
    STATE v. BANVESTER HAYWOOD.
    Evidence making a, mere ground for conjecture that a homicide was accidental, is to be regarded as no evidence.
    Upon trials for murder, a killing by the prisoner having been proved, the burden of proof shifts to the prisoner.
    When it was shown that the prisoner killod the deceased by shooting, and made his escape, and afterwards said he had killed deceased but did not know that the gun was loaded, the fact that the gun was out of order aind would not stand at half-code, did not make it error for the Judge to refuse to oharge that “ if the prisoner was handling the gun in a careless and negligent manner, and it accidentally went off, the killing was mitigated to manslaughter,” there being no evidence of negligent handling or accident.
    A charge upon the subject of insanity in criminal cases commended.
    
      (Sutton v. Madre, 2 Jon., 320, cited and approved.)
    Murder, tried before Green, J-, at May Term, 1867, of the criminal court of Craven.
    The prisoner, a colored man, was indicted for killing Tilicha Keyes, a colored woman. The deceased lived with the family of one Foreman, who kept a grocery. The prisoner and a brother had been drinking at the shop the day before the homicide. On the day of the homicide the prisoner had been in the shop, but went out and soon returned armed with a gun and pistol. As he entered he laid the pistol on the counter, and said “ What in the hell is. that you say,” holding the muzzle of the gun to the head of the deceased and firing. She fell dead, and he immediately dropped the gun, took up the pistol and made his escape. He was arrested soon after, and made the declaration that he had killed the deceased hut did not know that the gun was loaded. There was no evidence of ill will or a quarrel between the prisoner and the deceased at any time.
    It was in proof that the lock of the gun was out of order, and would not stand at half-cock. It was shown for the prisoner that his father was insane, and under confinement at the time of his death; that the prisoner’s “ disposition was peculiar;” also that he had taken no food on the day of the homicida
    The prisoner’s counsel contended that there was evidence of the accidental firing of the gun; and asked the court to “ charge that if the prisoner was handling the gun in a careless and negligent manner and it accidentally went off, the prisoner would not be guilty of murder, but of manslaughter.” His Honor refused, on the ground that there was no evidence to sustain that view of the case. The prisoner excepted.
    The 'prisoner’s counsel contended that “ If subject to an insanity inherited from his father, the prisoner acted at the time under delusion excited by abstinence from food, and by the use of intoxicating liquors, amounting to insanity, he would be entitled to an acquittal.” On this subject his Honor charged the jury as follows:
    “ That if the prisoner, at the time he committed the homicide, was in a state to comprehend his relations to other persons, the nature of the act and its criminal character, or, in other words, if he was conscious of doing wrong at the time he committed the homicide, he is responsible. But if on the contrary, the prisoner was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, he is not guilty of any offense against the law; for guilt arises from the mind and wicked will.
    Verdict of guilty; judgment of death, and appeal.
    
      Manly & Haughton, for the appellant
    
      Attorney General, for the State.
   Pearson, C. J.

The only ground taken in this court was that the Judge erred in declining to charge that, if the prisoner was handling the gun in a careless and negligent manner, and it accidentally went off, the killing was mitigated to manslaughter. His Honor refused so to charge, on the ground that there was no evidence to sustain that view of the case. There is no error.

The evidence relied on ■ by the prisoner’s counsel was that the lock of the gun was out of order and it would not stand at half-cock.” This evidence may have been ground for a “ conjecture ” that by possibility the gun went off accidentally, but standing alone it certainly was not evidence fit to be left to the jury, on which to find that such was the fact, as the onus of proof lay upon the prisoner, the killing by him having been proved. Sutton v. Madre, 2 Jon., 320.

It is true that in making out a fact by circumstantial evidence, a matter, which taken by itself would be of no importance, frequently makes an important link in the chain of circumstances by being taken in connection with other circumstances; but there must be a chain leading to the fact to be established, and one link taken by itself amounts to nothing. For illustration: it is proved that a father killed his child with a gun; this puts the onus on him; he proves that the child was a favorite of his; that the lock of the gun was out of repair, so that it would sometimes go off at half-cock by a jar or sudden motion, and that, at the instant it went off, he made an exclamation of surprise and exhibited the natural emotions of grief, (which would be admissible as part of the res gestee). Here is a chain of circumstances proper for the consideration of the jury. In our case there is a middle link: i. e., The look was out of order, and it would not stand at half-cock. But the prisoner is content with the fact that the State had offered no evidence of any ill will or quarrel between him and the deceased; so the link on that side is wanting, and, so far from there being a link on the other side so as to make a chain, the evidence is that, without expressing any surprise, he throws down the gun, picks up his pistol and makes his escape; and, even when arrested, puts his defence on the ground that he did not know that the gun was loaded. Thus the evidence in respect to the lock stands alone in reference to the allegation that the gun went off accidentally, and is hardly sufficient to suggest “ a conjecture ” that such might have been the fact.

We fully approve of the charge of his Honor upon the subject of insanity. It is clear, concise and accurate; and, as it is difficult to convey to the minds of jurors an exact legal idea of the subject, we feel at liberty to call the attention of the other Judges to this charge.

There is no error. This opinion will be certified to the end, &c.

Pbr Curiam. There is no error.  