
    Grayson v. The Commonwealth.
    1849. December Term.
    
    (Absent Field,
      
       J.)
    1. New trials are grantable at the instance of the accused, in all criminal cases.
    2. Motions for new trials are governed by the same rules in criminal as in civil cases.
    3. A new trial will be granted where the verdict is against law; or where it is contrary to the evidence; or where the verdict is without evidence.
    4. Where some evidence has been given which tends to prove the facts in issue; or the evidence consists of circumstances and presumptions, a new trial will not be granted merely because the Court, if on the jury, would have given a different verdict. The evidence should be plainly insufficient to warrant the finding of the jury: And this restriction applies a fortiori, to an appellate Court.
    5. Where the evidence is contradictory, and the verdict is against the weight of evidence, a new trial may be granted by the Court which presides at the trial; hut its decision is not the subject of a writ of error or supersedeas, or examinable by an appellate Court.
    
      O. Where the evidence is contradictory, the Court which tries the case, cannot be required to state in a bill of exceptions, either the evidence or the facts proved by the witnesses respectively: It is enough to state that the evidence was contradictory.
    
      William Grayson, a free negro, was indicted in the Circuit court of Culpeper county, for the murder of David W. Miller. Upon the trial, the jury found him guilty of murder in the first degree ; and the Court sentenced him to be hung. The prisoner thereupon moved the Court for a new trial, but the Court overruled the motion; and the prisoner excepted. The facts proved were spread upon the record, and are as follows:
    On the part of the Commonwealth, it was proved, that John J. Settle and David W. Miller the deceased, were partners in the business of keeping a country store in Culpeper county, about ten miles from the courthouse. That said Settle married the sister of Miller ; and lived upon a farm about half a mile from the store; Settle usually stayed at the store during the day, and the deceased, who was a young unmarried man, attended to the farm, coming to the store every evening about night, and remaining there until the next morning about day break, when Settle came to the store, and Miller went out on the farm : No one slept at the store but the deceased.
    It was further proved, that the prisoner William Grayson became indebted to the said firm of Settle & Miller, some time in the fall of the year 1848, to the amount of some two or three dollars; that afterwards, the prisoner applied to John J. Settle to let him have a spade on a credit, which said Settle refused: That shortly thereafter, Woodford Settle, the brother of John J. Settle, for whom the prisoner had undertaken to do a job of ditching, came to the store of Settle & Miller, and authorized them to furnish the prisoner with a spade, on the credit of said Woodford Settle. That afterwards, in the course of the same fall, the prisoner came to said store, and set his spade and shovel down on the platform at the door of the store; that John J. Settle took them up and carried them into the store, and told the prisoner that he could not have them until he had paid all that he owed to the said firm: The spade and the shovel were placed together in the counting room near the foot of the bed. That the prisoner made several applications from time to time for his spade and shovel, but not having money enough to pay the debt, was refused. That on the evening of the 4th of April 1849, a little before sunset, perhaps as much as an hour by sun, he went to the store, and again applied for his spade and shovel, offering to pay in money and by an order of one James Parr, all he owed except nineteen cents; but Settle refused to let him have them until every cent was paid. The prisoner remonstrated with Settle, and said it was hard he could not get his spade and shovel; but being peremptorily refused, he went off.
    It was further proved, that on the evening of the 4th of April 1849, the deceased came in from the farm to the store rather earlier than he was accustomed to do ; that some young men from the neighbourhood happening to come to the store, Miller the deceased, Settle, and the said young men, played marbles until it was too dark to play any longer; it was quite dark when they quit: All the party went off except the deceased, who was left alone at the store. The deceased enquired of his partner Settle, when he was about to go home, whether, if the prisoner should pay all his own debt, he should let him have his spade and shovel, or whether he should retain them until the price of the spade, which had been charged to Woodford Settle, was also paid; the said Woodford Settle having requested the said John J. Settle and the deceased, not to let the prisoner have the spade until he paid for it. The partner Settle replied that the prisoner was not to have the spade until he paid not only his own debt, but the price of the spade; but that he could have his shovel upon his paying his own account. It was further proved by John J. Settle, that all the spades kept in the store for sale, were kept up stairs, except one, which was kept below in the store room as a sample ; that in the evening of the 4th of April, the witness set this spade just inside the door of the counting room, and so near the doorway, that in passing from the store room into the counting room, he accidentally knocked it down, but set it up again at the same place.
    It was further proved by John J. Settle, that on the morning of the 5th of April, he came to the store soon after day break, as usual, and finding the door open, called to the deceased, supposing him to be in the counting room; receiving no answer, he went out to look for him, supposing he had stepped out; that looking round, he found him lying dead, partly under the platform in front of the storehouse, the body partially covered with some old planks. That upon going into the storehouse, ho found that the shovel belonging to the prisoner, and as he then supposed the spade of the prisoner, were gone; but upon subsequent examination, it turned out that the spado of the prisoner Avas in the store, and the new spade before mentioned, was gone. That the deceased had on no clothing except his shirt and drawers, and the remainder of his clothing was found in the counting room; that the bed was tumbled, and the deceased had evidently undressed himself and gone to bed the night before. That he caused information to bo given to the coroner, Avho lived at the courthouse, as soon as possible, and in the course of that day, the coroner held an inquest on the body, which was not moved until the coroner came.
    It was further proved by the coroner, by the physician who Avas summoned to attend the inquest, and by some of the coroner’s jury, that the deceased was killed by several blows on the head, inflicted by a dull edged instrument, such as a spade or shovel, with which several blows were given, one of which, on the hinder part of the head, penetrated the skull, and was mortal. That there was another wound on the head, which crushed the skull, and seemed to have been given by some heavy instrument, which crushed without cutting, such as a heavy weight. It was proved by the physician, that there were five or six wounds on the head, in all; of which there were three, any one of which would, in his opinion, have caused death. That one of the fingers of the deceased was cut nearly off, by an instrument which made a rough jagged cut. It was further proved, that behind the counter in the store, there was found a puddle of blood about as large as a man’s hand; that the shelves and goods were sprinkled with drops of blood; but no drops of blood were found on the counter, or on the floor on the side of the counter next the outer door; that the counter was marked with blood smeared on it, as with a bloody hand. That a four pound weight was found on the floor outside the counter, which weight was bloody; that in the plank casing on the inside of the store room, near the outer door, was an indentation apparently made with the four pound weight, and that there was blood in this indentation; that there were two candlesticks on the counter, one of which was turned over and mashed as if it was knocked over in a scuffle; that on the counter were found some small articles, and among them a box of tooth brushes, and one of the brushes was out on the counter.
    It was further proved, that there was on hand at that time, between fifteen and twenty dollars in silver, which was kept in an unlocked desk in the store room; that all. the silver was gone except a few pieces; and some pieces were found scattered on the floor: on the lid of the desk, and on the inside of the desk, were marks of blood smeared, as if by a bloody hand. Some six or eight pair of ladies’ shoes were also missing; and a pistol, which the deceased owned, and which was frequently kept in the desk, was missing; nothing was missing from the store except these articles and the shovel of the prisoner, and the new spade before mentioned. The store was on a public road, and on the opposite side of the road was a low fence; some drops of blood were found on the leaves on both sides of the fence. There was a good deal of blood found under the platform where the body was found.
    It was further proved, that before the coroner arrived on the ground, a number of persons from the neighbourhood had assembled at the store, and among them the prisoner Grayson; that the prisoner being interrogated in regard to his spade and shovel, said that he had gone to the store the evening before to get them; that he had an order from James Parr and some money, but not enough to pay his account by nineteen cents; that he went back to William Wood's and borrowed of him fifty cents; that he then returned to the store and paid off his account, and got his spade and shovel; and the prisoner putting his hand in his pocket produced a receipt to the interrogator, which is in the words and figures following: “ Oak Shade, April 4th. Received of William Grayson, the sum of 2 dollars 29 cents in payment of his account. John J. Settle & Miller which receipt was delivered to the coroner and read to the jury. Being asked what had become of his spade and shovel, the prisoner, after some hesitation, said that he could not tell, that he was drunk the night before, and had lost them; that ho carried them from the store to William Wood's, and set them down by a cherry tree in the corner of Wood's yard; and addressing himself to William Wood, who was standing near, the prisoner said: “You know, master Billy, that you told John Huffman to go and bring them to you, and that he did bring them to you.” To which William 
      
      Wood made no reply at all. It was proved that the » said Wood was then quite drunk; and that the said John Huffman was a small child, but was going to school. The prisoner then went on to say, that he went from Wood’s to Felix Huffman’s cabin, where he stayed all night; and that he lost his spade and shovel between Wood’s and Huffman’s. It was further proved, that the prisoner seemed to be restless and uneasy in mind, throughout the day, whilst the coroner and jury were engaged in the examination; but it was also proved, that he was informed, soon after he arrived on the ground, that he was suspected to be the murderer. It was further proved, that although the prisoner was not arrested until after the examination by the coroner and jury was finished, the coroner kept an eye upon him, and would not have permitted him to leave the place; and that, in the course of the examination, persons present told him he was not to leave.
    It was further proved, that after the coroner and jury had gotten through the examination, which took until near night, search was made for the spade and shovel, and the other missing articles, by several persons; that after night, information was given to the searching party, that a negro man, named Daniel, belonging to Mrs. Armstrong, who lived in the neighbourhood, had seen a spade and shovel lying partly under the fence, which is about twenty-five feet from the path leading from Wood’s to Huffman’s, and is parallel with said path; that upon going to the place, a spade and shovel were found under the fence, where a broad shallow gully, partially filled up and grown over with grass, runs under the fence ; which spade and shovel, it was proved, was carefully handled and taken care of, until they were produced before the jury on the trial. The negro man Daniel being called as a witness by the Commonwealth, proved that between sunrise and breakfast time on the morning of the 5th of April, going from Felix Huff
      
      man’s, where he had a wife, to Mrs. Armstrong’s, along the path aforesaid, which runs parallel with the fence, he saw a spade and shovel lying close up to the fence, where the old gully passes under the fence ; that he picked up the spade and dug for worms to fish with; that he did not touch the shovel, and he put the spade back where he found it. The place where the witness said he found the spade and shovel, and left them, was the same place where they were found by the searching party, consisting of several white men, that night about nine o’clock. The spade and shovel wore exhibited to the jury on the trial, as was also the spade belonging to the prisoner, which was found in the store. The spade found in the store was proved to be the spade of the prisoner. The two spades were in form, size &c., exactly alike, except that the spade of the prisoner was a little worn by use, and had on the under side of the handle, on the fiat part of it, at the upper extremity, the letters W Gra rudely cut in the wood. The shovel had on it many marks of blood, and one human hair under the rivet; the hair was discoverable by the use of a magnifying glass of great power.
    It was further proved, that some days before the homicide, the prisoner went from James Parr’s to the store of Settle & Miller, to get his spade and shovel; and upon his returning to Parr’s without them, being interrogated by Parr why he had not brought them, he said that, “ Mr. Miller had first given them to him, but called him back and told him, upon consideration, he had determined not to let him have them; that he (the prisoner) had given them up to Miller, but that if Miller had been alone, he would not have given them up; that there were some other persons present, and that the party would have been too strong for him.”
    It was further proved, that diligent search had been made for the missing money and other articles, and that none had been found, and no other spade and shovel than those produced in Court. It was proved that William Wood’s house is about half a mile from the store, and Felix Huffman’s house about one mile and a half from William Wood’s.
    
    It was further proved, that a few days before the homicide was committed, James Parr, with whom the prisoner had engaged to do work as a ditcher, had given the prisoner an order to the store of Settle $f Miller,for one dollar and fifty cents, with the purpose of enabling him to redeem his spade and shovel; that the said order was not sufficient in amount for the purpose for which it was intended, and that the prisoner laid out fifty-two cents of said order in goods, and had the residue credited, upon his account for which the spade and shovel were detained. That on the day preceding the night of the homicide, he had an order from said Parr, for fifty cents, which order expressed upon its face that it was to be obligatory upon the drawer Parr, only upon condition that the spade and shovel were delivered to the prisoner; which order, on the morning after the homicide, was found filed among the orders of the store, and the amount thereof credited to the prisoner on his account upon the store books.
    On the part of the prisoner it was proved, that he worked for William Wood on the 4th of April, and received therefor fifty cents; that just before night on the 4th of April, he came to William Wood, and asked him to lend him fifty cents, that he might redeem his spade and shovel; stating that he had not money enough to redeem them; that said Wood lent him ten cents; that after supper and about dark, he returned to Wood’s, and came up to the porch where the said Wood was sitting ; and upon being asked where the spade and shovel were, he replied they were at the foot of the cherry tree in the corner of the yard; upon the said Wood’s asking him why he did not bring them to the house, he replied he had them, and that was enough. It was further proved by William Torrent, a boy about twelve years old, that he, by the direction of Wood, ran down to the cherry tree to see whether the spade and shovel were there : that he found them both there ; and that the prisoner called to him not to bring them to the house. It was proved that the prisoner got from Wood during the day, about a pint of whiskey, one half in the morning, and the balance about an hour by sun, when he stopped work. The prisoner was a strong athletic man, and a ditcher by trade. When he came to Wood’s the last time, he seemed to be somewhat drunk.
    It was further proved, that the prisoner started from Wood’s in the direction of Huffman’s, and that he got to Huffman’s cabin about an hour and a half after night: That upon getting to the cabin, he talked awhile to the’ inmates upon different subjects, then sat down on the bed, and put his hands up to his eyes and went to sleep apparently; that he slept some time, perhaps an hour, and then got up and proposed to smoke; that some conversation occurred about tobacco, and the prisoner said he had some tobacco tied to his spade and shovel, which were setting on the outside of the house; that one of the company in the house, got up and -went out and returned, saying the spade and shovel were not at the door. The prisoner then remarked that he must have lost them, and offered to give any one who would find them a four pence half penny or nine pence; the witness did not recollect which. That the prisoner had in his pocket a flask, in which was some whiskey, which the company then present, drank up. That the prisoner and a negro man named Elzy, and a white boy named Green, who were at the cabin, started out to look for the spade and shovel; how long they were gone the witness could not say, he having fallen to sleep after they left. They returned and reported that they could not find the spade and shovel; and the prisoner slept in that cabin the balance of the night, and until late the next morning.
    It was further proved by a negro man belonging to William Wood, that some time after he had been to sleep, and about midnight as he supposed, he heard a noise at the store ; that he got up and went to the door, and heard the dog at the store barking, and a cry of, “ I won’t tell,” and a cry of murder.
    It was further proved, that the prisoner had on the same clothes late in the evening of the 4th of April, that he wore the next morning, when he appeared at the store; that there was no appearance of blood on his clothes or person, and that his clothes and person were carefully examined by one of the coroner’s jury, to see whether any blood could be found on them.
    It was further proved by a witness, that about one or two o’clock of the day of the coroner’s inquest, he and another went to Felix Huffman's for his negro man Elzy, who was supposed to be concerned in the murder ; that as they returned to the store, they looked to see whether they could find the spade and shovel, or any thing else that would lead to the detection of the murderer; that the witness came down the old gully in which the negro man Daniel said he found the spade and shovel, as far as the path, which was about twenty-five feet from the fence, and that he did not see the spade and shovel, although he was looking for them, and the bottom of the fence was in full view of the path.
    After the evidence on both sides had been closed, and the argument of the cause had progressed to about the middle of the concluding argument for the Commonwealth, (which argument was being made by a gentleman employed by the friends of the deceased to aid the Commonwealth’s attorney in the prosecution,) the counsel making that argument, produced a magnifying glass of great power, and proposed that the jury should submit the shovel, proved to be the prisoner’s, to examination by them with said glass, with a view to determine the question, whether or not there was blood upon the shovel: the evidence theretofore upon that question, being only the opinion of witnesses and the appearance of the shovel to the natural sight, or sight aided by spectacles ; to which proceeding the prisoner by his counsel objected, which objection was overruled by the Court; and the use of the magnifying glass by the jury was permitted; and upon their retirement, they were permitted to take the said magnifying glass and shovel to their room with them.
    The prisoner applied to this Court for a writ of error, which was awarded.
    The cause was argued by Cabell and Bouldin, for the prisoner, and the Attorney General, for the Commonwealth.
    
      
      
         He had tried the cause in the Circuit court.
    
   Scott, J.

I understand the cases in this Court, and the Court of appeals, on the subject of new trials, to have settled the following principles:

That new trials are grantable at the instance of the accused, in all criminal cases.

That motions for new trials are governed by the same rules in criminal as in civil cases.

That a new trial will be granted:

1. Where the verdict is against law. This occurs when the issue involves both fact and law, and the verdict is against the law of the case on the facts proved.

2. Where the verdict is contrary to the evidence. This occurs, when the issue involves matter of fact only; and the facts proved require a different verdict from that found by the jury.

3. Where the verdict is without evidence to support it. This occurs when there has been no proof whatever of a material fact, or not sufficient evidence of the fact or facts in issue.

Where some evidence has been given which tends to prove the fact in issue, or the evidence consists of circumstances and presumptions, a new trial will not be - , granted merely because the Court, if upon the jury, would have given a different verdict. To warrant a new trial in such cases, the evidence should be plainly insufficient to warrant the finding of the jury: And this restriction applies a fortiori, to an appellate Court.

In all these cases the judgment granting or refusing a new trial, may be the subject of a writ of error or supersedeas, and is reversible.

4. Where the evidence is contradictory, and the verdict is against the weight of evidence, a new trial may be granted by the Court which presides at the trial; but its decision is not the subject of a writ of error or supersedeas, or examinable by an appellate Court. Nor, can the inferior Court be required to state in a bill of exceptions, either the evidence or the facts proved by the witnesses, respectively. It is enough to state that the evidence was contradictory.

In the case at bar, my opinion is, that there is no evidence which connects the accused with the homicide of which he has been convicted; that, at most, it amounts only to a suspicion that he had some hand in it; and that the evidence is plainly insufficient to Avarrant the verdict.

The verdict, moreover, is in some material respects, against the proofs, or inconsistent with them.

Smith and Leigh, J’s, concurred entirely in the opinion of Scott, J.

Lomax, J.

said he concurred entirely in the opinion and judgment pronounced in this case, with the exception only, that he was not prepared to admit in the unqualified manner therein expressed, an analogy between motions for new trials in civil cases, and similar motions in criminal cases.

Judgment reversed, verdict set aside, and cause remanded for a new trial.  