
    Nelson vs. The State.
    Practice. Trial. Examination of witnesses. The practice of examining- witnesses upon the trial, separate and apart from each other, is one which is tobe controlled in a very great degree, by the presiding judge, and the supreme court will not undertake to revise his practice in this respect, unless there be such a manifest departure from a proper exercise of this discretion, as might result in defeating the great object of the rule.
    Evidence. Prisoner's examination by the committing magistrate. The examination of a prisoner by the magistrate before whom he is brought for commitment, being a privilege extended to the prisoner, so that he is thus “allowed to speak for himself,” the record of that examination cannot afterwards be used by him, upon his trial, as evidence in his defense.
    Same. Statemtnt of witnesses before the examining magistrate. The record of the evidence of witnesses before the examining magistrate, can only be used upon the trial of the prisoner for the purpose of discrediting a witness who has been examined both before the magistrate and upon the trial, and then only when the witness has been interrogated as to what he said before the magistrate.
    Same. Res gestae. Declarations of prisoner. The declarations of a prisoner are not admissible as part of the res gestae, unless they are made at the time of the act, which is being investigated, and which they are calculated to cha-racterise; “ they must so harmonise and be connected with the act, as to constitute a part of it.”
    Homicide. Charge of court to jury. While it is true generally, that a failure-of the circuit court to charge fully, when there is no essential point omitted, or wrongfully charged, is not error, unless it appear that the court was asked for further instructions; still, upon the trial of a capital offence, it is error if the court (although expounding the law correctly so far as the charge goes) omit to instruct the jury fully and explicitly upon the legal effect of all the circumstances developed upon the trial, which would tend to determine the character or degree of the prisoner’s guilt.
    Tbe prisoner, a slave, tbe property of R. H. Hyde, was indicted in tbe criminal court of Rutherford county, for tbe murder of Sam, a slave, tbe property of R. H. Spann. At tbe January Term, 1852, TurNee, Judge, presiding, tliere was a trial, when tbe following facts were proved :
    “ Blankenship saw Sam last, 20th of April of last year. Witness had lived with Spann two years, and worked with Sam. Sam was about thirty or thirty-two years old, and a stout man of his size. Last fall two years ago, Nelson and Sam, with other negroes, were together at a corn shucking at the father’s of witness. After the shucking was o\er they went into a shed room to supper. Nelson took out a large pocket knife and carved some of the meat with it, and went out with his knife open. After a while, he came into where they were eating again, and carved up more of the meat for the company, and' then put his knife, shut up, into his pocket, and went out again. Some short time after, witness went into the yard, and found Nelson swearing with his knife in his hand, behind him. Hudson took the knife out of Nelson’s hand, and witness kicked him several times and drove him away. At the time Nelson was swearing, Sam was standing with his back to the house, his hands down, one foot placed back against the house, saying nothing, and about six or seven yards from Nelson. Seven or eight other negroes were in the yard, standing about; some of whom were between Nelson and Sam. Witness did not know who Nelson was swearing at — did not remember what Nelson said. Nelson said he wanted his knife; said it was his bailing knife. Witness kept the knife, and afterwards gave it to another of Hyde’s negroes, but don’t know that Nelson ever got it again. Hpon cross-examination, said he never informed Nelson’s master about what Nelson had done. Did not hear Nelson quarreling with. any one, nor did witness see bim offer to fight any person at the time above spoken of. Nelson said when his knife was taken away he meant no harm.
    “ Jim, slave, was at the corn shucking at Blankenship’s, last fall two years ago. As he went home — left about the same time with Nelson, and fell in company with him. Nelson said that Sam had caused Blankenship to take his knife from him, and to drive him away, and that he would have his revenge out of him if he lived. Nelson had been drinking. "Witness was in the yard, when Mr. Blankenship drove Nelson away; heard no quarrel between Nelson and Sam, or any body else. Nelson said he had his knife out eating with it, and had not shut it up.
    “ R. H. Spann said: about the 20th of June, 1845, he saw Nelson and another negro coming through a plantation. They were about twenty yards off from him. He heard the other negro propose to Nelson to go and see Sam. Nelson said he did not want to see Sam; that there had been a fuss between them, and he intended to kill Sam if it took him twenty years. Witness saw Sam after he was killed; he was found in the woods about one hundred and fitfy yards from the road. Sam’s arms were bent with his hands upwards. When he heard Nelson say that he would kill Sam, witness was in the field, on Sunday. He was standing on one side of a string of fence; another fence was run to the one he was behind at right angles, and both fences were between him and the negroes. They were walking towards the fence he was standing behind, and crossed it about twenty yards from witness; and when he first heard them they were about twenty yards from the fence they crossed. Does not know what other negro- was with Nelson at the time. Did not hear any other part of the conversation. The negroes did not see him at all. He did not speak to them; and knew that it was about the twentieth of June, from his recollection of the size of the cotton. Told no one except his uncle, B. H. Spann, or his great uncle, Hyde, that he heard Nelson say he would kill Sam, until he told E. H. Spann, three months ago. Was present when Sam was found, but did not tell it. "Was present with Blankenship, the prosecutor, and others, when Nelson was arrested, but did not tell what he heard Nelson say about killing Sam. Told his uncle, William Spann, next day, after he heard Nelson have the conversation. Told Bichard Spann, the owner of Sam, about three months ago, since the last court. Never told him before. Never told Blankenship until about three months ago. Witness lived in one quarter of a mile of Blankenship, the prosecutor, and upon the plantation of his uncle, the owner of Sam. Saw some blood on Nelson’s pants when he was arrested: one big splotch and another smaller one on his leg.
    “Andrew, slave, proved, that on Sunday, the day that Sam was killed, he went to Ei chard Bland Vaughan’s. That he found there Lack’s Simon, MeClary’s Harkless, Haynes’ George, House’s Lewis, Nelson, the defendant, and Bob, or Pinn, the son of Simon; that soon after he got there Simon said he was going, or proposed to go up in the cedars. Simon and Harkless had wives at Vaughan’s. Lewis went off in another direction, and witness, Simon, Harkless, George, Pinn and Nelson, started together by the spring, and met Sam at the getting-over place from the road near the spring. Sam turned back with them. Witness was on his way home. When they got to near- where Mr. Forbes lived, they met three' other negroes, to wit: Ilayne’s Jack, Yernon’s Sam, and Johnson’s Charles. They met in the road, and the three last joined them; they turned out of the road by a near cut, where the road made a bend. They did not go more than one hundred yards from where they turned out of the road, whore they stopped. Whiskey was produced by some person; did not remember by whom, and they drank all around. Witness then left them, accompanied by Yernon’s Sam, who separated from witness as soon as they got to the road. Witness then went along the road, west, to the house of a free woman of color, named Rachel, and stopped. Went asleep there, and stayed until about two o’clock, when he started home again, going west. About one hundred yards west of Rachel’s house, he met with Sam, who came along a path from the north side of the road; the path led through the woods. When Nelson came into the road that witness was traveling, he and witness were near each other, and both of them stopped. Witness saw some blood on the shirt-bosom of Nelson, high up, near the top of the breast, and some, a good deal more, on the leg of his pantaloons. Witness saw' some blood on his face, and a scratch from which it came, just beneath Nelson’s eye. They then separated; witness going along the road, and Nelson pursuing the path he was in, which crossed the road at the place where they met, and ran in the direction of Nelson’s home. Witness stated that the whiskey was produced and drank where they stopped in the woods; that he did not stay longer than ton minutes; that no persons of the company went to Eorbes’ after whiskey, whilst he was there. That he was not there long enough for any person to have gone to Eorbes’ and back. That the three negroes who met them, were coming along the road, from the direction of the free woman’s house; they met in the road before they went into the woods. That when he left, no person but Vernon’s Sam left the company with him; that he left all the other nine together, and did not see any of them but Nelson that day. Rachel and her two daughters were at home when he got there, but Rachel went away soon after witness got there, leaving her daughter. Witness went there about twelve, and stayed until about two o’clock. Went asleep sitting in a passage, between the two rooms in the house; was sometimes awake and sometimes asleep, and saw no person there but the family, when he got there, whilst he stayed, or as he left. Witness stated Nelson told him how the blood came on him. Defendant, by his counsel, then asked the witness to tell what defendant said about the blood on his clothes. The State objected to the testimony; the objection was sustained, and the evidence was excluded by the court, to the exclusion of which testimony, defendant, by his counsel, excepted.
    
      “ Ilarkless, slave, said, I belong to Daniel McClary. I knew Sam, the deceased; he belonged to R. II. Spann; and I also knew Nelson, the defendant. I have a wife at Dick Blan Vaughan’s. Andrew, George, Lewis, Simon, Nelson, Pinn and myself, were at the house of Dick Blan Vaughan, Sunday. Nelson and Lewis started off together in one direction, and the others and myself started to the spring some short distance from the house, and there I first saw Sam, the deceased. Andrew, Simon, George, Pinn, Sam and witness, started up to the cedars, toward the meeting house. We had gone some ninety yards in that direction, when Nelson, the defendant, overtook us. We then went up into tbe codare, and all tbe others remained there until Simon, Sam and myself went to tbe bouse of one Eorbes, to buy liquor. I think it was in tbe month of May. We got a quart of liquor at Eorbes’, and then went back to tbe place where we left the others; and when we got back, there were three other negroes that come there about the time we returned, belonging to Haynes, Yernon and Johnson. We handed the liquor around to the persons then present, ten in number, which was all drank, and soon after all the persons present left, except Simon, Nelson, Sam and myself. In about fifteen minutes, Simon left Nelson, Sam and myself alone; and in about the same length of time, I left this place, leaving Nelson and Sam, the deceased, together alone. This was on Sunday, and on the next day, at the request of Richard H. Spann, Jr., I showed é him and my master, Danl. McClary, the place where I had left Nelson and Sam, the deceased, on Sunday, the day before. There were signs of a scuffle at this place, and I there saw the hat of Sam in one place, and close to it there wrere two pieces of tobacco, which Sam had, on the Sunday spoken of; and about forty or fifty yards from the place where his hat and tobacco was lying, we found the body of Sam who was dead. This place was in Rutherford county. When Simon, Sam and myself were at the house of Mr. Eorbes, Sam got a glass of liquor from him. Sam handed the glass to Simon and he to me; and I handed it back to Sam and he drank out of the glass and threw the balance of the liquor in the glass, away. Sam and Nelson were friendly when I left them in the cedars. This place was some three hundred yards .from the road, on the north side of the road, and about four hundred yards from tbe house of free Rachel. Tbe road spoken of ran east and west. The house of Rachel was on the north side of this road. Nelson had left with Lewis before we left Dick Elan Vaughan’s. Witness and Andrew got to Vaughan’s before Nelson. Nelson had not caught up with us when we met Sam. Nelson must have heard that we were going to the cedars before we left Vaughan’s; it was spoken of. We did not meet the three boys of Vernon’s, Haynes’, and Johnson’s, in the road. They came up to us about three hundred yards from the road. We did not leave the road in going towards Forbes’, in order to go a near cut. I do not know if Andrew drank any; he had the bottle in his hand. Simon left the place, when he drank, about one quarter of an hour before I did, and left Sam, Nelson, and myself alone. When Simon left he went back towards Vaughan’s, a south-east course. I followed after him and overtook him about half a mile from the place where we drank at.
    “Simon, slave, proved that he belonged to widow Lark, had a wife at Richard Blan Vaughan’s, and was there on the Sunday that Sam, the slave of R. H. Spann, was last seen alive. Nelson and House’s Lewis came there, then Andrew. TIarldess was there, had a wife there. Haynes’ George had come there the night before. Witness had a son named Bob, nick-named Pinn. He proposed to go np into the cedars, and they started. Nelson and Lewis left and went ont of the yard south to the road. Witness, Iiarkless, Andrew, George and Pinn went out west through the spring lot. At the getting over place at the road, they met Sam who turned back on the road west, and Nelson overtook them one hundred and fifty or two hundred yards on beyond the church, and they all went on together perfectly friendly. At the distance of about one and a half or two miles,’ they turned out of the road, went about fifty yards and stopped. Sam, the deceased, Harkless and witness then went to Eorbes’, about four hundred yards off, to get whiskey. They got a quart, witness had a tickler, and Harkless a bottle; these vessels were filled. Sam then got from Eorbes a glass as near full as he could carry it; Harkless first drank out of the glass; witness drank out of the glass, and handed it to Sam, who drank nearly all that was left, and threw the balance out. They remained at Eorbes’ about fifteen minutes, and then returned to the negroes they had left and found them in the same place. They drank up all the whiskey, and whilst they were drinking, Yernon’s Sam, Haynes’ «Tack, and Johnson’s Charles came up. They did not come through the field, they came through the woods from the direction of the road, or from Rachel’s house. Andrew was there until all the whiskey was drank up. He was there whilst they went after the whiskey, and after they came back, and until all the liquor was gone. ' Andrew, George, Finn, Yernon’s Sam, Haynes’ Jack, and Johnson’s Charles all then went off together towards Rachel’s house, leaving witness, Harkless, Sam, the deceased, and Nelson together. Witness stayed not longer than five minutes and left. Harkless, Nelson and Sam remained together, they were all there standing up. Nelson whitling the bark frorii a tree, with a small knife; Nelson and Sam were perfectly friendly and had been so. "When he was with them, they were not more than fifty yards from the road, and were at the same place all the time. Heard Sam tell Nelson that he had hurt him at his wife’s house. Said that Nelson bad put something in whiskey that injured him. Nelson said that Sam had been mad with him a long time, but that he had never had any thing against Sam. Witness told Sam to let them old things alone, and nothing more was said whilst he was there. When witness left them, he went to Eoxbes’ to get his bottle filled. Forbes’ was in a north-west direction from where they were. From Forbes’ he went by Rachel’s house; passed on the south side in front of the house, and about twenty yards from the house. Saw no person there or.about, except Andrew, standing in the door, talking to one of the girls. lie went by there because Hr. Forbes told him that there were two negroes, Vernon’s Lewis, and another, none of the original company, standing in the woods not far from Rachel’s house, and told witness to go and send them away, for fear that some person might suspect that they were there drinking liquor. Witness went and saw them and sent them away, and then went across the road south, through the woods; got into another road, and went towards Vaughan’s, lie and Harkless came together about one mile from where he had left them.. They were both going to Vaughan’s where they had wives. In going from Forbes’ to Rachel’s he was six hundred yards west of where he left Harkless, Sam and Nelson.
    “George, slave, was at Vaughan’s on Sunday that Sam was killed. Nelson, Andrew, Harkless, Simon, Finn and himself all started together; went through the spring lot and met Sam at the crossing place at the fence. They then went along in company. Saw Nelson have a large pocket knife. Came near Forbes’ and turned ■out of the road about fifty yards and stopped. Haynes’ Jack, Vernon’s Sam and Johnson’s Charles came up to them. Simon, Ilarldess and Sam then went to Forbes’ for whiskey, whilst the rest remained in the woods where they stopped. When Simon, Ilarldess and Sam came back, a tickler of whiskey was produced and they drank all around. Witness and Andrew, Yernon’s Sam, Haynes’ Jack, Finn and Johnson’s Charles all immediately went off together to Rachel’s house. When they got to Rachel’s house, they all stayed about there until towards evening. Some were in the house, some in the yard, and walking about the house and yard. Did not see Harkless, .Simon, Nelson or Sam after he left them as stated. Witness was in the passage between the two rooms of Rachel’s house; he and Andrew both left there, and some of the others were nodding about on the fence. When witness and the others broke off from the company in the woods, Harkless, Simon, Nelson and Sam. (the deceased) started at the same time in the opposite direction; the direction from which they had come. The last time witness saw them they were about one hundred yards from the place they had drank the whiskey; they were still walking on. The place they drank the whiskey was about fifty yards from the road. Witness did not see Simon pass Rachel’s house after he, witness, left them.
    “ Daniel MeClary : Harkless showed me and others the place where he had left Nelson and Sam on Sunday. We went there on the next day, which was Monday. This was about the 26th of April. I saw the leaves worked up as if there had been a scuffle, and found at this place a hat and two pieces of tobacco; the hat in one place and the tobacco a short distance from it. We found Sam between fifty and seventy-five yards fi’om that place; he was lying with his hands thrown back and one leg up; lie bad a cut across tbe lower part of bis belly four inches long; bis bowels .were partly out and a spoiling book bad been placed in tbe wound to keep them in. There was a stab in tbe left side of Sam, which seemed to go straight into tbe hollow, and there was a great deal of blood on his shirt from this wound. There was also some cuts upon the back, which were not deep, but seemed to have crossed, and there was some cuts upon the right shoulder, which ran towards the back bone; these cuts were not deep, extending through the skin. We found Sam some two or three hundred yards from the road, and about the same distance from Forbes’ field; he was on the north side of the road. Hie road run east and west, and was about one quarter of a mile from Rachel’s house, which is on the North side of the road. In going from the place where Sam was found, direct to the house of Hyde, his master, you will go south of negro Rachel’s. Hiere. is a path going around by Forbes’ field, west of Rachel’s. The place where' Sam was found is in Rutherford county. The negro, Harkless, belongs to me. Sam had no knife about his person.
    “John Nance: I was one of the jury of inquest upon the body of Sam, the deceased. I saw no knife about him. Was stript and cut across his bowels, some three inches. Was cut across his shoulders, and was stabbed under the left shoulder, to his hollow, and a great deal of blood was seen upon his clothes, from his wound; and there was also some cuts upon his back. There was dirt upon the hands of Sam.
    “Mr. Robertson: I saw Sam, the deceased, at the' time the jury of inquest was held, he had a cut across his bowels some three, four or five inches long. These was a spelling book'placed in tliis wound.^ There was a stab which went to the hollow below the shoulder blade; there was a cut on the left side of the back, and also cuts on the right side of the back.
    “Bird Spann, saw Nelson when he was arrested on Monday, at the house of Mr. Hyde; he had a good deal of blood on his leg.
    “W. B. Hudson, proved that he was at the corn-shucking at Blankenship’s, two years ago last fall. "Was in the yard where Nelson and the negroes were when ¥m. H. Blankenship came out. Witness took Nelson’s knife from him; he had it in his hand behind him. Nelson made no resistance, but gave it up.
    “Hinchen, slave, lived last year at Mr. Jones’; remembers the Sunday that Sam was killed. Saw Nelson going home that evening; had blood on his shirt bosom; more on one leg of his pantaloons. His coat was torn from the skirt up the back to his shoulders. There was dust on the back of his coat upon the shoulders. There were two scratches, near each other, on one side of his face, just beneath one of his eyes, and there was some blood coming out of them. One of his eyes was swelled. Said that the dirt on the back of his coat looked like lié had been wallowing. Said there was dust on his back. Was examined in this cause once before for the State, and did not tell about the coat being torn and dirt upon it, for the reason that he ivas not asked the question. He belongs to Mrs. Jordan, the sister of H. B. Hyde, the owner of Nelson. It Avas agreed by the counsel, that this A\dtness was brought to the present term, SAVorn and put under rule by the State, but not examined on behalf of the prosecutor.
    
      “ Henderson Hyde, proved that he is the son of H. B. Hyde, the owner of Nelson. That Nelson came home Sunday evening of the day before Sam was found hilled. "Witness saw him attending to his ordinary business; was fifteen or twenty steps from him, and saw the blood on one leg of his pantatoons. Witness says that next morning Nelson went to work in the cotton field. When Spann and others came to arrest him, witness went to the field and brought Nelson to the house. Saw some scratches beneath one of Nelson’s eyes; his face was a little swollen, and over one of his eyes there was a sign of a blow; the blood had come out of a slight wound at the point, and had congealed on the brow. Witness did not see his coat. Nelson assisted about baling the cotton. There were several knives procured for the purpose, like shoemakers’ knives, and Nelson had a knife of his own besides. Nelson made no attempt to evade or to get away. Witness knew Sam; was in the habit of weighing men about his father’s gin, and believed, from size and appearance, Sam would weigh about one hundred and seventy-five pounds.
    “ Frank, slave, knew Nelson and Sam both. Sam was about twenty-five or thirty years old. Heard Sain say that if ever he caught Nelson off from home he intended to beat him nearly to death with a stick. He intended just to leave life in him. That Sam was the younger and stouter man. Sam said that Nelson had hurt him; he did not know how Nelson had done it, unless he had put something down so that he, Sam, had walked over it; that Sam said he had been in bad health through the winter, but was getting over it. This conversation was in March last. I was not examined in this ease in the last trial. My mistress is the sister of H. B. Hyde, and I first told one of bis negro men of wbat Sam told me.
    “ Claiborne, slave, knew Sam and Nelson, botb. Heard Sam say, fall before last, that Nelson bad tricked bim, and tbe first time be caugbt bim in bis neighborhood, or from home, be would whip Nelson, or Nelson should whip him. Says that be told Blankenship, that be never beard Nelson threaten Sam, but be did not tell bim that be never beard Sam threaten Nelson.
    “ Pillman, slave, proves that be beard Sam, tbe deceased, say that be intended to whip Nelson tbe first time be caught bim from home. Sam said be would beat Nelson because Nelson bad hurt bim, by laying something down for bim, Sam, to walk over. Says that be never did tell Blankenship that be never beard Sam threaten Nelson; but be told bim that be never beard Nelson threaten Sam.
    “ Smith, slave, beard Sam say if be ever caught Nelson from home be would whip bim. I never told this till my master, H. B. Hyde, asked me about it.
    “The State then recalled Blankenship, who stated: I asked Claiborne and Pillman if they bad ever beard any threats made by Nelson against Sam, or any threats made by Sam against Nelson, and they botb told me they never bad beard any threat made by either of them against tbe other.”
    Tbe defendant, by bis counsel, offered tbe examination of tbe defendant, and tbe other witnesses taken before tbe justice of tbe peace, who committed Nelson; to tbe reading of which tbe State objected; tbe objection was sustained, and tbe evidence excluded, to which defendant excepted.
    
      During the examination of the witnesses on behalf of the State, and before they had all been examined,the court adjourned for dinner. Whereupon, all the remaining witnesses for the State, as well as the witnesses for the defendant, were all permitted by the court to disperse; all the witnesses in the cause having been sworn and put under rule at the commencement of the trial. Some of the State’s witnesses had been examined and discharged. As the witnesses were permitted to disperse, by order of the court, without the consent of defendant, his counsel having left the court room, as the court was in the act of adjourning. When the court met after dinner, the witnesses were again put under rule, and the prosecution proceeded to the examination of their witnesses in chief. Defendant objected to the introduction of any more of the witnesses on behalf of the State, for the reason that they had been allowed to disperse, to get their dinner, at the adjournment for dinner. The court overruled the objection, and permitted the witnesses to be examined, .to which the defendant excepted. The coiirt directed the officer having charge of the witnesses, to state to them not to have conversation with any body upon the subject of the trial, and to convene the witnesses immediately after dinner under the rule. The witnesses were permitted to get dinner.
    “Among other things unexcepted to, the court charged the jury that this defendant was indicted for the commission of the offence of murder, and that murder was the unlawful killing of a reasonable creature, in being with malice aforethought. That malice was a necessary ingredient in murder. That murder could not exist without malice aforethought. The Court further stated to the jury that malice was not always a particular spite or animosity to the person injured, but that it was evinced by that frame of mind which showed that a man had a heart regardless of social duty, and fatally bent on mischief; it is evidenced by that disposition which never hesitates, for the slightest injury, to inflict the severest punishment; in short, that whenever any man committed upon another, any cruel, deliberate, wicked act, that in contemplation of law, it was malicious; and that whenever a killing was proved, the law presumed the killing to be malicious, and the party killing will be held to the guilt of murder; then, if you shall find from the testimony in this cause, that Nelson, the defendant, killed Sam, as charged in the indictment, the law presumes the killing to be malicious, unless the testimony in the case, either on the part of the accused or the government, rebutted the presumption of malice arising from the act of killing, and mitigated the killing to manslaughter, or excusable homicide. The court further stated to the jury, that malic.e of the description to constitute murder, was of two kinds: express malice; and malice implied in law. Express malice, was when one man formed a deliberate design to take the life of another; that it was evidenced by antecedent menaces, former grudges. Implied malice, was that description of malice which was presumed, or deduced from the nature of the weapon used; if the weapon used to effect a killing, was one of a dangerous character, likely to inflict death, or produce great bodily harm, then the law attached malice to the act from the weapon used, and it would constitute implied malice. The court further stated to the jury, that no word, gesture, or provoking conduct, short of an assault, would reduce a killing from murder to manslaughter ; nor would every trivial or slight assault do it, especially if the party killing used a deadly weapon. The court further stated, that an assault would reduce a killing from murder to- manslaughter. The court further stated to the jury, that manslaughter was the unlawful killing of another without malice, either express or implied, upon a sufficient legal fear. Then if one man, upon a reasonable or legal provocation, under the influence of heat or passion, kill another, it will be manslaughter ; but if the provocation does not induce heat or passion, it will not be manslaughter; for, to constitute manslaughter there must be both passion and provocation. If one man attack another by assaulting him, or offering him some indignity, such as would likely produce passion, and upon the provocation thus given, under the heat of blood and passion, thus aroused, he draws upon him a deadly weapon, and slays his adversary, it will be manslaughter. If you shall find from the testimony, that Sam assaulted Nelson, by attacking him, and thereupon Nelson drew his knife and slew him under the influence of the heat and passion produced by the assault and attack, then Nelson would be guilty of manslaughter, and could not be convicted under this indictment. If, though, high words, and a quarrel ensued, without any assault, and Nelson drew his knife and killed Sam, then he would be guilty of murder ; or, if they went out to fight upon terms of equality, and thereupon Nelson took some undue advantage, and commenced the fight with a deadly weapon, which he had prepared for the purpose, then he would not be guilty of manslaughter, but his offence would be murder. The court further stated to the jury, that before the defendant could avail himself of the plea of self-defense, that he must show that he done every thing that he could do, consistent with his own safety, to avoid the combat before he slew his adversary, and that he took the life of his adversary only to preserve his own life or person, from some great bodily harm. In the language of the old writers upon this subject, ‘that he must give back to the wall,’ which simply means that he must avoid, if compatible with safety to his person, the attack of his adversary,1 but if the attack be so sudden, fierce and violent, that he cannot retreat or avoid the attack of his adversary, without exposing his person to the danger of death, or great bodily harm, then he may instantly slay his adversary; or he may even' pursue him until he finds himself out of danger, and then slay him, and it will be homicide in self-defense. The court further stated to the jury, that, in considering the testimony of the witnesses, that if there was conflict, or various statements made by them, it was their duty, if practicable, or consistent with truth, to reconcile all the testimony. The presumption of the law was, that every witness would swear truly; notwithstanding this presumption, a trial rarely ever takes place, that the jury are not called upon to separate truth from falsehood. The court stated to the jury, that the conflicts, or various statements made by witnesses, must be of such prominent character as not to be attributed to the want of memory; that if they differ upon collateral and minute facts, such as would likely be attributed to a want of memory, or may consist in matters of opinion in relation to time, or distances, the law ascribes to such, variances and conflicts, but little importance. The conflicts to discredit, must be to some facts that are too prominent to be ascribed to want of memory, or defect of judgment. It is true, if tbe jury are convinced that a witness has stated a deliberate falsehood; that is, a fact he knows to be false, the law discards his testimony altogether. The court further stated to the jury that circumstantial testimony consisted of any testimony that was not positive ; and that in order to produce a conviction, upon circumstantial testimony, that the testimony must be of so conclusive a character as to exclude any other conclusion than the guilt of the defendant. If the circumstances are of so doubtful a character as to indicate that either of these propositions may be true, then it would not be sufficient to convict. ”
    The jury returned a verdict of guilty of murder in the first degree, and the court rendered judgment accordingly, whereupon the prisoner appealed in error.
    E. A. Keeble and J. ~W. BurtoN, for the prisoner.
    ATTORNEY GENERAL, for the State.
   Cabutiiees, J.,

delivered the opinion of the court.

The defendant, a slave of Ií. B. Hyde, was indicted and convicted in the criminal court of Rutherford county, for the murder of Sam, a slave of Richard H. Spann.

Yarious objections are here urged as errors in the proceedings below.

1. Pending the trial on the adjournment of the court for dinner, before the close of the proof of the State, the court permitted the witnesses to be discharged from the rule under which they had been placed, and allowed them to disperse until the meeting of the court, when they were again put under the rule. The officer having them in charge was directed by the Judge to caution them against talking with any one on the subject of the trial. The defendant’s counsel had left the court house before this order was made, and consequently did not either consent or object. "When the examination of the witnesses was resumed after dinner, the defendant objected on the ground above stated, and the objection was overruled by the court, to all which there is exception.

We are not aware of any rule of practice that would make this error. The practice of examining the witnesses separate and apart from each other, at the request of either party, is invaluable in many cases for the ascertainment of truth, and the detection of falsehood. Such has been the experience of wise men in all ages, from the days of Daniel, that divinely-inspired Judge, down to the present time. By our practice, it is the right of parties to demand of the court an order that the witnesses shall not hear each other examined, or shall be kept together, which is called “a rule,” or “putting the witnesses under a rule.” But whether they shall be locked up and not permitted to disperse under any circumstances, or be ordered to keep out of the court house, we think depends entirely upon the sound discretion of the judge, governed and regulated by the circumstances of each particular case. It would be a very oppressive exercise of this discretion to keep them confined and not permit them to eat or disperse for any purpose, during a long trial, without some very strong cause appearing in some tangible form. On the other hand, this discretion should not give too loose a reign to the witnesses, against tbe consent of tbe parties, so as to defeat tbe great object of tbe rule. But all tbis we tbinb, from tbe necessity of tbe ease, must be left to tbe discretion of tbe circuit judge, and it would be very dangerous for tbis court to undertake to regulate bim in sucb matters of practice, unless some plain rule was prescribed in the authorities, or laid down by the legislature on tbe subject.

If tbe circuit judge were to deny tbe rale altogether, or so practice upon it as to make it inoperative in tbe face of. an express objection of a party, then it would probably amount to error sufficient to authorize tbe granting of a new trial, because it would be tbe denial of a right to tbe party demanding it, that might be very fatal to bis cause. But we see nothing in tbe case before us for which we can reverse, in accordance with these principles.

2. Tbe next objection taken is, that tbe court refused to allow defendant to read tbe record made by tbe committing magistrate under tbe act of 1Y15, cb. 16, Oar. N. 426, of bis own examination, and tbe testimony of tbe witnesses. There is no error in tbis. Tbe defendant certainly was not entitled to bis own statements, made before tbe magistrate or any where else, as evidence for himself. He is not bound to submit to it, if be chooses to object, and so tbe accused ought to be instructed by every committing court. It is rather intended by tbe statute, as a privilege to bim, that be may be allowed to speak for himself.” He may clear - himself of suspicion by developing a state of facts, or unravelling mysteries that will lead to a clear manifestation of bis innocence, and to bis discharge. But it certainly was never intended that be should seize upon tbis privilege to manufacture evidence for bimself to be afterwards used on bis trial.

But tbe court also rejected tbe examination of tbe witnesses in tbe case. This presents a more doubtful question; but we tbink upon principle, tbe exclusion was right in tbe state of facts then existing. We tbink the only ground upon which such examination could be introduced, would be to discredit some of tbe same witnesses whó bad been examined in tbe pending trial. But in order to make this legal, it would be necessary first to interrogate such witness as to what be may have said before tbe magistrate, that be might have a chance to .set bimself right, if be can. We are not aware that this question has been adjudicated before, but it must be governed by tbe same principle that has been uniformly applied to tbe case of tbe impeachment of a witness, by proving that be has made statements to other persons in conflict with those made on bis examination in court.

Tbe rule is, that this cannot be done, unless be is first particularly interrogated as to such anterior statement. This is absolutely required to make tbe contradictory evidence legal. The same rule must govern this case; there is no reason for a distinction; as then, no witness was asked what be bad said or sworn in bis examination before the- committing court, that could not be read to contradict or impeach him, which is tbe only purpose for which it -would be admissible. It is true that what a witness swore before a magistrate or court, may be proved as evidence in tbe event of bis death. But this is on another and distinct principle.

8. It is next contended that tbe court erred in tbe rejection of evidence to show tbe explanation of tbe defendant of tbe fact that be bad blood upon him a short time after the homicide occurred. The witness for the State proved that he met the defendant at the junction of a path coming from the direction where the body was found, and the road which he was going, some hundred yards from the body, and probably but a very short time after the killing, and saw blood upon him in several places. He said the prisoner then and there gave him some explanation about the blood. The attorney general objected to the question of defendant’s counsel, calling for such explanation. Hie objection was sustained and the evidence rejected. A party cannot be allowed to make evidence for himself, and nothing that he can say will be received as evidence for him unless it constitutes a part of the transaction, the res gesim. Does this fall within that exception? "We think not. Declarations are not admissible as part of the res gestae, unless they were made at the time of the act done, which is under investigation, and which they are calculated to characterize; they must so harmonize and be connected with the act done, as to constitute a part of it. The declarations offered in'proof must be contemporaneous with the main fact under consideration, and so connected with it as to illustrate its character. 1 Greenl. Ev. 124; 3 Con. R. 250; Paige, 611; 8 New. Ham. 40.

So, in order to make any thing said by the defendant evidence for him, it must have been so connected with the fact of killing as to constitute a part of the transaction. Eor instance, if he had been heard to say anything at the time, and on the ground, in justification, or excuse of himself, it would have been competent proof. But what he said about it, or any fact tending to show his guilt, after the transaction was over, would not be a part of the res gestae. It must be connected with an action then transpiring. That was not so here. The deed was done, the bloody tragedy closed, and the defendant some distance from the fatal battle ground. There is no authority extending the principle so far, and the declaration of defendant was properly rejected.

4. Objections are taken to the charge of the court. We have read it over very carefully and consider it a correct exposition of the law as far as it goes. It is not defective on the points insisted upon in argument. It would have been more perfect, if the court had explained to the jury the effect of the reconciliation and subsequent friendly relations of the parties, upon the previous threats that had. been proved. Former grudges and threats evince the existence of express malice as charged by the judge, but their force and effect to show the existence of malice at the time of the killing, would certainly be impaired by time and subsequent reconciliation and friendly relations. To what extent this effect would be produced, would of course be a question for the jury. It was due to the defendant, to present this view of the case to the jury. And it would also have been proper for the court to have embraced in his charge, the familiar principle of criminal law, that where there is an old grudge, and a fresh legal provocation, the killing will, if the circumstances permit, rather be attributed to the recent provocation, if it be a sufficient one, than to the old grudge. As there was no human eye looking upon this transaction, and none but the accused could know the circumstances attending it, the jury would have to judge from the facts proved, whether the case was manslaughter or murder. They could have no difficulty, under the proof in this case, as to the fact of killing, but whether it was done upon malice or passion, so as to make a ease of manslaughter or murder, that is, whether the facts proved were sufficient to remove the legal presumption of malice arising from the act of slaying, and the weapon used, and the former threats, would constitute their only difficulty. To come to a conclusion on this question, they would have to carefully weigh the concomitant facts, such as the commencement of the quarrel by the deceased that day, the remark of the prisoner that he had nothing against him, the relative size and strength of each, the appearance of the ground on which they fought evidencing mutual combat, the condition of the clothes and person of Nelson and the deceased, tending to show the same. They would also look to the state of Sam’s feelings towards Nelson, as indicated on that day and previously, as circumstances making it probable that he might have made the attack and produced a state of the case that would reduce the killing to manslaughter. We think the charge of the law ought to have been more full and explicit on these points, in a case of life and death, where every thing must depend upon the weight and beaiing of circumstances and the strength of presumptions. It is true in general, upon a failure to charge fully where there is no essential point omitted or wrongly charged, it is necessary that it should appear that the party asked for further instructions, and the court refused to give them; but in this case we regard the omission as too important to the life of a human being, to place it upon that ground. "We do not say that it would have produced a different result, but it is enough that it might have done so.

Upon the facts as they are presented to us in the bill of exceptions, taken in connection with this defect in the charge, we are not willing to consign the defendant to the gallows, without another trial. It may be that the proof is not presented to ns as strongly as it was before the jury, but we can only look to and act upon it as it is in the record.

As the case will have to be again tried we will forbear to comment further upon the proof. It is enough for us to say that, as it is written down, it is hardly sufficient to Sustain the verdict; and for this reason and because we think the defendant did not have the advantage of a full explanation of the law on the points before designated, we reverse the judgment refusing a new trial and remand the prisoner for another trial.  