
    Thomas T. Beall v. The State.
    1. Bail: granted even in capital cases. — Under tlie liberal principles of our constitution and laws in reference to bail in criminal cases, this court will grant a prisoner’s application for bail, even in a case where the jury-might, and perhaps ought to, upon the same evidence, render a verdict of guilty of murder. Moore v. The State, 36 Miss. R. 137, cited and confirmed.
    This is a writ of error prosecuted to reverse a judgment pronounced by tbe Hon. J. S. Yerger, judge of the third judicial district, refusing to plaintiff in error bail.
    It appears from the record that plaintiff in error, Dr. Thomas T. Beall, was indicted both for the murder of Dr. Selser and Mr. Griffin; that he had been once tried, before suing out the writ of habeas corpus, on the indictment for the murder of Selser, and that the jury had been discharged, on account of their being unable to agree.
    It appears from the evidence that both Selser and Griffin were killed in a rencounter with Beall, on the night of the 28th of May, 1860. Dr. Pettit, who was examined on behalf of Beall, gave the following account of the origin of the dispute between the parties: Selser and Griffin were brothers-in-law. Beall had been in the habit of visiting the house and -family of Selser, in the village of Warrenton, where they both resided. The witness, some weeks previous to the killing, had of his own motion told Beall that his visits at Selser’s were unpleasant to the ladies there, and Beall had replied that he could take a hint. On Saturday morning, the 26th of May, 1860, two days before the killing, Selser called on witness and asked him to say to Beall “that his (B.’s) visits to his house had been frequent and annoying to his family and visitors, and that he would have to ask him not to come there any more.” This message was communicated to Beall that evening, and a short time afterwards Beall called on witness and told him that he had called on Mrs. R. (a sister of Dr. Selser residing with him) and asked her if she had authorized the message, and that she had said that she did authorize it. In the conversation witness advised B. “to drop it,” and B. seemed disposed to take his advice. On the next morning Beall called on witness and asked him to say to Dr. Selser “ that the whole thing was so contemptible he would take no further notice of him or his family.” Witness endeavored to dissuade Beall from sending the message, but told Beall if he insisted he (witness) would consent to carry the message. Witness and Beall then had a lengthy conversation about Dr. Selser’s feelings towards Beall. Witness told Beall that Dr. Selser’s feelings were friendly toward him. Beall asked witness if Selser had authorized him to say so. Witness said he had not, but had told witness the state of his feelings. Beall asked witness to go to Dr. Selser and get from Lim an authorized statement to that effect, which witness declined to do. He then said if I would not go, he would try to get some one else, and that it might be several days before I heard from him. Some hours after this conversation, Beall called on witness and authorized him to carry the message: “ That I received it with a feeling of profound contempt, and hurled it back on them just as it was sent. My dignity and self-respect as a gentleman forbid my taking any further notice of it one way or the other.” W itness asked Beall who was meant by the word “ them” in the message. He said it included the ladies of'the family. Witness conveyed the message to Dr. Selser. Oh Monday morning witness asked Beall to write the message for his convenience; that there was something about it Dr. Selser said he did not understand, and he wanted to know who was meant by the word “them.” Beall then wrote the message as follows: “ Considering the terms of the message, and the circumstances under which it was sent, I received it with a feeling of profound contempt, and hurled it back on them just as it was sent. My dignity and self-respect as a gentleman forbid my taking any further notice of it one way or the other.” Witness took the message as written to Dr. Selser’s house. Mr. Griffin (one of the slain) was there and said the message could be misunderstood, and advised Dr. Selser to see Dr. Beall. Selser said he would see Beall and ask an explanation about the meaning of the word “them"
    
    In the conversation witness had with Beall on Sunday, witness said that Dr. Selser was responsible for tbe conduct of bis sister. B. said be did not want to bold him responsible or shoot him for what his sister had done. Witness told Beall there was nothing insulting in the message sent by Dr. Selser, and that it was not intended to insult him, and that he ought not to be surprised at it. When Beall wrote the message, he said he did not want any difficulty with Dr. S., but would be prepared for one. He also asked me how Dr. S. received the message. I told him I did not know.
    It appears that on Monday night, 28th May, there was some sort of public exhibition on a “show-boat” then landed at Warrenton, and that there was also what was called a “side-show" in a tent pitched on the bank of the river near the show-boat. The moon shone,, and there were also torches on the bank, which enabled parties to see what was going on. Dr. Selser, Mr. Griffin, Mr. Barnes, a brother-in-law of Selser, Mr. Bedford, and Mr. Yernon, intimate friends of Selser, were all at the show together. They all went to the show together except Yernon, who went to Selser’s house to accompany them, but being too late came on after them with his wife. All these parties were armed except Barnes. Griffin and Selser each had bowie-knives, the others pistols.
    Barnes, Bedford, and Yernon were all examined for the State, and from their evidence it appeared that the matter of the message sent by Beall to Selser had been discussed at Selser’s house that morning previous to going to the show, and that Selser had determined to ask for an explanation of Beall the first time he met him. Some of these witnesses acknowledged that it was expected that S. would meet B. at the show, but they all denied that they were armed for the purpose of taking part in any difficulty that might ensue, or that they were present with Selser and Griffin for that purpose. They represented that Selser had determined to seek an explanation in a friendly manner, and if it was refused and Beall attacked him, that he would then knock him down. One of these witnesses confessed that he had advised Selser to have his right hand on his weapon during the contemplated interview, and to use his left hand in case he struck Beall: All the parties, being accompanied by several ladies, went first on the boat, and soon afterwards Beall arrived. Nothing was said or done on the boat calculated to produce a rupture, but in a short time the parties left the boat. Griffin and Beall went into the side-show in the tent. The others awaited on the outside together. As soon as Beall came out of the tent Selser advanced towards him, and they approached near together about the time.Beall reached the top of the levee, Selser having not quite reached the.top.. Selser’.asked Beall in a quiet and unexcited tone of voice what he meant by the message he had. sent him. Beall'said, “What message?” Selser said, “ The message you sent me by-,” and at this moment Beall sprang at him, striking him in the breast. But after Selser accosted Beall, and before any blow was stricken, some one touched him on the arm, and he immediately changed his position so as to get on the top of the levee, on the same level .with Beall; and as soon as Beall came from the tent, and Selser started towards him, Barnes stated in a loud voice, “ Do not let us go too close. Dr. Beall may think we intend to double-team on him, and some one may cry foul play.” At the time Beall struck Selser the latter had his hands on his hips, a position in which he usually carried them. Immediately on the striking of Selser by Beall a short struggle ensued between them, which ended in Selser’s falling down and Beall falling on him. Before Selser fell, and after he was struck, he said, “ Beall has a knife,” and Beall replied, “Have you not one, too?” About that time Griffin stepped up and said, “Do not interfere; let them have a fair fight.” Soon after Beall and Selser fell, Griffin and one of the Selsers’ friends took hold of Beall. As soon as Beall arose a conflict ensued between him and Griffin. One of the witnesses heard “steel clashing between them,” and very shortly Griffin called for a pistol, stating that Beall had killed Selser and probably himself. Vernon then attempted to shoot Beall, but was prevented by the intervening crowd. In this conflict both Selser and Griffin received mortal wounds from a dirk-knife used by Beall. Selser died almost instantly, and Griffin in a few hours afterwards. Griffin was wounded in two places — in the right side and in one of his arms. ' Selser had four wounds on his body — one (mortal) just above the breast-bone on the lower part of the neck, the others were slight. Beall had a wound on his left shoulder from one to one and a-half inches wide and two to three inches deep; also a small wound on his left forefinger, and a slight wound on his thigh. They appeared to have been made with a knife. A medical witness, (Dr. Brickell,) who examined the wounds on Beall, was of opinion “ that the wound on the shoulder came somewhat from above; if it had been otherwise, the wound would have inclined outwards, if the party struck had his back to the party striking. If Griffin and Beall had been advancing face to face, this wound could not have been inflicted, unless the party inflicting it was on the left side of Dr. Beall' and a little behind him.” ■ ■
    The only weapons seen by any of the witnesses during the affray was a bowie-knife in the hands of Griffin, and a pistol in the hands of Vernon when he attempted to shoot Beall after the fight had ceased. A bowie or dirk-knife was found on the body of Selser after his death; it was in a scabbard which was attached to the inside of his pants; no other weapon was found on his body.
    At the time Selser accosted Beall he had on a linen-duster coat, 'which was buttoned from his chin to his knees.
    A witness examined for the defence said when he saw Selser accost Beall he, witness, changed his position so as to get out of the range of Selser. Several witnesses were, introduced for defendant who proved that Vernon had made statements, soon after the killing, contradictory to his present testimonyh .The material points on which he was contradicted are, that he stated to three witnesses that Selser had determined to'meet Beall and demand an explanation of the message, and if he failed to make a satisfactory explanation that Selser had said he would knock him down; to another witness he stated that he, Vernon, had tried to persuade Selser from th.e time they started not to attack Beall, and as they went on S. agreed not to attack B., but.on.walking further he said he would 'attack B., but in a gentlemanly way, and if he did not give a satisfactory explanation he would knock him down. To another witness he stated that Dr. Selser had called on him, Vernon, Griffin, and Barnes, to be present when he demanded an explanation of Beall.
    
      A witness for tbe defendant stated that he bad gone to Bed-ford on the boat during tbe show, and asked him to prevent a difficulty between Selser and Beall, and Bedford stated be bad tried, but that Selser was mad and could not be prevailed on to do it; that when be is mad be could do nothing with bim.
    It was proven that Selser was a stout, courageous man, about five feet eleven inches high, taller and stouter than Beall. It was also proven that tbe ladies who were with Selser’s party at tbe show on tbe boat did not go into tbe tent-show, but went home before tbe affray commenced. Beall was proven by many witnesses to be a quiet, peaceful, and well-behaved man.
    Tbe circuit judge refused tbe prisoner’s application for bail, and be sued out this writ of error.
    
      D. 0. Merwin and F. Anderson, for plaintiff in error,
    Insisted that even if the court should consider it a clear case of murder, that under tbe authority of Wray's case, 30 Miss. R., and Moore's case, 36 Id., there was a discretion to grant bail, and that tbe circumstances of this case fully warranted the exercise of this discretion in behalf of tbe prisoner.
    They also went into an elaborate and critical examination of tbe testimony, insisting that it did not make out a case of murder, and that tbe prisoner was therefore entitled, as a matter of right, to bail.
    
      T. J. Wharton, attorney-general, contra.
   Harris, J.,

delivered tbe opinion of tbe court:

The plaintiff in error prosecutes this writ to reverse tbe judgment of the circuit judge refusing bim bail, on writ of habeas corpus.

Tbe record shows that the plaintiff in error is confined in tbe jail of Warren county, under two indictments for murder, originating out of tbe same transaction. Tbe record further shows that tbe plaintiff in error was tried on one of said indictments in tbe Circuit Court of Warren county, before a jury, which resulted in tbe discharge of tbe jury because they were unable to agree on a verdict.

After a careful examination of the cases presented to us in this record, we have determined that bail should have been allowed the plaintiff in error in both cases.

The grounds of our judgment we deem it proper to withhold, as the cases are to undergo examination before a court and j ury, whose province it will be to determine upon’ the guilt or innocence of the accused.

"We again repeat what was said by this court in Moore v. The State, 36 Miss. R. 142, that “We wish it understood that, on applications for bail, we may grant the applications, even in cases where the jury might and perhaps ought, on the same evidence, to render a verdict of guilty for murder. So much depends on the incidents of a trial by jury- — -the manner of the witnesses, their intelligence, their seeming bias or fairness — that cannot be brought before this court, which yet should have a material bearing on the weight of evidence, that we deem it unsafe that the opinion of the High Court in granting or refusing bail should be adopted as a criterion for the jury by which to determine the guilt or innocence of the accused.” In the case before us we do not intend to intimate any opinion as to the guilt or innocence of the party accused.

Let the judgment be reversed, and the defendant admitted to bail upon his entering into recognizance before the sheriff of Warren county, Mississippi, himself in the sum of ten thousand dollars, with two gooji securities, jointly and severally in a like sum, in each case.

Handy, J.,' dissented from so much of this opinion as reversed, the judgment and admitted the plaintiff in error to bail.  