
    STATE v. FRANK (a slave.)
    
    Where the facts, relied on to convict, were not a series of dependant circumstances, it was Held not to be error for the Court to instruct the jury that, though the State had failed to establish any one, or more, of the facts relied on for conviction, yet, if enough had been shown to satisfy them, beyond a rational doubt, of the defendant’s guilt, it would be their duty to convict.
    Where the error complained of was in no degree prejudicial to the cause of tlio defendant, it was Held not to be a ground for a venire de novo.
    
    INDICTMENT for MURDER, tried before Saunders, J., at the last Spring Term of Forsyth Superior Court.
    The defendant was indicted for the murder of Eli, a slave. It appeared in evidence, that Eli had for a wife a free woman of color, by the name of Lucy Hine, who was indicted with Frank, but they were permitted to sever in the trial — her trial being removed, on affidavit, to another county.
    The State offered several witnesses, who testified that for the last four years, Frank had been intimate with Lucy ; that it had been endeavored to keep this intimacy a secret from Eli, but that on one occasion, he (defendant) had been detected at her house, and a fight had taken place between the two, in consequence of the discovery.
    On the 29th of March last, early in the morning, the body of Eli was found in a mill-pond, about half a mile from the house of die woman Lucy. It exhibited several bruises on the head, which seemed to have been produced with an axe; which were shown to have caused the death of the deceased. Blood was traced, very distinctly, from the place where the body was found, to the house of the woman Lucy. In the house also, upon the floor and walls of the house, there were signs of blood, though recent attempts had been made to wash them out. There were, also, the ashes of burnt clothes in the fire place.
    One witness testified to having seen the tracks of two persons, the one large, and the other smaller, going, and returning, whilst three other witnesses stated that they saw but the tracts of one, going and returning. The three witnesses measured these tracts, and found them, as they said, to correspond with the shoes of the prisoner. It was in evidence, that the deceased was at Lucy’s house, at about one hour of the sun; that about the same hour, the prisoner and Lucy were seen together, about a mile distant from the house, in which direction they were going. The case states that there was other evidence, but not material to the exceptions taken upon the trial.
    The solicitor insisted that the murder, as well as the time and place had been proved, and also the motive and opportunity for the perpetration of it, had been shown.
    The defendant’s counsel insisted, 1st: That to justify a conviction, the circumstances should be as satisfactory as, at least, one eye-witness. 2nd. That the circumstances must exclude every other rational hypothesis, or they should acquit. 3rd. That if anyone of the links, in the chain of circumstances, was wanting, the prisoner was entitled to an acquittal.
    The Court, in his charge, said he assented to these different propositions, witli only some modification of the last; that if the jury should believe that, if the State had failed to establish anyone, or more of the facts, which were insisted on as material to establish the guilt of the prisoner, yet, if enough had been shown to satisfy them beyond a rational doubt, of his guilt, it would be their duty to convict. On the point of the tracks and the witnesses, the Court said, that one witness had said there were the tracks of two persons, going, and returning, from the house to the pond, whereas, three witnesses had sworn that there were the tracks of only one; that the rule of law was that, when the witnesses were equal in character and their opportunities of judging, numbers should prevail; but that this was a question for the jury. The defendant’s counsel excepted.
    Yerdict against the defendant for murder. Judgment and appeal.
    
      Attorney Qm&rdL, for the State.
    
      Morehead, and Malean, for the defendant.
   Natxub, J.

The objection up>on which the prisoner’s counsel moved, in the Court below, to set aside the verdict of the jury and to enter a mistrial,” has been properly abandoned hero, because the law upon the subject is too well settled to be brought into question again; see State v. Tilghman, 11 Ire. Rep. 513.

The errors assigned in the bill of exceptions, upon which the counsel seek to obtain a new trial, are equally without foundation, and the motion based upon them, must be overruled. The three propositions, for which the counsel contended in favor of the prisoner, were all assented to by the Court, except that the last was submitted to the jury with some modification. The right of the prisoner to complain must depend, then, upon the enquiry, whether this modification was proper. The third proposition was that, if any one of the lints in. the chain of circumstances was wanting, the prisoner was entitled to an acquittal. The Court said upon this, “ that if the jury should believe that the State had failed to establish any one, or more of the facts, which were insisted upon as material to establish the guilt of the prisoner, and yet, that enough had been shown to satisfy them, beyond a rational doubt, of his guilt, it would be their duty to convict.” This charge was, we think, entirely correct. If the onty facts alleged to have been proved, were a series of dependant circumstances, each one of which was essential to the continuity of the chain, then,, the proposition of the counsel would admit of no variation, or modification; but as there are, in almost every case, depending upon circumstantial evidence, a number of independent circumstances alleged and relied upon, one or more of these may well be thrown out, without impairing the integrity or strength of the chain, and a court may well say that, if enough remains to satisfy the jury, beyond a rational doubt, of the truth of the accusation, they ought to convict-. If what seems to us so plain a proposition, needs any authority for its support, it will be found in the eases referred to by the Attorney General, of Commonwealth v. Webster, 5 Cush. Rep. 313 ; State v. Sumner, 5 Black. (Ind.) Rep. 579.

The instruction of the Court upon the testimony of the witnesses in relation to the tracks which were seen between the house of Lucy Hine, where the deceased was supposed' to have been killed, and the pond, where his body was found,, was, in our estimation, entirely immaterial, and, could not, in-any manner, prejudice the cause of the prisoner. "Whether there wore two sets of tracks, as deposed to by one witness, or only one set, as sworn to by three witnesses, did not, in any manner, affect the fact, about which there was no dispute, that the tracks spoken of by the three witnesses, were measured and found to fit the shoes worn by the prisoner. The other witness, who spoke of the two sets, did not deny this, nor can any possible inference be drawn from his testimony, that it was. not true. It was totally immaterial, therefore, whether more credit is to be given to the testimony of the three, than to that of the one. Indeed, it seems to ns, that it was rather in favor of the prisoner to impeach the testimony of the witness who swore to the finding of two sets of tracks, because, on account of the known connection of the prisoner with Lucy Iline, who was also charged with the murder, it would be an additional circumstance against him that tracks, corresponding with his, were found with other tracks, which it might be supposed were made by this woman. At all events, the instruction of the Court upon this part of the case, even supposing it to be objectionable, (which, however, we do not decide) could not have prejudiced the prisoner, and of course, cannot furnish any grounds for a new trial.

There is no error suggested to warrant an arrest of judgment. We must, therefore, direct it to be certified to the Superior Court of law for the county of Eorsyth, that there is no error in the record.

Pee Cubiam, Judgment affirmed.  