
    
      The State vs. Jackson Vaigneur.
    
    Indictment for murder: When the prisoner was first arrested, one of the two special constables, who had him in charge, said to him, “ Come, Jack, you might as welj out with it:’’ the magistrate interposed and warned him not to confess: some hours afterwards the prisoner made confessions to B., who was in no position of authority over him, but with whom, and in whose buggy, as a convenient mode of transportation, he was riding to jail, — the two constables being near, but not within hearing: Held, that the confessions to B. were admissible.
    
      Kirby’s case, (1 Strob. 155, 378,) considered a leading case upon the question as to the admissibility of confessions.
    The prisoner, before he was accused, or even suspected of the crime, was examined, on oath, before the coroner’s jury, as an ordinary witness: he denied all knowledge of the felony, but made statements which led to a discovery of facts inducing a strong suspicion of his guilt; other questions were then put and answered, which led to other evidences of guilt:. H.ld, that the prisoner’s statements before the jury were admissible as evidence against him.
    A statement, under oath, made by the prisoner, upon his examination as an ordinary witness, before he was charged with the crime, is admissible as evidence against him.
    Where a confession, in itself inadmissible, leads to the ascertainment of a fact, admissible in evidence and material in the case, so much of such confession as relates strictly to the fact, may be received in evidence. •
    
      
      Before Wardlaw, J. at Beaufort, Fall-Term, 1851.
    The report of his Honor, the presiding Judge, is as follows:
    “The prisoner was indicted for the murder of Mary Wall.
    “ The evidence adduced on the part of the State is substantially embraced in the following statement. None was offered on the part of the prisoner:
    
      “ The deceased, about fifty years old at her death, had been for eight or ten years the second wife of Samuel Wall. Her husband and she lived in a small house in the pine woods ; and with them was nobody but a little grand-daughter of his, about seven years old. His children, a son and several daughters, (of whom the youngest daughter was 17 or 18 years old,) lived in the neighborhood. The deceased was reputed to be industrious and good tempered, tier husband was drunken, and within a fortnight after her death was courting a young woman about 20 years old.
    
      “ The prisoner lived with his widowed mother, about a mile eastward of Sam. Wall’s. Within a few hundred yards of them, in a separate house, lived, Henry Yaigneur, a brother of the prisoner. Several other neighbors also lived near to Sam. Wall’s, on the eastward as well as on other sides.
    “ The prisoner, now about 25 years old, was, from early boyhood, taciturn and inclined to seclusion. At school he was not quick, nor very dull, but (as a witness expressed it) got along. After he was grown up, he sometimes ploughed and did other work in the fields. Seemed to take pleasure in splitting rails ; was once hired to assist and superintend negroes in putting on logs, removing scantling, and the other work done in managing a saw at a steam saw mill, which he did well — being steady, attentive, and smarter than any of the negroes — ready to see when any thing was out of order; but another person was acting as engineer. He spent much of his time in hunting, his gun being almost constantly in his hands. He was not observed to be melancholy, nor was he ever treated as a person deficient in understanding; but he was. fond of the woods, and imperturbable to such degree that he was likened to an Indian. He would take a dram readily, but was not often seen in liquor. He frequently associated with Samuel Wall.
    “ On the 18th of February, 1851, just after twilight in the evening.-a gun was heard to fire about Sam. Wall’s. Within half an hour afterwards, Isaac Tuten, induced by some information which a negro had given to him, went and found Sam. Wall walking about his yard, with his grand-child in his arms, much frightened. The house consisted of one room, the door being on the north, a window on the south, which had a board shutter but no sash, a chimney on the west,' and a table between the window and chimney. Hound the house was a fence, about 30 yards distant on every side, the gate being on the eastern side. The body of Mary Wall was dead on the floor, lying with the feet near the window and the head toward the door; one hand on her breast, the other extended with a small cloth in it, which seemed to have been used in washing things at the table ; in her lap were knives, forks and spoons, and on the table some plates and a piggin with water in it.
    “ The body was left undisturbed; a neighbor was summoned, and after some delay others were sent for, and directed to meet at one Roberts’. Amongst others, Henry Vaigneur and the prisoner came about one o’clock at night to Roberts’; the prisoner then appearing to be sober, quiet and undisturbed as usual. All went to Wall’s, and sat up there till daylight. Nothing unusual was noticed in the demeanor of the prisoner. Early in the morning, he was sent for a carpenter to make the coffin ; did not find the one he went after; proceeded to obtain another, and was absent two or three hours. After daylight, tracks were seen within the enclosure round the house, and they were carefully kept from being disturbed until an inquest could be had.
    About 11 o’clock on the 19th, the inquest was held, John A. Scriven, Esq. acting as coroner. The death was manifestly occasioned by buck-shot, which had entered the left of the head, from behind ; several of the shot were found in the head, and one in a board.
    
      “ Samuel Wall was sworn as the first witness before the inquest, but he had not entirely recovered from intoxication, and could tell very little. He having mentioned that the prisoner had been at his house the afternoon previous, and that they were shooting at a mark, the prisoner (against whom no suspicion had then been expressed) was examined as a witness. In answer to questions addressed to him, he said that he did not know who had killed Mrs. Wall, nor how she came to her death; that the day before he had been out hunting, and on his return stopped at Sam. Wall’s about one o’clock) or later ; shot at a mark with him ; took one or two drinks with him, but was not drunk; stayed for supper, and went off about dark.
    
      “ The tracks within the enclosure were examined ; outside of the enclosure was dry pine barren, in which no track could be seen ; within was a black mould, which had been turned up for cultivation. The tracks led from a point in the fence, on the eastern side, somewhat south of the gate, to a log which lay behind the house, about 15 feet from the window, thence back to the fence, near to the point of entrance. In coming, they were close, as of a person walking, and made a circuit toward the south fence, and then straight, up to the log. In going, they were wider apart, as of a person running, and went directly from the log to the eastern fence; in going they shewed as if the person had fallen over a stump, and near the stump was what seemed to be the imprint of one barrel of a gun.
    “ The tracks were found not to suit Sam. Wall’s foot; his gun being examined, had no dirt in it or on it; and he having said that in shooting at the mark the day before he had used shot of the size called low mould — shot of that size, and of no other kind, were found in his house ; the shot which had been found in the head of the deceased were considerably larger.
    
      “ The prisoner was then asked for one of his boots ; he pulled it off — a large, coarse, water-proof boot, such as ditchers wear, made straight, that is, not right or left, with a heel, round at the back and straight in front. A track made by this boot was precisely similar to one of the tracks found in the enclosure; the boot put into one of those tracks fitted exactly. The most careful measurement of length, width, heel, toe, and other particulars, shewed a perfect correspondence in every respect between the boot, whether on the foot or off, and every one of the tracks that was examined.
    “The prisoner, being then strongly suspected, was asked where his gun was, and what kind of shot he had used the day before. He answered that his gun was at his mother’s, and that he had used low mould shot.
    
      “ The coroner and jury went to his mother’s. On the way, tracks, like those which were in the enclosure, were occasionally observed in the path. His mother having been asked for his gun, brought a gun well known as his. It had been clean wiped on the outside, and carefully put away in a woolen case. A finger being inserted into the muzzle of the right hand barrel, dirt was found there, and the ram-rod being used, shewed that that barrel was empty ; that dirt about equal in bulk to a charge of powder was in it; that the other barrel was loaded, and that the shot in it were larger than low mould, and exactly of the same kind as the shot that had been lound in the head of the deceased. Other shot of the same' kind were found in the prisoner’s shot-bag. The dirt which came from the gun was a black mould. An impression was made on the ground with one barrel of the gun, and it was just like that which had been seen near the stump in the enclosure.
    “ The inquest was then signed and the prisoner arrested. No regular constable being present, Tuten and Broughton were specially appointed by the magistrate, and with a mittimus took charge of the prisoner to convey him to jail, about 15 miles distant. Broughton said to the prisoner, in a familiar way, “Come, Jack, you might as well out with it.” The magistrate interposed, and said, “No, Taigneur, the evidence we have taken will not be brought against you ; you will be put on your trial for your life, and it behooves you to make no confession at all.” Broughton was charged by the magistrate to say no more to the prisoner on the subject. Throughout the whole investigation, and after his arrest, the prisoner seemed to be unmoved and cool.
    “ A large party, including the prisoner, dined at Broughton’s, near to the place of arrest. In the afternoon they proceeded toward Grahamville, on the way to the jail, Boyd taking the prisoner in a buggy with him as far as Grahamville, and the two constables riding a short distance behind, and intending at Gra-hamville to procure some other conveyance for the prisoner. Between Broughton’s and Grahamville, Boyd conversed with the prisoner, the constables being near, but not within hearing of what was said. Boyd testified that he used no threats nor persuasion, held out no hopes nor inducement, said nothing of its being better for him to confess, nor any thing of that kind. (The confession made to Boyd, under these circumstances, was, after objection, admitted.)
    “ Boyd asked the prisoner, “ how did the dirt come in your gun ?” Prisoner — “ I got it when I fell on the stump.” Boyd— “ What stump ?” Prisoner — “ The stump you were all examining in old Sam’s yard.” Boyd — “How came you to fall over the stump ?” Prisoner — “ I was running from the window at which I shot Mrs. Wall,' but I did not intend to kill her.” Boyd — “Who did you intend to kill?” Prisoner — “Old Sam.” Boyd — “What could have induced you to kill that poor old woman?” Prisoner— “ I was mad and drunk.” Boyd — “ What hope have you of getting off, or that justice will not be done?” Prisoner — “My hope is, that I was drunk, and if I get off for this, I will never do the like again.” In further conversation with Boyd, the prisoner said that in the afternoon he had had a quarrel with old Sam about their shooting at a mark, and that when he started home, about dark, he had gone out of the gate, then returned, and, standing at the log, shot with the intention of killing old Sam, and then went right home. He expressed no hostility against the deceased ; said he was very sorry for what he had done, and knew it would kill his mother.
    “ Soon after the confessions made to him, Boyd called out to ■the magistrate and constables, and in the presence of the prisoner communicated to them the confessions that had been made. The magistrate testified that no authority at all had been given to Boyd over the prisoner or in the matter, and that he (the magistrate) had fully explained his condition to the prisoner, and solemnly warned him against making confessions.
    “ The prisoner was taken to jail by the special constables on 19th of February. He escaped the 11th of March; and, after having been heard of in his old neighborhood, was recaptured by the sheriff on 16th of April, about daylight, at afire in the woods near his mother’s, with the same boots and coat upon him which he wore at his first arrest.
    “ He escaped again September 12th, and was again recaptured October 8th, between Edisto and George’s station, having upon him several pair of pantaloons, a coat well known, and a pair of shoes which he had bought in jail. He made no attempt to hurt the sheriff, who came suddenly upon him, .but refused to submit till he was told that a gentleman of the bar had said there was one plea on which he might be acquitted. He had walked afoot, and had been tracked from Saltcatcher bridge — had frequently turned out of the road — had gone a short way along pine-land roads and other roads, then back to right road — had passed through Walterborough in the night, and was greatly fatigued when he was overtaken.
    
      “ I submitted the facts to the jury, with careful instructions. In the course of my remarks I said that drunkenness was not an excuse for crime, and that madness, or such infirmity of mind as rendered an unfortunate sufferer irresponsible for’his acts, because unconscious of their moral enormity, must be found in the evidence before it could avail for acquittal. I said that where death ensued from a blow aimed at one person, and falling on another, the degree of guilt was the same as if the blow had fallen according to the will of him who struck it; but that a previous quarrel would not, after sufficient cooling time, mitigate a killing by stealthy means, so as to reduce- it from murder to manslaughter.
    “ Of the motive which led the prisoner to the shocking deeds if he perpetrated it, there was suggestion in argument, but no satisfactory evidence. As I thought, motive was material in the inquiry, who did the deed ; but if the agent was ascertained, as the absence of all motive might sometimes even aggravate guilt, a defect of proof concerning the motive could not shew innocence, unless it established the irresponsibility of the agent.
    
      “ I detected no emotion in the prisoner during the trial; but my eyes could not be much turned upon him during the examination of witnesses, for -I was, as usual, obliged to write down almost every word of the testimony.”
    Yerdict, guilty.
    The prisoner appealed, and now moved for a new trial, on the following grounds:
    1. Because the prisoner’s confessions to Boyd, made in the presence of his guard while on his way to jail, should not (it is respectfully submitted) have been permitted in evidence against him.
    2. Because the prisoner’s confessions before the jury of inquest should have been excluded.
    3. Because the confessions, if admissible, went to prove that the prisoner, while mad and drunk, intended to kill the husband of the deceased; and his Honor, it' is respectfully submitted, should have charged the jury that the offence committed might partake of that grade of criminality, to wit, manslaughter, which would have attached if the prisoner’s intentions had been carried into effect.
    
      Tracy, for the motion,
    cited, on the first ground of appeal, 2 Russ, on Or. 832-7-9 ; 5 C. & P. 539 ; 6 C. & P. 175 ; 7 C. & P. 579 ; 2 East P. C. 858; 1 C. & M. 534; 5 C. & P. 535; State vs. Kirby, 1 Strob. 155, 378; 4 C. & P. 548 ; and on the 2d ground, 6 C. & P. 161, 341.
    
      Hayne, Attorney General, contra,
    cited 24 Eng. C. L. R. 338; Joy on Conf. 62, § 8 ; Wheater’s case, 2 Mood. C. C. R. 45 ; 2 Stark. Ev. 28, 39 ; Ros. on Or. Ev. 48; 5 C. & P. 530; 4 C. & P. 254; Joy on Conf. Ap. 238.
    
      
      Martin, in reply,
    on the first ground of appeal, contended, 1st, that Boyd was a person in authority, (1 Russ, on Cr. 193 ; 2 lb. 839 ; Rex vs. Enoch, 5 C. & P, 539.) 2d, that whether he was in authority or not, the circumstances were sufficient to make the prisoner believe he was in authority, and that was enough, (2 Russ, on Cr. 839 and note N; 2 Green. Ev. 258.) 3d, that the confessions to Boyd, being, then, to one in authority, or to one believed by the prisoner to be in authority, were sufficiently connected with the previous inducements held out by Broughton, one of the constables, to render them inadmissible, (4 C. & P. 543, note B; lb. 387 ; 7 lb. 579 ; 4 lb. 548; 2 Russ, on Cr. 834); and, 4th, that the caution by Scriven was not sufficient to put the prisoner on his guard, {Rex vs. Ellis, 21 Eng. C. L. R. 483; 2 Russ, on Cr. 832 ; East P. C. 558.) On the second ground of appeal, he cited, Rex vs. Webb, 19 Eng. C. L. R. 564; Rex vs. Rivers, 32 lb. 486 ; Rex vs. Bently, 25 lb. 325 ; Rex vs. Wilson, 3 lb. 192; Regina vs. Pikesly, 38 lb. 67; Merceron’s case, 2 Stark. R. 366; Rex vs. Gilliam, 1 Moody, 203; 1 Green. Ev. 263 ; 1 M. & P. 448 ; Rex vs. Britton, 1 M. & Rob. 297; 38 Eng. C. L. R. 100, note a ; Rex vs. Tubby, 24 Eng. C. L. R. 441; Joy on Con. 43; Regina vs. Owens, 9 C. & P. 83; Davis' case, 25 Eng. C. L. R. 341; Lewis' case, 25 Eng. C. L. R. 333.
   The opinion of the Court was delivered by

"Wither.-, J.

The admission of a party, against his interest, is received upon the footing of presumptive evidence, since an ordinary knowledge of human nature teaches, that untrue admissions or confessions are not voluntarily made when- they must prejudice the interests of the party who makes them. As the effect becomes more or less momentous, as the will is more or less free, the understanding more or less deliberate, so the presumption will grow stronger or weaker. And although it might seem, a priori, that any admission should be placed before a jury, to be weighed according to all qualifying circumstances, yet the observation of those, whose painful and practical experi ence has led them into familiarity with that confusion and prostration of faculties which a load of deep guilt, to which is added anxious suspicion or heavy accusation, commonly visits upon those on whom the iron hand of the criminal law has been placed, has led to a resolution to exclude confessions by the accused, made under certain circumstances, from the consideration of the jury, as affording a medium little fit to reveal the truth in an issue so great as life and death. Hence we have the judgment of English jurists against the admissibility of a confession obtained by temporal inducement, held out in the shape of threat, promise or hope of favor, touching one’s escape from the charge against him, by a person in authority, or where such person appeared to sanction such threat or inducement, and a master or mistress, or prosecutor, is placed, in this respect, in the category of one in authority. The foundation of all rules, and of the ruling in each individual case, upon this subject, rests upon an anxiety to exclude confessions that are probably not true : and, therefore, to exclude those that are not voluntary, because such are probably untrue. To draw the line of distinction, to be determined by the condition of the moral faculties of a human being, which shall separate the voluntary from the constrained or perverted exercise of those faculties, presents the task of difficulty. The question concerns the competence of evidence ; it is addressed to the presiding Judge; it comes modified by ever varying circumstances ; in many it may be affected by the danger of mendacity or incompleteness of representation: likewise of misinterpretation of what was said, causes that have produced, in the annals of English jurisprudence especially, every variety of example for the admission and exclusion of confessions, and has generated some tendency to submit, more frequently, this species of evidence to the ordeal of the jury. It has been aptly observed by one of the Judges in Massachusetts, (9 Pick. 502, in 1830,) the question does not depend upon authorities, but upon general principles.” Those general principles have already been indicated.

The first question in this case is,- whether the confession or admissions of the prisoner to Boyd should have been excluded from the jury. It must depend upon whether the agitation of the prisoner’s hope or fear, by promise, inducement or threat, was such as to exclude what he said, upon the principle, that his disclosures were not voluntary. Boyd was not in any position of authority over the prisoner: though the latter was riding in his buggy, as a convenient mode of transportation, two constables being in the rear, hard by, yet not within hearing. No inducement or threat was held out by Boyd, though he conversed with the prisoner, and by interrogation drew out the matter of his admissions. The objection to the admissibility of the evidence in question is founded upon a remark, by a special constable, (Broughton), addressed, in a familiar way, to the prisoner, some hours before the disclosures were made, on the occasion of his arrest, and after suspicious circumstances had appeared. It was this, Come, Jack, you might as well out with it.” Immediately, however, the magistrate, very judiciously, interposed, and (as he testified upon the trial) “ fully explained his condition to the prisoner, and solemnly warned him against making confessions.” The words attributed to the magistrate, on that occasion, were these : “No, Vaigneur, the evidence we have taken will not be brought against you ; you will be put on your trial for your life and death, and it behooves you to make no confession at all.”

The observation of Broughton can scarcely be regarded as any inducement at all. The manner and the import of it, each, would seem to exclude the idea, that the mind of the prisoner was likely to be seriously impressed by its influence. Instantly the magistrate interposed, and said that which was amply sufficient to counteract and obliterate any impression that perchance had been made by the words of Broughton. Such appears, in fact, to have been the effect of the magistrate’s interposition, because we find that Broughton was checked and the prisoner made no observation at all.

If we look to the weight of inducement held out, to the counteracting agency employed, to the intervening time, and compare this case, in these and such particulars, with that of Kirby, (1 Strob. 378.) and if we also recollect that Kirby’s confession was the sole ground upon which his conviction rested, the conclusion is irresistible, that what the prisoner said to Boyd was clearly admissible in evidence. The question was twice before this Court in Kirby's case, upon the point we are reviewing: it was deliberately adjudged on both occasions, is considered by us a leading case upon this question, and decides it against the motion in the present instance.

A point of more novel import with us arises upon the fact, that the prisoner was examined as a witness, and as other witnesses were, before the coroner’s inquest, and what he said, as such witness, was given in evidence on the trial.

He was not suspected of the felony. No one was then arrested, perhaps none the object of any pointed suspicion. All that he said before the coroner’s inquest was to this effect: that he knew not who killed Mrs. Wall, nor how she came to her death; that the day before he had been hunting ; called, on his return, at Sam. Wall’s (the husband of the deceased) about 1 o’clock, or later ; joined Sam. Wall in shooting at a mark : took one or two drinks with him, but was not drunk.

' Soon after this the prisoner was asked by some one to deliver one of his boots, which being applied to tracks about the scene of the murder, betrayed strong ground of suspicion against him ; he was then asked where his gun was, and what kind of shot he had used the day before. He answered his gun was at his mother’s, and that he had used low mould shot. This was followed by further investigation, which disclosed a probable falsehood as to the character of the shot he had used.

For the prisoner it is urged, that what he said before the coroner’s inquest was erroneously received in evidence on the trial.

It is proper to remark, that he said nothing before the inquest that was in the nature of a confession. He, in fact, denied there all knowledge of-the felony. Yet, if any rule of criminal law excludes such evidence, ex vi termini, it would not be proper to speculate upon the effect of it, as the criterion to control the individual case.

Nisi prius judgments in. the English Courts have not been uniform upon the question. It is not improbable that the necessary exclusion of the examination of a prisoner, on oath, before a magistrate, as an examination under the Statute of Phil. Sp Mary, has operated to affect opinions as to testimony derived from one, not yet suspected or accused, placed under oath, as a witness merely, by an examining tribunal. The difference, however, is quite material. A witness merely, unsuspected and un-accused, does not look in consternation at the finger of the law publicly pointed at him, foreboding the issue of life and death, with the certainty of incarceration, the ignominy of a trial, and, it may be, conviction and capital punishment. He is not manacled, nor oppressed by the scowl of public indignation or the iron-features of unrelenting jailors, .tie is not beset by the prurient tamperings of restless and anxious curiosity. If, indeed, the perturbation of remorse may act upon his faculties, it is unquestionable, nevertheless, that a confession or any admission growing out of such an origin, exclusively, is wholly untainted by any objectionable quality as evidence. There remains nothing but the supposed duress of an oath, administered by a power capable (as is said) of applying. a sanction that shall exact an answer. Now, in reality, there is no power, in any tribunal known to the common law, to exact an answer that may implicate a witness in or tend to expose him to a criminal charge. It is still alleged, however, that a refusal io answer does, of itself, excite suspicion. That is most true: but the answer is, that suspicion is no proof and can never produce conviction. Any species of conduct of the accused, whether before or after he is charged, may give interpretation to equivocal facts — -may shed a ray of light upon the whole scene, may develope intention, motive, and accordingly the conduct of a prisoner is a source of evidence, sometimes for him as well as the prosecution, and was so in this case, for it was proved he escaped several times, and his singular behaviour was invoked to raise an idea that he was scarcely a responsible agent. His refusal to answer a question propounded appears to be of the same grade of evidence, since what he may say or refuse to say, and what he may do, may all proceed from the very same influences. It has not been understood that the prosecuting authority can be rightfully excluded from such a source of circumstantial evidence.

If it be still urged that the shield of personal immunity against self-accusation, which the law throws around a witness, may be unavailing to one so little likely to know and to exercise his right as this prisoner, that he spoke without counsel or warning, that his feebleness, in every way, was but a snare to entrap him, we must reply that the instinct of nature suggests a resort to the very shield that the law allows; that no counsel or warning can be necessary to one who, unsuspected, appears in the character of an ordinary witness; that the testimony of the prisoner before the coroner demonstrates that he was not thrown from his balance, in point of fact, for he stated nothing that could have implicated an innocent man. It is not a case in which a word has been sworn to by a prisoner, or a witness who was afterwards made a prisoner, which, of itself, admitted or implied his guilt. Where a confession, in itself objectionable, leads to the ascertainment of a fact, admissible in evidence and material in the case, the later practice and authorities teach us that so much of such confession as relates strictly to the fact, may be received in evidence : and this, on the principle, that so much of the confession is established to be true: and the foundation of the whole doctrine is, that the jury ought to hear whatever is true, and are entitled to look for the truth through any and every medium that may be calculated to reveal it.

Mr. Joy, in his work on the admissibility of confessions, (sec. 8, p. 62,) lays down the following proposition, A statement, not compulsory, made by a party, not at the time a prisoner, is admissible in evidence against himand the reason assigned is, that one, in his capacity of witness, might refuse to answer a question that has a tendency to expose him to a criminal charge: hence an answer to such becomes a voluntary statement, since he might refuse to make any.

This appears to be a sound legal theory. It cannot be met by the circumstance, of a particular case, that a witness may not know the extent of his personal security under the law, for ignorance of the law excuses no one, though that circumstance, with an infinite number of other variations, while it affects not the competency, may afford apt matter of strong observation to the jury. The doctrine has had the confirmation of the English bench, on the point reserved, in Wheater’s case, which is certainly entitled to more weight than some nisi prius decisions to the contrary, which last went on the footing that the examination of a witness, on oath, was not distinguishable from that of a prisoner on oath, though the latter is forbidden by the statute of Phil. &. Mary.

We are thus conducted to the conclusion, and order accordingly, that the motion, on behalf of the prisoner, for a new trial be refused.

O’Neall, Evans, Wardlaw and Whitner, JJ. concurred.

Motion refused.  