
    
      M’Cune v. The Commonwealth.
    Cottrell v. Same.
    Parsons v. Same.
    June, 1843.
    Criminal Law — Jurors—Opinion Formed — Competency* —Case at Bar. — On the separate trial of a prisoner jointly indicted with three others for murder, several persons called as jurors are examined on voir dire touching their indifferency. 1. One of them states, that he has heard rumours and conversations in the country touching- the case of the prisoner, and a representation of part of the evidence given on the trial of one of the parties indicted with him, and from these sources of information, if the same he true, he had made up an opinion of decided character, which he still entertains, and which will remain the same unless removed by evidence of a state of facts different , from what he has heard; hut he feels no prejudice or bias for or against the prisoner, and is satisfied that the opinion so formed and entertained would have no influence upon his mind in trying him, and that he could now give him as impartial a trial upon the evidence as if he had heard nothing of his óase. 2. Another juror states, that he has heard no evidence in relation to the prisoner’s case, nor formed any opinion on the question of his guilt or innocence; that he was present at the trial of another of the parties indicted, and heard a part of the evidence, from which he had formed a decided opinion as to that party, and if he were now called to try hinj., he should be influenced thereby; but that opinion would have no influence upon his mind in trying.this prisoner, as to whom he feels no prejudice or prepossession, and he thinks he could try him as fairly and impartially as if he had heard nothing about the transaction. 3. A third juror states, that he heard the reports in the country concerning the death of the deceased, and the prisoners implicated therein, and had formed some opinion thereon, dependant upon the truth and fulness of those reports; he believed them to be true at the time he heard them, and the opinion formed on them was decided, and yet rests upon his mind; but he is satisfied the opinion so formed would have no influence upon him in trying the prisoner, and that he could now try him according to the evidence, free from any leaning or bias for or against him, and decide the case as impartially as if he had previously heard nothing of it. Held, all of these persons are good and impartial j urors.
    772 *Same — New Trial — What Conviction Will Not Be Set Aside as Contrary to Evidence, —Where a verdict of conviction in a criminal case is clearly against the evidence, or clearly without evidence to justify it, it is the duty of the court to set the verdict aside on the application of the prisoner, and to award him a new trial. But where, upon evidence merely circumstantial, the jury has found the prisoner guilty, and the court which tried the case has refused to grant a new trial, the verdict will not be disturbed by the general court, even though, in the opinion of that court, the evidence do not amount to very strong and clear proof.
    Same — Murder—Sufficiency of Evidence. — Case in which, under the circumstance just mentioned, a conviction of murder in the second degree was sustained by the general ciurt.
    William Turner, Daniel P. M’Cune, Jackson Cottrell and Joseph W. Parsons were jointly indicted, in the circuit superior court of Kanawha county at May term 1843, for the murder of Jonathan Nichols. Upon separate trials of M’Cune, Cottrell and Parsons, they were respectively found guilty of murder in the second degree, and sentenced to imprisonment in the penitentiary ; M’Cune and Cottrell each for the term of eighteen years, and Parsons for the term of five years.
    
      I. On the trial of M’Cune, William Earle being- called as a juror, and sworn and examined on his voir dire, stated, that he had heard none of the evidence on any of the previous examinations of the prisoner, but had heard the rumours and reports in the country concerning- this case, and conversations respecting- the same, and from what he had thus heard he had made up and expressed a pretty decided opinion thereon, if they be true, which opinion was unchanged by any thing he had since heard ; but if the evidence should present the facts differently from the relations which he had heard, then there would be no opinion resting on his mind, drawn from the rumours and conversations aforesaid: that he felt no leaning or prejudice for or against the prisoner, and notwithstanding the rumours and reports which he had heard, and the opinions or 773 conclusions of *his mind if these reports be true, he was satisfied that he could now try the prisoner as fairly and impartially upon the evidence that might be adduced, as if he had never heard of him or his case. Whereupon the court decided that Earle was a competent juror, and he was put to the election of the prisoner; who excepted to the opinion of the court, and challenged the juror peremptorily.
    II. On the trial of Cottrell,-Baber, Henry C. Sisson and Isham Bailey being called as jurors, were severally sworn on the voir dire, and examined touching their indif-ferency.
    1. Baber stated, that he had heard ru-mours and conversations in the country concerning the occurrences in which the prisoner was charged -with being a participator, which were much talked about: that during the trial of M’Cune, who was jointly indicted with the prisoner and tried at this term, the juror had been present in court, but heard none of the evidence, though he heard some of the arguments, and he thinks a part of the argument by the attorney for the commonwealth : that upon the rumours and conversations aforesaid, if they be true, he had formed an opinion of decided character, which was still abiding on his mind: but that such opinion, so formed from the sources aforesaid, and what he had heard, would have no influence upon him in trying the prisoner’s case : that he felt no prejudice, leaning or bias for or against the prisoner, and was satisfied that he could now give him a fair and impartial trial according to the evidence which he might hear.
    2. Sisson stated, that he had heard rumours and frequent conversations in the country touching the case of the prisoner and of others indicted with him : that a person who represented himself as being present ac a part of one or both of the trials of M’Cune and Turner during the present term, had related in his presence a 774 *part of the evidence said to have been given in : that from these sources of information, if the information be true, the juror had made up an opinion of decided character, which he still entertained, depend-ant however upon the fulness and accuracy of the representations which he had heard: that he felt no prejudice, leaning or bias for or against the prisoner, who was a stranger to him ; and he was satisfied that what he had heard in relation to his case, and the opinions formed thereon as before described, and resting upon the grounds aforesaid, would have no influence upon his mind in trying the cause ; he believed he could now give the prisoner as fair and impartial a trial upon the evidence to be adduced, as if he had heard nothing about him or his cause. In answer to a question by the prisoner’s counsel, whether the opinion he now entertained would not remain the same unless removed by evidence of a different state of facts ? he said, that it would.
    3.Bailey stated, that he had heard divers rumours and conversations in the country relative to the case of the prisoner and his associates in the indictment : that the affair had been considerably talked of in the neigh-bourhood ; and from these rumours and conversations, if true, the juror had made up an opinion of decided character, but which was necessarily dependant upon the fulness and accuracy of the reports he had heard : that his mind was free from prejudice, bias or leaning for or against the prisoner, who was unknown to him ; he was satisfied the opinion before stated would have no influence upon his mind in trying the cause ; and he believed that notwithstanding the rumours and conversations aforesaid, he could give the prisoner as fair and impartial a trial upon the evidence that might be adduced in his case, as if he had previously heard nothing in relation thereto. In answer to a question by the prisoner’s counsel, whether the opinion he now entertained would not remain the 775 same unless removed *by evidence of a different state.of facts ? he said, that it would.
    The court decided that Baber, Sisson and Bailey were all competent jurors ; to which opinions the prisoner filed exceptions, and challenged the jurors peremptorily.
    III.On the trial of Parsons, John Eor-queran and Dioclesian Martin being called as jurors, were severally sworn on the voir dire, and examined touching their indiffer-ency.
    1. Eorqueran stated, that he had not been present at any previous examination of the prisoner, nor heard any evidence in relation to his cause, nor formed any opinion on the' question of his guilt or innocence : that upon a former day of the term, he was present at the trial of M’Cune, jointly indicted with the prisoner for the murder of Nichols, when he heard a part of the evidence, and a portion of the arguments of counsel: that from what he then heard, he formed a decided opinion as to M’Cune, and if he were now called to try him, he should be influenced thereby : but that as to the prisoner Parsons, he had no prejudice or prepossession, and he thought he should be able to try him as fairly and impartially as if he had heard nothing about the transaction; that the opinion formed as to M’Cune would have no influence upon his mind in trying the prisoner. The court was of opinion, that although the evidence as to the manner in which Nichols was killed might be the same on the trial of each of the persons indicted, yet as the proofs and circumstances indicating the presence and cooperation of each, as well as the evidence of previous threats, and circumstances indicating ill blood and revenge towards Nichols, must be and were strictly confined to the separate prisoners as they respectively came upon trial, an opinion formed as to the guilt or innocence of any one 776 of them did not implicate another, whose guilt or innocence depended upon his presence and giving aid, assistance or cooperation in the murder ; and therefore Rorqueran, who had formed no opinion as to the prisoner Parsons having participated in the transaction, and was in a state of mind fairly and impartially to try his case, was a competent juror.
    2. Martin stated, that he had heard the reports in the country concerning the death of Nichols, and the prisoners implicated therein, and had formed some opinion thereon, de-pendant upon the truth and fulness of the reports he had heard ; but he was satisfied that these reports, and the opinion formed on them, would have no influence upon his mind in trying the prisoner, and that he could now pass upon his case according to the evidence, free from any leaning or bias for or against him, and decide it as impartially as if he had previously heard nothing of it. In answer to a question by the prisoner’s counsel, he said that the opinion formed on the reports which he had heard was decided ; that the rumours and conversations before referred to he believed to be true at the time he heard them ; and that the opinion aforesaid yet rested on his mind : but as to the case of this prisoner, he again repeated the declaration herein before set out. The court, considering the rumours and conversations aforesaid as relating to the general circumstances of Nichols’s death, and hypothetical in their character, nowise disturbing the impartiality of the juror in passing upon the separate case of the prisoner, decided that this also was a competent juror.
    The prisoner peremptorily challenged both of the jurors Rorqueran and Martin, and excepted to the opinions of the court deciding them to be competent.
    When the verdict of the jury was rendered against him, he moved the court to set it' aside and to award him a new trial, upon the ground that the said verdict 777 *was contrary to the evidence ; which motion being overruled, he filed a bill of exceptions to the opinion of the court, wherein the facts proved at the trial were set forth as follows.
    The widow of the deceased Jonathan Nichols proved, that on the night of the 8th of April last, soon after dark, her husband went to bed in ordinary health. In a short time thereafter the witness went to bed also, in the same bed, together with her youngest child. When she went to bed, she found her husband asleep, lying on his back on the back side of the bed. At the time she lay down, she left a wood fire burning on the hearth, which gave a tolerable light in the room. The house occupied by the deceased was a. log cabin, 16 by 18 feet square, with two clapboard doors on opposite sides of the house. At the time she went to bed, both of the doors were closed, the one by a chair set against it, and the other (nearest to which she and the deceased slept) by a trundle bed and bedstead in which two of her other children slept. Between 8 and 9 o’clock, the witness was awakened by the discharge of a gun, and immediately called to her husband and enquired if he did not hear the firing, saying, she believed they were about to be murdered ; to which he made no reply, but made a moaning noise as if awakening from a dream, and turned in the bed nearly upon his face. In placing her hand on his body and shaking him in order to arouse him, she. felt blood, and getting immediately out of the bed, and going to the head of it, she saw that her husband was dead. He did not live more than a minute after her awakening. Immediately upon her awakening, she heard the report of three, four or five guns, as she supposed, in quick succession, as in counting one, two, three, fired on the outside of the house, and near to and around it. There was then a pause for a short time, about sufficient to enable the parties to reload their guns, when there was another firing 778 of *four or five guns in quick succession as before. After a second1 pause of about the same length of time, three other guns were fired, at a somewhat greater distance from the house ; and in a few moments thereafter a. single gun was fired, at the distance, as witness supposed, of about one hundred yards from the house, being more remote than either of the previous firings; which last report was accompanied by the scream or yell of a man, which the witness then believed and now believes to have been the voice of Daniel R. M’Cune (one of the parties.jointly indicted with the prisoner, and whose trial and conviction had preceded the present trial). The witness had on several other occasions (logrollings &c.) heard the yell of the said M’Cune, and thought she could distinguish it from that of any other person : but in the sounds heard by her, there were no words articulated, it being a single halloo or yell. The door which had been closed with the chair was at that time standing open about wide enough to admit a man’s body. When it was closed, there wer.e open cracks or joints in the clapboards, sufficient to admit of seeing into the room from the outside ; and the house was an open one, owing to the chinking being loose or having dropped out. When the witness awakened, the fire was still burning briskly.
    It was further proved that the death of the deceased was occasioned by a leaden bullet, which entered his body about half an inch above the left nipple, and in its course destroyed the large arteries leading from the heart to the upper extremities, and after its force was spent, was lodged near the right shoulderblade, about three fourths of an inch from the surface of the right side. That the bullet, before striking and penetrating the body of the deceased, passed through the clapboard door nearest to the bed on which the deceased lay, about three eighths of an inch thick, over the bodies of the witness and her 779 child, and through a calico quilt *and light feather bed used as a covering, an oblique direction, carrying a portion of the feathers into the cavity of the body. From the position of the ground, the bullet hole in the door, and the direction in which the ball passed throug'h said covering into the body of the deceased, it must have been discharged from a gun aimed from a piece of ground on the outside of the house, elevated from seven to nine feet above the floor, and about ten steps from the door aforesaid.
    It was further proved on behalf the commonwealth, that on the afternoon of the 8th of April, about one hour and a half before sunset, William Turner and Jackson Cottrell, parties jointly indicted with the prisoner, were at the residence of Anthony Parsons, the father of the prisoner and with whom he lives, distant about two miles from the house of the deceased Jonathan Nichols. That the said Cottrell and Turner each had their guns with them, the latter having the gun which was produced in court on the trial, and which will be hereafter mentioned. That the witness (who was a neighbouring man) was at the same time at the house of Anthony Parsons on a visit, and also had with him his own gun; and on a conversation arising between the witness and the prisoner about an exchange of guns, the prisoner went into the house and brought his gun out. That between sunset and dark of the same evening, the aforesaid Daniel F. M’Cune and Jackson Cottrell were together at the house of John Connelly, about a quarter of a mile from the house of said Anthony Parsons; each of them having a gun, and Cottrell a pistol in addition. That they left said Connelly’s before dark, and went in the direction of A. Parsons’s. That the said Daniel F. M’Cune was the brother in law of the said Anthony Parsons, and the uncle of Jackson Cottrell and the prisoner: that the said Jackson Cottrell was the grandson of the said Anthony Parsons: and that the said Daniel F. M’Cune lived about 10 or 780 11 miles from the said Parsons’s. *It was also proved, that in the neigh-bourhood where the transaction in question occurred, which is a remote and thinly settled part of the county of Kanawha, on the west fork of the Dittle Kanawha river, and some sixty miles from the court house of said county, it is the general custom of the inhabitants, when going about the neighborhood from house to house, to travel on foot and to carry their guns with them. It Was further proved on the part of the commonwealth, that on the night of the 8th of April, about nine o’clock, some five young persons, males and females, in making a visit through the neighbourhood, called at the house of the said Anthony Parsons, where they remained about the space of ten minutes. That they did not see there either the prisoner, or either of the parties jointly indicted with him; and the witnesses (the young persons aforesaid) were satisfied that neither of said persons (the prisoners) was in the house when they were there. There were two beds on bedsteads in the house, (which was a small one, about 16 feet square) in one of which they saw Anthony Parsons and his wife; the other was unoccupied. There was a pallet on the floor, in which two or three of the prisoner’s children were asleep. The prisoner’s wife was out of bed, standing by the fire, with her clothes partly off and the remainder loose upon her, as if she was either preparing to go to bed, or had just risen from it. That the same party of young persons went directly from said Anthony Parsons’s to the house of said William Turner, which is about 300 yards from the house of said Anthony Parsons: that a woman and her little girl, the only persons who lived with said Turner, had gone to bed, but said Turner was not there. That they (the young people aforesaid) extended their visit up the creek, about a mile and a half above said Turner’s, to one Jacob Berkheimer’s, who also was not at home at the time of their visit. That as the same party of young people were 781 ^returning from their visit that night between 11 and 12 o’clock, the aforesaid Jackson Cottrell and William Turner overtook them: Turner then had a rifle gun, but Cottrell had no gun. The party proceeded together to Turner’s house, where the witnesses (the young persons aforesaid) remained with Cottrell and Turner from one hour and a half to two hours, during which time a pistol was seen in the possession of said Cottrell. The witnesses then left said Turner and Cottrell together at the house of the former, and returned home about one o’clock.
    It was further proved, that on the morning after the death of said Nichols (being Sunday), a number of the neighbours being assembled at the house of the deceased, much search was made for tracks and other signs of the persons who might have been present at the house on the preceding night. That no bullet hole or other mark of shooting was discovered, except the bullet hole through one door aforesaid : but on and about the piece of elevated ground near the house, before mentioned, and from which the gun is supposed to have been fired, foot prints were discovered, but not sufficiently distinct to enable them to determine what number of persons had been there, or to ascertain any thing as to the size or covering of the feet. That beyond the enclosure of the house, and some two yards from it, appearances of footprints in the woods were found leading in a direction from the premises, but not so distinct as to enable the witness to trace or follow them; but on approaching the creek, tracks were discovered crossing a small sandbar, and as the witness thought, of four persons walking abreast; two of which were of feet covered with moccasins, and the other two with square toed shoes. That the said tracks were measured by the witness, and the length thereof taken on a stick, which stick he afterwards gave to the widow of the deceased, by whom it was lost or 782 mislaid. The said *stick was never applied to the feet of the prisoner, or to1 those of either of the persons jointly indictéd with him. That the first time the prisoner and the persons indicted with him were thereafter seen, the prisoner and the said Daniel If. M’Cune had on moccasins, and the said Turner and Cottrell had on squaretoed shoes. From mere observation of the feet of the prisoner and of the persons indicted with him, but without measurement, the witness who took the measure of the tracks was, of opinion that the size of said tracks would correspond with the feet of the parties so jointly indicted. It was also proved, that in the neighbourhood of the occurrence, the use of moccasins by the male inhabitants was general and common, and that, of the shoes worn in the same neighbourhood, those of the square-toed form were as common as any other. That early on Sunday morning after the death of the deceased, and before the tracks on the sandbar were examined by the witness, it had snowed for a short time with violence, which snow did not lie on the ground for any length of time, but melted nearly as fast as it fell: that some rain also fell, accompanied by hail of considerable size, which continued for a very short time, but fell rapidly while it did continue.
    It was further proved on the part of the commonwealth, that on the sunday after the death of the deceased, about 9 or 10 o’clock in the forenoon, some five or six persons on horseback passed up the creek, with a view to give intelligence to the neighbourhood of what had happened. That on approaching the house of Thomas Cottrell (the father of Jackson Cottrell) who was the uppermost settler on said creek, and lived about four miles from the house of the deceased, the said William Turner was seen standing in the door of said Cottrell’s house. He immediately withdrew from the door, went into the house, and quickly returned accompanied by the prisoner and the said Jackson 783 Cottrell *(who lived there with his father). Turner and the prisoner had their guns in their hands; Cottrell had no gun, nor any other weapon. Upon being informed of the death of Nichols, the prisoner (in the language of witness) “appeared astonished at the news;’’ Turner whistled and seemed indifferent; while Jackson Cottrell said nothing. Upon being asked by the witness to go down to the house of the deceased, the prisoner declined doing so, saying that he was going to another neighbour’s house to pay for some flaxseed. On the same day (sunday after the death of Nichols), Daniel F. M’Cune and William Turner came together to the house of the deceased. The prisoner came also a short time afterwards. There was at that time a considerable number of persons collected at the house of Nichols, and the corpse was lying on the bed in the same position, not having been moved except for the purpose of looking at the wound. When the prisoner came into the house, he asked, “Where is the dead man?” to which the witness replied, “There he lies.” As the prisoner came into the room, he put his hand upon the wall, apparently for the purpose of steadying himself, and observed that 1 ‘people had better be praying, than doing the like of this.” Several of the witnesses for the commonwealth were also asked by her attorney to describe the appearance of the prisoner and M’Cune and Turner at that time. Some of the witnesses in reply said, that the prisoner looked whiter in the face that day than common; another, that he looked confused, and that his countenance indicated alarm; another, that he looked distressed in mind, was pale and red alternately, and that occasionally there was a twitching or quivering in the muscles "about the chin. They also stated that Turner trembled, as did likewise M’Cune in a greater degree; that the last-mentioned, standing by and leaning 784 against the fence in the yard, *shook all over, and with so much violence that he shook the fence.
    It was also proved, that in the afternoon of the same day (sunday the 9th) the said Daniel F. M’Cune was seen some two or three miles from the house of Nichols, travelling in a direction towards his home, with his rifle gun in his possession, which, as above stated, the said William Turner had in his possession at the house of Anthony Parsons on the evening of Saturday the 8th, being the same gun which was produced in court on the trial of this indictment.
    It was also proved by the coroner who held the inquest over the body of the deceased, that the rifle gun produced on the trial of this cause was sent for by him while engaged in taking the inquest; the place where the gun, and the bullet moulds belonging to it, (which were also produced on this trial) were to be found, having been first stated and pointed out to him by Daniel F. M’Cune. That the gun and bullet moulds now in court were accordingly, and in a short time, produced before him. That the moulds belonging to said gun ran bullets weighing from 55 to 60 to the pound; and the bullet extracted from the body of the deceased, upon being placed in a pair of small medicine scales against one of the bullets run in the said moulds, weighed within from two to five grains of the same weight with the latter. The wit-, ness who extracted the bullet from the body of the deceased, and weighed and compared it as aforesaid, supposed that its loss of weight by passing through the door and other substances before mentioned, before its force was spent, would be equivalent to the difference aforesaid. It was further proved, that some five or six years ago, guns' of as large calibre as the gun 1 aforesaid produced in court on the trial of : the prisoner, were common in the neigh-bourhood of the deceased, but are 785 not so common ^latterly, smaller guns being now more generally used. 1 :
    It was also proved on the part of the commonwealth, that on the afternoon of Sunday the 9th of April, and after the prisoner and others indicted with him had been at the house of the deceased as aforesaid, the prisoner, Daniel F. M’Cune and William Turner were together in the 3rard of Anthony Parsons (with whom the prisoner resided as aforesaid). The said M’Cune stated to the sa,id Turner, that from what he (M’Cune) could learn down at Nichols’s, he (Turner) was suspected of having committed the murder; and that he (M’Cune) would advise him to leave. Whereupon the prisoner also remarked to Turner, that if he (the prisoner) were in Turner’s place, he would be off. To which Turner replied. “Well, I have nothing to keep me here any longer;” but did not deny or admit the charge thus stated to have been made against him. This conversation was held in the presence of the witness who delivered it in court upon the present trial, without any apparent wish of the parties to conceal the same. It was further proved, that Turner left the neighbourhood the next morning, and was not arrested until some days after the prisoner, M’Cune and Cot-trell were apprehended and sent to the ■county jail.
    The commonwealth also gave evidence tending to prove a previous state of ill blood on the part of the prisoner towards the deceased, as follows, to wit:
    That about a year ago, the witness thought in May, the prisoner was at the house of the witness, when the witness said to him, he had understood that the Nichols’s had run him (the prisoner). The prisoner replied, No, they had tried to do it, but he had run them with a loaded gun. Prisoner also said, he would kill Jonathan and Zephaniah Nichols for it yet, if they did not watch. The witness lives in the neighbour-hood of the prisoner, about two miles 786 off; has been in the habit *of frequently seeing the prisoner, at his own house and the house of the witness, at logrollings, houseraisings &c. but never heard him in any other wise threaten the deceased than as above. When he had the conversation above stated, he seemed to be in a good humour, and it did not make any impression on the mind of the witness. Witness has never spoken of it until since the death of Nichols. He has seen the prisoner and the deceased in company since the conversation aforesaid, and they appeared friendly.
    Another witness proved, that in April 1842, on easter day, he met with the prisoner, who complained to him of the Nichols’s. He said that Zephaniah Nichols, a brother of the deceased, jumped out from behind a tree with a handspike as the prisoner was passing along, and that he (the 1 : 1 prisoner) ran him with his gun for a short : distance, when Jonathan Nichols (the deceased) and Robert Nichols (another brother) came to the assistance of Zephaniah, and the prisoner in turn gave way and ran. The prisoner at the same time applied to the witness, who was a justice of the peace, for a warrant against the said Nichols’s; but the witness, being in the act of removing to an adjoining county, declined issuing such warrant: whereupon the prisoner said, he would then take his gun and run them out of the neighbour-hood ; that they were bad and troublesome people; that he had no fears of them personally, but was afraid they would do him some private mischief.
    Another witness proved, that he was at work at Anthony Parsons’s (the father of the prisoner) last hay harvest (1842), when the prisoner and his father and mother were talking about the Nichols’s. One of the party stated, that some time previous, some one had stolen some meat from their smokehouse; that the mother of the prisoner, being about the door or yard at the time, was hit on the heel by one of the party stealing the meat; that she had called to the prisoner her son, then 787 *in the house, who came out wi.th his gun ; but that they had made their escape. In the said conversation the prisoner remarked, that if he could have got at them, they would not have got off so easily. He said also, it must have been the Nichols’s, as he did not know any body else likely to have done it. Witness then said to the prisoner, 1 ‘There is law for such men, why don’t you take the law on them?” to which the prisoner replied, No, he would take an easier plan for it than that; but did not say what plan, or any thing further.
    Another witness proved, that the prisoner was at his house about a year ago, and was telling him of some of the Nichols’s clubbing him. But Jonathan Nichols (the deceased) was not connected with the affair in that conversation.
    It was also proved, that in January last the deceased, who was overseer of the road in his neighbourhood, had called the hánds out to work the same. Some altercation took place as to the location of the road at or near the house of Anthony Parsons, the father of the prisoner; in which, however, the deceased took no part. Words passed between Zephaniah Nichols (brother of the deceased) and Anthony Parsons, who, it was proved, was an elderly man and blind. The said Zephaniah threw three sticks or clubs at old Anthony Parsons, ■when some one of the company advised the prisoner to go and take his father in; and he did go in the direction of said Anthony Parsons, and accompanied him to the house. The prisoner seemed disinclined to work on the road, and did little or no work that day. The deceased, as overseer, about the time of the altercation before mentioned, ordered the men to go to work; when the prisoner replied, “Go to hell!” or “Who the hell are you?” (Stated in both forms by two witnesses for the commonwealth.) Whereupon the deceased told the prisoner he was dismissed from the road, and that he would make him pay for that day’s 788 work, and his conduct *on the road; to which last remark the prisoner replied, that “he woud pay it in hell,” or that “he would pay it after he was in hell.” (Stated in both forms by two of the witnesses.) A third witness, who testified to the same occurrence and conversation on the road, 'represented the prisoner as saying that he (the prisoner) “would pay it when Nichols was landed in hell.” The last mentioned witness, after giving his account of the occurrence and altercation on the road, and being asked by the attorney for the commonwealth whether he knew any thing more, said, that “it ran in his head that the prisoner also observed on that occasion, that he would see blood that day.” This witness also said, that the occurrence testified to by himself and the two other witnesses last mentioned took place last fall, instead of January as stated by them. He also, in reply to interrogatories of the prisoner’s counsel, stated that he did not know on what day or month new year came, on what day of the month or year Christmas came, did not know the number of days or weeks in the year, or how often the moon changed.
    It was also proved, that the deceased lived on a small creek, a branch of the west fork of Little Kanaw'ha river: that from the mouth of said creek to the uppermost settler thereon is about nine miles: and that, exclusive of the deceased and two of his brothers, who lived about a quarter of a mile from him, the only male adults who at the time of the death of said Nichols lived on said creek, ’ were the following, namely, Edward Parsons, John Connelly, Thomas Cottrell the father of the said Jackson Cottrell, and his brother George Cottrell, Jacob Berkheimer, the said William Turner, and the prisoner and his father the said Anthony Parsons. It was further proved, that the deceased was a peaceable and orderly man in his neighbourhood, and that the prisoner had heretofore sustained a tolerable character in the same particulars. In the language of a witness, 789 *he was of average character with those in his neighbourhood. The attorney for the commonwealth having given the evidence hereinbefore stated, of this prisoner being in company with others of the prisoners as aforesaid, of his being absent from home as aforesaid, and that his father and mother resided in the same house with him and slept in the same room, the prisoner entirely omitted to give any evidence accounting for his absence from home on the night aforesaid, at what hour he returned, or with whom he had been out that night.
    And this was all the evidence in the cause.
    M’Cune, Cottreli and Parsons severally presented petitions to the general court, praying for writs of error to the judgments rendered against them respectively. The opinions of the circuit court declaring the competency of the several jurors Earle, Baber, Sisson, Bailey, Eorqueran and Martin, were all complained of as erroneous; and Parsons complained also of the refusal of the court to set aside the verdict against him and award a new trial. On the question of competencey of the jurors, Armi-stead’s case, 11 Leigh 657, Osiander’s case, 3 Leigh 780, and 3 Rob. Pract. 157-163, were cited and relied upon.
    G. W. Summers, B. H. Smith, J. Hen-drick and J. L. Carr, for each of the petitioners.
    
      
      Criminal Law — Jurors—Opinion Formed — Competency. — On this subject the principal case is cited in foot-note to Com. v. Hailstock, 2 Gratt. 584; Clore v. Com., 8 Gratt. 621, 623 (see also, foot-note); Jackson v. Com., 23 Gratt. 931 (see also, foot-note) ; foot-note to Shinn v. Com., 32 Gratt. 901; Dejarnette v. Com., 75 Va. 873; State v. Baker, 33 W. Va. 324, 336, 10 S. E. Rep. 641, 646. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
      New Trials — Evidence—Weight a(id Sufficiency. — On this subject see the principal case cited in Hill v. Com., 2 Gratt. 603, 617, and foot-note; Vaiden v. Com., 12 Gratt. 728 (see also, foot-note to same case); Read v. Com., 22 Gratt. 942 (see also, foot-note); Howell v. Com., 26 Gratt. 1007; State v. Morgan, 35 W. Va. 277. 13 S. E. Rep. 391. See monographic note on “New Trials.”
    
   EIELD, J.

(after stating the proceedings had against the petitioners respectively, and reciting the bills of exceptions relative to the several jurors aforesaid) delivered the opinion of the court as follows.

I. The opinion entertained by the juror William Earle, who was called upon the trial of M’Cune, had been formed from mere rumour. It was purely hypothetical. And as he did not appear to be under the ^influence of bias or prejudice either for or against the prisoner, the court is unanimously of the opinion that he was a good juror. The writ of error is therefore refused in M’Cune’s case.

II." In relation to the three jurors Baber, Sisson and Bailey, called upon the trial of Cottrell, the judges present are also unanimously of opinion that they were compe-' tent. The opinions which they had formed were derived from mere rumour. They had not heard the evidence. And so far as the prisoner and the commonwealth were concerned, these men were free from partiality, bias or prejudice. There does not appear to be any error in the record of Cottrell’s case, and the writ of error is consequently refused. „

III. The court are likewise unanimous in the opinion that John Eorqueran, called as a juror on the trial of Parsons, was competent.

It appears from the examination of Dioclesian Martin, called as a juror on the same trial, that his was an opinion upon mere rumour and neighbourhood reports, of the truth of which he had no knowledge. Towards the commonwealth and the prisoner he occupied an impartial position, and was not likely to be influenced in his verdict by prejudice. The opinion was clearly a hypothetical one, and this court is unanimously of the opinion that he was a good juror.

As to the question of a new trial, that depended on the evidence before the jury. That evidence was entirely circumstantial. Whether the circumstances were sufficient to establish the guilt of the prisoner, or not, it was the province of the jury to decide. The jury was satisfied that they were sufficient, and convicted the prisoner. With this verdict the judge before whom the trial took place, and who heard all the evidence, has indicated his satisfaction, by overruling the prisoner’s motion for a new trial. Where the finding of the jury is clearly against the evidence, or clearly without ^evidence to justify it, it is the duty to the court to set the verdict aside upon the application of the prisoner, and to grant him a new trial. The circumstantial evidence in this case, which has been set forth in the bill of exceptions, has been examined by this court, and although we do not regard it as amounting to very strong and clear proof, yet a large majority of the court are of the opinion that this court cannot with propriety disturb the verdict and judgment on that ground. From this opinion, however, judges Lomax and Gholson dissent. They regard the testimony as clearly insufficient to establish the guilt of the prisoner, and would be willing to award the writ of error on that ground only.

In each case, writ of error denied.  