
    Fanny (a slave) vs. The State.
    
      A change of venue cannot be granted on application of tljc ozonef of a slave indicted for murder. The slave should petition in person for such change
    The 2nd and 3rd sections of tho act of February 6th 183S concerning crimes and' punishments, providing that any slave thereafter convicted of a felony S¡ff. shall bo punished by whipping, &c were intended rally to substitute apunishmont in lieu of that prescribed in tho repealed sections; leaving slaves still punishable with death for. murder in the first degree. 2.
    Were there room for doubt on this subject, the 27th sect, of the 3rd article of the state constitution, provid ng that a slave convicted of a capital offence shall suffer tho samo degree,of punishment, and no other, than would bo inflicted on a freo white person for the same offence, settles that doubt.
    No statute shall be construed in such manner as to bo inconvenient ’ or against reason.
    Evidence of what a witness declared on a former occasion respecting the guilt of a prisoner on trial, is not admissible to prove tho guilt of tho prisoner.
    Appeal from the Circuit Court of Warren County.
    Wells and Bates-for Appellant.
    
      lat. The circuit conrt of Lincoln county erred in granting a change of venue upon the application of William C. Prewitt, the master of the prisoner, and the circuit court of Warren obtained no jurisdiction by said order.
    2nd. The circuit court of ■ Warren erred in passing sentence of death on said prisoner, such sentence being without warrant of law.
    3ul. The circuit court of. Warren erred'in over ruling the motion for a new trial. See Revised Code page 4S6-7, sec. 15, 16, 17 and IS. Spencer Ch. J. in Bigeloe ys. '19 J R 39-40. See also 5 J. R. 41. 8 J. IL 90. 5 Con. R. 28. 8 J. R. 149.. 1 Call. The act of the 6th Feb. 1836, page 60, repeals the 31-2-3 and 4 sections of the 9th art. of the law of crimes and punishments, R. 0. p, 215. The R. Code, p. 167,.art. 2, section 3, defines murder in the 1st. degree. Acts 1836, Mo. Decisions vol. 5, 1 semi-an.part p.' 71. R. C. page 166, 557. See Bener’s case, last reports M. R. page37S.
    
      Statement of case,
    This, is an indictment for the murder of William Florence against Fanny, a slave of William Prewitt. I he indictment was found in Lincoln circuit court) the county in which the murder is charged to have been committed, at the November term of said court 1838. The defendant was arraigned and pleaded hot guiltv. At the' same time, on the petition of Wm. C» Prewitt, the muster, the court ordered a change of venue to the county of Warren. At the April term of the Warren circuit court 1839, the prisoner was tried, found guilty of murder in the first degree and sentenced to death. From that judgment the defendant has appealed to this court. After verdict a motion was made for a new trial and over ruled by the couit. A bill of exceptions was filed, excepting to that decision by which all the evidence in the case was saved, the order for a change of venue is as follows: ;<Now at this day William C. Prew-itt, the master and owner of said slave Fanny, personally appears in open court and files his motion and affidavit for a change of venue in this cause. It is thereupon ordered by the court that the venue in this cause be changed to the county of Warren in this State, and that the clerk of this court make out and transmit to the .clerk of the circuit court •of said county of Warren a full transcript of the record and proceedings in said cause, with all the original papers filed in said cause and forming a part of the record thereof.”
    Elliek, a witness, stated that he was acquainted" with William Florence, son of Mr. Wm. Florence; that William the younger was about 9 or 10 years old as he supposes; 'that on Saturday, sometime in September last he thinks, William and Thomas (another younger son of Mr. Florence) were missing; that Mr. Florence told him so that. ■evening at his masters house; that he saw the children no-, more ua(il the next Tuesday, when he saw their dead bodies after they were found; that he does know how they came-by their death, and does not who killed them; that on the, day they were missing he was in his masters orchard sever», al times, and about the house; that he did not see Mr. Flo», xence’s children that-day nor for several days previous; that-his mother never told him that she- had Pilled*.the children?., that his mother did not tell him that she had seen them, that: day; that Fanny, the prisoner at the bar, is his mother; that he knew nolhin.gof either ki’ling or hiding of the children. He also swore that, on ..the day' the children- were found, he and his-mother-Fanny and his father Ben and his uncle Green were all arrested and.taken intd cu-’fcody, aad that on the next day he wa3 taken.out from the red by Mr. Sitton the sheriff, and by Mr. Hammond, and they told him if he did not tell who killed the children, -they would hang him; that if he would tell they would let -him off; .that he told them he knew notlung about ft;, that they then pitta rope --around his.neck and hung-him ; that he then told them that his mother had told -him that she had killed tíre children in the orchard, when they came for yeache--; that after this, on -the same..day, the'prisoners were taken (o Mr. Lawrence Sittons. and he and Green were set at. liberty; that a few days after ha was taken up and sent-tO Troy to .jail; that after he got there, Mr.- Chandler, the jailor, told him that he knew more about killing the children than h-e bad told, that he had helj ed to kill them himself: that Mr. Chandler then told him that Judge Hunt had hung hits father Ben at-Bowling Green,, and had-ccme by his master yand hung Green, and had then ju.t taken his mother oat to hang her, and ihatif hedid not tell all'about the killing the childien, Judge Hunt would be there directly and hang him; that if .he told 'they •'would let' him off; that Mr. Chandler then pul a rope bn his neck, and that-a man came-in with a cloak on, who Mr. Chandler said, was Judge Hunt. He says the man they called Judge did not say any thing. He aho says' that he then told Chandler that he helped his mrther to kill the children; that -he and his mother carried them off into the-woods.- tie says >hé al :o told the same story before the .grand jury, after be bad beep sworn on the'book; that the reason why he told the grand jury so was, that he had once said i-t, and-he thought, he was bound to'stick-to it; that nei-.the-r the story he .told,Sitton and Hammond, nor the one which he.told Chandler and the-grand jury vyas at all true; that he told both in consequence of the'threats and hanging-above mentioned, and. states that he knows nothing about the killing of the children.
    
      Mrs. Florence stater, that.about half past two o’clock the evening on Saturday, the 1st day of September 1838,, William and Thoma s Florence-, sons of her.’, left her hou.-e to go to William 0. I'-rewitt’s peach qrchard, for the purpose of getting ] cache?; lhatthey, before they started, made seVeral requests to h.er lor permission to go before she consented to'"] ermit them to go;, that Prewitt’s peach orchard was about one quarter of a mile from her -husband) residence from .whence her a: ore said- sons started ; that site noticed them some distune, m-the way to the orchard, a? lar as she could see them, at .east one hundred yard) from the house;/ that her husband’William Florence, had led home on th#. same day to go to Auburn about two miles i'i taut, about-’ two o’clock,, and did not return until ai oát one hour by sun; that by this time she had become une t.y about her ohilerén, and told her husband of it, and the dreum -.tunees and fact) of bar children leaving;- that her h.nbaud immediately started to Prewitt’s orchard to see about the children, and returned'without having found them. 8he stated that a short time before Mr. McMahiíl, on the evening, basced for a load of baik, the-children left for the orchard; that she never saw them afterward. She states,, upon V.ro.s.s examination, that Aaron, a negro boy belonging to her husband,,, was nor er at any time, from the time, her husband left home for Auburn on that day until he returned, oat of her sight more than-fifteen minute;; that her husband owns 1 a’ii-wse it.ill, and that some time after the children, had 1-Jt for the-orchard, about three o’clock, not particular as to tin* time,. Mark, a negro boy belonging to-Dr.. McClure,mame to said , mill; that he halloed for Aaron, and that Aaron came in. about 10 or 15 minutes from that time and we it to the mill; that she was unwell that day and, as soon as her husband had left fer Auburn, and her children liad left for the orchard, she cal ed said Aaron to the house from a field where he was laking.care of fodder,.under his maste.-s direction, and directed him to make*a lire and bring her water, which he did accordingly; "that she then sent him'to the-iield again, and, after ho had been gone some 10 or 15. minutes into the field,- it vyas that Mark came to the mill and soon after ho ^0013^’ ^at Aaron was at the miU; that William was about eight or nine years of age; went off without hats on.
    William Sitton states; that on the 4th day of September jggg a warrant was pUt into my hands to apprehend Prew-itt’s negroes. The negroes, to wit, Ben, Green, Ellick and Fanny, the prisoner, were then under, guard at Prewitt’s house. I took charge of them and they were guarded that night. Next morning (Wednesday) I went over to Prew-itt’s and took Ellick out, and set down with him under a shade, about 60 yards from the house. Mr. Iiammond came up and asked him a few questions, he said he could show us the club.
    [Here the counsel for the defendant objected to any conversation of Ellick’s being given in evidence. The court decided that no .statement of Ellicks as to what the prisoner told him were to be given as evidence of her, the prisoner’s, admissions, but that any thing stated by Ellick, which led to the discovery of facts, might be given by the waj of inducement to lead to their further search into circumstances and factá.] ■
    The witness proceeded; Ellick said he could show us where they were killed, the club they were killed with, that it was a piece of a hoise yoke, that he had seen it in the orchard on Sunday. We went on where he said the club was but could not find it. Ellick said he could show us where they were taken out of the orchard; he said three rails were laid down where they were taken out. We went on and he showed us a gap on the western side of the orchard, there the rails appeared to be recently moved; he said he could show us blood where he saw it on Sunday. We went on but saw none. I then told him to go right on the way the children were carried over, and as he went, I broke the hazle bushes, intending to take another look; when he got through the hazle patch, west of the orchard, the boy Ellick then said he knew nothing further, but that his mother said she had laid them in a sink hole. We then took him back to where he said the children were taken over the fence, and then left him. I then went to the house where there were 50 or 60 men. As I went on to the house, I went by the -places where Ellick said he had seen the children, and on a close examination I found on the under side of a blade of, grass, one drop of blood about as large as a pinhead, under, the peach tree where the boy said they were killed, and where he said the club was. I took it up, wetted it, and found it was blood. I told the men at the house, that the children were, or I believed they were, murdered in the orchard; that I had found blood. I formed the men in a column. I did not tell them where the blood was. As soon as they got to the place where I found the drop of blood, several of the men cried out, “here is blood,” “here is blood.” Mr. Sanford first cried out. I went and looked at what they called blood, and did not think it was blood; it looked red, but I did not take it to be blood. Hans Smith cried out, “there was blood on the fence.” On the next rail to the bottom there was a place of blood, about as wide as my finger. The rail bent over and this was rather on the under side; right in front of that about a foot from the fence there was a place that looked like it had been rooted out by the hogs, another place, about six or eight feet from th it, looked like it had been rooted out by the hogs, and near where I found the first drop. These holes looked like blood mixed with the dust. I could not say it was blood. About a foot, from where I found the first drop, as I went to the house, I now found blood on two other blades of grass. I did not take particular notice to this. This was on the east side of the orchard; the blood on the rail was under a peach tree. I then went on to the place where I had broke the hazle bushes in the woods, and there I found blood, at four or five places between the gap and where Ellick to'ok us, on the ha-zle leaves. This I know was blood; I showed it to no one, that I recollect of. Howdershill showed me some blood he found on a leaf. The men were all formed in a column, and were frequently crying out blood in different places. I saw what others tooA to be blood, but I did not think it was blood; I took it to be the spots on the leaves; these were briar leaves and red on both sides. Where I found blood in the woods was about a quarter of a mile from the place they were murdered, and in a straight course from the '^ie orchard,-to where the bodies-were found.
    Cross examined, stated; I and Hammond used no vio--lence to compel the boy Ell:ck to confers; he made-his con-lessions to us voluntarily. Ellicksaid.he knew nothing but what-hi-? mother told him, after wé went to the place where. he raid he- saw.the dub, we could 'not find-it. We then went to wItere lie said-he saw blood, but w'e saw none at that f lace.. .We then j.ut a rope around hi? neck to make him toll where, the sir k'h< le was where she hid them. We clicked him a litle but became satisfied he knew n'o more about it. The witness also stated iii his chief examination that at the 11-ace in- the .orchard where he’ saw blood there-was a | Lice Where'the blood appeared to have bean attempted to l.-e washed off the grass; the dus,t was spattered on the grass, and. a) feared to be mingled with blood; -it was a dry s[ f II of weather and the ground, was dry áii.d dusty, the-peach tree at the place where the' .bloo.d was on"the fence had good peaches, on it. ■ ' . ■
    Ji im •Hammond says, that on Wednesday the 5th day of .Certain} er 1S38,1 went to Mr. Wm. 0. .Prewitt’s in Lincoln county.. The prisoner and ether negroes of Prewitt’s vu.:o in custodj7. ■ I saw Mr. .button sitting uuder a'shade .with- Elliclc. ' We lock him out over a fence about 150 yards into c woods pasture. I asked Elliek to-, tell me the truth,. I tol I rim 1 had alwaj's-thought him a truthful boy and-wan-tec a m to tell me the truth. Il.e said he could show us v,' eie lire children were killed,, that he coull show us blood oil'll,e gravs. • We'went to the place but could see no blood. El'fi. k-said that his mother had taken them out at a- gap. He-said lie. had seen, blo'pd on Sunday,, but I,saw none where he' ,said his mother had carried' them out. I did'not see the club. I dont recollect off seeing-any'-sign in.the woods.— 1 his was the day after the bodies of the children wei e.fcund. The Loy Elliclc said lie could show- ús.tbe club. I fir-.t asked him if he knew who killed'the children, he said no, but afteru-ayds said his mother told -him she did.. As he'went on to s how us the place and'.club, lie said his mother said she .strucLore, knocked it down and killed it; that-she did not aim to kill itshe then killed the otheiv" I saw the blood on the rail; it was near the ground, on the rail next the bottom, on the east side of the orchard, about 150 or 200 yards from the gap where he said they were taken out. The gap is on the west side of the. orchard, not exactly in the direction to where the children were found.
    Cross examined. I saw no blood till I came back out of the woods.'' I saw no blood in the woods or nothing that I was certain'was blood. I saw what others called blood, but I did not think it was blood. Our object in taking Ellick out was to get out of the crowd. We used no violence with Ellick, till he had confessed. We then put a rope. round his neck to make him tell where the sink hole was.— We choked him a little but became satisfied he knew nothing about it.
    William llowdershill, a witness, says that on the day af-tfer the children weremissing (on Sunday) he went with Mr. Williams to'hunt'for the children. We went to Piewitts orchard and I looked about-some stacks for them. I expected they had been killed. In Prewitts orchard, about 200 yards from .the house, on the east side of the orchard, I picked up a club, and showed it to Mr. Williams. It was a dry hard smooth piece of hickory, 3 or 4 feet long, and turned úp a little at the end. I picked it up and threw it doyvn' and told Mr. Williams it was a handy stick and explained by saying it wa-~ a handy s tick to kill a child. The club was under a peach tree that had good ripe peaches upon it. I left the club there. On Wednesday I was there,-and Sit-ton formed the men in .a line in the orchard, except the the guard who guarded the negroes. Sitton told them where.he had seen blood. I saw the blood on the second rail of the fence from the ground opposite to where I had seen the club on Sunday. The club was not there; I dont knoav what had become of it. The stick I had seen there looked like -it had been part of a yoke. I saw something like blood that water had been thrown on. Saw something like blood in two or three different places. I saw blood in the woods' where the boy said his mother had thrown the children. I saw the gap where the boy said his mother had taken the children out. The fence looked like it had been ' lately palled down. "The rails appeared to be mured out of ^e-r ppice3_ The blood on the rail in the orchard, where 1 had seen the club, looked like it had been wiped or splashed on> The rail shelves over and it was on the under side six or seven inches ñora the ground. I saw a place 8 or 10 feet off that looked like water and something mixed up. After 1 had seen the club on Sunday, I went over to Mr. Florence’s, and mentioned to a good many my finding the club. I several limes talked of it afterwards. The peach tree, on which the peaches were, and under which the blood was on the fence, stood near to the fence.
    Doctor McClure staled. The children were found dead about i-i miles from Florence’s, in a westwardly direction about 2i miles from Prewitt’s orchard in a direction south of west therefrom. The children were both naked. I examined the head of William Florence the elder clvld.— There was a sunken place on the right side of the head running upward*; the sunken place or indentation in the skull was about two inches in length, and in the bottom of it, there was a small hair crack in the skull, about t of an inch in length. I examined the head and found no other marks of violence. The body having lain under water was in a state of preservation. I could rind no marks of violence on it. I do not think the blow was sufficient to produce death ordinarih'. I have seen skull bones more materially injured, where the patients recovered. Í think the blow would have produced insensibility. Perhaps, if the patient had not had medical or surgical assistance, such a wound would have produced mllammalion, from which death would have ensued in a few days. It could not have been given with a long stick if the child had been on the ground. It might have been given if the child had been standing above the person striking or lying on the ground. It must have been given with a weapon having a smooth surface as the skin was not broker.; a rough surface would have cut the skin. The other child had no mark of violence, as I could see, except several bruises or contusions on the head varying from the size of a 4-1 pence to a quarter of a dollar. The skull was not injured. The flesh had been eaten off the face, throat. Chest arid arms of the child, so that no discovery could then J be made. On examining the head of William Florence, the larger of the two boys, I saw a speck of blood; whether it proceeded from the nose or followed the knife I am notable to say. Such a blow* and even a much lighter one, would produce an issue of blood from the nose, or mouth. A blow that would not fracture the skull might produce blood sometimes at the mouth or ear.
    William Florence a witness states, that on Saturday the 1st September IS3S, I left home about 2 o’clock to go to the post office, before I left, my children asked my permission to go to Prewitt’s orchard. I told them they should not go, that them negroes had ' threatened to kill them; and if they did go I would whale them. I then went on to Auburn, and returned about one hour by sun. So soon as I got home, or within thirty or forty yards of the house, I saw my wife coming out, and she asked me if I had seen any thing of the two children; I told her no, and asked her where they were. She stated that they had left home about 30 minutes after I did, and said they were going to the orchard to get some peaches. I got off my horse and threw my bridle over a stake, and started directly to the orchard. I went to it but did not see my children. I then went to Sir. Prewitt’s house and called out the prisoner Fanny. She poked her 'head around the house, and I asked her if she had seen my children? She said she had not, and then drew back. I called her again and then asked her if she had been to the orchard that day? She said she had not. I asked for Ellick; she said he was down the hill. I told her to call him and ask him if he had seen them. She did so, and said that he said that he had not. By this time El-lick came running up the hill, and came witnin a few steps of me and stopped. He looked as wild as a deer. I then asked him if he had seen my children? He answered that he had not. I then asked him where lie had been ever since about dinner time of day? He answered that he had been up about the orchard and about the house. I then discovered from their deportment that my children had been murdered by them. I then went home and told my wife so. I had 'Deen ne^r ■^■r* ?rewi^’s about 4 years, and have been' acquainted-with the prisoner Fánny ever.since. Ihadfre-que'ntly been at Mr. Prewitt’s and enquired of her for Mr. p2.0yj.jtt alltj sjle would come out.and stand and'talk to me.. On this occasion, she poked her bead around the cornér of the house. On this occasion she looked so different from what she always did, that I felt’ satisfied she _ committed, the murder or knew who did do it, Mr. Prewitt was from home, and no -person there except' the said Fanny, Ellick and some children.. On the next day. Sunday, I saw the, stick which Howdershill saw, before Howdershill saw it. — ' I, on Wednesday, saw the blood on the rail,, and the' grass. Í do not know except from information given by my children, that Fanny had'made.any threats against my children. I saw w-hai I know to be .blood 'in ope place. There were abaut 70 or SO-persons in the woods- scattered about-one hundred yards, and one would cry out “here is blood,” and another would cry out “here is blood,”.but I knew, .there was not. blood in soirie places; they said-there, was. I saw nothing on Sunday except the stick that I have spoken of&wkey; The place where the children were found-is about' 2£ miles from the orchard.. . ' ' •
    On cross, examination hé said, I do not know whether she, Fanny, was washing her clothes or. not, nor how she was clothed that evening, for I did not see her body. I saw a kettle or pot with a little fire under it, which looked like some negroes'had been washing or were washing. On cross examination, witness was asked if the agitation and alarm which-the prisoner manifested when he (witness) accosted her, and she answered him as above^stated, were not produced by his (witnesses) excitement? To which he replied, nó! that he was not excited till after hé saw her (prisoner); that he expected to find his children there and expected she was alarmed at the-sight of him,.
    Elizabeth Howdershill, a witness, stated, that she went over to Mr. William Florences on ' Sunday morning, and - found Mrs. Ware-there, and we proposed - to go .to - Mri Prewitt’s orchard, and get some, peaches. We went on to the house and asked the prisoner, Fanny, if there were any good peaches in the orchard; She said there were for. she had been-iu the orchard the' evening before, and there were none. I told her that I expected that people who had taken them and eaten them, would eat them no more. She then stated that Mr. Florence-had' accused her children, killing his. I was not acquainted with her, never saw her before: she looked to be -in great .trouble; had nothing to say; seemed to be mortified; -she 'just sat d.own and Said nothing; seemed to be condemned right off. ■
    On cross examination, she stated, I saw flies near the spot.' where the gentlemen saw the sign. I he flies were green flies; there were a great many flie's about the spot.' ' I kne-w that the flies were on the spqt'where the sign had been se'em because they (the people) told me-so. When-T saw the flies we got scared, and ran away. This.orchard was a place . to which the people of the neighborhood -generally went'to g*?t fruit., _ Shortly after, we returned from the orchard', Mr* Florence came, and said he suspecred Prewitt’s negroes.'
    Mrs. Ware1 says;. I wont with Mrs. Howdershill to'Mr.' Prewitf’s' on Sunday morning, to get some peaches. We asked Fanny, the prisoner,' if there wrere good peaches in the orchard? She said, no; that she - had been in the .orchard the evening'before, and there'was none fit to eat.; they .had. been eaten by. them, that would eat-them no'more.— That Mr. Florence had accused 'her (Fanny’s) children of killing his, and said no more. I .saw the flies spoken of by Mrs. Howdershill-. ' I did not notice Fanny much; her face -was tied up, and she said-she had the toothache. I and Mrs. Howdershill went tq Prewitt’s in the forepart of the'diry.— We had'been.up all night.- I do not know whether Mrs. Howdershill spent the night before at Mr. Florence’s or not. I asked MJ’s. Howdershill if she would take a walk. ’We . passed about in different directions in the orchard, thinking that we might find the children but saw nothing df them.— • There were two negroes there eating dinner when -we got there. ' ., . : .
    Burton Parmer, a witness, says;.I was. the first person who found the children. There was five or -six hunting, I .discovered buzzards and told the company, who were out Vvdth me, that we would stop and see what they were doing. I saw on,e fly up out of the creek. I rode to the bank; it was high. I went down to the hole of water; I saw abuncii of hair, a little lump; I also saw an arm out of the water, eaten by the buzzards. This was the smallest boy, Thomas. He was mostly covered. The largest boy, William, Was entirely covered. There was a large rock on the hip one that appeared to be put on to hold him down, till gravel and sand were put on. The largest was near the bank closely fitted to the bank, the smallest next to him. The water in the hole was about 18 inches deep. The water had fallen some and appeared to be falling. There were several rocks laid on tho children. I could see where they had been pulled out of the clay bank, from the shape of the rocks, and the holes from which they were taken. They appeared to be put on by design .'not by accident. The rocks were taken out of the second bank. They were found one and a half hours by sun, on Tuesday. I told Mr. Sitton where they were found, near the corner of an old'place. Sittoa knew the situation' of the place better than I did. The children were entirety naked, as to clothing when found. The place was not over 100 yards from- the Jefferson road. I did not search for their clothes, nor do / believe there was any search made. It was talked of but not done that I know of.
    The court instructed the jury the same, in substance, contained in the first instruction after the close of the evidence, to wit, that statements made by witnesses on the trial of this cause of what Ellick, another witness, heretofore said to , them (said witnesses) in relation to declarations of the defendant to him, said Ellick, are not legal evidence, in this cause against the defendant; and that they should wholly disregard such evidence in > making their verdict in this cause’.
    Defendants -Evidence.
    Robert M’Mahill, a witness, states that, on Saturday the fust day of September 1838; he was engaged hauling tanbark for a Mr. Read; that he passed the house of Mr. Florence, also the house and orchard of Mr. Prewitt; that he usually hauled three loads a day; that in the early part of the day his own children went with him to Mr. Florence’s, and as he returned with his second load, his children left Florence’s and went to Prewitt’s orchard; that he went on to the orchard with the second load, and when he got to Read’s, they had eaten their dinner; that he (witness) ate his dinner, and immediately returned briskly by the orchard where he saw no one either in the orchard, or about Prew-itt’s house, which was 150 or 200 yards from the road; the road run near the fence of the field in which the orchard was; about 100 or 150 yards from the orchard; this was in the afternoon, but he is unable to say pecisely at what time-He went on by Mr. Florences, which was about one quarter of a mile farther, on his road, than the orchard. As he passed Florence’s, he saw Mr. Florence’s two little children, William and Thomas. They inquired of him, if his children were at Mr. Prewitt’s orchard; he told them, they were not. The boys said they were, and that they would go there. They started on towards the orchard. The last he saw of them they were going on, and were 50 or 60 yards from the house near the mouth of Mr. Florence’s lane-lie went on a mile or two and got his bark and returned.— He was hauling in a small two horse wagon, and 'went briskly. When iio returned, there was some one grinding, at Mr. Florence’s mill, he thinks, one hour and a half by sun. As he passed, Mrs. Florence requested him, if he saw her children at the orchard, to tell them.to come home, tie . went on by the orchard, but did not see them. As he passed, Prewitt’s place, below the house, he saw three little ne-groes, coming up the branch out of the woods, and near the road.he travelled, and which was 150 or 200 yards from Prewitt’s house. One of the boys appeared to be 13 or Í4 years of age. ITe called to them and inquired if they had seen Mr. Florence’s children that evening? They answered that they had not. Where he last saw Mr. Florence’s chil-dron, when lie went out they wore in the lane 40 or 50 yards on their way to the orchard. I was with the men in the orchard the day after the children were found. I saw w^at was some thought to be blood. It was red spots on leaves which I did not think was' blood.
    .Mark, a slave, a witness, says; I went on the Saturday evening, on which Mr. Florence’s children "were missing, to Mr. Florence’s mill. I started about two o’clock in the evening. I passed Mr. Prewitt’s orchard, on my way to the mill, and travelled the road from. there to the mill on which the children must have gone, if they travelled any road to the orchard. I did not see them on the road nor in the orchard. When I got to the mill I'saw nothing of Aaron, Mr. Florence’s slave. I rode up and as'^ed for him, and was told that he was in the'fjeldgetting fodder. I then called him several times but he did not come. I then hitched my horses to the mill and attempted to grind my corn, but could not get along with it, because they Had been grinding wheat in the mill, and I could not drive my horses and set the mill. Aaron did not come accprding to my judgment for one hour and a half after I got there. I saw Mr. M’Mahill, after he returned with his load of bark, and think my corn was nearly ground out at the time. When Aaron came Tasked him where he had been? He said he had started to.Mr. feitton’s orchard to get some apples.’ 1 asked him if he heard me call him? He answered th'at he did, and turned back before he got there. I think that .Lawrence Sit-ton’s orchard, to which he said he started, is not more than a quarter of a mile from Mr. Florence’s. When I was about start home, Mrs. Florence requested me to tell her children, if I saw them to come home. As I passed Mr. Prew-orchard,’I looked over it, but saw nothing of -her children! I saw a boy coming into.the orchard, which I took be a son of Mr. Teague. He was too large for William Florence. ■ After I passed the orchard and got down to the branch, nearly opposite to Mi:. Prewitt’s house, I saw Ellick some negro children at play in the rqad. I asked El-if he had seen Mr. Florence’s children? and he told me had not. Lawrence Sitton’s orchard is a contrary direc-tionfrom Florence’s from- the direction of Prewitts orchard. did not .see Mr. M’Mahill pass out after tan bark, after I there.. I think he came back in about an hour after 1 got there and before I got done grinding. I ■ went home from the mill before Mr. Florence came hoipe, I think about, three quarters of an hour by sun. •
    William Whitesides, a witness, says; I was not present when the slaves of William C; Prewitt' were arrested, but. went to the company on Wednesday morning, the day after they were arrested, to look ' for. blood. I saw the holes-which had been rooted by the hogs, and. saw what some thought was blood about them, but could not tell what it was; do not believe it was blood. I did not go to examine the rail on which blood was seen. I then went with the cofnpany to the woods to examine for blood.- We were formed in a line and moved about towards the.west! I was at the extreme left of the line. Many men in-the line frequently cried out “here is blood,” but it. was not. I was in the orchard on Monday, and on Monday.my nose bled much, but, whether or not it bled when in the orchard T do not recollect. I was also in the same woods, in which thé blood was found, on Monday, the day on which my nose bled, but do not know that I passed over the same ground or not, or whether or not it bled while I was in-ihe woods. I do not think that I was as far in the woods on Monday, as thp.place at which they said they saw blood. -It bled 'excessively on Monday, but know that the blood on the rail did not come' from my nose; my saddle and blanket and horses neck were covered with blood which came from my'nóse. When-in the woods, I went to examine for the sink hole, found one about half a mile from Prewitt’s on a line from whfere they saw blood in the woods, with the place where the children were found. I examined the sink hole, but could find no signs of any thing having been in it. . '
    Robert Prewitt, a witness, says; I had the charge of the farm and negroes of William Prewitt during-his absence. I have often taken down the fence .at the gap, where the children are supposed to have been taken out; and I was generally at the farm at least twice a week, during his absence. I was shown the place where the. boys.were found. 1 altered some pigs in the pasture near the house some few days before the children weré. missing, perhaps .20 or 30 in • num^er' The feDce was open from the pasture, near the house, into the orchard. Two or three days after the children were found, Mr. Sandford showed me a rail in the or-c]!jar(j fence on which there, wifs blood, at the place where the children were supposed to have been killed. It -was blood I have no doubt. The splotch on the grass I supposed to be the urine from some animal, which had fed on clover. The place rooted up by the hogs looked like a place where hogs had been salted. I saw no blood there. I salted hogs in the field near the house. I conversed with Mr. Sitton some time afterwards, and Sitton told me that heat first thought he saw blood in the woods, at the place described by him, but. that he had become satisfied that he was mistaken and that there was no blood in tire woods.
    
      Gross examined. I am the uncle of the owner of the slaver. I altered the pigs some time in the week before the one in which the boys were missing. It was a dry time there had been no rain for same time. 1 could not tell where the rooting had been done. I saw no other places looted than the two mentioned by the witnesses, one of which was just under the blood on the fence, the other 8 or 9 feet from that. ■ Seven or 8 yards from-the peach tree, I saw a sploch. It rather ran down hill, this I did not think blood, but it looked like clover urine. The clover was eaten out at that time. He had not pulled the gap down since the fall before the supposed murder.
    Thadeus Sanford, a witness, sworn on the part of the defendant, says; I saw a place on the fence, a red sploch of blood, about 1 \ inches in breadth and 3 inches long, running up from the bottom of the rail. 1 saw blood in no other place- I went into the woods and examined leaves, on which there was s'aid to be blood. 1 did not think it blood; the place on the fence had the appearance of blood. The urine of hogs, fed on red oak mast, looks red, but this was not mast season; horse urine generally kills grass. The gentlemen in every direction in the woods were crying blood I did not deem it blood. There was great excitement. That on the fence over the hole had the appearance of a hog having rooted it on with his-nose. I went with my father and found no hole but this, and one in the grass. There were hogs in the field. There was no water in that field.
    Cross examined. I know of two sink holes in the direction from the peach tree to where the boys were found, in brushy places. I went into them but saw nothing.
    Green, a slave of William 0. Prewitt, says; that, at the time the children were missing, he lived at Robert Prewitt’s; on Saturday the day the children were missing, he was all day at II. Prewitt’s until after sun down; he came up to Wm. C. Prewitt’s after sun down, and staid a short time; Ben, another slave of his master, was there at the house; that Ben had been at \vork that day for Mr. Sanford, and had come home; witness staid a short time and returned to R. Prewitt’s, where he staid all night; next morning he returned, and he and Ben went out to hunt the children in company with others; they separated and hunted for sometime, and came home where he found Ben there before him.
    The defendant here closed his evidence. Plaintiffs rebutting evidence. William Florence. I am the owner of a horse mill, it will take from 2 of an hour to 2 hours, according to the team and condition of tho mill, to grind two bushels. The place where M’Mahill lives is from 1 to 2 miles from my house. M’Mahill rather weak and decriped. The ground is sink holy from where the boys were said to bo taken out of the field to where they were found. The work left the boy Aaron'to do, would take two hours; it was to bring fodder together. Aaron is a boy of good character; 1 raised him: he had no grudge against the children. The work, left him, was done, as the boy told him, and as he found to be true on Monday morning. Sitton’s • orchard is 300 yards from Florence’s field in an opposite direction from Prewitt’s. Witness left for Auburn at 2 o’clock.
    William Sitton, called again, says; he did tell Robert Prewitt that he had found blood in the woods, and . that he swore, before the justice that he saw blood in the woods. the column in the woods was 70 yards long, he in the centre; Smith and Kowdershill with him on the trail; Howdershill is an old hunter. We examined together- for blood, and found ^ood>^ed splotch was 10 or 12 yards from the rooted holes in the orchard.
    Joseph Howdershill sworn, says; the fence at the gap, wjj0re 0{iiidren are supposed-to be taken out,'appeared t<> have been, fresh removed; and this was all the evidence given in the cause. . . .
    The' defendant by her counsel theh -moved, the court to instruct the jury as follows: “State of Missouri vs; Fanny a slave,' an indictment for murder of -William Florence. The. prisoner by her counsel, moves the court to instruct the jury. . ' ' .
    1st. That statements made by witnesses on the trial - of this cause of what Ellick, another witness, heretofore said to them (said'witnesses) in relation to declarations of the •defendant to him said Ellick are not legal-evidence in this cause against the defendant, and that they should wholly-disregard all such statements in making up their verdict in their cause. '
    2nd. That no evidence given-in this cause of confessions' of the'defendant, unless such confessions, were made-directly by. the prisoner to the witnesses giving the evidence in-their hearing, should' be regarded by ¡.bo-ju. y in making up their verdict in this cause. . ' • . ■ .
    3rd; That no evidence given-in this cause oí throats made by the defendant, unless such threats-were made directly to winesses'giving the evidence of in their hearing, should be' considered -by them in making up their verdict in this ¡cause.- , ' ■. '
    - 4th, That unless' the evidence offered in this cau 'e, apart from the evidence decided by'the' court to be illegal evidence, should satisfy their minds of-the guilt of the defend-'an.t beyond'a reasonable doubt, that they should find t-he defendant not guilty.
    5th.' -That if, they, entertain reasonable doubt on any material fact; necessary to1 make 'out the.guilt of the defendant they should find the defendant not guilty.
    The prisoner’s,counsel- presents the following points for the consideration of this court.
    1st. The circuit court of' Lincoln county erred'in .granting a change of venue upon the application of Wm. C. Prew-itt, the master of the prisoner, and the circuit court of Warren gained no jurisdiction by said order; ’
    0f not bo grant-titn of the'oM-a,slave indicted for murder. The pc^ItiorfüTld person for .
    sections of the act of February 6th *S3,6 concern-mg. crimes ¿y punishments,, that any stove-*bcr(^j;*°1r f felony, $c. ■ whipping &«. S’oni’Mo^' a punishment in lieu of that tiioS°repealed sections; lea-punisha-withde<^A the first de-
    2nd. The circuit court of Warren erred in passing sentence of death on said prisoner, such sentence being without warrant of law.
    3rd, motion for a new triál. The circuit court of Warren erred in overruling the
   Tompkins Judge.

1st. the change of venue from Lincoln county to Warren being made on the petition of the master and owner of Fanny, that error was not in my opinion cured by her .appearance and subsequent defence before the circuit court of Warren county. She was a slave and it is only in the presence of the court that the law can regard her as a free agent. In a capital case I do not believe that the assent of a free , ... , even, ought to be implied to a change oí venue, but he ought to petition in person as required by law. ,

2nd. It is contended by the prisoner’s counsel, that capital punishment cannot now be inflicted on a slave, and that the first section of the second article of the act ... ... . ° ciimes and their punishment is; so tar as slaves are concerned, impliedly repealed by the second section of the act ameii-3 1 J 1 J t • datory of'the act concerning crimes &c.- approved February 6,1836, see p. 60 of the session act-. By the first section of this amendatory act, the thirty-first, thirty-second, thirty-third and thirty-fourth sections of the ninth' article of the act concerning crimes &c. above mentioned are and by the second and.third sections of the amendatory act it is provided, .that when any slave shall be convicted of a felony, such slave may be punished with stripes to , , , 1 . . may be added transportation. It is certain that murder in the first degree of which the prisoner was convicted, is a fel-■ ony. The sections of the ninth ai tide, above mentioned as repealed, provided for the punishment of slaves convicted of a felony, for which they were sentenced to the tiary; it is then a reasonáble presumption that 'the second an d third sections of the amendatory act were intended substitute a punishment in lieu of that prescribed in the re, pealed sections. It is not then reasonable, to believe that the crime to be punished under the substituted law was any 0^ber than that furnished under the repealed law. Why should the legislature wish to punish a slave, for the same 0^ence more lightly than a free man 1 for a free man is still punished with death for murder in the first degree. No statute shall be construed in such a manner as to be inconvenient or against reason. 4 Bac. ab. 652. Were there room for doubt, on this subject, cur constitution settles that doubt. 37th section of the 3rd article of that instrument pro- . 1 vides that a slave, convicted of a capital onence, shall suSer the same degree of punishment and no other than would be inflicted on a free white person for the same offence. The framers of the constitution anticipated probably that the Ie-power might prescribe a heavier punishment to be inflicted on a slave than on a free white person guilty of a capital offence. This point then in my opinion must be de» cjfled against the prisoner.

Wore there room for subjeet°nihoS 37th sect, of olo of the state constitution, provi* <i ng that a cd’of'aoapitai offence shall samo degree mesfr'and other! than aíctod o*n a™' free, white samToiWo, drniht5 that

No statute stniedin such' manner as to bo inconvo-nient or a-

of what a wit-on? former01* occasion re-guilt of Konoroa tnal, not acinus-siblc to prove the ^prisoner.

3rd. The testimony of Sitton, so far as it details the de-' claraiion of Ellick, is altogether inadmissible against the pri-goner. Had Ellick been himself on trial any confessions ex-lorted from him by improper means, might have been given ja evidence against himself if they led to the discovery of . , ° J evidences oi guilt.

-Abstracting from the evidence on the record the declarations extorted from the boy Ellick, there does not in my opinion remain any evidence to justify a jury in finding the prisoner guilty. The judgment of the circuit court ought m my opinion to be reversed, for these reasons.

Because the prisoner did not petition for a change of 1 1 ° VGUUe.

2nd. Because Sitton’s testimony of the declarations of Ellick were suffered to go the jury.

3rd. Because that court, if the cause had been properly before it, ought to have granted a new trial.

The cause ought in my opinion to be remanded from the circuit court of Warren to that of Lincoln county.

Note. — The president of the court undertook to write, this opinion; and I wrote the notes printed under my name, expecting that the court would not concur in opinion on all the points made and discussed at the bar. The court however thought proper to adopt my notes as their opinion and as such they are printed. The statement of the case was not made by me but by the clerk.

G. TOMPKINS.  