
    James Riggs v. The State of Mississippi.
    1. Venue, proof on. — The statement of a physician, who examined the -wounds of the deceased, immediately after they were inflicted, although not an eye-witness of the affray — that the wounds were giren in the proper county — and the description of, and reference, (by other witnesses,) to various localities at and near the scene of the killing, which were probably familiar to the jury, are sufficient proof of the venue, particularly when no objection is raised on this account at the trial.
    2. Instruction, fob state, that manslaughter is barbed, not error. — It is not error, for the circuit judge, in a trial for murder, to instruct the jury, at the instance of the state, that if the killing occurred more than twelve months before the indictment was found, they cannot convict the prisoner of manslaughter.
    3. Murder: express malice.. — A. previous threat or grudge is evidence of express malice, and fixes the character of the killing afterwards perpetrated, unless circumstances be shown to alter or mitigate it, and relieve it from the imputation of malice.
    4. Same : effect of provocation. — Where express malice is shown, and the killing afterwards takes place, with a deadly weapon, no mere provocation at the time the act is done, will reduce the killing from murder to manslaughter: the killing is presumed to be in consequence of the previous threat or grudge, and consequently malicious. 1 Russ. Crimes, 423, 440, 442, 3 Am. ed/
    5. Same : threats. — A threat will have the effect of making a subsequent killing malicious, although provocation be then given, if the threat appear to have been made deliberately, and not from sudden heat of passion, or if the killing be done after sufficient time has elapsed for the passion to subside, and reason to be restored.
    6. Witness, credibility of : for the jury. — It is the peculiar province of the jury, to graduate the credit and weight due to the testimony of á witness: they have many means for the proper discharge of that duty, not accessible to an appellate court. This court will, therefore, rarely, if ever, disturb their verdict, upon thegiound that they improperly credited or discredited the witnesses before them.
    IN error from the Circuit Court of Munroe county. Hon. William L. Harris, judge.
    On the 24tb clay of March, A. D. 1854, the plaintiff in error was indicted in the Circuit Court of Monroe county, for the murder of one Joel E. Hunt, which was alleged in the indictment, to have been committed on the 21st day of September, A. d. 1852. At the September term, 1854, of said court, he was tried and convicted of murder: a motion for a new trial was made, and overruled, and the prisoner sentenced to be hung. A bill of exceptions was taken to the judgment of the court, overruling the motion for a new trial; which contains the evidence and the instructions of the court.
    Dr. Tindall, for the state, testified, that he visited the deceased professionally, at about eight o’clock of the night of the difficulty; that he examined the wounds; that they were 'made with a knife, and were mortal; that the deceased died in Monroe county, in this state. That shortly before his death, deceased said he was dying, and called upon his brother-in-law, Jerdon, to revenge his death; and stated, “ That he had been killed by Riggs, without cause; that he went to a house, and found Riggs there, and asked him where Susan Thomas was; and told him, Riggs, that he had been using his (deceased’s) name, in a manner he would not submit to; that he, the deceased, then rose from his' chair, with a stick in his hand, when Riggs struck him with his fist; that deceased then knocked Riggs down twice, with his stick. They then fought out of the house into the yard, where the fight terminated; that he did not know when he was cut, and supposed that Riggs was fighting with his stick.” Witness further stated, that “deceased lived about fourteen hours — was cut with a large knife. This took place in Monroe county, in this state, about July, 1852.”
    Emily McBeth, for the state, testified, that on the evening of the fight between Riggs and the deceased, the former came to her father’s house just as she had finished supper — the family still eating — which was about dark; Riggs took a seat in the passage, and witness went in where he was, and took a seat. The deceased and Mr. Leech came shortly afterwards, and deceased took a seat opposite to the defendant; that when deceased first entered he spoke to the prisoner, who answered gruffly; deceased then asked the prisoner where Susan Thomas was, and prisoner replied: “Is it any of your business?” Witness, at the time, was sitting on the same side of the passage with deceased. Prisoner then told deceased, that Sue Thomas said, that if he, the deceased, followed her, she would bare Mm killed; deceased ’said be was not going to follow ber; and prisoner said it was a d — d lie, and rose up and struck bim with bis fist, at first. The deceased then rose up and struck the prisoner-with his stick, and knocked him down, to bis knees. The fight commenced about half an hour after deceased and Leech arrived; that just before they arrived, some of the family remarked that Hunt was coming, when the deceased immediately took out bis knife, opened it, and put it behind bim. *
    Gross-examined.-^--Thinks the night was moonlight; the defendant came to her father’s about dark. She can’t say in what year the transaction took place, nor in what time, of the year; thinks it was in the spring. Does not know what the present year or month is, but thinks the killing took place three years ago; she did not know how wide the house was, nor the width of the passage ; stated that there were doors opening into the passage from each room; she did not know how the house stood; whether north and south, or east and west: nor did she know east from west, nor south from north; nor which was the east, nor which the west room of the house; nor where the sun rises, whether in the east or west. She further stated, that they had no candle, or other artificial light n the passage; that she lighted the prisoner’s pipe more than once, after the deceased and Leech arrived; and that he had it in his mouth when the fight commenced.
    
      Re-examined by the state. — She sat, at the time the fight commenced, in the door of one of the rooms opening into the passage; that she is an illiterate woman, and can neither read nor write.
    
      Re-cross-examined, for the purpose of discrediting her. — She denied having made the following statements, on her examination before the committing court: — First, That she said she was not present when the conversation commenced between Riggs and deceased, but was in an adjoining room. Second, That when she first saw Riggs and deceased on that evening, they were both sitting down together. Third, That when she first saw Riggs and deceased, the former drew his knife and put it behind him. Fourth, That Hunt complained that Riggs had told that Susan Thomas said, that if Hunt followed her, she would kill him; and that Riggs first said it was a lie, but then stated, that he had told what Susan Thomas had told him. Witness further stated, that she states it now as she recollects it, but she cannot now recollect it as she could at first. The deposition of witness on the trial, before the committing court, was then read, and contained all of the foregoing statements, which she had denied she had made.
    ’ Edward Manaban, for the state, testified that Riggs was a taller man than the deceased, though the latter was heavier built.
    Mrs. A. McBeth, for the state, testified, that on Monday morning, before the killing, when she was in the room at her house, making up a bed, she heard a conversation between Riggs and Nancy Casey, now Nancy Franklin, in which Riggs stated to Nancy, that Hunt had been staying with her. Nancy said it was a d — d lie; and Riggs, then holding his knife in his hand, stated that he intended, the first time he saw him, to stick it into Hunt’s hollow, and that he had been hunting deceased the night before.
    Upon cross-examination, she stated that the reason she had not been a witness on the trial before the justice of the peace, and on the first trial in the Circuit Court, was, that nobody knew that she heard the remarks; that she had told no one about it but her family; and that neither the prosecutor, nor Mr. Jerdon, (deceased’s brother-in-law,) had asked her about it; that she was now summoned as a witness, both for the state and the defence; that the killing was done in July, but in what year she did not know; and she did not know what year the present is.
    J. Gr. Pendleton, for the state, testified, that about supper time, in the evening of Monday, or Tuesday, before the killing, the prisoner was in his (witness’s) grocery, and asked where the deceased was. On cross-examination, witness said there was nothing peculiar in the manner of the prisoner at the time, and that he suspected nothing, and thought nothing about it.
    Eli Campbell, for the state, testified that he, with others, went in pursuit of prisoner, after the killing, and found him running out of a swamp in Tishamingo county, to his mother’s house, and then running out of the house with a gun. That he at first refused to go back to Aberdeen, saying he was afraid of deceased’s brother; upon being assured that he should not be hurt, he then frankly agreed to come back and stand bis trial, and surrendered, and came back quietly.
    Hugh S. Walsh, for defence, stated, that prisoner was working for him at the time of the killing, and that he was steady, and worked well.
    Nancy Franklin, for defence, stated, that about a week before the killing, whilst Higgs was supposed to be gone to Tishamingo county, she met the deceased in the street, near Strawhern’s, and deceased told her that Riggs had carried off his (deceased’s) partner, Susan Thomas, and that he intended to have revenge; that deceased afterwards came to Riggs’s house in his absence, and when no one was there but witness and Mrs. Riggs, and inquired for Riggs, saying that he intended to kill him, and appropriate Mrs. Riggs to his own use; and that he would then keep her as his mistress; that about a week before the killing, upon Riggs’s return home, Mrs. Riggs, in her presence, communicated those'threats to the prisoner, who seemed to doubt, when she, witness, confirmed it. Witness also stated, that she was not at the' house of Mrs. McBeth within one week before the killing, and she had not heard the conversation spoken of, as occurring between herself and Riggs, by Mrs. A. McBeth; but about a week before the killing, she was at Malinda Brown’s, washing clothes, and one of the McBeth girls was there also, who told Riggs that the deceased said he intended to kill him; that Riggs, in reply to this, stated, that if deceased attempted to do so, he (Riggs) would stick his knife into him, and cut him to pieces, before he could do it. Upon cross-examination, she stated that Riggs had returned from Tishamingo about a week before the killing; that she (witness) had left Aberdeen shortly after the killing, and gone to her father’s, in Chickasaw county; that she left alone, and privately, without letting any one know of her departure; that she did this, on account ef the threats that had been made against her and Mrs. Riggs.
    Defence here closed.
    Elizabeth Lyon, for the state, said that she had heard Nancy Franklin relate at Mr. Davis’s the threats made by Riggs against the accused, and that she did not then say that Riggs said, “ if Hunt, the deceased, attempted to kill him, he would stab him, but that Riggs’s threats, as then represented by said Nancy, were unconditional.
    Paul Jerdon, R. Davis and Locke E. Houston, for the state, proved, that Riggs asked for a continuance of his trial, before the committing court, on account of the absence of Nancy Franklin, by whom he expected to prove that the deceased made threats against him; but upon being asked if Nancy had communicated these threats to him, he refused to swear that she did. That accused then had no counsel.
    The various witnesses who testified in reference to the killing, described the hour when it occurred, and mentioned other localities adjoining and near it. This was all the evidence.
    The following instructions were given on behalf of the state :—
    1. Whenever there is a killing proved, the law presumes it is murder, and it is incumbent on the party killing, to establish his innocence of murder, unless it appears from the testimony against him.
    • 2. Murder is a killing upon malice, express or implied. The law implies malice from the use of a deadly weapon. Express malice is evidenced by a previous threat, or a former grudge.
    3. Where a party kills another upon express malice, and by the use of a deadly weapon, no provocation, however great, will free the party killing from guilt.
    4. In cases of mutual combat, if one of the parties provide himself beforehand, with a deadly weapon, which he uses in the course of the fight, and kills his adversary, this will be murder; and in such cases it makes no difference who strikes the first blow.
    5. If the jury believe, from the evidence, that the defendant, by his improper act, and conversation, brought on the difficulty, and killed the deceased with a deadly weapon in such difficulty, upon express malice, this is murder, although the deceased may have used a stick in such difficulty.
    6. The law does not permit a man to invoke in his behalf the doctrine of self-defence, when he kills upon an undue advantage, with express malice, and by the use of a deadly weapon.
    8. If the jury believe that the killing occurred more than twelve months before the finding of the indictment, they cannot find the defendant guilty of manslaughter.
    The prisoner excepted to these instructions.
    Several instructions were also given on behalf of the prisoner, but as they are not reviewed nor referred to by the court, as explaining or qualifying those given for the state, it is unnecessary to set them out.
    
      W. F. Dowd, for plaintiff in error.
    The counsel for the plaintiff in error respectfully submits to the court, the following reasons, why the judgment of the Circuit Court should be reversed.
    1. The record nowhere shows that the offence was committed in Monroe county. John L. Tindall, the only witness who testifies on this subject, was the attending physician; proved, that Hunt died of the wounds in Monroe county; proves the conversation with Hunt, just before he died; proves the character of the wounds inflicted, and says that this conversation occurred in Monroe' county. But he did not see the fight, and does not pretend to say in what county the mortal stroke was given. It must either be proved that the mortal stroke was given in one county, and the victim died in the county where the indictment was found, or that the mortal stroke was given, and the victim died, in the same county.
    At common law, if the offence was committed in one county, and the victim died in another, the prisoner could not be tried in either. McG-un v. The State, 18 S. & M. 257. The statute, (Poindexter, Code, 814,) simply provides, if the offence is committed in, one county, and the death happens in another, the prisoner must be tried in the latter. The statute is the only law on the subject. 13 S. & M. 257. Monroe is a border county, adjoining Alabama. Suppose the fight occurred in Alabama, and the death in Monroe county ? This,would be no violation of the laws of the state, and the court below had no jurisdiction.
    Every material circumstance in regard to time and place, must be averred with that degree of certainty which excludes every other intendment, and must be proved as laid. Arehb. Orim. Plead. 34, 381; Chit. Crim. Law, 280-283; Riggs v. The State, 4 Cushm. 54; Vaugn v. The State, 3 S. & M. 553.
    2. The court erred in charging the jury, on the application of the state, that if the jury find that the killing occurred in the year 1852, more than twelve months before the finding of the indictment, they cannot convict the defendant of manslaughter.
    The indictment is for murder. Under this indictment, the jury may find the prisoner guilty of any of the grades of manslaughter, without noticing the more aggravated offence. Swinney v. The State, 8 S. & M. 584; 2 Hale, P. C. 302; 1 Chitty, Grim. Law, 640.
    Does the statute of Mississippi change this rule, so as to depi'ivfe the jury of the power to find a verdict of manslaughter, under an indictment for murder, when the offence is committed more than twelve months before the finding of the indictment ?
    The language of the statute is, that “no person shall be prosecuted, tried or punished, for any offence, wilful murder, &c., excepted, unless the indictment, presentment or information for the same, be found or exhibited within one year next after the offence shall be done or committed.” This was a prosecution for wilful murder. It was therefore competent for the defendant to be tried, prosecuted and punished under this charge. A demurrer would not apply. The prisoner must be prosecuted and tried for murder. The jury could return their verdict for manslaughter. What then ? If the indictment showed the offence was committed more than one year before it was found, the prisoner, in the language of the statute, could not be “punished.” A motion in arrest of judgment would be the proper course in such a case.
    If the jury believed the prisoner guilty of manslaughter, they could not. conscientiously find him not guilty. The court instructed them, that they could not find him guilty of manslaughter. Therefore it was equivalent to a direct charge to find him guilty of murder.
    The charge given in this ease, is very different from the one, decided to be good law, in the case of Howard v. The State, 13 S. & M. 261. In that case, the indictment was found on the 24th of May, and laid the offence on the 22nd of May, two days before. In the case under consideration, the bill was found on the 24th of March, 1854, and laid the offence on the 21st of September, 1852. If the jury had found the defendant guilty of manslaughter, therefore, a motion in arrest of judgment would have been sustained. The court could not have “punished” the prisoner.
    But there is a still wider difference between the cases. In Howard’s case, the court was asked to charge the jury, that if the offence amounted to manslaughter only, they “ must acquit the defendant.” In the case under consideration, the jury were charged, that they could not “convict the defendant of manslaughter.” That is, if they believed him, guilty of any offence, they must convict him of murder ! The charge, therefore, was.too broad, and was calculated to mislead the jury. If the court had charged the jury, as in Howard’s case, that if they believed the prisoner guilty of manslaughter they must acquit him, the verdict would doubtless have been different. Any charge calculated to mislead the jury, that is not practical and altogether safe, is erroneous. Gieely v. State, 13 S. & M. 202.
    3. The second charge is, “express malice is evidenced by a previous threat or former grudge.” This is the foundation of all the subsequent charges save one. Express malice is defined to be, “ when one person kills another with a sedate, and deliberate mind and formed design: such formed design being evidenced by external circumstances discovering the inward intention; as lying in wait, antecedent menaces, former grudges, and concerted schemes to do some great bodily harm.” 1 Russ. Crimes, 482,483, (5 Am. ed.); Anthony v. The State, 13 S. & M. 264.
    The jury must judge, from all the circumstances, whether there was “ a deliberate, sedate mind, and formed design to do a great bodily injury. By the charge given, the jury were precluded from this investigation. They were told that a single threat, though made in the heat of passion, without deliberation or reflection; which the party may have regretted and repented of in ten minutes afterwards, is of itself conclusive proof of a s'edate, deliberate mind and formed design. The charge does not say, that a threat is one of the evidences or proofs of express malice. But express malice is evidenced, that is proved, by a threat, — whatever may be the nature of the threat, or the circumstances under which it was made. There is no precedent or authority for such a principle. It was the corner-stone of the prosecution, the lever by which the jury was. moved, and the conviction obtained. It is followed by the third charge; and construing both together, they amount to this; that if the prisoner made any threat whatever, it is sufficient proof of express malice, and no provocation whatever will relieve him from guilt, — and taken with the eighth charge, the guilt of murder.”
    The fourth, fifth, and sixth charges, are too broad: the state of facts supposed by each might be true, and yet the prisoner be not guilty of murder. Roscoe, Crim. Ev. 681; 1 Russ. 440.
    4. The testimony, at most, makes but a case of manslaughter. We have two accounts of the fray; — one, given by the deceased himself, at the time he called on his brother-in-law Jerdon, to avenge his death, the other by Susan M‘Beth, a vile harlot, who swore on cross-examination, that she did not know north from south, nor east from west, nor whether the sun rose in the east or west; and who was completely contradicted, and her credibility destroyed.
    Hunt went to the house where Riggs was sitting: — began a quarrel, by telling Riggs, “You have been using my name in a manner I will not permitand immediately rose from his seat in a menacing attitude loith a stick in his hand. Riggs struck him with his fist, and then Hunt knocked him down twice. They then closed, and fought out of the yard, Hunt fighting with his stick, and Riggs using his knife. The case is not distinguishable from the case put by Lord Hale, 1 PI. Cr. 456. Hunt used to Riggs indecent language. Riggs thereupon struck Hunt with his fist, but not mortally; then Hunt knocked Riggs down, and then Riggs billed him. This was held manslaughter. Rose. Crim. Ev. 736, 737.
    This is a much clearer case of manslaughter or excusable homicide, than /Snow’s case. Rose. 737, 738; Kessel’s case, 11 Eng, Com. Law R. 441; Rose. 732, 733; 32 Eng. Com. Law R. 750.
    If the provocation was great, and such as must necessarily have greatly provoked the prisoner, the killing is manslaughter only. 
      Preston v. The State, 3 Cushm. 388; Oopeland v. The State, 7 Humph. 479; 2 Archb. 224, 1,-2,-5.
    5. Hunt had threatened to kill Riggs, for the fiendish purpose of subjecting the person of Riggs’s wife to his brutal passions. When the parties met, Hunt began the quarrel, and immediately rose with a stick in his hand; and when stricken by Riggs with his fist, knocked him down twice with his stick, before Riggs used his knife. Before Riggs used his knife, did he not “ have reasonable ground to apprehend a design on the part of Hunt, to commit a felony, or do some great bodily injury?” If so, he is excusable. Dyson v. The State, 4 Cushm. 362.
    
      D. 0. Grlenn, attorney general,
    argued the case orally, and cited and commented on the following authorities ; Wharton, Crim. Law, 360, 361, 368, 369; State v. Lane, 4 Ired. 113; State v. Martin, 2 lb. 101; State v. Johnson, 3 lb. 354; State v. Telley, 1 lb. 424; State v. Hildreth, 1 lb. 429; State v. Scott, 4 lb. 409; Storter v. The People, .2 Comst. 197, 202.
   HaNDY, J.,

delivered the opinion of the court.

The plaintiff in error, was indicted and convicted in Monroe Circuit Court, of the murder of one Joel E. Hunt. A motion was thereupon made, in his behalf, to set aside the verdict, for several reasons assigned; which motion was overruled, and a bill of exceptions taken, upon which the case is brought here for review.

We will proceed to examine the grounds upon which it is contended that the judgment should be reversed, in the order in which they are presented by the counsel for the plaintiff in error.

The first of these is, that it does not appear by the record, that the offence was committed in Monroe county, or that it was committed in any other county in this state; and that the deceased died in Monroe county.

It fully appears, that the deceased came to his death by wounds inflicted by the accused, in a combat which took place between the parties in July, 1852, at the house of one McBeth, some time after supp'er. Dr. Tindall, testifies that he was called to the deceased about eight o’clock of the night on which the difficulty occurred, and found him suffering under tbe wounds inflicted by the accused, of which he died shortly thereafter, in Monroe county, in this state. He describes the wounds, and then proceeds to state the declarations made by the deceased in prospect of death, in relation to the circumstances of the difficulty, and concludes by stating, that the deceased lived about fourteen hours, and that he was cut with a large knife, and that “ this took place in Monroe county, in this state.”

It is plain, that this last statement was made for the purpose of proving the venue, and that it must be understood as referring to the infliction of the wounds, the calling upon the witness as a physician, the declarations of Ithe deceased, and his death from the wounds. After mentioning all these particulars, the witness concludes by stating, that 11 this took place in Monroe county,” thereby clearly referring to all the circumstances previously stated by him. It is true, that he did not witness the infliction of the wounds; but he was called to attend to the wounded man immediately after the occurrence, and might have been able to state with certainty from the freshness of the wounds or from a knowledge of the house where the difficulty is shown to have occurred, that it took place in Monroe county.

In the testimony of other witnesses, many references are made to localities connected with the scene of the difficulty, the streets, and the house in the town; and especially is the house where the difficulty occurred, described. All these circumstances might have afforded conclusive proof of the place where the wounds were inflicted, to the jury who were familiar with these localities, and could not fail to recognize them as being in Monroe county, which would render it unnecessary to prove positively before them, that they were located there. That the localities thus shown by the evidence, as well as the testimony of Dr. Tindall, were ample proof of the venue of the offence, to the comprehension of the jury, is clear, from the fact that no objection was taken in the court below, to the want of proof on that point. The concluding statement of Dr. Tindall was doubtless intended to cover that very point; and in the attitude in which the question appears by the record, we are bound to-presume that the localities mentioned by other witnesses were confirmatory of tbe statement that tbe whole occurrence took place in Monroe county.

This objection is, therefore, no just ground for reversing tbe judgment.

Tbe next objection is, that tbe court erred in instructing tbe jury, that if they believed from tbe evidence, that tbe killing occurred in the year 1852, more than twelve months before tbe finding of tbe indictment upon which tbe accused was on trial, they could not convict tbe accused of manslaughter.

It is objected, that under this instruction, if tbe jury thought tbe accused guilty of manslaughter, they would not have been justifiable in finding a general verdict of not guilty, and that it was, therefore equivalent to a direct charge to find him guilty of murder. But we do not consider this a just view of tbe instruction.

Tbe indictment was for murder, charging that tbe offence was committed more than twelve months before tbe bill was found. It is well settled, that, under our laws, a party indicted for murder may be convicted of any degree of manslaughter, that tbe evidence warrants, but that be cannot be convicted of manslaughter unless tbe indictment be found within one year next after tbe offence shall have been committed. Tbe instruction given by tbe court simply stated this rule. It instructed tbe jury as to what they could not do, giving no indication as to what they should do. If they thought the accused guilty of manslaughter, but not of murder, it is not to be supposed that they could have so misapprehended tbe instruction as to have been led by it to find what they did not consider a true verdict. It is rather to be presumed, that they would have come to tbe very natural and reasonable conclusion, that, as they were not justified by tbe evidence in finding him guilty of murder, and could not, under tbe rule declared to them, find him. guilty of manslaughter, there was po alternative but to find him not guilty, generally. Tbe instruction in effect presented tbe plain issue, that tbe verdict should either be guilty of murder, or not guilty generally. And it can with no more justice be said to indicate to the jury that they should find tbe former than tbe latter verdict.

The third error assigned is, tbe statement in tbe second instruction, that “express malice is evidenced by a previous threat or former grudge,” and the third instruction, that “when a party kills another upon express malice and by the use of a deadly weapon, no provocation, however great, will free the party killing from guilt.”

The testimony contained in the record tends to show a previous threat by the accused against the deceased, founded on a grudge entertained against him.

It is unquestionably true, as the court instructed the jury, that ' a previous threat or grudge is evidence of express malice, and it goes to fix the character of the killing afterwards perpetrated, unless circumstances be shown to alter or mitigate it and to relieve it from the imputation of malice. It is for the jury to determine whether the threat or grudge is established; but if proved to their satisfaction to have been made, and the threat be afterwards carried into execution by the party taking tire life of his adversary by the use of a deadly weapon, the presumption of law is, that the act was done under a wicked and malicious purpose to destroy him, and it is for the party committing the act to show circumstances giving to it a different character. It is also well settled, that where express malice is shown, and the person against whom the threat or other evidence of malice was made or existed, be after-wards killed with a deadly weapon, by the person harboring the malicious purpose, no mere provocation at the time of committing the act will relieve it of the character of a malicious killing, but it is presumed to be in consequence of the previous threat or grudge. 1 Russ. Or. 423, 440, 442; (3 Am. ed.) And it is sufficient to give to the threat such effect, if it appear to have been made deliberately, and not from sudden heat of passion; or the killing be done after sufficient time for passion to subside, and reason to be restored.

As applicable to the testimbny in this case upon the point of previous threats, or a grudge on the part of the accused, we perceive no error in the instructions. The rules, as stated, were substantially correct as legal principles, and were pertinent to the testimony upon the points involved in them, that testimony being sufficient to warrant the jury in believing in the existence of a previous threat or grudge.

The last ground of error insisted upon is, that tbe evidence did not warrant more than a verdict of manslaughter. In order to determine tbe propriety of this objection, it is necessary to take a view of tbe substance of tbe testimony, as it is presented in tbe record.

Tbe first witness on tbe part of tbe state, Dr. Tindall, testifies to tbe dying declarations of tbe deceased, giving bis statement of tbe circumstances of tbe difficulty, wbicb was in substance, that tbe deceased went to a bouse and found Riggs there, and asked him where Susan Thomas was, telling him that be bad been using tbe name of deceased in a manner be would not permit; that tbe deceased then rose from bis chair with a stick in bis band, when tbe accused struck him with bis fist, and tbe deceased knocked him down twice with a stick; that they fought out of tbe bouse into tbe yard, where tbe fight terminated; tbe deceased not knowing that tbe accused bad cut him with a knife until after tbe fight bad ceased.

This account of tbe affair is corroborated by tbe testimony of Emily M‘Beth, who was present and witnessed tbe difficulty, and who states some (additional particulars. She states, that wheh tbe. deceased entered tbe bouse, be spoke first to tbe accused, who replied gruffly; that deceased asked tbe accused where Susan Thomas was, to wbicb be replied by asking if it was any of bis business; that an altercation then took place in relation to tbe woman alluded to, wbicb terminated in tbe fight; that when some of witness’s family remarked, that tbe deceased was coming, and as be was seen approaching tbe bouse, tbe accused took out bis knife and opened it and put it behind him; that when tbe accused struck tbe deceased with bis fist, tbe deceased arose from bis chair and knocked him down to bis knees with bis stick. On cross-examination, it appeared that this witness bad no idea of the situation and localities of tbe bouse, where tbe fight took place; that she did not know north from south or east from west, nor whether tbe sun rises in tbe east or in tbe west, and was exceedingly ignorant. It also appeared, that .she stated several particulars of tbe occurrence, differently from what she bad stated on her examination before tbe justice of tbe peace, when tbe accused was first arrested and committed, which, examination was read for the purpose of discrediting her.

Mrs. A. M£Beth testified, that she saw the accused at her house on Monday before the killing, and he said that he had been hunting for the deceased the night before, and that he intended the first time he saw him to stick his knife into him mortally ; that witness heard a conversation between the accused and Nancy Casey, alias Franklin, in which he charged her with improper intimacy with the deceased, which she denied; but Riggs then made the threat of violence with his knife against the deceased.

Pendleton testified, that he saw the accused on the evening of Monday or Tuesday before the killing, inquiring for the deceased * at witness’s grocery, but nothing peculiar in his manner was observed ; the witness suspecting nothing.

Strawhan stated, that he saw deceased after the killing, and helped to undress him; saw the stick supposed to have been used in the fight; it was a light'walking-stick ; and the deceased had no arms on his person.

Dr. Tindall testified, that the deceased had three wounds, one in the right shoulder blade, which witness thinks penetrated the bone; another on the right side, cutting the fifth rib in two, and another in the abdomen; that these wounds caused the death.

In behalf of the accused, Nancy Franklin, alias Casey, was introduced, and stated, that the deceased hád expressed to her his intention to have revenge upon Riggs, for taking Susan Thomas from him; that he afterward came to Riggs’s house, and in the presence of his wife and the witness, in Riggs’s absence, said he intended to kill Riggs, and put him out of the way, and take his wife for his own purposes; that these declarations were made known by Riggs’s wife to him, in witness’s presence, about a week before the killing took place. She denied, that she was at Mrs. MfBeth’s house on Monday or Tuesday before the killing, or that she heard Riggs threaten to stick his knife into the deceased, as stated by Mrs. M‘Beth, but she states that he said at another time and place? when told that the deceased intended to kill him, that if the deceased attempted to kill him, he would cut him to pieces before he could do it.

Elizabeth Lyons, being called for the state, stated that she beard the last witness repeat the remarks of the accused, and that she did not then say that Riggs had said, that if the deceased attempted to kill him, he would stab him; but that she stated that Riggs, measuring his knife-blade, said he would put that much of it into the vital parts of the deceased.

It was also proved, by several witnesses, that the accused, when brought before the examining court, refused to state on oath that he expected to prove by Nancy Franklin, that she communicated to him the threats made against him by the deceased to the wife of the accused and Nancy Franklin.

From this statement of the testimony before the jury, it is manifest that the character of the killing depends upon whether it was done as the result of a previous hostile purpose on the part of the accused; and the determination of that point depends upon the credibility of the witnesses in behalf of the state. The threats of the accused against the life of the deceased are distinctly proved to have been made by Mrs. M‘Beth, who also states the cause of his malicious feeling. This witness is not impeached or contradicted, except by the testimony of Nancy Franklin, whose testimony is impeached by another witness, who proves that Nancy Franklin made statements of the declarations of the accused, different from those deposed to by her on the trial, and in accordance with the testimony of Mrs. M'Beth. It was peculiarly the province of the jury to determine to which of these witnesses they would give credit; and in a case of doubt, we could not say that they judged improperly upon such a question. Rut in this instance, we think that the jury were well justified in giving credit to the two witnesses in behalf of the state.

The deadly purpose of the accused is also proved by the testimony of Emily M‘Beth, showing that when the accused was aware that the deceased was approaching the house, he drew his knife and put it behind him, preparing for the conflict.

The credibility of this witness is strongly assailed, and not without much reason, as her testimony appears in the record. She appears to be ignorant, to a degree that would almost lead to the belief, that she affected ignorance, in order to avoid the scrutiny ■ of a cross-examination, and in some respects sbe is shown to have made statements in relation to the occurrence, upon the trial, different from these previously made by her before the committing court. These discrepancies, however, are not irreconcilable, and do not affect the most material features of the occurrence, and may be attributed to the ignorance of the witness, or her want of distinctness of recollection, from the lapse of time between the occurrence and the time of her testifying on the trial. Her statement of the circumstances, is corroborated by the account given of them in the dying declarations of the deceased, so far as they both speak of the same things, with the exception that she states that the deceased was sitting in his chair when the accused struck the first blow; and he states that he had risen from his chair with his stick .in his hand when the accused struck the first blow. And her statement about the drawing of the knife is distinctly made, both in her deposition before the committing court and in her testimony pn the trial. It is corroborated by the fact, that it was in accordance with his previous threats, and that he used the knife in the rencounter.

Although this witness does not appear in a very creditable light, either from her gross ignorance or from the discordant statements made by her, of some of the features of this occurrence, yet we are not authorized to say that the jury were not justified in crediting her statements in any respect. The delicate and important duty of graduating the credit and weight due to testimony, is not only the peculiar province of the jury, because it involves inferences of fact especially intrusted to their judgment, but they have the means of aiding their opinion upon the subject in doubtful cases, which an appellate court does not possess. The witness is personally before them, where they can observe his look and manner, his willingness or hesitation to testify, the feeling or indifference he manifests for either party, the degree of his intelligence, and from all these, as well as the facts stated by him, come to a just conclusion as to the degree of credit or weight to be given to his testimony. All these aids to a just and correct conclusion upon the point are lost in the appellate court. We have nothing but the naked, dry language of the record, which conveys a very imperfect idea, not unfrequently, as to whether the testimony is liable to the objection of ignorance, confusion, or corruption in the witness. Hence the rule has been well and wisely established, that an appellate court will rarely if ever set aside the verdict of a jury, founded upon the credit or discredit given by them to the witnesses on the trial, especially when the testimony is conflicting.

Considering the credit of these witnesses, then, as established by the verdict, it is clear that the killing was perpetrated as the result of express malice, and by the use of a deadly weapon, which the accused had concealed and ready to be used when he entered into the conflict with the deceased. And it is clear, beyond doubt, that the killing under such circumstances was murder, and not manslaughter. 1 Russ. Or. 446, (3 Am. ed.) The judgment is, therefore, not erroneous on this ground.

We have thus carefully considered all the evidence in the record, and the various grounds urged for a reversal of the judgment; and we are brought to the conclusion, that there is no error in the record which would justify a reversal of the judgment.

The judgment is, therefore, affirmed.  