Creps two or three weeks before for a dollar and a half, and had paid Cellar’s Mary fifty cents for washing, and Hart’s Daphney thirty-seven and a half cents for a shirt pattern, and still had a “bit.” The prisoner said he had never seen Isaac, — was not acquainted with him, but had heard of such a man.

Peter Creps denies that he had bought a pistol from the prisoner; and various witnesses saw him with a pistol within a few days of Isaac’s death. All the evidence shows that the prisoner had seen Isaac many times, and knew him well. To one witness, he said he had seen Isaac coming from mill, and could have shot him then, but there was a white boy along: to another, he said he had seen Isaac in Williams’s still house; and Violet and Rose prove the interview and conversation with Isaac shortly before the killing.

Both Daphney and Mary deny that they have received any money from.the prisoner. Peter Creps shot a fowl about half a mile from William Williams’s about 10 or 11 o’clock the night Isaac was killed.

Opposed to all this proof, the prisoner relies upon the testimony of S. Williams’s Nancy, who states (in opposition to Cindy’s testimony) that the prisoner was in Cindy’s house when the last gun was fired; that she was in there with him, was awake, heard the gun fire, and saw Jim in the house. Becky, Nancy’s mother, whose house adjoins Cindy’s, says she heard Jim talking in Cindy’s house the night of the murder: she heard a gun fire shortly after she lay down: she had not been asleep, but was dozing when the gun fired: she heard Jim talking in Cindy’s house: he and Nancy and Cindy were talking. The prisoner also proved, that Cindy is the wife of George; that at the trial before the committing magistrates, she spoke only of the tiring of one gun, and said Jim was at her house when it fired; leaving the impression on the mind of the witness that Jim continued at her house during the night. It was also proved, that at a former trial in the Circuit Court, Cindy had made the same statement she did before the Justice, and was about leaving the stand when a juror asked her if Jim had a pistol that night: she said he had; and being further asked, she then spoke of another gun having been fired, faltered in her manner, and was sent out. Next morning she was again examined, and stated the facts as she now states them.

The prisoner also proved by Cellars’ Mary,' that Cindy told her she would have given the world if she had come out before the magistrate and told all she knew, like the other witnesses had. The reason she did not, she did not warit to destroy Jim for such a fellow as Isaac was.

The State proved by Sampson Williams, Samuel Williams and Gilbert Williams, sons of Samuel Williams, Sen. the owner of Cindy, Nancy and Becky, that Cindy is a woman of truth, and they would believe her, but that Nancy and Becky are in the habit of telling stories, and are not entitled to full credit.

Upon this evidence, if Cindy is entitled to credit, the prisoner is guilty of the murder of Isaac, upon his own confession. He returned to her house a few minutes after the gun fired, and said he had shot at Isaac through a crack, as he lay before the fire.

But it is earnestly argued, that Cindy is not to be believed; that she has a strong motive to convict Jim, that she may thereby save her own husband, George, who, it is insisted, is the real culprit; and that she is contradicted by Becky and Nancy, who have no motive to tell a falsehood. It is further insisted, that her manner when testifying at a'former trial of this cause, and the discrepancy in her statement before the magistrates and subsequently before the jury, discredit her testimony.

When this case was before this court at a former term, (4 Hump.B. 289,) the decision was placed wholly upon the ground of the misconduct of the jury, and but little attention was given to the proof in the cause. Now, the only question is, whether the prisoner was the perpetrator of the murder.

Although Cindy’s testimony is of a character to expose her to criticism, yet,'in view of the circumstances, we think she is entitled to credit. In the first place, she does not give at this time an account of the transaction contradictory of her first statement. Then, she withheld important facts which she now relates. She was not interrogated as to the matter, and she doubtless satisfied herself for not telling the whole of the facts, on the ground that she was not asked. This she says was the reason; and every one who has been conversant in courts of justice has witnessed like conduct, on the part of witnesses much more intelligent than this slave,- and who were entitled to credit. A reluctant witness, anxious to conceal a fact, but not willing to swear to a falsehood, requires often the most direct and searching interrogatories, before the whole truth will be told. In this casé on a former trial, Cindy’s testimony at first was limited before the jury, as it was before the Justices, until interrogatories were put to her calculated to draw out the'facts she. subsequently disclosed. The perturbation, confusion and sickness that followed these interrogatories, were a natural result of the predicament in which she was placed, if the facts she felt compelled to disclose .were true. She told Mary she did not wish to destroy Jim for such a fellow as Isaac was. She could but know, that her husband, George, and her cousin, the prisoner, had conspired to take the life of Isaac. They had often been at her house together, shortly before the death of Isaac, and she had heard them both threaten to take his life. When, therefore, she was forced to make a disclosure that would so deeply implicate them both, she was appalled at the consequences — consequences she had not contemplated — which came suddenly upon her, and for which her mind was wholly unprepared. In view of .these considerations, her sickness and irresolution were natural. No such effects would have been likely to have existed if she were about to inventa falsehood, to screen George, by the conviction of Jim.

In the first place, it is admitted she knew at the trial before the Justices, that those -who defended Jim álledged that George was the murderer; and yet her evidence is the same before the -jury that it had before been, until she was specifically interrogated. If she had designed to accuse Jim falsely, to save George, she would have prepared her story beforehand, and would have been eager to tell it: her mind would have been prepared for the state of things, and would not have been . agitated.

We think, therefore, all the facts in relation to her manner of testifying, rather tend to support and strengthen a belief of the truth of her present testimony, than to invalidate it. But it is said,, she told Mary she would have given the world she had come out and told all she knew: the reason she did not, was, she did not wish to destroy Jim for such a fellow as Isaac.

The truth seems to be, that Isaac had not only excited the. enmity of George and Jim, but he seems to have lost caste with the other negroes in the neighborhood. He had combined with the white folks to betray George to the sheriff, and it was thought he was also engaged to apprehend Jim. — ■ This was no slight offence in their eyes: that one of their own color, subject to a like servitude, should abandon the interests of his caste, and, for hire, betray black folks to the white people, rendered him an object of general aversion. Hence it was, that George and Jim felt so little hesitation in the utterance of their threats; and hence it was, that Cindy did not wish to destroy Jim for such a fellow.

Besides, the declaration to Mary, made by Cindy, implies that she had something to disclose; she had not told before the Justices: she wished she had come out and told all. When she does come out and tell additional facts, we are rather to suppose she states that which she wished to Mary she had come out and told at first, than that it is a statement invented for the occasion.

But it is said Cindy is contradicted by Becky and Nancy. Becky does nol contradict Cindy: she was not in Cindy’s house, but was in an adjoining one: she heard Jim talk in Cindy’s house a little before the gun fired, and then she says she was dozing, but not sleeping.

This statement is very vague and inconclusive, and cannot be relied on for anything. Nancy, it is true, does contradict Cindy; but three of their young masters concur in stating they would believe Cindy, but could not give Nancy full credit.

In addition to all this, the whole circumstances of the case support Cindy’s evidence.

It is true, that George, as well as Jim, had threatened Isaac: each had the means of committing the murder, .and both were in the neighborhood the night the deed was done, and might have perpetrated the act. But in the frequent conversations with the witnesses, when Jim and George made threats, Jim’s enmity appears most vehement, and his purpose to kill Isaac is expressed with less equivocation.

Sam says, Jim said he would kill Isaac; and George said, if Isaac would betray black folks, he would be none too good to hurt him, and he “agged” Jim on to kill Isaac. George equally desired the deed to be done; but, less bold than Jim, he preferred putting him forward in its perpetration, and therefore he stimulated Jim to kill Isaac.

When they went to Violet’s house, a short time before the murder, to reconnoitre the ground and become familiar with its localities, and with Isaac’s habits when there, we see Jim boldly entering the house, upon a false pretence, while George stands without.

Nancy, the prisoner’s own witness, says Jim had a pistol the night of the murder, and she saw him trimming bullets that night in Cindy’s house. Her supposition that they were larger than those shown her on the trial is entitled to no weight. But the tracks that were seen, as if made by one running from the kitchen where Isaac was killed, are conclusive to show that Jim was a,t or very near the kitchen late on the night on which the murder was done. Those tracks which were in the mud-hole near the kitchen, had ice formed over them, but not so thick as the ice in other parts of the mud-hole. This fact repels the supposition, that they had been made at some previous time. They were unquestionably made the night of the murder, and so late that night that the water over them did not freeze so thick ice as that which had not been disturbed. That these tracks were made by Jim, is so certain, upon a comparison of a peculiar print of one of them, with his shoes, that no effort has been made to evade this conclusion. The conclusion is irresistible, that he either fired the pistol himself, or was present, aiding and abetting George who did it. But no tracks are seen that correspond with the size of George’s foot: all the witnesses say, George had a large foot, much larger than Jim’s. If he was present at all, he was in such a situation as to escape over ground so hard with the frost as that no tracks were left. When these facts are considered, they conclusively fortify Cindy’s testimony, and as conclusively overthrow Nancy’s.

Jim was unquestionably absent from Cindy’s house at a late hour the night Isaac was killed. Cindy’s statement, therefore, of this fact, is true. He ran from the kitchen where the murder was done. This comports with Cindy’s statement, that he fired the pistol at Isaac himself. Her testimony is supported by all the facts and circumstances of the case, and is weakened by none of the evidence relied on to attack it. We therefore entertain no doubt of the guilt of the prisoner, and affirm the judgment.  