
    George (a slave) v. The State of Mississippi.
    1. Indictment : joinder of distinct felonies in : when quashed for.— Several distinct felonies of the same degree against the same offender may he embraced in the same indictment; but if objection be made on that account before plea, the court will quash the indictment, lest it should embarrass the defendant in his defence or prejudice him in his challenge to the jury; hut the defendant has no legal right to have the indictment quashed, nor to compel the State to elect as to which count it will proceed to try him, and it will not therefore he error if the court refuse to do it. See Wash's case, 14 S. & M. 120; Sarah's case, 28 Miss. E. 267.
    2. Same: same : court cannot quash for misjoinder of counts after plea. — -The court has no right, after the defendant has been arraigned and pleaded to the indictment, to sustain his motion to quash the indictment because counts in several distinct felonies are joined in it, nor to compel the State to elect on which of the counts the prisoner shall be tried.
    3. Witness : accomplices witnesses against each other. — Par ties jointly indicted for the same felony are competent witnesses against each other, when they are tried separately.
    4. Instructions : circuit judge has the eight to modify. — The circuit judge has the right to modify instructions asked so as to make them conform to his views of the law, and if they he correct as modified by him, it will not be error that they were also correct as asked.
    5. Evidence : right of jury to weigh and consider evidence of accomplice. — The testimony of a paity jointly indicted with the defendant for a capital felony, though competent against him, should he received and considered with caution ; and in weighing it the jury have a right to, and should, take into consideration the situation of the witness and the temptation he may have to swear falsely, and give it such consideration as they may deem proper. They have the right to disregard such testimony entirely if they deem it not entitled to credit, or to take such parts of it as maybe consistent with the other testimony in the cause, or they may receive and act upon, the whole of it if they deem it worthy of credit and belief.
    C. Same: discredit of witness : right of jury in such a case. — To discredit a witness, it is not necessary to bring witnesses to swear that they ' would not believe him under oath. The manner of a witness in .testifying, his situation, and motives to commit perjury, proof of his having made statements which he denies under oath, may all be taken into consideration as affecting his or her credit; and the jury, upon consideration of all the circumstances, may act upon or disregard the testimony of such a witness, in whole or in part, as they shall deem it worthy or unworthy of belief.
    7. Jury: incompetent juror: how incompetency waived. — The law affords every person, charged with a crime an opportunity of inquiring into the qualifications and competency of the jurors before whom he is to be tried;. and if ho fail to make such inquiry, and thereby an incompetent person becomes a member of the jury, he will be held to have waived the objection; and he cannot, therefore, after conviction, insist upon a new trial on account of the incompetency of a juror and of his ignorance of such incompetency at the time of the trial. See Williams v. The State, 37 Miss. R. 407.
    Error to the Circuit Court of Bolivar county. Hon. J. S. Yerger, judge.
    The plaintiff in error (George) and one Josephine, both slaves, and belonging to Lafayette Jones, were jointly indicted for murdering, by poison, Lelia Virginia Jones, who at the time of her death was about eighteen months old. There were two counts in the indictment; the first charging both parties as principals, the second charging Josephine as principal and George as accessary before the fact.
    On motion of the State, a severance in the trial was granted; and George, having been put on his trial, moved the court to quash the indictment on account of misjoinder of the two counts, which being overruled, he moved the court to compel the district attorney to elect on which of the counts he would proceed to try him. This motion was also overruled.'
    On the trial, it was proven for the State, by said Lafayette Jones, that he had owned George about twelve years; that for the last two or three years he had been an invalid and had not worked in the field, but had done little jobs about the house and yard; that on the last Sunday preceding the poisoning he had ordered his overseer to direct George to go to laying off cornrows on the next morning, but George, being sick next morning, was not put to work as directed. That on the 27th February, 1857, about noon, he and his wife and his little daughter Lelia Virginia Jones, and his son and a Mr. Forbes, ate dinner at his residence. That he (witness) and Mrs. Jones and Lelia Virginia Jones drank tea; that Lelia was taken- sick at the table, and in ten or fifteen minutes after dinner he and his wife were taken violently ill, all of them vomiting a good deal; that he had burning and retching about the stomach, and all three of them bigb nervous excitement. That his son and Forbes did not drink of the tea, and were not sick. That Delia Virginia kept growing worse, and died that night about ten o’clock, from the attack, at his residence in Bolivar county, in this State.
    On cross-examination, he stated that George had always been a good and obedient and humane servant. That he had purchased said Josephine but a few weeks previously, in New Orleans; that she seemed a good deal dissatisfied at the purchase. That she was the cook who prepared dinner on the day of the poisoning, and had been acting in that capacity for about a week. That on that morning she had been impudent to his wife, for which he had given her a slight whipping, and that the overseer had also whipped her for that offence.
    Mrs. Jones, -for the State, testified in relation to the poisoning in substance the same'as her husband. She described her sickness after tea as he had done. She stated that she.had only taken a few sups of the tea, and that her little daughter had drank a cupful. She stated that tea was not usually prepared for dinner, but only when it was specially ordered, and that she did not remember to have ordered tea that day. She also stated that she had gone to the smoke-house with Josephine to give out dinner, and that Josephine did not then appear to be in a bad humor; but that, after the whipping in the morning, she was morose and sulky. That in the last two or three days before the poisoning Josephine’s manner had changed.
    Both of the above witnesses stated that it was no part of George’s business to be in and about the kitchen, and neither of them remembered to have seen him there on the day of the poisoning. Mr. Jones stated that George was engaged at work in fixing up the palings around the yard.
    John Rhodes, for the State, testified that he was overseer for Lafayette Jones in 1857; that on Sunday previous to the poisoning he told George to go to laying off corn-rows next morning — that his master had so.ordered. George said he was sick and not able to work; that his master was tighter on him than ever before, and that witness was the cause of it. George did not refuse to lay off the corn-rows, but grumbled, not more than negroes who had been indulged a good deal usually do. George, was sick next morning — had fever — and was not put to laying off the corn-rows, and never had been put to that work. George was a negro of good character for fidelity and obedience.
    -Dixon, for the State, testified that he was overseer for L. Jones in 1854 and 1855. In the year 1854 George told witness that he had found a vial with some white stuff in it, and asked witness what he should do with it. George, while under witness’s charge, was of good character for truth, fidelity and obedience.
    Dr. Mason, for the State. Visited Jones and wife and the deceased professionally on the evening of the poisoning. He described the symptoms of the attack under which they were laboring, and stated that they were such as were commonly produced by arsenic. That he had no doubt they-had taken arsenic, and that the child died from the effects of it that evening soon after his arrival there.
    The State then introduced Josephine, who was jointly indicted with George, as a witness. The defendant objected that she was not competent. The objection was overruled, and the defendant excepted. She then testified as follows: That about a week before the poisoning she went, about nine or ten o’clock at night, to George’s cabin to carry him his supper. George said he was sick, and that the overseer had ordered him to lay off corn-rows next morning, and that he could not do it; that his master was getting tighter on him than he had ever been, and that the overseer was the cause of it; that it was master’s day now, but it would be his after a while; that he was going to take care of number one. He spoke in his usual tone of voice. George then got up and went to his chest, without saying what he wanted. After. looking about in his chest some time he took out a vial and showed it to witness, and said it was ratsbane or strychnine, he did not know which, and that he would have use for it after a while. Witness can read a little, and seeing a small part of a label on the vial endeavored to read it and thought she could make out “arsenic.” George put it back in the chest. There was a little negro girl called Eliza in the cabin at the time, but does not know in what part of the cabin she was; thinks she was at the'fire-place cooking her supper. On the day of the poisoning George came into the kitchen a short time before dinner; the dishes were on a table to the right of the stove; witness was at a table to the left of the stove. George said he wanted to take some medicine, and asked for a spoon; he reached up and got one. After a short time he reached up as if to put something on the plate or joist of the kitchen, and- said, “Don’t let anybody disturb this.” Witness had her back to George most of the time, and did not see him put any thing into any of the dishes or vessels. Tea had not then been made. There was a tea-kettle on the stove, and a tea-pot on the table with the dishes. George was about five feet from the stove, and near the table on which the dishes were placed. When George asked for the spoon, she told him he knew where to get it, and not to bother her. There was water in the kettle, but none in the tea-pot. Maria (a small negro girl) afterwards poured water on the tea in the tea-pot. After the poisoning, Mr. Rhodes, the overseer, arrested her and tied her to the bed in a room between the dining-room and parlor. There is a do'or with a broken pane of glass in it, and shortly after her arrest George came to the door and spoke to her through the broken pane, and asked her if she had removed that bottle from where he put it. She told him she had not removed it, and knew nothing about it. She asked him if he had put anything into the dinner. He said, “Not enough to hurt,” and then said be would go and destroy the vial. Shortly after be came round to the window at the other end of the room and told her he had thrown the vial in the fire and destroyed it, and said, “ For God’s sake, say nothing about it.” The window-sash was pushed up a little way and a book placed under it, and witness saw George when he came there. She had been sitting on a chair, but rose up when he came.
    Cross-examined. After the poisoning Mrs. Jones directed her to bring in a tub of warm water, which she did, and then by direction of Mrs. Jones went into the ironing-room to iron a dress. She was there when arrested. Before dinner, when going to Mary’s room for dishes, she saw one of her handkerchiefs there, which seemed to have been used in straining starch. She took the handkerchief to the kitchen, and shortly before dinner washed it, and hung it on a bush to dry. She had not, to the best of her recollection, told Judge McGuire or Dr. Mason, on the evening of the day on which the poisoning took place, “ that she had seen George put something in the tea-pot and stir it up.” She was confident she had not told them so. She said when she saw the vial at George’s cabin she thought of no harm. She had never told Dr. Mason that she and George had conspired to poison Jones’s family.
    The State here closed.
    Eliza, a slave, testified for the defendant, that she was in George’s cabin cooking her supper, when Josephine came in; this was the night before the poisoning. Some time after Josephine came, George went to his chest, as he said, to look for some tobacco. After rummaging about some time he picked up a vial, and said to Josephine, “Here is some stuff) either rats-bane or strychnine.” Josephine said, “Let me look at it, uncle George.” She took it and tried to spell out some word on a paper which was on the vial, and said it was arsenic, and handed it back to uncle George, who said he did not want it and had no use for any such stuff Josephine then asked George for it, and took it and put it in her pocket. George said he had found it in the road, and had had it for a long time.
    Cross-examined. She did not sleep in the cabin that night; came there to cook her supper. George looked in the chest some time for the tobacco; he came from the chest with the vial in his hand. Witness had her back to George when he first went to the chest; but had turned round when she saw him with the vial; was near enough to hear distinctly what was said. Heard George say to Josephine that his master was getting tighter on him than he had been; that Mr. Rhodes was-the cause of it. He did not appear to be angry. Said he was not able to lay off corn-rows. Did not hear him say that his master had had his day, and he would have his, nor that he would take care of number one. Had heard George the Sunday night before speak of his master wanting him to lay off corn-rows, and that he was getting too tight on him. She stayed in the cabin about an hour that night. George and Josephine had been sleeping in the cabin about-two weeks. Maria, a slave, about eleven years of age, for defence, testified that on the day of the poisoning, shortly before dinner, she went into the kitchen and saw Josephine straining something through a handkerchief into the tea-pot; the handkerchief was wet. She had one hand in the pot and was squeezing something. Josephine afterwards washed the handkerchief by pouring water from a gourd, and then hung it on a bush 'behind the kitchen. Witness told this on the night of the poisoning to Dr. Mason, who told her to go and get the handkerchief, which she did and gave it tp Dr. M. or Judge McGuire. When witness first went into the kitchen Josephine told her to go and ask her mistress if she wanted tea for dinner. Witness went, and came back and told Josephine that her mistress 'said make the tea. “ It was on her second going that she saw Josephine washing out the handkerchief. Went with Josephine to the store-room to get the tea. Saw her hang out the handkerchief when she went back to tell Josephine -to make tea.” When sent by Dr. Mason, she found the handkerchief on the bush where Josephine put it; the handkerchief was white.
    On cross-examination, she stated: “She saw Josephine squeezing the handkerchief into the tea-pot when she was going to ask her mistress if tea should be made; then she stated she saw Josephine squeezing the handkerchief when she went with Josephine to the store-room to get tea; and afterwards stated she saw her washing the handkerchief at the kitchen door when she was returning from the house with the message to Josephine to make tea, and then she saw Josephine hang it on the bush from which witness afterwards took it.” Witness said that none of the negroes on the place, nor her master nor mistress, had ever talked to her about the poisoning since it occurred.
    Raney, a slave, for defence, testified that on the morning after the poisoning witness went into the room where Josephine and George were tied; talked with Josephine and charged her with the poisoning. Josephine said, "You all make more fuss than the white folks. I am not the first that has done such a thing by ten thousand.” Becky and Abram were present. Josephine said nothing about George.
    Abram, a slave, for defence, stated that on the morning after the poisoning he saw Josephine in the house, when Becky and Raney .were there; heard two of the women talking with her about the poisoning; they were asking her why she did it, and they kept on asking her and bothering her; she was crying. She said, Eor God’s sake, people, hush. You keep more fuss about it than the white people. I’m not the first that’s ever did a crime, by ten thousand.” Did.not recollect whether George was there or not. Witness had been put there by the overseer to keep guard.
    Becky, a slave, for defence, testified: Witness was in the room where Josephine was tied on the morning after the poisoning, and heard witness Raney talking to her. Witness Abram was there. Josephine was crying, and said, “You make more fuss than the white people. I am not the first that has ever done such a thing by ten thousand.” She said if she could call back yesterday for to-day she would do it, but it was too late. She said, “ I did not tell uncle George to give me the strychnine; if you can all clear George by talking, do it.” Witness had been George’s wife seven or eight years before; lived with him two or three years; had no children by him. Witness is the mother of witness Maria, who usually slept in the dwelling-house.
    Dr. Mason, for the defence, testified that on the night of the day on which the poisoning took place, he talked with Josephine. She was then tied. She said " she did not do it; that George came into the kitchen and asked for a spoon; she was standing in another part of the kitchen; thought he was going to take medicine; had her back to him ; turned round and saw George stirring in the tea-pot. He then reached up to the plate of the house on which the rafters rested, and said, 'I’ll lay that up there; don’t disturb it.’ She understood him to mean the vial.” Witness then took her into her room, and asked her if she and George had not conspired to poison the family. She said they had, but that she did not know that George was going to do it that day. Witness asked her where the poison was. She said she did not know. Witness asked again. She said she could tell where George said it was, and that George said it was thrown in the fire in Mr. Forbes’ room. Witness then went into that room and witness found in the the of a the glass being a little fused; the fire must have been burning at the time it was thrown in. Witness heard, on the night of the poisoning, witness Maria say she had seen Josephine strain something through a handkerchief into the tea-pot, and then wash the handkerchief and hang it out on a bush behind the kitchen. Witness directed Maria to bring the handkerchief to him; she brought a white linen handkerchief, which appeared to have been recently washed, and not ironed.
    Cross-examined. Josephine, when first examined, exonerated herself and tried to throw it all on George. Witness did not see George that day until shortly after his arrest; he did not then exhibit any alarm, and appeared natural just as he does now. This was. between ten and eleven o’clock at night. Witness, in order to induce Josephine to tell all she knew, promised to get her off on a steamboat and save her. This promise was made to her before she made any confessions.
    Lafayette Jones, for defence, stated that his house is placed on blocks three or three and a half feet high. The window spoken of by Josephine, and to which she said George came the second time to speak to her, is eighteen inches or two feet from the floor. Does not think one standing on the outside by the window could be seen by one within, and at the foot of the bed where Josephine was tied sitting in a chair; the head of the outside person might be seen by a person standing up at the foot of the bed.
    Judge McGuire, for defence. Witness is father-in-law of Jones, and went to his house on the evening the poisoning took place and talked with Josephine. She told him that George came into the kitchen and wanted a spoon, as he said, to take medicine. She was accustomed to his taking medicine. The stove was in the middle of the room, and she was on one side and he on the other. He got a spoon and put some white stuff in it and put it in the tea-pot; he then laid the vial on the plate or joist of the house. Witness further stated that witness Maria told him and others that she saw Josephine strain something into the tea-pot, through a white handkerchief; that she saw Josephine wash the handkerchief and hang it out to dry on a bush. Maria said this in presence of Josephine. Dr. Mason then told Maria to bring the handkerchief, which she immediately did. »It had the appearance of having been recently washed, and not ironed. Josephine first denied all knowledge of it, but afterwards said it was hers. George was about the yard when he „was arrested. Josephine told him and others that witness Eliza saw George give her a vial. Eliza, upon being interrogated, said she had seen George give Josephine a vial.
    This was all the defendant’s testimony.
    The State, thereupon, after having proven that the identical' handkerchief before referred to had been delivered to Professor William D. Moore, and in the same condition in which it was when produced by Maria, introduced said Moore as a witness, who testified as follows: That he cut parts of said handkerchief, as follows: a square in the centre of the handkerchief in size about equal to the width of the border on all sides remaining after the square was cut out, and also cut out strips running from the corners of said square to within a short distance of the adjacent corners of the handkerchief.. These strips were two and a-half inches wide. That he had submitted the pieces so cut out to chemical tests, and that he found a great deal of starch in them, and found no sign or trace of arsenic. That he had employed such tests as would certainly have discovered arsenic if that poison had been filtered through the handkerchief on the 29th of February, 1857, and afterwards washed, as was stated by the witness Maria. That he had also submitted the remainder of the handkerchief to chemical tests, and discovered starch in it, but that he had not applied to it any chemical test which was used for discovering arsenic. The professor gave a detailed statement as to what tests he applied, and how he applied them.
    This was all the testimony.
    For the State the following instructions were given:
    1. “That a prisoner may be convicted on circumstantial evidence as well as on direct and positive testimony. Great care and caution should be used by the jury in the investigation of such evidence. When, after due care and caution in the investigation of circumstantial evidence, a full conviction on the minds and consciences of the jury, of the guilt of the accused, to the ex-elusion of all reasonable doubt, is produced, tbe law authorizes the jury to act upon it. Circumstantial evidence, which satisfies the minds and conscience of the jury to the exclusion of all reasonable doubt, is sufficient to justify a conviction. Absolute demonstrative certainty is not essential to proof by circumstances : it is sufficient if the circumstances produce moral certainty to the exclusion of all reasonable doubt. The legal test of the sufficiency of evidence, either circumstantial or direct and positive, to authorize a correction, is its sufficiency to'satisfy the understandings and consciences of the jury, to the exclusion of all reasonable doubt, of the prisoner’s guilt.”
    2. “ To authorize the jury to find the prisoner guilty, there should be evidence before them sufficient to satisfy their minds of his guilt beyond a reasonable doubt; that which amounts to mere possibility only, or conjecture, or supposition, is not what is meant by a reasonable doubt. The doubt which should properly induce a jury to withhold a verdict of guilty should be such a doubt as would reasonably arise from the evidence before them.”
    8. “If the circumstances in the case proven before the jury satisfy their minds of the guilt of George, as charged in the indictment, to the exclusion of every reasonable doubt arising from the evidence before them, and are sufficient to satisfy their minds and consciences, to the exclusion of every reasonable doubt, of his guilt as above explained, they will find him guilty, as the indictment charges.”
    4. “The testimony of the girl Josephine is competent legal testimony for the consideration of the jury, and is to be as fully weighed and considered as any other testimony in the cause, but may be impeached or disregarded by the jury, if, from her situation as a joint defendant, or other facts and circumstances connected with her testimony, or her interest or bias in the result of this case, the jury should believe her not entitled to credit. The jury can, however, receive the whole of her statement as true, if they believe it, or reject it, if they do not believe it, or receive a part or reject a part, as they believe it to be true or false.”
    5. “ If the jury believe, from the evidence before them, beyond all reasonable doubt arising in tbe case, that George administered tbe poison bimself, or aided and abetted any other person in anywise in the administration of the same, and thereby caused the death of the person as charged in the indictment, they are bound to find him guilty.”
    6. “That if the jury believe from the evidence, beyond all reasonable doubt arising from the evidence in the case, that George was not the party who actually administered the poison through the tea, but had a guilty knowledge and participated in the administration of the same, or if he was cognizant of the administration of the poison, and aided and consented thereto, he is to be regarded as a principal in the poisoning, and they must convict him.”
    7. “ If the jury believe the testimony of Josephine to be entirely true, and entitled to credit, and are satisfied beyond a reasonable doubt from that testimony and other facts detailed in the evidence of the guilt of the defendant George, they may convict upon the testimony of the said Josephine, and upon the said facts detailed by other witnesses, or upon the testimony of said Josephine alone, if they believe it to be true and it establishes the guilt of the accused of the offence charged.”
    These instructions, as asked for by defendant and as modified by the court, are as follow:
    1. “ The court instructs the jury that, before they can find the prisoner guilty on circumstantial proof, that proof must be so absolute, conclusive, positive, and certain as to exclude from their minds every other reasonable supposition or belief ."
    
    This was modified by the court by striking out the words, “supposition or belief,” and adding, “hypothesis or probability arising from the evidence in the case but that of the prisoner’s guilt.”
    2. “ That to justify a conviction on circumstantial evidence, it is necessary that the circumstances should be such as to exclude to a moral certainty any other supposition but that of the prisoner's guilt."
    
    The court modified this by striking out the last seven words in italics, and adding, “ hypothesis or probability arising from the evidence or facts and circumstances detailed in proof but that of the prisoner's guilt.”
    8. ""Whenever circumstantial evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of the hypothesis of guilt rather than another, such evidence cannot amount to legal proof of guilt, however great the probability may be.”
    This was modified so as to read as follows: “ Whenever circumstantial evidence leaves it indifferent which of several hypotheses, arising from or growing out of the evidence and the fads and circumstances detailed in proof is true, or merely establishes some finite probability in favor of the hypothesis of the prisoner's guilt, rather than that of innocence, such evidence cannot amount to legal proof of guilt, however great the probability may be.”
    4. “If there be any fact established by the evidence in the case which is irreconcilable with the hypothesis of the guilt of the prisoner, the jury must acquit, although all the other facts and circumstances of the case may agree with the hypothesis of guilt to the minutest extent.
    
    This was modified by striking out the four last words printed in italics.
    The fifth instruction as asked is printed in Roman letters; the additions made by the court are in italics:
    5. “In order to justify the inference of legal guilt from circumstantial evidence the inculpatory or criminating facts must be absolutely incompatible with the innocence of the accused, and incapable of explanation upon any other reasonable hypothesis arising from the evidence or growing out -of the proof in the case than that of his guilt.”
    6. “If the jury have a reasonable doubt of the guilt of the prisoner, ’however small that doubt may be, if it arise from the testimony, they must acquit.”
    The court modified this by striking out the words, “however small,” &e., printed in italics.
    7. “ That though the testimony of Josephine was competent and admissible, yet it should be received with great caution; and in weighing it the jury have h right to, and should, take into consideration her situation and temptation to swear falsely, and give it such consideration as they deem proper. They have the right to disregard it altogether, or take snch parts of it as may be consistent with the other evidence in the case.”
    This was modified so as to read as follows:
    7. “That though the testimony of Josephine was competent and admissible, yet she being a party jointly indicted with the defendant, it should be received and considered with caution, and in weighing it the jury have a right to, and should, take into consideration her situation, and the temptation she may have to swear falsely, and give it such consideration as they deem proper. They have the right to disregard it altogether if they disbelieve it, or do not deem it entitled to credit, or take such parts of it as may be consistent with the other testimony in the cause, or they may receive and act upon the whole of it if they believe it to be true and entitled to credit.”
    The eighth instruction as asked is printed in Eoman; the modifications are printed in italics and enclosed in [ ].
    8. “That if a witness has made statements out of court which he or she denies under oath in court, the jury may discredit her or her testimony altogether [if they disbelieve it, or do not deem it entitled to credit, or they may act upon the whole of it,] or take such portions of it as may be consistent with the other proof in the cause, [if they believe it to be entitled to credit.]"
    
    The ninth instruction as asked is printed in Eoman; the modifications are in italics and enclosed in [ ].
    9. “That, in order to discredit the testimony of a witness, it is not necessary to produce witnesses to swear that they would not believe him or her under oath. The manner of a witness in testifying, his or her situation, and motives to commit perjury; [if any such appear in the case,] proof of his or her having made statements which on examination he or she- has denied under oath, may all be taken into consideration as .affecting his or her credit, [and if, upon so considering the testimony of the witness, the jury do not believe it to be entitled to credit, they] the jury may disregard, either in whole or in part, the testimony of such witness.” '
    The tenth instruction as asked is printed in Eoman; and the modifications are printed in italics and enclosed in [ ].
    
      10. “That the jury are the exclusive judges of the sufficiency of the testimony; those circumstances under which a witness may testify before them, the incentive to falsehood, the direct, interest which they may have in the conviction, [of the party against whom the witness testifies,] as well as the character of the witness: are circumstances to be weighed by the jury, and if they believe from the evidence that such inducements were present and operating on the mind of the witness Josephine when she testified' before them, as induced her to testify falsely, or should discredit her testimony, her statements not corroborated [by other testimony in the case] should be disregarded altogether, and such statements as are corroborated ['by other testimony in the cause] should have such weight as the jury may think them entitled to, [in consideration of them with the other testimony in the cause f
    
    The verdict was guilty.
    Afterwards the defendant moved for a new trial.
    1. Because Walker, one of the jury who tried defendant, was an unnaturalized foreigner at the time.
    2. The jury found contrary to law and evidence.
    3. The court erred in instructing the jury.
    In support of the motion, on the first ground assigned, the defendant read the affidavit of Walker, one of the jury, who swore that at the time of the trial he was an unnaturalized foreigner, and not a citizen of the United States; also Ms own affidavit and that of his counsel, in which it was denied that they knew of Walker’s disqualification as aforesaid.
    The motion was overruled, and the defendant excepted and sued out this writ of error.
    
      Broolce and Smedes, for plaintiff in error.
    The court manifestly erred in the several modifications made in the instructions asked for by the defendant. All of the instructions so modified, or most of them, are couched in the language of the law as sanctioned by this court in several cases. McCann v. The State, 13 S. & M. 171; Cecily v. The State, Id. 202 ; Browning v. The State, 1 Geo. 656. A court may change or modify an instruction asked for so as to make it conformable to the law; Boles v. The State, 9 S. & M.; but it is contended that if it is in conformity with law as asked, it is error to refuse it or change it. Lambeth v. The State, 23 Miss. R. 322. The modifications to the first and second instructions are erroneous in this, that they add the word “ probability,” and, in effect, the jury were told that, if the evidence was absolute and conclusive enough to exclude a probability of the innocence of the accused, it was sufficient, or, in other words, if there was only a proba bility of his guilt, they must convict. This is the same error committed in the case of Browning v. The State, cited above. See page 672. So, also, in the fourth instruction of defendant, á very important change is made. The court is asked, in the language of the law, to say, “ that if there is any fact in the case established by the evidence which is irreconcilable with the hypothesis of the guilt of the accused, the jury must acquit, although all the other facts and circumstances of the case may agree with the hypothesis of guilt to the minutest extent.” This is both the language of the court and of the elementary books. The court struck out the words, “to the minutest extent.” The proposition contained in the instruction as asked was undoubtedly true. The court, by striking out the words referred to, in effect, said it was not true to the extent asked. The court had no right to weaken the undoubtedly true proposition of law; and in a case like this, of conflicting and contradictory evidence, mainly circumstantial, it is- impossible to say what effect was had on the jury.
    So as to the sixth instruction. It is undoubtedly true that, under the benign rule of the law, a prisoner is entitled to the benefit of any reasonable doubt arising from the testimony, however small that doubt may be. The court said nay. It undertook to measure the size of such doubt, and an unfavorable impression must have been left on the minds of the jury.
    The indictment should have been quashed, or the district attorney compelled to elect on which count he would proceed. Brantley v. The State, 13 S. & M. 468.
    The court should have granted a new trial, for the reason that one of the jurors who tried the case was an alien. This was proven by the affidavit of the juror himself, and also it was shown by the affidavits of the prisoner and his counsel that the fact was not known to either of them before verdict. Whether this is ground for new trial is left in doubt by the case of Seal v. The State, 13 S. & M. In other States it is admitted that the authorities are against us. But we think the reasoning of this court on the late case of Charles Williams v. The State, not yet reported, will, in the case of a slave, support the position we assume. This decision is based upon the hypothesis that the accused is cognizant of the law relating to the qualifications of jurors, and that he has an opportunity beforehand of making inquiry as to the qualifications of those whose names are presented to him on the venire facias. However true this may be in reference to a white man, it certainly cannot be predicated of a negro slave. A slave is not presumed to be able to read or write, and to him a copy of the venire, so far as it can enable him to investigate the characters and qualifications of his jurors, is a mere farce. There being this manifest distinction between the white man and slave, the same rule of law should not prevail as to both. Courts should look with favor on the condition of the latter when arraigned before them, on account of his ignorance, and mould - the rules of law to suit his status. In this case a juror was presented by the State, of whose qualifications there was no reason to doubt. The very fact of his having been summoned was prima facie evidence of qualification, and the negro accused, from his very condition having had no opportunity of making inquiry, ought not to be precluded from taking advantage of the fact as it appears. It will not do to say that the negro had counsel whose duty it was to make the necessary examination. The record does not show it, except that an affidavit was made by counsel after verdict. Prior to that time the record shows that the slave appeared in propria persona. Besides, the name of Walker does not appear on the special venire. Of course he was a talesman, and the opportunity of inquiry spoken of afforded by a service of the copy of the venire did not occur.
    That the indictment should have been quashed, or the State compelled to elect under which count to proceed, see Brantley v. The State, 13 S. & M. 470.
    Apart from the statement of the girl Josephine, there is scarcely a particle of testimony to implicate tbe defendant George. His having possession of a vial supposed to contain the poison used is the only circumstance. This, however, is satisfactorily accounted for by the witness Dixon, (Record, p. 34,) who shows that George had found a vial with white stuff in it in 1854 or 1855. When it is recollected how prone negroes are to hoard up articles of this sort, it is not to be wondered at that he should have kept it in possession. That Josephine is guilty there can be no doubt, and it is plain that she testified under the belief that she could throw the whole responsibility on George and acquit herself. Her testimony is contradicted on all material points by-other witnesses. The negro girl Eliza (Record, p. 41) flatly contradicts her in reference to what took place in George’s cabin the night before the poisoning. Josephine states that George showed her the vial, and put it back in the chest. Eliza states that George gave the vial to Josephine, saying that he had no use for it, and that Josephine took it and put it in her pocket. George here gave the same account of his finding the vial that he had given to Dixon three years previously. She also contradicts Josephine as to the conversation that took'place. The testimony of Maria (Record, p. 43) completely fastens the guilt on Josephine and her alone. The evidence of Professor Moore is insufficient to discredit her as to the handkerchief The diagram annexed to his statement shows that he only examined and applied his test to the centre portion of the handkerchief. It is very possible, and indeed probable, that she had the poison in the corner of the handkerchief. Considering the strong ■ motive that Josephine had to testify falsely, and contradicted and impeached as she is by numerous witnesses, it seems to us that the jury were not warranted in predicating a verdict of guilty on her evidence alone, for without her evidence it is manifest that the charge against him is entirely unsupported. It is true that the jury had a right to give credit to her statements, but, uncorroborated as they are, there certainly is not that great preponderance of testimony in favor of the State that alone can justify a verdict of guilty. As the court will doubtless review the whole testimony, it is needless to comment on it more at large. Eirmly believing that the accused is innocent, and that he has been made the victim of base perjury, we bespeak for him that careful investigation which the importance of the case deserves.
    
      T. J. Wharton, attorney-general, for the State.
    1. There was no error in refusing to quash the indictment, or in refusing to compel the district-attorney to elect on which count he would try the defendant. See Brantley v. The Slate, 13 S. & M. 470; Norris v. The State, 33 Miss. R. 373; and same case decided afterwards and not reported, see Opinion Book H. p. 271, in which the precise point is decided. See also Straiohern & Grizzle v. The Stale, 37 Miss. R. 42; Wash v. The State, 14 S. & M. 120 ; Sarah’s case, 28 Miss. R. 274; 8 Wend. R. 203 ; 12 Id. 425 ; 12 Pick. 1; Wharton’s Orim. Law, 149, et seq.
    
    The right of election in this country, if not in England, is confined to cases where the indictment contains charges which are actually distinct and grow out of different transactions. Wharton’s Orim. Law, 152, 153.
    2. The competency of Josephine is well settled. See Wharton’s Orim. Law, 301; 10 S. & M. 192.
    3. The attorney-general argued at length the objection to the instructions, insisting that they, as modified, were strictly in accordance with law.
    4. As to the objection made in relation to juror Walker, he argued as follows:
    The fact that Walker was unnaturalized is stated in an affidavit made by him, after the 'trial; and the affidavits of the plaintiff in error and his counsel, that they did not know that fact until after the trial, were offered in support of the motion.
    In Seal’s case, 13 S. & M. 287, a motion for new trial was made, because one of the jurors who tried the case was an alien. His affidavit of the fact was offered in evidence on the hearing of the motion; but no affidavit of himself or counsel was offered that they did not know the fact before the trial. The court said: “If defendant knew of this want of qualification of the juror at the time he wass worn, he waived all objection by failing to challenge him at that time. If he did not know it, he should have made affidavit of that fact, in aid of his application for a new trial.” Here such an affidavit was made, but in tbat case tbe court concludes by saying: “ How far a failure to malee inquiry as to a juror's competency, at the time he is presented, may operate as a waiver of the objection, we need not now inquire.” Tbat is tbe very inquiry I now make, and affirm tbat tbe answer to tbe objection is just this, viz., then was tbe time and only time when tbe inquiry could come up, and defendant waived tbe objection, because be failed to make the inquiry as to bis qualifications at tbe proper time; and such is tbe decision in Williams v. The State, 37 Miss. R. 409.
   Smith, O. J.,

delivered tbe opinion of the court:

The plaintiff in error and Josephine, who are slaves, were jointly indicted in tbe Circuit Court of Bolivar county fox tbe murder, by tbe administration of poison, of Lelia Yirginia Jones. The indictment contained two'counts. In tbe first tbe parties were charged jointly, as principals ; and in tbe second Josephine was charged as principal, and tbe plaintiff in error as accessary before tbe fact. Upon tbe application of tbe district attorney and with tbe consent of tbe counsel, tbe plaintiff in error was tried separately and convicted of tbe murder.

Before proceeding to trial tbe plaintiff in error moved to quash tbe indictment upon tbe ground tbat there was an improper joinder of counts, which motion being overruled, be moved tbe court to compel tbe district attorney to elect as to which of tbe counts in tbe indictment tbe prisoner should be tried on. This motion was also overruled; and this action of tbe court is made tbe first ground of exception to tbe judgment.

Tbe rule on this subject is well settled in this court. It is held that in point of law there is.no objection to the insertion of several distinct felonies of tbe same degree in the same indictment against tbe same offender. And if tbe joinder of more than one distinct felony in tbe same indictment be objected to before plea, the court will quash the indictment lest it should embarrass tbe prisoner in bis defence, or prejudice him in bis challenge to tbe jury. But this is not regarded as a right, strictly speaking, of tbe accused, but as a matter submitted to tbe discretion of tbe court, which it may exercise as a measure of prudence for the safety of the accused. Wash v. The State, 14 S. & M. 120; Sarah v. The State, 28 Miss R. 267.

The court therefore committed no error in refusing to quash the indictment for the alleged reason, or in refusing to compel the district attorney to elect as to which of the counts in the indictment the prisoner, should be tried on. Moreover the court had no discretion in the case. The motion for either purpose was made too late. The prisoner had been arraigned and had pleaded to the indictment, before either the motion to quash the indictment or to compel the district attorney to elect was interposed.

During the progress of the trial Josephine, the party jointly indicted with the plaintiff in error, was tendered as a witness in behalf of the prosecution, and was objected to upon the ground of incompetence. The objection was overruled, and the defendant took his exception.

This ruling of the court is assigned for error, but as the point 'has not been pressed in the argument of counsel it is sufficient to remark that in this respect no error was committed.

Numerous exceptions are taken to the granting of certain instructions asked in behalf of the prosecution, and to the action of the court in modifying those requested by the defendant.

Without noticing these exceptions in detail, we deem it sufficient to say that, after a careful and critical examination' of the charges given for the State, and of the instructions as modified and given for the defendant, that in no single instance has an error been committed of which the plaintiff in error has a right to complain.

The remaining exception refers to the judgment of the court on the motion for a new trial.

First, it is insisted that a new trial should have been awarded,. for the reason that one of the jurors who returned the verdict was an alien, and hence not a qualified juror according to the law of this State; and, secondly, because the evidence was not sufficient to authorize a conviction.

1. It appears from the evidence in this case that one C. A. Walker, who was summoned as a juror in this case, after examination by the State, was tendered to and accepted by the prisoner, as a juror. It also appears from affidavits filed in support of the motion for a new trial, that said Walker was at the time an unnaturalized foreigner, and that this fact was unknown to the prisoner or to his counsel until after the rendition of the verdict.

By the express terms of the statute, Code, 497, Art. 126, the said Walker was disqualified to act as a juror in the case, and would, hence, have been set aside if his want of qualification had been made known to the court, unless the objection had been waived by the defendant. The question, then, here to be considered, is, whether the plaintiff in error, who had it completely in his power to ascertain whether the juror tendered to him was not disqualified, must not be held to have waived the objection.

The statute is careful of the rights of parties capitally charged. It has provided efficient means to secure to them a fair trial by an impartial jury of their country. To this end a special venire is awarded to be drawn from a list of tbe names of the qualified jurors of the county; and the party to be tried is entitled to be served with a copy of the venire one entire day before he can, without his consent, be put upon trial. The object of this is, manifestly, to afford him an opportunity to ascertain not only whether the jurors summoned are legally qualified, but what are their dispositions and feelings in regard to himself. He is entitled to examine each person presented to him as a juror, in relation to his qualifications, as well as to the state of his convictions in reference to his own guilt or innocence. Sound policy, therefore, dictates that he shall not be permitted, after having had a chance of acquittal, to insist as a ground for a new trial, upon a want of qualification in the jurors, of which he might have availed himself as a cause of challenge by using proper diligence. And such is the rule generally held in this country. 2 Bay, 153; 2 Nott & McCord, 261; 4 Dallas, 353.

This precise question has never been determined by this court; but the principle laid down, and the reasons assigned for it, in Williams v. The State, 37 Miss. R. 407, fully cover the question under consideration. The fact that the accused, in this case, was a slave and not a free white person, constitutes no sufficient reason for departing from a rule founded in good sense and manifest policy.

2. Excluding the testimony of the witness Josephine, it is very certain that the facts proved by all the other witnesses do not, beyond a reasonable doubt, establish the guilt of the plaintiff in error, but it is equally certain that, giving full credit to her testimony, the proofs were altogether sufficient to warrant the verdict of the jury. There was a conflict between the testimony of the witness'Eliza, a witness examined for the defence, and that of Josephine, and it is manifest that, if the jury had given full credit to the former, the result of their deliberations might have been very different. But in such a case — that is, where there is a conflict in the evidence — it is the peculiar province of the jury to decide upon the credibility of the respective witnesses, and to believe the statements of those whom they judge entitled to credit. We are not prepared to say, under all of the circumstances proved by the testimony, that, according to the rules of law, the jury were not authorized to disbelieve the statements of the witness Eliza and to credit the testimony of Josephine.

There is also a direct conflict in the testimony of the negro girl Maria, who was examined for the defence, and that of this witness. Maria was the daughter of the wife of the accused, and was, when examined, but eleven years old. Her testimony tends strongly to show that Josephine was the sole agent in the perpetration of the murder. B ut her testimony is indirectly impeached by that of Professor Moore, who proved that, although there was arsenic in the tea, there was no evidence of the presence of that poison about the handkerchief, through which the witness said Josephine had strained something into the tea-pot. Upon a survey of all the circumstances proved at the trial, we think the jury were fully justified in disbelieving the testimony of the witness Maria.

It is possible that the witness Josephine, in delivering her testimony, may have been influenced by the hope or expectation that, by procuring the conviction of the plaintiff in error, she might escape the consequences of her own crime. But of this fact, as well as all of the circumstances in proof before them, the jury enjoyed a much better opportunity of forming a correct judgment than we possess, who can only look at the transaction through the medium of a record. They were clearly and fully instructed as to the law and their duties in reference to the testimony of the witness Josephine, and having, after a careful and dispassionate examination of the whole evidence, as we must suppose, given credit to her testimony, and rendered their verdict accordingly, we are not authorized to set it aside.

Judgment affirmed.  