
    Henry Keithler vs. The State of Mississippi.
    The law which authorizes the circuit court to appoint a district attorney, to supply the temporary absence of that officer, is not unconstitutional; although the constitution makes the district attorney elective, yet if he be not in attendance to discharge his duties, the state has a right to employ other counsel to discharge them for him; and when so discharged, they will be valid.
    Express power is conferred by the constitution, (Art. 5, § 13,) upon the legislature, to provide for the filling of all vacancies not therein provided for ; under this power, it seems that if the absence of the district attorney causes even a temporary vacancy, it may be provided for by the legislature.
    It seems that the signature of the district attorney, is not essential to the validity of an indictment; it is not by the common law; nor is it made so by any statute in this state; while it is a practice for them to sign indictments, and one that should be followed, yet it is not indispensable; and an indictment duly preferred by the grand jury, will be valid, though without the signature of the district attorney, or it seems with the name of one signed to it, who was not the legal district attorney ; if it were otherwise, the district attorney could never he prosecuted for any offence.
    Under the statute of this state, which provides that no conviction for any offence, excepting perjury and subornation of perjury, shall disqualify, or render such person incompetent to be a witness in any cause, civil or criminal, but the conviction should only go to his credibility, it was held, that a principal, found guilty of murder, and condemned, to be hung, was a competent witness against a person indicted as an accessory before the fact, to the same murder. The statute was designed to remove a disability; mere conviction never disqualified; it was the judgment which disqualified; the statute must, therefore, be considered to have reference to the judgment.
    
    Since this statute, removing the infamy, a condemned principal may now testify against his accessory.
    On the trial of a prisoner indicted as an accessory to murder, the record of the conviction of the principal, is evidence to prove that conviction, and all its legal consequences, though not evidence of the fact of the guilt of the prisoner-
    The following caption to the record of the conviction of a principal in murder, was held to be sufficient, when the record was offered in evidence, on the trial of the accessory, to wit; “ Pleas and proceedings had and done before the Honorable George Coalter, judge of the third judicial district, of the state of Mississippi, at a circuit begun and held in and for Hinds county, at the,court thereof, in the town of Raymond, on the third Monday of November, A. D., 1846, it being the sixteenth day of said month.”
    The following certificate of the clerk of the court in which a principal in murder was convicted, attached to the record of the conviction, was held to be sufficient to make the record evidence on the trial of the accessory, to wit: “ The state of Mississippi, Claiborne county, ss. I, Dan McDougall, clerk of the circuit couTt, in and for the county and state aforesaid, do hereby certify that the foregoing sixteen pages and this page contain a full and perfect transcript of the papers, in relation to the change of venue from Hinds county, now on file in my office, as well as of the papers now on file in my office, in relation to proceedings in this court, and also a perfect transcript of all proceedings had here in the case stated, to wit: The State of Mississippi v. Jack Fountain Silas, charged and convicted of the crime of murder, and sentenced as set forth in said transcript, as full as the same appears of record in my office. Given under my hand and seal of office, &c.”
    The circuit judge, on the trial of a person charged with crime, has the right to modify the instructions asked of him in behalf of the state or prisoner, and to give that modification verbally; and if the prisoner objects to the modification, he must except to it at the time, and embody the modification in a bill of exceptions, that the high court may judge of its propriety; 
      if he omit to do this, and permit the jury to retire, it will be too late to object to it afterwards, and it will not be error for the judge, to refuse to call the jury back and repeat the modifications to them,-nor to refuse to allow the modifications when written out by the judge after the retirement of the jury, to to be sent in to the jury, although the prisoner’s counsel stated, that they understood the verbal modifications given to the jury, to be different from those written out by the judge; the latter, however, stating that they were literally the same.
    The law of 1846, on the subject of charges by judges to the jury', does not, it seems, apply to criminal trials; yet if it did, that provision in it which requires that the charges or modifications must be in writing, unless by the consent of both parties, covers the case of modifications given verbally, which the record does not show, were objected to at the time; in the absence of objection appearing on the record, assent will be presumed.
    On the trial of a prisoner, charged with being an accessory to murder, the court instructed the jury that, “it made no difference to the merits of the case, whether the principal conceived the design to kill the deceased before his interview with the prisoner or not, if the prisoner encouraged him in the design, by falsely stating to him threats of the deceased, the prisoner was guilty; ” held, that the instruction was not erroneous; it was to be taken in connection with the evidence ; and the instruction in terms embraced the idea, that the prisoner knew of the design of the principal, for he could not encourage him in a design of which he had no knowledge.
    Where, on the margin of an instruction of the court, embodied in the record, was written the word refused, yet the body of the bill of exceptions recited that the instruction was given, it was held, that the latter recital must prevail.
    Where, on the trial of an accessory to murder, the principal after his conviction testified, and the jury found the accessory guilty, and it appeared on the trial, that the principal had made contradictory statements, and the circuit judge refused to grant a new trial; it was held, by the high court of errors and appeals, that while the evidence of an accomplice was to be weighed with great jealousy and distrust by a jury, yet his credibility belonged exclusively to the jury, and it would be a delicate point for a court to touch it; it would be impossible, as a question of law, to say that he should not be believed; the jury are to determine that from his manner, consistency and other attending circumstances ; they are to judge how far his testimony has been corroborated, or they may believe him without corroboration.
    A voluntary confession is entitled to but little weight, as it is but natural, that one accused of crime should endeavor to palliate his guilt by excuses ; and if a different statement should be afterwards made under oath, when circumstances have changed the condition of the party, it will be with the jury to say, whether they will disbelieve him on account of such discrepancies.
    
      In this case, the prisoner was indicted as an accessory to murder, and found guilty ; the principal, being convicted, was. a witness on the trial, and swore positively to the guilt of the prisoner; but as he had made contradictory statements, and his testimony in part, was contradicted in other particulars, the court entered into an elaborate examination of the other testimony in the case, and after a review of it came to the conclusion, that whilst there were powerful reasons to question the credibility of the principal, yet the verdict was not given without corroborating circumstances, and must stand.
    In error from the circuit court of Hinds county; Hon. George Coalter, judge.
    A grand jury, regularly impanelled at the November term, 1846, of the circuit court of Hinds county, preferred a joint indictment against Jack Fountain Silas as principal, and Henry Keithler as accessory before the fact to the murder of Benjamin G. Sims, on the 6th day of July, 1846. The indictment was signed “ J. E. Sharkey, district attorney, pro tern., 3d judicial district.”
    Silas, by affidavit, procured a change of venue to Claiborne county in his case.
    At the May term, 1847, of the circuit court for Hinds county, the case of Keithler came on for trial; the state was represented by Fulton Anderson, Esq. the district attorney of the district; the prisoner plead not guilty; out of the special venire previously summoned, a jury was impanelled on the 4th day of June, 1847, and after a trial of two days, the jury found the prisoner “ guilty in manner and form, as charged in the indictment; ” and the judge sentenced him to be hung on the 2lst day of July, of that year.
    From the bill of exceptions, sealed on the refusal to grant a new trial, the following facts appear.
    The record from the Claiborne circuit court of the conviction of Silas as principal, was read to the jury. It was objected to, but the objection overruled. The caption of the record was in these words, viz.: “ Pleas and proceedings had and done before the Hon. George Coalter, judge of the third judicial district of the state of Mississippi, at a circuit begun and held in and for Hinds county, at the court thereof, in the town of Raymond, on the third Monday of November, A. D., 1846, it being the sixteenth day 'of said month.” The record proceeded then to state the impanelling of the grand jury, and the preferment of the joint indictment in Hinds; the arraignment and plea of not guilty by Silas; the change of venue to Claiborne county on Silas’s affidavit; the issuance of a special venire; the impan-elling of a petit jury in the Claiborne circuit court, before the Hon. Stanhope Posey, judge, on the 14th of April, 1847; the verdict of the jury of guilty, on the same day; and the sentence of the court that he be hung on the 4th day of June, A. D., 1847. '
    This record was certified in these words, viz.: “ The state of Mississippi, Claiborne county, ss. I, Dan McDougall, clerk of the circuit court in and for the county and state aforesaid, do hereby certify that the foregoing sixteen pages and this page, contain a full and perfect transcript of the papers in relation to the change of venue from Hinds county, now on file in my office, as well as of the papers now on file in my office in relation to proceedings in this court, and also a perfect transcript of all proceedings had here, in the case stated, to wit; the state of Mississippi versus Jack Fountain Silas, charged and convicted of the crime of murder, and sentenced, as set forth in said trans-script, as full as the same appears of record in my office.
    
      “ Given under my hand and seal of office this 3d day of June, A. D. 1847. Dan McDougall, clerk.”
    The counsel for the state then offered as a witness in behalf of the state Silas, who had been sentenced to be hung on that day, without having produced -to the court any pardon or respite of the sentence of the Claiborne circuit court; this was objected to by the prisoner, hut the objection was overruled.
    Silas testified that he became acquainted with Keithler in Vicksburg, and from the first felt a strong attachment for him; Keithler was in the employ of Benjamin G. Sims, at the latter’s mill, and employed Silas to oversee for Sims; • and he accordingly acted as Sims’s overseer. Up to the time of his (Silas’s) separation from Sims, on the Sunday that he left his employment, nothing had occurred between Sims and himself; they •were friendly. On the Sunday on which he left Sims, the following conversation occurred between them. On the Saturday previous, a horse Silas was in the habit of riding was discovered by him to be locked up; Silas had heard that Sims had heard that he (Silas) had been riding this horse at night; on this Sunday, Sims said he had not been told so, but that he was ready to settle with Silas; the latter told Sims he would not come to a settlement with him unless he would settle for the whole year, upon which Sims told him to leave his premises. The witness continued his deposition as follows: “ At that time I did not know the cause of difficulty between Sims and myself. I felt as friendly towards him as towards any person who had treated me as friendly as he had. I now believe that Keithler had told Sims about my riding his horses at night, and that he was the cause of Sims turning^ me off. On leaving Sims I went to the mill, got Keithler’s horse and started to Raymond; on my way to that place I met Keithler coming from Mr. Regland’s, young Mr. Deuson was with him; as I approached, Keithler hallowed to me, saying, ‘ something was out; ’ the young man, Deuson went ahead, and I took Keithler one side, and there we held a conversation in which Keithler said to me what Sims said, and [said] ‘ from his manner last evening there will be a difficulty, and you had better arm yourself.’ I then went on to Raymond to see Mr. Hunter, who was to engage me to work at the carpenter’s trade; I saw Mr. Hunter and returned to the mill. Mr. Keithler had been to Mr. Sims’s and returned with my clothes that evening; Keithler told me Sims had sent for him, but he did not want to see the damned old son of a bitch; Keithler and I went to Cooper’s mill together; whilst there Sims’s boy came with a horse for Keithler; he at first refused to go, but, by my advice, he went. Keithler, on various occasions, urged me to kill Sims, saying, Sims had threatened my life; he told me to take his horse and station myself on the mill road, and kill Sims; Keithler would not let me have the horse except for the purpose of killing Sims. I rode his horse almost every day for the purpose of killing Sims, and when I returned, he always asked if I had killed him ? On one occasion I stationed myself on the road to kill Sims, saw him, hut not finding it in my heart to kill him, I rode one side, I returned. Keithler asked me if I had killed Sims 1 I told him ‘ I had not; it would be all right to-morrow.’ He then said, ‘ God fiamn you, I do not believe you have the heart to kill a man.’ I then said, it was a hard-hearted thing to take another’s life. He then stated it was a common thing to take a man’s life in New Orleans and New York, where he came from. 1 It was on Monday or Tuesday, I do not remember which, that he commenced urging me to kill Sims; after that it was the constant subject of conversation day and night. I slept with him at the mill until Sims was killed; I would put him off by telling him it would be all right to-morrow. On Wednesday morning, the day on which Sims was killed, when I left, Keithler advised me to go and kill Sims. I went to Mrs. Dawson to see her, to ascertain whether or not Keithler’s messages to me from Sims were true or not; she said she would have nothing to do with it, and referred me to a Mr. Winter, in Madison county, her brother. In the evening I returned, found Mr. Jones at the mill; after some conversation with Mr. Jones, in Keithler’s room, I went into the mill; after a little time, Jones came into the mill; after a little conversation, myself and Keithler went to the well about thirty paces distant; Keithler there told me he had been at Sims’s that day, and that Sims told him that he intended to kill me at sight without giving me time to wink; he insisted that I should kill Sims that evening, as Parsons would be passing from Newtown on that evening or the next day by the mill, and he wished Sims out of the way, so that he could know what to do as to Parsons’s proposition to go into partnership with' Parsons in building a mill, as he believed Sims’s mill would be a better arrangement for him than the proposition made by Parsons; within an hour from that conversation I killed Sims; this was on the Wednesday week (eleven days) after I left Sims; after killing Sims in his cotton field, I went down to the mill and Lusk’s house, which was within thirty yards of the mill; I went first to a blacksmith’s shop, which was hear the mill, and directed a negro to draw me a bucket of water from, the well which was about thirty paces from the mill; I then went to Lusk’s house (where I and Keithler boarded) washed my hands in the bason, took Keithler’s bridle which was there, and which I had been using the day before, and started back, passing by the blacksmith’s shop to the mill to return the bridle to Keithler; I met Keithler behind the blacksmith’s shop; he came running up to me, and asked me, Have you killed Sims? I answered, Yes ! Did you kill him so dead that he could not speak ? I answered, Yes ! He then told me to give myself up; that what Sims had told him that day would clear me; that he would employ counsel for me and see me out; and that he would come to Raymond the next day and see me; all this occurred before Bankstone came up. The next time I saw Keithler was'in jail; I saw he wás an altered man; I told him he had brought me to this. He observed, he knew it, and that he would spend his last dollar for me, that he would go his death for me. I have not stated the one half that Keithler did. The killing of Sims was the subject upon which we always conversed; we walked to Cooper’s mill and the Mississippi springs, and the killing of Sims was the subject-matter of our conversations during many nights. He told me that Sims charged me with being intimate with his slave Catherine; that Sims charged me with stealing lumber, &c., and promised that if I would kill Sims, the management of the mill would fall to him, and that he would rün two saws, and that he would give better wages than I could get from Sims; he kept me from joining the volunteers, and urged me not to go, but to remain with him and kill Sims; I never would have killed Sims had it not been for Keithler ; the thought of killing Sims never suggested itself to me until Keithler suggested it; I acted entirely through his counsel.
    “ Question by the state. Have you any hope of pardon in this case ? Answer I have no hope in this world of pardon. What induced you to kill Sims ? Ans. Keithler first put it into my mind, and before he did so I felt as friendly to Sims as I would do to any one of you. who would treat me as Sims did; on Sunday morning I did not know why he turned me off, and after Keithler had' told me all that Sims had charged me with, I at one time saw him at the woodland gate, and wished to ask him if what Keithler told me was true, but he would not listen to me, and said he would not let me talk to him.
    “ Cross examined.
    “ Question 1. Did you not state on a former examination, when Keithler was on his trial before the committing court, that everything contained in the voluntary confession made by you, when on trial yourself, was true? which voluntary confession, at the instance of the accused, and by the consent of the district attorney, was admitted in evidence, and is as follows in words and figures:
    
      “ State of Mississippi, Hinds county:
    
      State v. John Silas.
    
    This day John Silas was brought before W. G. Jennings and G. W. Harper, Justices of the Peace, charged with the murder of B. G. Sims, on the 24th inst. all of the county and state aforsaid, this the 27th day of June, 1846.
    “ The prisoner being asked to make a statement, proceeded as follows: 1 On Saturday night, before I quit Mr. Sims’s, a horse that I had been in the habit of riding, was discovered by me to be locked up; I had heard that Sims had been told that I had been in the habit of riding him at night; Sims said that he had not been told so by a white man, but that he was ready to settle with me; I told him I would not come to a settlement, unless he would settle for the whole year; he told me to leave his premises that day; I then came to town to see Mr. Hunter; while in town, Sims had my clothes thrown out, and sent to the mill; I returned on Sunday, and desired that Sims and I should come to an understanding as to the cause of quitting; he told Keithler, that he had turned me off because I was intimate with one of his negro girls. I went to Mr. Fitzpatrick, to get him to speak to Mr. Alston that week, and leave the matter at difference, with them. Mr. Keithler had told me, a week before I went down to Mrs. Dawson’s, that Sims had threatened my life. ? On the day the circumstances occurred, I went down to see Mrs. Dawson; I requested her to come and enable Sims and I to come to an understanding; and she referred me to Mr. Winter, one of her brothers. After getting home that evening, Mr. Keithler told me that he had just returned from Sims’s that day, and that Sims had threatened to shoot me down at sight, without giving me time to wink; that my life was in danger; that Sims would shoot me down whenever he met me. Mr. Keithler advised me to kill the damned son of a bitch; and that he would have killed him before now. After this had been told me, I went up through the corn-field to Mr. Sims’s, and stepped upon the fence, and told Sims that I wished some understanding about this matter; that I wished it laid open be? fore the people. He observed that I should not talk to him; and drew a pocket-knife, and cut me across the finger, when I shot him. (The cut was shown ; it being on the fore-finger of the left hand, near the knuckle.) I was attempting to take hold of him when he cut me. As I shot him, his horse dodged off with him, and threw him; he made at me with his hands extended, when I made at him with my knife, with which I cut him in several places, how many, I do not know. After the affair, I went to the mill, and gave myself up to Mr. Banks-tone. I shot Sims but once; the second pistol I shot in the corner of the fence, because I did not wish to carry it loaded.
    (Silas in his confession details an alleged effort on the part of Sims, to have intercourse with his slave Catharine, and proceeds thus:) I told Mr. Jones of this transaction, before Sims and I fell out. Sims fell out with me because he had been told that I had been intimate with his girl Catharine. He said he would tell the planters, so that I could not get business in the country. If I don’t get justice here, I will get justice some day. The charge, that I had intercourse with Sims’s servant or servants, is utterly untrue, without foundation. The transaction between Sims and Catharine, and her mother, occurred when I was ploughing over corn, the first time. Further, the prisoner saith not.
    his
    “ Jack Fountain X Silas.
    mark.
    “ Test: W. G. Jennings, J. P.
    Geo. W. HaRpep..
    
      “ The voluntary confession was read to Silas, and he answered, that, as to the first part, where the confession states, that Sims, on the morning of the separation, stated to him, that no white man had told him so, he was not certain; that he believed that Keithler had so told Sims.”
    In answer to further cross-interrogatories, Silas answered, that Keithler had first mentioned the subject of killing Sims, on the Monday or Tuesday after he left Sims. In answer to the question, whether he had not, on a former examination, stated, that Keithler first mentioned the subject on the evening of the Sunday after Silas’s return from Raymond, and after Keithler’s return from Sims’s, in Keithler’s room at the mil!, the witness said he had been so long confined in jail, he could not say; he did not recollect. •
    That on the day he left Sims, he called on A. Jack. Johnston, and asked him for pistols; Keithler had told him to arm himself ; that he might have told Johnston the difficulty between Sims and himself, arose about the slave Catharine, but he did not recollect it; that he did not tell Johnston, that Sims was attached to Catharine and believed she had been intimate with the witness, and was rhad because Catharine preferred the witness to him; that he did not remember having told Johnston that Sims, the night before he left, had severely whipped Catha-rine, up stairs; that he did not see Anna Sims at the time he killed Sims; she was not there ; that the statement made in his voluntary confession about Sims and the slave Catharine, was true; he shot Sims twice; his memory was confused, and he did not remember having said before that he shot him but once, and fired the second pistol in the corner of the fence; that he did not threaten to shoot Sims’s servant Carter, when he came up, nor did he run him off. After killing Sims, he (Silas) started off and run; he met Carter in running, and Carter became alarmed, turned, and ran another way. “ After killing Sims,” the witness proceeds, “ I went to the mill; first to the shop, some little distance from the mill, where Keithler was engaged at work; then went to the well, got a drink of water, then went up the hill to Mr. Lusk’s house; went into the house and washed my hands in a bowl of water; believe somebody handed me a towel; don’t know whether Mrs. Lusk saw me or not; there was nothing to prevent her seeing; did not see Keith-ler after the deed, before Bankstone came; never, until he met me coming down from Lusk’s house; went to Lusk’s house to get the bridle; did not get the bridle to escape; think Lusk’s house not further from the well than the mill; in coming from the place where Sims was killed, was nearer the mill than the well; does not know whether the water he washed in was bloody or not; had a cut on my finger, which bled; Sims did not cut me on the hand in the fight in which I killed him ; my hand was not cut by him; no words passed between Sims and me before I shot him; I shot him twice; did not shoot one pistol in the corner of the fence. I was down in McGowan’s neighborhood on Monday or Tuesday night before I shot Sims; I had gone there with Keithler; he and myself kept a couple of negro girls there; I do not know how long I stayed, nor when I got to the mill. The night before I shot Sims, Keithler and I talked all night about it at the mill. I had told A. N. Jones in his cotton-patch, of Sims’s attempt on Catharine and her mother. On Monday before I shot Sims, I went to E. H. Stone, to find an overseer’s situation. I was at the Mississippi Springs the day I shot him; I got drunk there; it was the first time in my life I had been drunk; I met Mr. Dixon there; I suppose I spoke of killing Sims; I do not know what I said.
    “On Sunday before I shot Sims, Keithler and I were sitting on the bed in Keithler’s room; Ragland came riding up ; Keithler sprung up, saying, ‘ There comes old Sims, now,’ and seized a pistol from his trunk, when he discovered it was not Sims. On Wednesday morning, he walked with me, and at Ragland’s gate, loaded a pistol for me to kill Sims with, and used a part of his pocket-handkerchief as wadding in loading it; Keithler would take the pistols every night and put them in his trunk, and would hand them to me in the morning, when I would go out to ‘kill Sims. I have not stated, nor can I remember, the tenth or the hundredth part of what Keithler said about killing Sinis; it was a constant topic with us.”
    
      “ The printed confession of Silas, published at Port Gibson, was, at the instance of defendant and his counsel, and by consent of the district attorney, admitted to be read as testimony in the case, as follows :
    “ CONFESSION OF JACK F. SILAS,
    Who was tried and convicted at the April term, A. D. 1847,- of the circuit court of Claiborne county, Mississippi, and sentenced to be hung on the fourth of June, following, for the murder of Mr. Benjamin G. Sims, of Hinds county, Mississippi.
    “ PREFACE.
    “ By way of preface, I would say, that the design of the confession of the prisoner (J. F. Silas) is not to prove his innocence, or the unjustness of those by whom he has been tried and convicted. On the contrary, it is to acknowledge his guilt; to applaud the impartiality of his judges, and to convince the people, if not already apprized, of the cowardly baseness of him who urged him to strike the ‘blow of death.5 The latter part of his declaration, comprises his testimony against the instigator ; he prays the people to examine it. Before a just Heaven, with the dark shadow of the sentence of death, held out by the stern arm of the lawj preventing the least ray of hope for pardon or escape, he pledges the truth of his assertions, and wishes to live only to behold Keithler receive his more than just punishment. He tenders his last and best thanks to the young men of Port Gibson and vicinity, for their kindness manifested towards him during his confinement; and he prays the citizens of America, hot to cast any blame upon his kindred: that when he receives his punishment, his crime and the disgrace attending it, may be buried in the grave of forgetfulness with him, never to be remembered but by those who may'pause to commit a similar crime ; to such he would say, beware ! Remember him!
    “The Writer."
    
      “ CONFESSION»
    “I was born in Warren county, Georgia, on the 25th of October, 1823; my father in North Carolina, my mother in Virginia; she was a member of the Baptist Church upwards of forty-three years; they were once in very good circumstances, until the death of my mother, in 1839; upon her bed of death, she warned me to shun the evils of the world, and to meet her in heaven.
    “ At this time, when a lad of sixteen, I came to Marion county, Georgia, and took charge of a plantation and negroes, for Messrs. Kinchexire and- MeKinney; up to this time, my character was without a stain of crime; my mother’s admonitions shielded me from the allurements of the world. I have never had the benefits of an education; I cannot read or write. I remained at K. & McK.’s, twelve months, when, not satisfied with my salary, I left, and took charge of another, for Mr. Hy-tower, in Upson county, Georgia; remained there two years then left for Barbour county, Alabama, and superintended a plantation for Harris Freeman; being seized with sickness, I was persuaded to abandon the business, and travel, for the recovery of my healtlj. During my sickness, which lasted fourteen months, I visited my friends and acquaintances in the adjacent counties and states.” (The confession of Silas here proceeds to detail the progress of his sickness, both of body and mind ; his frequent relapses; being more than once at death’s door; his various journeys from place to place, until his arrival at his brother’s, in Chickasaw county, in this state; his illness, and derangement of mind, there and elsewhere; his recovery, and falling in love with a young lady; their engagement to be married; the falsehood by which he sent his brother back to Georgia for money that had no existence; his seduction of the young lady, during his brother’s absence; her father’s attempt on his life; his intrepidity and escape; his remorse, and junction with the Methodist church; his failure to obtain relief of mind, and consequent ineffectual attempt at suicide; departure from his brother’s, and adventures until he arrives at Vicksburg, Miss., when his confession proceeds thus:) “After remaining in Vicksburg some time I became acquainted with Henry Keithler; my feelings towards him at first sight I cannot express, but I became very much, attached to him ; he seemed to interest himself in my welfare, and recommended me to Benjamin Sims, near the Mississippi Springs, Hinds County, Miss. Having consumed all my money by dissipation, I availed myself of the prospect and immediately started, arrived at Clinton, hired horses and servant, arrived at Sims’s, and succeeded in getting into business with him. After remaining there for some time, I became very much concerned about my situation and treatment towards my friends and relatives, and frequently conversed with Mr. Sims upon the subject. Taking a retrospective view of my past life, I became very much embarrassed, my mind became more uneasy. I thought of my father, of my treatment towards the young lady, and the advice my mother gave me ; spent my Christmas before his house indulging in gloomy thoughts. My wages were very poor, but I was compelled to submit. I engaged with Mr. Sims on the 24th of December, 1845, and left 14th of June, 1846. Keithler was also employed by Mr. Sims to attend to his mill. Before leaving Sims, Keithler and I were very intimate, were together frequently during the week and Sundays, and at night we would walk to the Mississippi Springs, and in the neighborhood. During my stay at the house I was treated as one of the family; my every want was satisfied, and no harsh feelings existed until the morning of my departure; on the Saturday night previous to my departure, the saddle-horse I had been in the habit of riding, was taken from the lower lot and locked up in the upper. At the breakfast table on Sunday morning, I did not know but that the same good feelings formerly manifested still existed. I went out to the horse lot for the purpose of getting my horse to go to church; I asked a negro boy where he was ; he told me the circumstances; I asked him if he knew the cause; he replied, that Mr. Sims said that some white man had told him that I had been in the habit of riding his horse at night. This somewhat astonished and vexed me. I immediately went to the house and asked an explanation ; he replied, ‘ no person but you will leave to-day.’ I observed that I thought it very strange he should discharge me after wishing to employ me another year; he gave me no satisfaction, and never did inform me.
    “ I left his place on that day, went to Mr. Hunter’s at Raymond ; on the road I met Keithler; before meeting, he cried out ‘ that there was something out.’ I asked him if he could explain the difficulty between Sims and myself. His reply was, 1 he calculated from the manner Mr. Sims left the mill yesterday, that I would kill him on the field or he would me; ’ and observed, ‘ I told them so at the mill ’; but did not say to whom he spoke. I again asked for an explanation of the difficulty. He observed that Mr. Sims accused me of going to run away with one of his negroes, and went on to state many other things that Sims accused me of, said that he just raised the report to run me off because the crop was finished, as he usually did his overseers. I observed that I would see some of the neighbors about the matter. I then parted with Keithler and went to Raymond ; made arrangements with Hunter to. remain with him three years, for the purpose of learning the carpenter’s trade ; I again returned to Mr. Sims, and asked an explanation. He refused to speak with me. I then asked him if he would let my clothes remain until the following Tuesday. His reply was, ‘ I certainly will do so.’ I then went to the mill; Mr. Keithler was sitting in the room when I rode up ; he observed that Sims had sent for him, and that he had told the boy to tell Sims that he was not at home; that he did not wish to hear what the damned old son of a bitch had to say. After dinner we rode out as far as Mrs. Cooper’s sulphur well, where we were overtaken by Mr. Sims’s boy, who said Mr. Sims wished Keithler to come immediately to his house. He refused to accompany the boy, making the same remark to me that he made when he told me he told the boy he was not at home; through my persuasion he went. On his return from Sims, he brought me a very insulting and aggravating message; that Sims had accused me of everything he could think of; said that I had laid myself liable to a prosecution; accused me of stealing lumber; that I should not have business in the country, and he be damned if I did not leave the neighborhood, if he did not kill me. I replied, that I did not think Sims a dangerous man, that I was going to Mr. Hunter’s at Raymond. Keithler said to me, 1 Do you hold on here, by G-d, I’ll see you righted.’ I observed, I disliked to board at Major Lusk’s, because we had not spoken since he raised a difficulty between us. He said, ‘ that was all settled, and he would pay my board if I would stay.’ The difficulty between Major Lusk and myself I never could fathom, nor do I think the major understands it. Through his entreaties and assistance, I determined to board at Major Lusk’s. On the following Monday and Tuesday, I rode off one day to Raymond, the other to McGowan’s; on my return on one of the days, Keithler came running from the mill, told me that he had seen Sims, that he said 1 he be d-d if he did not mean to kill me,’ that he knew Sims was going to take advantage of me from what he told him. I replied that I did not care anything about Sims; I was going to Raymond that evening and remain. He insisted very strongly that I should not go that evening, but that I had better go up on the mill road and kill Sims before he took the advantage of me. I concluded I would go see him, and again ask an explanation. I went, but seeing Mr. Sims, I left the road and went back to the mill; thought it best to say nothing to him. When I returned at night, Keithler insisted stronger than before that I should kill him, saying that I did not know what he did. The next morning he renewed his entreaties, said that I had better load my pistols and finish it. We went to load them between Mr. Bank-stone’s and the mill. On our return to the mill, Keithler observed, that if he had Sims out of the way, he would give me better wages to attend the hands than he did, and went on to state the advantages he would derive to get the mill under his own superintendence and control; and probably he would get Mrs. Sims to put two saws to the mill. This part of the subject I did not rightly understand; I did not wish to murder Sims for expected wages, and concluded I would search for Sims and again ask him to explain himself. I went upon the mill road, saw Sims, and went and met him at his woodland gate. I asked him if he would have a friendly conversation with me. He refused. I would have explained the whole of Keithler’s plottings had he heeded my entreaties, but Sims turned a deaf ear to me. I no longer thought of Keithler’s base intentions ; my mind was ungovernable. I returned to the mill and did not know how to act. Keithler came to know if I had committed the crime. I replied no; that I thought it a serious matter to take a man’s life upon any occasion. He observed, that if Sims had threatened his life as he had mine, and used his name and character in the same way, he would think no more of killing him than he would a hog; and made light of me for not doing so, and observed that I was not the man he took me to be. I told him if he wished Sims murdered, he would have to do it himself. He then tried to reason the case; referred again to Sims’s threat, and insisted I should kill him the next morning. I told him that I was going to Hunter’s, in Raymond, but he insisted upon my not doing so; said that he wanted us to stay together; that he had become so much attached to me that he could not part with me. I replied that if he wished us to remain together and would go to Mr. Parsons, I would have no objections to do so. He intimated-he would. I saw Mr. P. on Saturday, and made arrangements with him; on my return, I told Keithler I had seen P., and everything was favorable. On the same morning, Keithler said, ‘ By G-d, if he had old Sims out of the way, that this mill would be the best chance.’ (It seems that he and Parsons thought of erecting a mill in partnership.) I then perceived his intentions, and told him I was going at once to Raymond; he then prevailed on me in stronger terms than ever not to go. During our conversation (on the bed) Mr. Ragland rode up to the gate of Major Lusk’s; Keithler jumped up from his‘bed to his trunk, snatched his pistol, and as though much interested in my safety, observed that ‘ Sims had come to kill me.’ I ran to the door and looked out, saw it was not he, told Keithler it was Ragland; immediately I left the room, and went to where Ragland was; in my conversation, he told me that he thought Mr. Stone would give me a situation. I said nothing to him about this affair. On Monday, I started to the Mississippi Springs; Keithler had gone the same road to see a boy he had sent to Clinton for hides; on his return I met him; he renewed his entreaties and insisted on my taking his horse, going up the road and at once be done with Sims; that he knew he would come down to see about the hides, and that I did not know the danger I was in; that Sims was determined to kill me. I replied, that I could not conceive why Sims wished to kill me; he said I did not know what he knew; I said no more, but went on to the Mississippi Springs; remained there but a short time; during my stay, Mr. Hamilton told me that his brother-in-law wished to employ an overseer. I returned to the mill, took Keithler’s horse and went to see Sims and Stone the same day; applied to Stone for a situation, but a young man had been previously engaged by him ; I told him that I would take charge of any business for nothing, that I had been badly used by Sims ; I was under the impression from the messages I received through Keithler, that Sims intended to kill me or drive me out of the country, and I felt that I had rather take business two years for nothing than be run out of the country; my motive was to show the people that Sims had treated me unjustly ; not knowing that I had been humbugged until after I had killed Sims, I thought Keithler was my friend, and relied as much upon what he told me as I would have had I heard it from Sims’s own lips. I having failed in my business, returned to the mill; Keithler asked me if I had committed the crime. I told him I had been on the road, but had not seen Sims ; my object was to keep Keithler’s horse, which he would not loan me under any other circumstances. At night he spoke to me again; recapitulated the threats and accusations of Sims, and prevailed on me to accomplish the deed, to kill Sims and be done with it, alleging that he would take some undue advantage of me. In the morning, he insisted again; I took his horse and went to the Mississippi Springs ; being nearly overcome by what Keithler had so frequently told me, and wishing to drown my sorrows, I commenced drinking, got drunk, used some observation to Mr, Dixon about the affair, was taken to bed remained in bed till supper; summoning up my weak and scattered ideas, I resolved to go to Yicksburg, join a volunteer company and leave the country. I asked Major Lusk at the supper table if he would take me to Clinton the next day. He replied in the affirmative. Keithler asked me to go to our room. He there entreated me by his lasting affection not to go off, to abandon the idea; said my health was entirely too bad, did not think that I could stand the toil of the camp, or the hardships of a soldier ; he expressed every measure of good feeling and friendship, used every exertion to persuade me against my resolution; no sleeping was done; this occupied our minds the whole night. When morning dawned, he told me to take his horse, go out before he did,'' he would go to Sims and draw off some writing (not known), after which I was to kill him wherever I found him. After Keithler left the mill, I concluded I would go to Sims’s sister-in-law, and prevail on her to see Sims and ask an explanation. I went; asked her to go ; she said she could not, that her children had the measles. I asked her when she could. She said not under a week. I gave her to understand there was something out. She referred-me to her brother-in-law in Madison county. If she had gone, I would have led her into the light of the whole ^transaction.
    “I returned to the mill, found Mr. Jones there, went into Keithler’s room, where Jones was, we held a conversation together, he wished me to accompany him home; I told him my horse was tired, but the next day I ,would come over. He said he wished to see Keithler about some lumber. I told him when he got through I wished to speak to him; he assented; I designed telling him, but he did not return. I went to the mill where he was; when I reached the door Keithler asked me to walk to the well and get some water. I did so ; on the way there he asked if “I had done it?” I told him no. He then replied, “ the thing was out, that Sims had told him he would kill me on sight, without giving me time to wink;” and asked if Major Lusk had not told me? I told him no ; that he had gone to Raymond ; he replied he thought Lusk would have told before; said he knew how it would be; that I was a d-d fool for not killing him long ago; that I had better go and do it now wherever I could find him; that if an officer should come to take me to give myself up; take his horse; he would furnish me a lawyer, and I would not have to go to jail. I was entirely overcome; I thought (as well as a deranged man could think) over the subject; for my own safety I concluded to kill him. I went upon the road, then went into his cornfield, saw him, went up to where he was, shot him off his horse, then stabbed him, turned and went away. I saw no one near Sims; his daughter was not there. After I left him I saw only a negro boy. I then returned to the mill. After I had been there a few minutes a neighbor, Mr. Braswell, came for me; said he came to take me to town; I told him I was willing to go. He asked me why I shot Sims ? My reply 1 do not remember. I met Keithler behind the room, he told me to take his horse and go, that I would not be confined, and that he would get me a counsellor. I went to town with Braswell, and gave myself up to Mr. Jennings; I was immediately taken to jail. After I remained there a day or so, Keithler came to the cell; his appearance was unnatural. Only then did it occur to me that he had deceived me. He said I ought never to have let Sims have spoken. I blamed him for my being confined; he said, never mind, he would clear me. That as things had turned out so bad he had better not give in his testimony until the circuit court; that he wished to wind up his business at Sims’s before he did. I thought from this that he was going to run away. After this I had no communication with him; the truth flashed upon my mind, and I saw, for the first time, that I had been wrongfully informed; that I had been badly duped, and urged to do that which never would have been done by my own consent. From this time henceforth I renounce every feeling of humanity for him.” The residue of the confession consists of the address of Silas to the reader, and to others; which is not considered material.
    
      The statement of Silas, before the magistrate who committed Keithler on the latter’s examination, was also read. It is not deemed requisite to set it out at length. In it he states that every word in his voluntary statement is true ; to the best of his recollection Keithler first told him to kill Sims on Sunday evening. At the second conversation Keithler told him to kill Sims, and he would give him an interest in the mill. Keithler told him that Sims owed him considerable, and if Sims was killed the debt would be better, as Mrs. Sims would be more likely to pay it. Keithler told him the mill would fall into his hands. By Keith'ler’s directions he placed himself in particular positions twice; on two other occasions he placed himself on the mill-road, without the locations being specified by Keithler. The cut on his forefinger was done by Sims. Keithler was the whole cause of his killing Sims. He never stated to any human being until that day, that Keithler had prompted him to kill Sims. Keithler, in prompting him to kill Sims, used the argument that the management of the mill would fall to him, and that he could pay him better wages than Sims had been paying.
    In other particulars this deposition corresponded in the main with Silas’s other statements.
    Anna Sims, of the age of twelve years, deposed, in behalf of the state, that she went down to see her father, to inform him of the death of Mary Thomas. When she got down there she saw Silas level a pistol on the fence, and -shoot her father; her father being in the cotton-field, and Silas in the corn-field. After he shot him Silas jumped over the fence and threw clods at him. After her father was shot he stumbled over six or seven cotton-rows, when he fell; Silas then beat him over the head with a pistol; stabbed him with a knife which she supposed her father had presented him. Silas shot him twice; on the second shot Silas put the pistol to his face. Sims begged Silas during this time to spare his life. As soon as he fired the second time he ran and jumped over the fence; before he shot the second time Silas stamped him in the region of the eye, and appeared to be loading a pistol; Carter, a servant, begged Silas to save his master. Silas told him to leave or he would shoot him, and started towards Carter, when Carter ran away. She was inside of the cotton-patch, on the same line of fencing that Silas got over; probably forty or fifty yards from where the scene occurred. The ground where she was, was higher than where Silas was. She was looking at her father as he approached; he was coming from the cotton-house; she hollowed while it was going on as loud as she could.' On cross-examination she stated that no words passed between Silas and her father, no signs would indicate it. She knew nothing of any difficulty between Silas and her father. She heard her father say that if he caught Silas about his negro-cabins at night he should shoot him. Silas saw her, looked at her very hard after firing the second pistol. He had two pistols; drew the second pistol after he had stabbed with the knife. She went to the house after the affray; her father’s knife was at the house.
    P. M. Alston, for the state,
    testified as follows : “I was sitting in my porch, and heard a pistol in Sims’s field; seeing my negroes run in that direction I started over; when I got four or five hundred yards heard another pistol; when I arrived there the negroes were carrying Sims home; had carried him twenty-five or thirty yards. Sims had received two bullet-shots in the abdomen, together with one in the face, and eighteen or nineteen wounds with a knife. Sims said there was no chance, he was certain of dying; he was in his right mind; he said he was riding in his cotton-field, near his corn-field fence, when he received the shot in his abdomen; fell from his horse, staggered seven or eight paces, and fell. Silas leaped over the fence, and stabbed and cut him with a knife; did not know,whether he was stabbed before he received the second shot, or not. He said that he had said if he caught Silas prowling around his negro-quarters at night he would kill him. Sims was wounded on Wednesday, and died on Friday.
    “On the evening of the killing, while I was at Sims’s house, and Mr. Keithler walking about in the gallery, was requested, a,bout candle-light, to come into Mr. Sims’s room; Mr. Sims, myself and two ladies being there; when he came in Mrs. Sims asked him if he had seen Silas, he said he had seen him half an hour since, riding in the direction of Raymond, with a man he supposed to he Mr. Gaines Bankstone; Mrs. Sims asked him, why he did not arrest Silas'? He said he knew nothing of the matter until he came up to the house. On Friday morning Keithler was requested by me to come into the presence of Sims, I saying it was understood he knew of threats made by Sims against Silas, and I wished him to state, in the presence of Mr. Sims, what those threats were, as Mr. Sims was then in his senses, though in a dying condition, and wished to hear what threats he (Sims) had used; Keithler stated then, in the presence of Mrs. Sims, myself, Mr. Mount, and others, that the only threat he had ever heard Sims use, was, that if he caught Silas prowling about his negro quarters he might abide the consequences. I helped to carry Sims to his house, and undress him; he had no weapons about him.”
    H. G. Bankstone, for the state,
    testified that he apprehended Silas. “ When I arrived at the mill I went in where Keithler was, and told him Silas had shot Sims, and I wished him to assist me in taking Silas a prisoner; he said he would rather not, and wished me to get some one else, observing that Sims had threatened Silas’s life the day before; I told him it was his duty, as a citizen, to assist in an affair of this sort; he then said he would go down and see Silas, and tell him to give himself up to me; he started down stairs, I after him; when he got to the ground floor he struck a trot up to Lusk’s house where Silas was; I kept after him, but did not run after he passed round the blacksmith shop, which hid Lusk’s house from me. Keith-ler met Silas behind the shop, out of my view; I could not hear anything that passed between them; they came and met me between the shop and the mill; Silas observed, you have come after me; I replied affirmatively ; he said he was willing to go with me; we started for Raymond.”
    W. H. Mount, for the state,
    testified 'that he was with Sims after he was shot. Keithler came to Sims’s Thursday evening; at the supper table Keithler, in reply to an observation made by witness, said he thought the affair was not a horrid one; after Keithler made this remark he went into the porch; being surprised at it the witness followed and asked him, if he knew of any threats made by Sims against Silas, to state them to him. He told me that Sims had said that if he ever caught Silas on his plantation, he would shoot him. Witness asked him if Sims had not said if he ever caught Silas prowling about his negro quarters, he would shoot him ; he said not. He replied in this manner twice. At this moment Keithler was called into the presence of Sims. Alston asked him, when he got to the bedside of Sims, what threats he had heard Sims make; he said that all he had heard Sims say, was, that if he caught Silas about his negro quarters, he would do something with him, thus contradicting positively what he had a few moments previously stated to the witness.
    A. N. Jones, on behalf of the state,
    testified, that on the evening Sims was shot, he went to Sims’s mill to see Keithler about some lumber; shortly after, Silas rode up, and witness conversed with him; Silas said, he anticipated a difficulty with Sims; the witness went up stairs to see Keithler, Silas soon after followed, and the three remained a short time together; Silas then went down to the well and beckoned to Keithler, who went down also; they remained at the well a short time conversing; the witness could not hear what about; they drank water and returned, when Silas rode off; the witness afterwards saw Sims on the same day, who said, if he saw Silas prowling about his negro quarters, he would shoot him; that Silas had seduced his negro girl Catharine, and he would not permit him to come about his place.
    William A. Dewson, for the state,
    testified, that on the Sunday that Silas left Sims, the witness and Keithler were returning from Raymond to the mill, when they met Silas; Keithler cried out to him, “something’s out;" they stopped and talked together, and the witness passed on and did not hear what they said; the witness lived at the mill, and slept in the same room with Silas and Keithler; the two latter slept in the same bed after Silas left Sims, till he killed him; Silas and Keithler were almost always together while Silas was at the mill, and took frequent walks to Cooper’s, the Mississippi Springs, &c.; on the Tuesday night before Sims’s death, the witness was at the mill, Silas and Keithler were lying down under the shed, and had a long conversation; he heard Silas say, “ it will be all right tomorrow;” Keithler laughed, and said, “you have promised that frequently, and it is not done yet; ” he did not hear the rest. On the day Sims was killed, he heard the firing, and saw Silas come from the direction of the firing; he went into the blacksmith’s shop, and thence to the house of Lusk, and in a short time returned towards the mill, when Keithler came running round the blacksmith’s shop, and passing the witness, met Silas some ten paces nearer to Lusk’s house than where the witness stood; when they met, they turned round and walked towards the mill, passing by the witness; as they passed by him, he heard Keithler say, “ you had better give yourself up; ” they passed on towards the mill, and while behind the blacksmith’s shop, Mr. Bankstone came up, and he and Silas went off together.
    On one occasion, as he awakened from sleep, the witness heard Silas say, as he and Keithler were conversing in bed, “somebody had promised him ahorse and saddle to whip or kill Sims; ” the expression “something’s out” was a common one at the mill; and was used by Keithler in a jovial way when he met Silas; when Keithler and Silas met after the murder; they held no secret conversation; and he only heard Keithler say he had better give himself up.
    Amos R. Johnston, og the part of the state,
    testified, that when Silas was in jail on the day after the shooting, he sent for witness to defend him; witness asked him about his case; he referred him to a man named Keithler, whom he described, witness then did not know him, and told witness that Keithler would prove that Sims had frequently threatened his life, and had said on the morning he was wounded, that he would kill Silas at sight, without giving him time to wink, and that Keith-ler had, at the well, near the mill, communicated this threat to him; the witness told Silas if Keithler would prove these facts, he could bail and perhaps acquit him. The witness afterwards found Keithler, and communicated to him what Silas had stated to him, and Keithler said that such was the fact, but exhibited great reluctance to testify; said that he could testify to those facts, but he wished to wind up his affairs at the mill, and would prefer not to be examined before the committing court; it might give offence to Mrs. Sims; but that he would testify before the circuit court, and that his testimony would acquit Silas; the witness told him that his testimony was of vital importance to Silas, and that he must have it; he persisted in his refusal. The witness continues : “I told him I must have his testimony, and would be compelled to have him subpoenaed; this was on Thursday morning, on Saturday morning the trial came on; I had had a subpoena issued for him; he did not appear; I took an attachment for him, and at the same time a, warrant issued for his arrest as an accessory to the murder; during the day he was brought in. I walked out from the court-house, and saw Keithler standing under a tree in the yard ; he beckoned to me; I went to him, and he said, ‘ They had me up before Sims the other day and examined me, but that was not a court, and I was not bound to state the truth then.’ The trial of Silas came on, and Keithler was introduced as a witness for Silas; on examination, he refused to testify to the facts which he had stated to me; and Silas, springing up from his seat, propounded this question to him; ‘ Henry, did you not tell me at the well, on Wednesday evening, that Sims said that day that “he would kill me on sight, without giving me time to wink'?”’ After some hesitation, he replied, ‘Why, Si]|is, you know that is not so.’ Silas repeated the question in considerable excitement, and Keithler denied that he had communicated any such threat to Silas at the well, but said that Sims had made use of the expression that day to him: ‘I will kill Silas at sight, without giving him time to wink.’ ”
    T. J. Hunter stated, that Silas had, on the Wednesday before, and the day that he left Sims, been to Raymond to see him, and he had agreed to employ Silas as an apprentice to the trade of a carpenter for three years.
    
      Dr. J. L. Wydown testified, that the two shot wounds in the abdomen were the cause of Sims’s death; he was, besides, stabbed twenty-one times, and one of his eyes stamped nearly "out; yet of these wounds he might have recovered. The state here closed. ,
    G. W. Harper, one of the justices before whom Keithler was committed, testified for the prisoner, that Silas, on the trial of Keithler, swore that his whole voluntary statement was true; and that the statement on Keithler’s trial before him, was taken down by witness correctly, and was what he swore1 on that occasion.
    A. Jackson Johnson testified, that on the Sunday Sims turned Silas oif, Silas came to him to borrow pistols, and stated that Sims had turned him off about Catharine, being mad with him, because she preferred him to Sims, who was much attached to her, and had severely whipped her the night before; that he wanted the pistols, because he expected a difficulty with Sims, and all he was afraid of was that he would not get a fair fight.
    E. H. Stone, for the state,
    testified, that on the day of, or day before the murder, Silas had told him that he wished to remain in the neighborhood the balance of the year, even if he worked for nothing; he wanted revenge of Sims, who had treated him badly.
    This being all the evidence, the state / asked for this instruction; “It makes no difference to the merits of this case, whether Silas conceived the design to kill Sims before his interview with Keithler or not; if Keithler encouraged him in that design by falsely stating to him threats of Sims, or persuading him to kill Sims, Keithler is guilty.”
    The prisoner asked for these instructions;
    1. The burden of proof rests upon the state, and it devolves upon it to establish the guilt of the prisoner beyond all reasonable doubt; for the jury to doubt is to acquit;
    2. The proof on the part of the state must be so strong, as to exclude every hypothesis inconsistent with the guilt of the prisoner.
    3. The law presumes every man innocent-until the contrary is made to appear, either by direct and positive proof, or by circumstantial evidence as satisfactory in its nature.
    4. The evidence of a principal against an accessory, although admissible before the jury, is to be regarded with great suspicion ; as it is a confession of the weakness of the law, that it calls in the assistance of those by whom it has been broken, and destroys the last virtue which clings to the degraded transgressor.
    5. It is essential that the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved, to wit, the guilt of the prisoner.
    6. Unless the evidence exclude all reasonable doubt of the guilt of the accused, and unless the jury are so well convinced by the evidence, that they would venture to act upon that conviction in matters of the highest concern and importance to their own interests.
    7. It is essential, that the circumstances should be of a conclusive nature and tendency, and that all the facts should be consistent with the hypothesis of guilt.
    8. The absence of any apparent motive, must operate strongly in favor of the accused, especially when there is no reason to apprehend any unsoundness of intellect.
    9. A witness who gives false testimony as to any one particular, cannot be credited as to any; for the presumption, that the witness will declare the truth ceases, as soon as it manifestly appears that he is capable of perjury; the credit of witnesses is exclusively a matter of consideration for the jury.
    (Opposite this instruction in the record, is written the word “ modified.”)
    
    10. Faith in a witness’s testimony cannot be partial; where any material fact rests on his testimony, the degree of credit due to him must be ascertained, and according to the result, his testimony is to be credited or neglected.
    (Opposite this instruction in the record, is written the word “ refused”)
    
    1-1. The testimony- of an accomplice, can only be received when his character is established as a witness of truth, in matters where he is not corroborated. If on the other hand, notwithstanding the corroboration upon particular points, lurking doubts and suspicions still remain as to his credit, his testimony becomes useless; the credit of an accomplice or principal offender, is to be determined by the jury.; they are to judge of his credit from the circumstances and proof offered in corroboration,' whether they are to believe him or not.
    (Opposite this instruction in the record, is written the word “ modified.”)
    
    12. It is incumbent on the state in this case, to prove the general allegation, that Keithler did feloniously and maliciously incite, move, procure, aid, abet, counsel, hire and command Silas to kill and murder Sims.
    13. If the jury believe from the evidence, that Keithler communicated to Silas, any threat made by Sims against him, without malicious intent to produce the death of Sims, such fact would not support the charge, that he aided, abetted, procured or hired Silas to kill Sims.
    The record proceeds: “ All of which the court gave as written, except two, to wit, numbers nine and eleven, which the court refused to give without modifications; which the counsel refused to have given in any modified form, but required them to be either given as written or refused ; yet the court did give them with a verbal modification, which the counsel for the prisoner at the time did not object to.
    “After which the jury retired; and after they had retired, the prisoner’s counsel requested the court to reduce to writing, the verbal modifications he had made to the two instructions he had refused to give without being modified; and the judge accordingly did reduce to writing, the verbal modifications; which being so done, counsel for the prisoner stated to the court, that they understood the verbal modifications, as given to the jury, different from the modifications so reduced to writing by the court, after the jury had retired, and stated, that if the instructions had been given verbally to the jury, as they were when written, they would not have objected to them and requested the court to have the jury called back, and to read to them the instructions according to the modifications as written; which the court refused; saying, that they were literally the same with the verbal modifications given. Counsel then requested that the instructions with the written modifications be sent to the jury room, which the court also refused.”
    After the verdict of guilty, the prisoner’s counsel moved for a new trial. 1. Because the court erred in admitting the record of Silas’s conviction.
    2. In permitting Silas to testify.
    3. In not giving two of the instructions for the prisoner, as asked ; and not reading them to the jury after they were modified.
    4. In refusing to permit the jury to take instructions which were given on behalf of the prisoner, with them on their retirement, as demanded by his counsel.
    5. In giving the instruction asked by the district attorney.
    6. Because the jury returned their verdict after twelve o’clock on Saturday night.
    7. Because the verdict was not supported by the evidence and the instructions.
    The motion was overruled ; and the exceptions signed.
    Subsequently, on the petition of Keithler, Chief Justice Sharkey ordered a writ of error upon Keithler’s giving bond, with sufficient security, in the sum of two hundred and fifty dollars or upon his making affidavit, that he was unable either to give the security or pay the costs. He made the affidavit, and prosecuted this writ of error.
    
      T. J. Wharton, for prisoner,
    contended,
    1. It is competent for this court, in revising the proceedings of the court below, to consider the question of the credibility of Silas. On this point he cited John v. The Insurance Company of Noi'th America, 2 Murphy, 262; Hutchinson v. Coleman, 5 Halst. 74; Gra. on New Tr. 234; People v. Whipple, 9 Cow. 707; Green!. Ev. tit. Accomplice.
    
    2. 'That Silas’s various statements and oaths, as detailed in the record, were so contradictory in themselves and so disproved by other unexceptionable witnesses as wholly to discredit him. On this -point Mr. Wharton reviewed the testimony at length, and pointed out the contradictions and misstatements of Silas.
    3. Silas’s testimony being discredited, there was not evidence remaining sufficient to convict; Silas alone proved the guilty knowledge and procurement. On this point also, Mr. Wharton reviewed the testimony. He cited 1 Greenl. Ev. 39; lb. 41; 1 Phil. Ev. 157; 1 Starkie, 6, 399, 406, (Ed. 1826); lb. 501-505, 510; lb. 455; Ros. Crim. Ev. 15; 1 Greenl. Ev. 43; 1 Starkie, 29 ; 492, note.
    4. The indictment must be signed by the district attorney; he is elected by the constitution, a pro tem. appointment by the judge is unconstitutional and void. How. & Hutch. 27, § 25; State v. Byrd, 1 How. (Mi.) Rep. 250; How. & Hutch, 279.
    5. If the courts have doubts as to the verdict being supported by the evidence, or if the law is not clear, a new trial will be granted.- Gra. on New Tr. 369, 370; 5 Yerg. 379; 1 Wash. C. C. Rep. 202; 1 Blackf. 398.
    
      J. J. Davenport, on the same side.
    
      Freeman, attorney-general, for the state.
    1. By statute How. & Hutch. 298, 299, the circuit court is authorized, in the absence of the district attorney to appoint an attorney to appear in his stead. No exception was taken below to this appointment. It is said that this law is unconstitutional. It is true that the constitution requires that district attorneys shall be elected by the people, but these terms of office are not prescribed by the constitution, and therefore the legislature has full power to make these terms of office, and to provide for vacancies and the temporary absence of the regular officer.
    2. Besides it is not necessary that an indictment or presentment should be signed by the district attorney. Our constitution and statutes adopt the common law. At common law or the law of England, an indictment is complete when signed by the prosecutor, and found a true bill and returned into court by the grand jury. The signature of the district attorney is not required by statute, and is therefore surplusage. See 'How. & Hutch, tit. Grand Jury, &c.; Tom. Law Dictionary, Indictment; 1 Chit. Crim. Law, 161, 162.
    3. The admission of the principal, Silas, to testify against the accessory, is authorized by our statute. How. & Hutch. 725, sec. 18. The conviction affects only his credibility, not his competency.
    4. The record of the conviction of the principal, Silas, was properly introduced to show the fact of conviction of the principal, because the record of conviction is the only competent evidence of that fact, except the admission of the fact by prisoner. It is argued by counsel that the conviction was irregular. Silas was the only person who could except to the conviction. He did not do so.
    5. Under this bill of exceptions, it appears that two of the instructions were modified, and all the rest were given. The word “ refused ” is marked on the margin of the bill of exceptions. It is contradicted by the body of the bill which was taken by the prisoner himself, and he cannot deny the contents of his own bill.
    6. In the case of Boles v. The State, 9 S. & M. 284, the court say that the court below may modify instructions so as to embrace the law. The statute of 1846, relied on, refers only to civil cases, and was so construed by this court last winter. See Me Quillen v. The State, 8 S. & M. 587.
    7. The motion for a new trial was properly overruled, because several witnesses of undoubted credibility corroborate the testimony of Silas, as the only fact in controversy here, to wit, that Keithler induced Silas to kill Sims. The fact that Silas makes contradictory statements in relation to other facts, can have no bearing on the matter in controversy here.
   Mr. Chief Justice Shahkey

delivered the opinion of the court.

The several points made in the argument of this case, will be disposed of in the order adopted in the assignment of errors.

First. The indictment is said to be defective, because it is not signed by the district attorney for the district, but by an attorney who acted under the appointment of the court, the district attorney being absent. It is contended, that as the district-attorney is an officer elected under the constitution for the discharge of certain duties, his place cannot be supplied by temporary appointment in his absence, and that the law authorizing such appointment is unconstitutional. We do not think so. We are not prepared to say that the legislature may not provide that ministerial duties may be performed by a person appointed according to the law in the absence of the incumbent. The duty of the district attorney is to prosecute offenders against the criminal law. He acts as counsel for the state, and in his absence the state has a right to employ other counsel, and the duty so discharged is valid. The constitution declares that a competent number of district attorneys shall be elected, whose term of service shall be prescribed by law. This provision is very general, leaving everything with the legislature, except the electiom It is by law then that the district attorney is required to attend the circuit courts and prosecute, and the same law may very well provide for prosecuting when he shall be absent. The legislature has power, by a provision in the constitution, to provide for the filling of all vacancies, not therein provided for. Article 5, sec. 13. If the absence of the district attorney causes even a temporary vacancy, under this provision it may be provided for by the legislature.

On this point, the case of Byrd v. The State, has been cited, but it does not sustain counsel. It in fact decides the question the other way, by deciding that the district attorney may withdraw, and leave the prosecution to others. On the position taken, it would be impossible to prosecute a district attorney ; he would be entirely exempted from offence.

Second. It is said the court erred in admitting Silas, the principal, who had been convicted, and was under sentence, to testify. The statute furnishes the answer to this objection. It provides that no conviction for any offence, excepting perjury and subornation of perjury, shall disquahfy, or render such person incompetent to be sworn and to testify in any cause, matter or proceeding, civil or criminal; but such conviction may in all cases be given in evidence to impeach the credibility of the person so testifying. H. & H. Dig. 725, sec. 18. The language of this statute is not to be understood literally, as a difficulty might arise from it. It says conviction shall not disqualify. Mere conviction never did disqualify; it is the judgment that disqualifies; though it is usually said by law writers, that conviction disqualifies, and hence the. language of this statute. See 1 Phillips Evid. 30. The legislature intended no doubt to remove a legal disability, and the statute must be so construed. That he was an accomplice, constitutes no objection to his being a witness. I Phillips, 30. As the statute removes the infamy, a principal may now testify against the accessory. People v. Whipple, 9 Cow. 707; 1 Phil. 40.

Third. The next objection was made to the admissibility of the record of the conviction of Silas. That the record of the conviction of the principal is evidence against the accessory, will surely not be doubted. It was evidence to prove the conviction of Silas, and all the legal consequences, though of course not evidence of the fact of the guilt of the prisoner. But this record is said to be defective in the caption, and in the certificate of the clerk. After a very careful examinatión, we do not perceive any valid objection to it. It is sufficient in these particulars, both in form and substance. See third Vol. Notes to Phillips Evid. 820, note 582.

Fourth. It is also assigned for error that the court erred in giving the instructions asked by the state, and in modifying those asked for the prisoner. The district attorney asked but one instruction, to wit: that it was immaterial whether Silas conceived the design to kill Sims before his interview with the prisoner or not. If Keithler encouraged him in that design by falsely stating to him threats made by Sims, or by persuading him to kill Sims, Keithler is guilty. This charge was undoubtedly proper.

The counsel for the prisoner asked thirteen instructions, and the court gave all except two, the ninth and eleventh, and they were given with modifications. But how far they were modified does not appear, and we cannot of course undertake to say whether the modifications were correct or not. The charges as they were asked, are set out in the bill of exceptions, but the modifications are not. That the court had a right to modify its instructions, has been decided at the present term. For any thing that appears, the modifications may have been favorable to the prisoner, and this is probably the case, as it appears by the bill of exceptions, that the prisoner’s counsel did not object because they were given verbally. Some controversy arose after the jury had retired about the instructions, when the prisoner’s counsel asked the court to reduce its modifications to writing, which was done, and thereupon the counsel stated that no objection would have been made to the instructions in that form, but the modifications were understood differently. A request was made that the jury might be called to hear the instructions as written down, read to them, which the court refused, saying they were literally the same that had been verbally given. The counsel requested that the written modifications might be sent to the jury room, which was also refused. The argument predicated on this state of things is, that the court had no right to give its instructions verbally. The law of 1813 prohibited the circuit judges from charging the jury, unless the counsel differed as to the law, and should ask a charge on some point to be distinctly specified. H. & H. Dig. 493, sec. 53. A subsequent law provided that the judges should not charge the jury unless the counsel differed, and a charge should be asked on some point to be distinctly stated in writing, and it prohibits the judge from charging as to any other point. H. & H. Dig. 482, sec. 9. This law does not require the judge to put any modification that he might choose td make in writing. It would be too rigid to say that any modification, however slight, shall be reduced to writing, or the judgment will be reversed. If a party should object to such modification, he should embody it in a bill of exceptions, so that it may be seen whether it was to his prejudice. The law of 1846 requires that all charges and modifications of charges, shall be in writing, and at the request of either party the jury may take them to their room. Even if this law should extend to criminal cases, but it is not so understood, there is a provision in it which covers this case. The charge or modification must be in writing, unless by the consent of both forties. The bill of exceptions shows this consent, or rather it shows that the prisoner did not object that the modification was made verbally. In the absence of any objection appearing on the record, assent would be presumed. We cannot presume that the court violated the law. This, then, was not a question raised on the trial. The court was not asked to reduce the modification to writing until after the jury had retired ; that was too late. Objections should be made at a time when they can be obviated.

It was said in argument that the tenth instruction is to be considered as having been refused, because the word “refused” is written on the margin. The body of the bill of exceptions must control; and there it is said all the instructions were given, except two, the ninth and eleventh, which were modified.

This brings us to the only remaining point which it is necessary to consider, the refusal of the court to grant a new trial, which was moved for because the verdict was contrary to the instructions, and,against the evidence. Undoubtedly this court may grant new trials when there is a great preponderance of evidence against the verdict. But there is no such preponderance here. On the contrary, the evidence sustains the verdict, if the main witness, Silas, is to be believed. It is therefore resolved into a question of credibility. It was insisted in argument that Silas was unworthy of belief, because of his having made contradictory statements in his several examinations and confessions, and therefore that a new trial should be granted. .The question of credibility is one which belongs so exclusively to the jury, that it would be a delicate point for a court to touch it. True the testimony of an accomplice should be weighed with great jealousy and distrust by a jury, but it is impossible to say, as a question ,of law, that he should not be believed. The jury are to determine that from his manner, his consistency, and other attending circumstances. They are to judge how far his testimony has been corroborated, or they may believe him if they choose without corroboration. We are disposed however, to give the prisoner every benefit which can result to him from a thorough sifting of the evidence, so far as we can do so, consistently with our duty.

Silas was introduced as a witness, and in the course of his examination, his voluntary confession, made when he was taken before the court of inquiry, was introduced. His testimony before the committing court in the case of Keithler, was also introduced ; and lastly, his confession made since his conviction. The object was to impeach his credibility from his own contradictory statements. As might be expected, there are discrepancies. In every instance, he implicated Keithler. His statements do not vary in charging him with being the instigator and cause of the oifence. His voluntary confession does contain statements which are afterwards contradicted. He then stated that Sims had cut his finger with a knife. This he after-rvards contradicted. He also said he had shot Sims but once ; this too is contradicted, both by his subsequent statements, and by Anna Sims. He also said that he offered to speak to Sims, before he shot him, and this is contradicted, and perhaps-he contradicts himself in other points. When he was under examination as a witness on the final trial of Keithler, he stated that his mind was confused from long confinement, and he concludes his testimony by saying that he had not stated the one tenth, or one hundredth part of what passed between him and Keithler ; that the murder of Sims was a continued subject of conversation. A voluntary confession is entitled to but little weight, as it is but natural that one accused of crime should endeavor to palliate his guilt by excuses. And if a different statement should be afterwards made under oath, when circumstances have changed the condition of the party, it will be with the jury to say whether they will disbelieve him on account of such discrepancies. We cannot think that this would be an unerring indication of false swearing.

The published confession of Silas, made after his conviction, is more in detail than any person’s statement. It was evidently written by another, as he could not write. Variations might naturally be expected under such circumstances, and yet in the main it corresponds with his testimony.

In his testimony given before the committing court, on the trial of Keithler, he says that Keithler first mentioned the killing of Sims to him on the evening he (Silas) left Sims. In his subsequent examination, he said it was on the next day. Pie then also stated that he received the cut on his finger from Sims, and with these exceptions, his testimony is not materially variant from his subsequent statements. He is contradicted in one particular by Anna Sims, a daughter of the deceased, twelve years of age. She says she was but forty or fifty yards off when Silas shot her father, and that he saw her. He persists in saying she was not there. It is possible he may not have seen her.

These contradictions doubtless had their due weight with the jury. But it is proper to observe, that when he was called to testify against Keithler, he was under sentence of death, and, as he says, without any hope of pardon. He testified therefore with the certainty of execution before him, when we must suppose all motive to tell a falsehood had ceased to have an influence.

Let us in the next place examine whether his statements, so often repeated, in regard to the guilt of Keithler, are corroborated by the other witnesses ; for although he may have weakened the strength of his testimony by his contradictions, yet if he is corroborated in the main fact, his testimony was still entitled to weight with the jury.

Philip Alston, a witness on the part of the state, went to the house of Sims immediately after the occurrence. Whilst he was there, Keithler was walking the gallery, and being called in, was asked by Mrs. Sims if he had seen Silas. He replied that he had seen him half an hour since riding towards Raymond with Bankstone. Ho was also' asked by her why he did not arrest him. He replied that he knew nothing of the matter until he came to the house. Let us contrast these statements of the prisoner with the testimony of another witness. Banks-tone, a witness on the part of the state, heard the firing and went over to Sims’s, and after having learned what was the matter, he went to the mill to arrest Silas. He then found Keithler, and told him what had occurred, and requested him to assist in arresting Silas. He replied that he would rather not, and wished Bankstone to get some other person. But upon being pressed to assist, he said he would tell Silas to give himself up, and accordingly started towards Silas in a trot, and met him at a point behind the shop, out of sight of the witness, who was some distance behind. What passed between them the witness did not know; but they met him, when Silas remarked, you have come for me. Keithler’s answers to Mrs. Sims, in view of these facts, are certainly calculated to create suspicion. He knew all about the arrest of Silas, and yet he replied evasively, saying that he had seen him half an hour since riding towards Raymond. He had been informed by Bankstone at the mill what had occurred, and yet he told her he knew nothing of it until he came to the house. Why did he manifest so much reluctance in arresting Silas ? And that a private conversation passed between them behind the shop is clear, from the remark of Silas to Bankstone. Silas surrendered by the advice of Keith-ler. These circumstances are inconsistent with the conduct of one who was acting without some secret motive, and desirous to detect the guilty. But he also stated to Bankstone, as a reason for his reluctance, that Sims had threatened Silas’s life the day before. Now hear his statement made in presence of Sims. He was called in by Alston, and asked to state what threats he had ever heard. He replied, that the only threat he had ever heard Sims make was, that if he caught Silas prowling about his negro quarters at night he must abide the consequences. This does not correspond to his statement to Bankstone. If he could state to Bankstone that such a threat had been made, when it was untrue, does it not prove that threats had been the subject of conversation between Keithler and Silas; and we shall see hereafter that such was the faet.

The testimony of Mount proves that Keithler'wished to give a false coloring to the affair. Mount, on Thursday evening, spoke of the murder as being a cruel and unprovoked one. Keithler remarked that the affair was not so horrid. The witness was surprised at the reply, and asked Keithler if he had heard any threats. He answered, that Sims had threatened that if he ever caught Silas on the plantation, he would shoot him. The witness asked, if the threat was not that if he ever caught Silas prowling about his negro quarters at night, he would shoot him 1 He replied, that such was not the threat. At this moment, Keithler was called into the presence of Sims by Alston, and asked what threats he had heard, when he gave an answer differing from his statement to Mount but a few moments before. To Mount he wished to palliate the offence, but was forced to tell the truth in presence of Sims.

The testimony of A. Jones is also entitled to much weight, as he relates facts substantially as Silas has done. On the evening that Sims was killed, he went to the mill, and shortly after-wards Silas rode up ; they had some conversation at the mill, in which Silas told him he expected to have some difficulty with Sims. Witness went up into the mill where Keithler was ; Silas soon followed, hut remained only a short time, when he returned to the mill, and beckoned to Keithler, who went to him, and they held a conversation together. Silas related the facts very much in the same way, and said that the murder of Sims was the subject of conversation, and in an hour after-wards it was accomplished.

The testimony of young Dewson, who lived at the mill, is also important. Keithler and Silas slept together in the same room with the witness, and were generally together, and held many private conversations. On one occasion, when Keithler and Silas were lying urider a shed together, he heard Silas say, “it will be all right to-morrowwhen Keithler answered, “you have promised that frequently, and it is. not done yet.” This occurred on Tuesday night. Silas mentions the circumstance, and says the answer had reference to the murder of Sims. This young man also heard Silas remark, late at night, whilst in bed, “somebody has promised me a horse and bridle to kill or heat Sims.” This witness establishes, beyond doubt, a very close and confidential intimacy between Keithler and Silas. Such as to render it more than probable that Silas had communicated his design to Keithler, even if he had conceived the plan without Keithler’s aid or advice. But when the other circumstances are considered, it is difficult to resist the conclusion that the prisoner was an adviser in the scheme.

We shall close our remarks on the testimony with that given by Amos R. Johnson. Silas sent for him to the jail, and wished him to appear for him before the court of inquiry. He stated that Sims had threatened his life, and he could prove this by Keithler. Johnson went in search of Keithler, and after some time met him coming from towards the jail, where he had probably been to see Silas. In answer to Johnson’s inquiries, he stated that he could prove the threats, but did not wish to testify before the committing court, for fear it might give offence to Mrs. Sims. He wished to wind up his business at the mill, and would testify before the circuit court, and his testimony would clear Silas. He was subpoenaed, but did not attend. An attachment was taken out for him, and about the same time he was arrested on the charge, and brought to town. Standing under a tree, he beckoned to Johnson, and said to him, they had me up before Sims the other day, and examined me, but that was not a court, and I was not bound to state the truth there. On the examination Keithler was introduced as a witness for Silas, but did not testify as he had told Johnson he would, when Silas, springing up from his seat, propounded this question; “ Henry, did you not tell me at the mill on Tuesday evening, that Sims had said that day ‘ that he would kill me on sight, without giving me time to wink 1 ’ ” After some hesitation the prisoner replied, why, Silas, you know that is not so.” Silas, under excitement, repeated the question, and Keith-ler denied that he had so told him at the mill, but said that Sims had, that day (Tuesday) used the expression, “ I will kill Silas on sight, without giving him time to wink.” Now let it be borne in mind that Sims was killed on Wednesday, or rather the wounds were then inflicted. Silas testified that Keithler had communicated threats on Tuesday. Keithler told Bankstone that Sims had threatened Silas’s life the day before (Tuesday.) Silas, in the manner above stated, asked him if he had not told him at the mill of Sims’s threat. Keithler at first denied, but subsequently stated that Sims had made such a threat. Can any other conclusion be drawn from these circumstances, than that Keithler had made false representations to Silas, and that with a view to induce him to perpetrate the crime. There is something in the testimony of every witness that was examined that tends to fortify the testimony of Silas, and, when every circumstance is duly weighed, his testimony is corroborated as to the guilt of Keithler. We have entered into this investigation of the evidence to show that Silas was not entirely unsupported in his statements. Whilst there were powerful reasons to question his credibility, the verdict was not given without corroborating evidence, and must stand.

Judgment affirmed.

On the delivery of the foregoing opinion Messrs. Davenport and Wharton filed an elaborate petition and argument for a re-argument of the cause. At a subsequent day of the term, the court refused the petition, when

Mr. Chief Justice Sharkey

delivered the following opinion.

The judgment of the circuit court in this case was affirmed on a former day of the term, and an application has been made for a re-argument, which is based upon supposed errors in the decision. The points relied on for a re-argument have been discussed at some length, and the benefit of a re-argument has thus virtually been had.

The accused had been convicted of murder, and we were reluctantly compelled to affirm the judgment. The magnitude of the case had its due weight in the original investigation. Every point made in the record was very fully and deliberately considered by each member of the court. We should not, of course, have pronounced the judgment without being entirely satisfied of its correctness. No new questions are presented, and we have examined again the points pressed for a re-argument, and regret to say that we find no reason for changing our opinion. On the contrary, we are strengthened in the conviction which induced us to affirm the judgment, and on that account do not regret that a petition for a re-argument was presented. The grounds relied on will he briefly noticed.

It is again insisted that the indictment was defective, because it was signed by a district attorney pro tom. who had been appointed by the court. We held that the court had the power to make the appointment, and think so still. We did not then wish to take the ground that no signature to the indictment was necessary, save that of the foreman of the grand jury, preferring to sustain the practice as it has existed in accordance with the statutes on that subject. But we now remark, that we know of no law in this state which requires the signature of the district attorney to an indictment. The common law certainly does not; and if there be no statute which does, then it is not required at all. An indictment derives its validity by the indorsement of the grand jury, “ a true bill,” over the signature of their foreman. Thacher’s Crim. Cases, 284; Archbold’s Crim. Plead. 58; 1 Chitty’s Crim. Law, 316-324.

The case of the State v. Byrd is supposed to sustain a different doctrine. It was there remarked that it was the duty of the district attorney to sign the indictment; but it was not said to be an indispensable duty. The question was not involved, and the remark was only made in argument. With great propriety the same remark might be made again. It has been the invariable practice for district attorneys to sign indictments, and we still think it a correct one.

A case in 9 Yerger has been cited. The decision seems to be predicated on a practice which has grown out of their statute. No indictment is permitted to go to •> the grand jury, unless the district attorney, after a conference with the prosecutor, shall recommend it. Statute Laws of Ten. 385.

The same objection was taken to an indictment in North Carolina, and the court decided the poin t directly, that it was not necessary that the prosecuting attorney should sign the indictment. That the common law did not require it, and there was no .statute which did. If it was not necessary that this indictment should be signed, of course a useless signature did not vitiate it. Carolina Law Repository, 493.

The second point is, that Silas yras improperly permitted to testify, because the statute only renders competent one who has been convicted, but not one on whom judgment has been pronounced. We adhere to our construction of this statute. Judgment amounts to conviction, and conviction of felony, and other Crimes, disables a man to be juror, witness, &c. Tomlins’s Law Dictionary, 414. See also, Roscoe’s Criminar Evidence, 123. We cannot doubt but what the legislature used the word “conviction” in its broadest sense, as one under judgment.

The third ground taken is, that the following charge was erroneous, to wit: “It makes no difference to the merits of this case, whether Silas conceived the design to kill Sims before his interview with Keithler or not. If Keithler encouraged him in that design by falsely stating to him threats of Sims, Keithler is guilty. We are always to consider of charges in connection with the evidence before the jury. We do not understand the language of this charge as conveying the idea that it is supposed to embrace. If Keithler was ignorant of Silas’s design, then he could not be said to have encouraged him in that design. A knowledge of the design is therefore implied in the language used. So, at least, we understand it. The idea which the charge seems to us to convey is this. It is not material that Keithler should have originated the design. If Silas had previously formed it, and Keithler encouraged him to carry it out, by stating falsehoods or otherwise, he is guilty. The court said to the jury, “if Keithler encouraged him in that design” In what design? The design of killing Sims. This identifies Keithler with the design of course. If Keithler had merely stated falsehoods, without knowing of the design, he could in no sense be said to have encouraged that design.  