
    
      The State v. Martin Posey.
    
    On the trial of an indictment for the murder of a slave, evidence to show that the prisoner had but a short time before, through the instrumentality of the slave, procured the murder ofhis own wife, was held, to be admissible, as supplying an inducement to the murder of the slave, and indicating the character of the motive with which it was perpetrated.
    Where the Court perceived sufficient evidence to sustain the conclusion of the jury, they refused to disturb the verdict on the ground that it was inconsistent in having affirmed the guilt of the principal, and acquitted those charged as accessaries on the same testimony; (that of accomplices.)
    
      Before Withers, J. at Edgefield, Fall Term, 1849.
    1NDICTMENMT FOR MURDER.
    His Honor’s report is as follows.
    By four counts, the prisoner, Martin Posey, was charged, as principal in the first degree, with the murder of his own negro, Appling, and the two other prisoners, (his father and brother,) were charged as accessaries before the fact.
    
    My original notes, which are hereto attached, will shew, with precision, every step taken in the progress of an exciting and a tedious trial, and will, I am persuaded, be a full response to the grounds taken on appeal, (except the second, upon which I shall remark,) and, at the same time, will shew what questions of evidence were really decided, and how they were presented.
    I think it proper that the prisoner should have the benefit, if any there be, of whatever merit may be found in the first ground of appeal, although 1 did not specifically rule what is there imputed as error. It will appear from my notes, that in the course of the examination of Wilson Kirkland, (the seventh witness called,) a question was asked, by the State, the answer to which, it was supposed by the prisoner’s counsel, would bring forth an admission, on the part of Martin Posey, fixing upon him the murder ofhis wife, through the instrumentality of Appling, who, by his master’s procuration, actually perpetrated the act; (and he had, the week before, been convicted of the crime, and the indictment and verdict had been ruled out on this trial.) The prisoner’s counsel did then propose that the Court should determine whether the State should be allowed to give evidence of Martin Posey’s guilt in the murder of his wife. This was declined, as being matter in advance, and the resolution was announced to confine my ruling to the precise question asked, and the precise point arising from it. The question which raised the argument was then waived in its original form by the Solicitor, and another propounded, to which no objection was made, and the witness proceeded to disclose certain confessions of Martin Posey as to the murder of his wife. Soon thereafter, the original question was again pressed by the Solicitor, and the additional purpose assigned of eliciting mailer that might support the credibility of the witness (who was suspected to be an accomplice,) and for that end it was held incompetent, since he was not yet assailed. The case proceeded, and iuvolved much of the confessions of Martin Posey, of his agency in the murder oí his wife, through the direct agency of Ápp, and the point of the 1st ground of appeal was not again or otherwise presented. — Nevertheless, 1 think it probable that the prisoner’s counsel supposed some intimation from the Court was intelligible to the effect, that evidence of Martin Posey’s guilt in the murder of his wife, as an accessary before the fact to App, would be ruled competent, if the precise point was pressed and adjudged. And I should certainly have so ruled, upon the ground that it was legitimate for the State to shew the murder of Mrs. Martin Posey by App, at the instance of her husband, as furnishing a motive, and one which the Stale'alleged could be shewn to .have been assigned by himself, strongly leading him to murder the negro App, himself, that he might cut off that source of means which others might use to fasten upon him the murder of his wife; and also on the ground that it was legitimate evidence to shew the deliberation and wilfulness, the wickedness and malice, with which the act was done, if done at all, as necessarily implied in the cause that suggested and produced it; and hence, as fixing the grade of the offence to be that charged in the indictment, under the first section of the Act of 1821, a point altogether essential to the conviction of Martin Posey as principal, and the two other prisoners as accessaries. The reading of the testimony must shew, I think, that the killing of Mrs. Posey led to the killing of App, and that the two events bore the relation of cause and effect, were parts of one horrible conception and transaction, and that error is rather to be found in excluding the record of the conviction of Martin Posey for the murder of his wife. No jury, I presume, could have a correct knowledge of the character of the act which was the basis of this trial, without evidence of the true and only cause, so far as we know, that led to it. I am not aware that any evidence of any other felony was offered or received, nor, indeed, that evidence of any felony distinct from that on trial, of any that was not most directly and closely connected with it, was received. The utmost care was taken to guard the jury against applying that portion of the testimony to any unlawful use. These words were used on that subject: “The murder of Mrs. Posey is no otherwise a matter pertinent to this issue, than as a circumstance going to supply an inducement to one, or some, or all, of the prisoners to murder App; ;or as indicating the character of the motive or intention with which he was hilled; and hence, as constituting the murder of the negro, (and not the killing of him in sudden heat and passion.) It is in this view only, that the murder of Matilda H. Posey should enter into the investigation, or affect the prisoners unfavorably. That evidence is admissible only as a link in a chain of circumstances, leading to the result which is charged in the indictment. As an independent circumstance, disconnected with the murder of App, it could not have been proved at all, and would be entitled to no more consideration than the proof of a murder, by the same party, committed in Georgia five years ago.”
    The second ground of appeal must proceed from a misapprehension. I recommended to the jury a general verdict, if they found all or any of the prisoners guilty — and gave them definitions of the legal ideas of principal and accessary before the fact. There was nothing in the evidence, nor in the indictment, nor in the argument, to suggest the notion that Marlin Posey was present, aiding and abetting another in the murder of App ; and I have neither recollection nor note of any such proposition submitted to the jury, as that embraced in the second ground of appeal.
    In regard to the credit that should have been given to Wilson and Caleb Kirkland, I have only to say, that whether they were accomplices or not, every caution, suggested in the most liberal advice which the books give to the judges, in behalf of prisoners, was given to the jury in approaching the testimony of an accomplice. Whether their verdict was founded entirely on the testimony of those two witnesses, I know not. It was contended in behalf of Elbert Posey, that admitting the credibility of Wilson Kirkland, Elbert Posey’s language to Martin, as reported by him, in the conference on Thursday morning, as to the killing of App, did not amount to advising or counselling his brother Martin to kill him, but was no more than the expression of an opinion, that, if it must be done, no one could be expected to do it but himself. This argument was zealousy enforced upon the jury, and for aught known to me. they may have adopted it, and thus supply an explanation of the inconsistency imputed to their verdict in placing the conviction of Martin Posey on such testimony, and yet acquitting Elbert and Francis Posey, notwithstanding such evidence.
    The defendant, Martin Posey, appealed and moved for a new trial, on the grounds :
    1. That the presiding Judge erred in admitting evidence of other felonies not connected with the issue, namely, that Martin Posey was guilty of the murder of his wife, and that the other defendants were accessaries before and after the fact to that murder, and accessaries after the fact to the murder of the slave.
    2. That the presiding Judge erred in charging the jury that under an indictment against defendant, as principal in the first degree, they might find him guilty generally, if they believed he was present, aiding and abetting at the felony.
    3. That the verdict is not supported by the evidence, and is inconsistent with itself, inasmuch as the only evidence of Martin Posey’s guilt was by the two accomplices, Wilson Kirkland and Caleb Kirkland, who were unworthy of belief, and were discredited by the jury, as to the guilt of the ac-cessaries.
    4. That under all the circumstances of the case, the verdict is unsatisfactory.
    Wardlaw, Bauskett and Carroll, for motion.
    
      Bonham,, Solicitor, contra.'
    INDICTMENT.
    1st Count. Martin Posey, 1st March, 1849, on Appling, his property, with pistol, committed minder, by wound on left side, below left nipple, agt. A. A. Elbert Posey and Francis Posey accessaries before the fact, agt. A. A.
    2. Martin Posey, on 1st March, 1849, on said slave, committed murder, with pistol, by wound on left side of neck, little below head, agt. A. A. — Elbert and Francis Posey being accessaries béfore the fact, contra formam stat. &c.
    3. Martin Posey, on 1st March, committed said murder, with pistol, by wound on left side, little below left nipple, contra stat. &c. — Elbert and Francis Posey being accessa-ries before the fact, agt. peace &c., and not contra formam stat.
    4. Martin Posey, principal, with pistol, by wound on left side of neck, a little below the head, contra stat. &c. — Elbert and Francis Posey being accessaries before the fact. agt. peace &c., (and not contra formam stat.. <fcc.)
    EVIDENCE POR THE STATE.
    1. Allen B. Addison, coroner:
    
    On 6th April, 1849, in Edgefield, near Lexington line, on waters of McTier creek, held inquest over the body of a negro. Did not observe the wounds, the body being in such a state — head was separated from the body entirely. Martin and Francis Posey were not, but Elbert Posey was, at the inquest. The branch was Bogg branch. We first approached a swamp, about 150 yards wide, and then an open place where two branches were formed, and walking to the point where they come together nearly, we found the body.
    
      Cross-examined: I issued warrants on information of Gabriel Holmes, agt. Elbert and Francis Posey, the week before the term of the Court.
    2. Luke Lott:
    
    Was at the said inquest after they had begun, and turned over the body. Saw a hole through the rib, as if good sized ball had passed through; left side, I think, 1-2 or 2-3 of the rib seemed to be broke or shivered. I did not see any ball. Head was off when I saw it; I believe the body to have been App’s.
    
      Cross-examined: The rib was attached to the carcass; hole in rib nearer the back bone. I was sworn on inquest, and gave reasons then for belief that it was App’s body, and have no other reasons particularly, except that I had often seen him. I knew he had a sore leg, and one of the legs I saw had a knot on the bone ; saw his leg sore the day he was sold. It was the right leg, 1 think, and believe I so said at the inquest. I am pretty certain it was the right leg that had the knot. One reason I thought it was App’s body, was from information I obtained about the cloths he wore off, and the sore leg was another main reason.
    3. Wilson L. Coleman;
    Was at said inquest. I saw a ball; it fell out, 1 think, in turning over the body, and was picked up by Mr. Mims. Judging from the hole in the rib, I should suppose the direction of the ball to be rather below the place of the heart; through the rib the hole seemed not angular, but square ; rib seemed 2-3d’s shot through ; can’t say on which side of the body the rib was. I think that rib was separated from the vertebra ; hole was nearer to one end than the other, but can’t say which.
    ¡xj. Such a wound as I observed, I should conjecture would produce death ; but 1 am not scientific on that subject; I supposed the wound to be by a ball.
    4. Doctor Addison:
    
    Am physician — think a ball passing perpendicularly through any one of the middle ribs and the body, would generally produce death.
    6. Allen B. Addison, (recalled.)
    ¡xj. I took down the testimony, and wrote sitting in the sun, on the ground; sick at stomach. Luke Lott was examined towards the last, and I took down only what was deemed important, and may have omitted a good deal. (Witness uses his notes of Lott’s testimony as memorandum.) My impression is, all who spoke of it said the sore was on the left leg.
    6. Cullen Rhodes
    
    
      ; I was at the inquest. I think it was over App. I think I identified him by the sore leg; knot on bone; nothing else, except the bone was wrapped up with rag and string, in the manner he wore it often. I still think it was App. Martin Posey got App from squire Holmes’s estate. App belonged to Martin Posey. I did not know before he had any knot on the bone,
    (Solicitor offers' the indictment and verdict in the case of the State v. Martin Posey; held not competent.)
    
    
      7. Wilson Kirkland.
    
    Martin Posey told me he killed App. Inquest over Mrs. Posey was about 26 February, ’49. App ran away on Saturday night, before the inquest on Monday. I saw him on Wednesday night, next after he ran away, near my father’s, last day of February, I think. That day I left M. P’s. after breakfast, was at fathei’s and other places, and was on Edisto. I and father went down towards Ergle’s bridge; I did not go to the bridge. We went to see about App. When I came back from bridge, I and father went to Francis Posey’s, at night, and I conversed with Elbert Posey in presence of my father. I told Elbert, App was not at the bridge. He said he had seen him that evening, and had tried to get Franklin to kill him, and Franklin’s heart failed him, and he would not. He said App came to the field where his father’s hands were at work, (so his father told him,) and then he, (Elbert) went to Martin Posey’s, and he and Martin Posey agreed to fix Franklin up with weapons to kill App; that Martin went to Alfred Hatcher’s and got some pistols of Elbert’s I had borrowed for him, and they fixed Franklin up with the pistols, and he came on with him to shew him where App was, and when he came in sight of the negro, probably, he stopped, and sent Franklin on; and when Franklin went to App they had a chat, walked round one another, and he thought he had better get away from there, and started home. He thought they might take a notion to kill him with the weapons. When he got off some 3 or 400 yards, probably, he heard the report of a gun in the direction of the negro. He then broke and ran back, to see if Franklin had killed App, and when he got within 70 or .100 yards, saw Franklin, and asked him if all was right, and Franklin said, “ yes.” App then raised up from behind a tree and bursted out in a laugh. Franklin then beckoned him to come to him. He motioned his hand to Franklin not to come to him; when he, (Elbert) broke and ran home. He then tried to get a negro, Phil, to go and try to get the pistols, and the negro was, probably, afraid to go to them. (This conversation was near a well in the field, at old Francis Posey’s.) Francis Posey was not present. I and father started homeward, and had some fear the negroes might kill us, and we changed our course to his house to avoid them. In an hour or two App halloed ; I went out and talked to him. That night I denied him fire and water, and told him he must get fire in the woods, and next morning, a while before day, I would show him a path to the head of Bog branch ; an out of the way place, where they probably would not catch him. I did go next morning, and showed him the way; returned to Francis Posey’s and told Elbert what I had done. I and he then went to Martin’s, and I told Martin I had seen App; he said, I think, he would rather than $50, I had killed him. I said I could not do that, the negro had done nothing for me to kill him, and I conld not jt> j think Elbert said to Martin, he was the one to ' kill him, if any one did, for it would be to screen him, and he was t].ie one t0 ¿|0 ¡t himself, He said he would. I went out and met old Francis, just inside the gate; he asked where Martin was. I said in the house. “Is he drinking?” I said he was. He said, “ Wilson, it naturally makes my heart sink, to see the distress that poorcreature, (Martin) has fetched himself to” — began to cry and walked out of the gate. I went in the house, picked up my gun, and followed him, intending to talk to him. I overtook him beyond the mill, walked with him a mile. We were talking about App, and I told him I and Elbert had told Martin where he was, and Martin said he would go and kill him that morning. He then told me about App coming to his field, as before related, and he said he gave him something to eat from the house, and he wished he conld be put out of the way, for if he was caught he would ruin all of them, or would ruin Martin. 1 said if I had a mind to do such a thing, I could have put him out of the way. He said, “ Wilson, if you see him any more, for God’s sake do it; I’m too old to do such a thing.” I said I could not, and I think I told him not to interfere with the negro, for he could not help what Martin had done; and not to get himself in difficulty. I then turned and went back to Martin’s. Martin wanted me to go with him to kill App, and I would not. Francis Posey asked me, I think — “do you think Martin’s heart will fail him?” and I said no. He appeared to think, as I supposed, Martin’s heart would fail him. Martin started off, and when he returned he said he had killed the negro. He said, soon after he had got off his horse : “ Well, I have often heard it said, that if any one done murder, he would never feel satisfied, (or feel right,) but now I know it’s not so, for now I feel better than before, (or feel relieved.”) I said, “if you have killed the negro, you need not tell me of it.” He said he shot him with pistols; shot them both, (I saw the pistols in his possession that morning.) Said, first he had tied the negro and started with him, and the negro started from him, and he shot him. — At another time, he said he shot him twice; once through the body, and when he saw him gasp, he then shot him through the jaws, or neck. Said he had done this at the head of Bog branch. He had a saddle blanket with him that I had given to App that morning, (it was somewhat cold.) I had been overseeing for Martin Posey ; went there about the first of October.
    
      Question. — Did you have any conversation with Martin Posey about his wife, at that time ? and what was it ? Solicitor announces the object to be, to shew the motive to kill App, Objected to for prisoners. It is enquiring as to a distinct lel-ony, as it , is designed to shew that Martin Posey killed his wife. Question varied by Solicitor.
    
      Martin Posey told me, before and after his wife’s death, that he procured App to put his wife out of the way, and that he had killed App to keep him from telling of it. Before his wife was killed, he told me that App told him he could put her out of the way, and he told him to do so; and after her death and the negro’s, he said he had killed him to keep him from telling. We talked about it several times. I went to Martin Posey’s in ’48, October.
    (The above question again repeated, with the additional motives assigned, that the object is to prove circumstances to be supported by others going to establish the credibility of the witness. Question ruled incompetent.)
    
    Mrs. Posey did not appear after Friday. On that day I had gone to Aiken. I conversed that morning with Martin, and he said, it would not surprise me if Tilda is not living till night* I said 1 could not help that. He said he was going to the school house ; he was a little soberer than usual, and would go to the school house and see how the new teacher come on. I then left him, and went on to Aiken.— I staid at Aiken till about sun-set;. went to Alfred Hatcher’s and about nine o’clock went to my father’s, and staid there till near day. The day I went to Aiken, I asked Martin how the negroes was coming on, and he said he had put Luke to hauling, and he had something else for App to do. App had formerly driven the wagon. On Saturday morning, 17th February, at breakfast, one of the children spoke of a fire near the field, and I said, I wonder if there can be any fire there. He said, I suppose it is App, I told him to burn a coal kiln. A few days before, App had been driving the wagon, .but was complaining, and ceased to drive. App had a sore leg, large, and looked bad. Eliza Posey left Martin’s some days before his wife disappeared ; she had been living there before that. John Shaw was there. A dispute occurred between Mrs. Posey and Martin, the morning Shaw commenced the chimney, at breakfast. Mrs. P. said she had caught him the night before with her sister, and had looked at them as long as she wanted. He said, if-so, his tracks were there, and they went out to look, and when they came back, she still affirmed she had seen him, though the tracks did not fit. He told me he had made Franklin go and put out his, and make his own tracks. Eliza came back on Tuesday, after Mrs. Posey disappeared. He said Eliza had sent for him, and had sent a letter, which I saw, and he read to me. Said Eliza had wrote to him to come after her, that was as good a time as he would ever get; and she would
    * Mr. Wardlaw observes, that if this testimony (underscored) is meant to operate to sustain the witness before he is assailed, he objects. Solicitor says, he wishes to establish the fact, that prisoner really had the motive imputed to kill App — nothing ruled, and the witness proceeds. wait no longer. On Tuesday morning he said he would go and see her; wanted me to go with him. I went as far as old man Posey’s, and got my father to go. Martin, I think, said, he had sent on Saturday to Gabriel Holmes’s, to en-quire about his wife. Heard, afterwards, Eliza crying: went to the wall to hear. She said she did not believe he would be the friend he promised ; she had destroyed her peace for his sake. He said he would take care of her as he promised. He plagued her about her crying, when eating. She said, if you don’t mind I’ll tell all I know. He said, tell and be damn’d; if you do you will tell as much on yourself as any body else, for you first begun it. I’ have seen them in the same room. Boatwright’s Jeff was there before I went.— Martin Posey said he brought him there to doctor some of his negroes, and hired him to work also — found out Jeff professed to be a sort of conjuror, and thought he could conjure his wife’s life away. I told him he could not. He said App said, if Jeff was away he could ; and next morning, at Po-sey’s instance, I carried Jeff home. I was telling Posey how App said he had killed his wife, and he said App had told him the same thing — that is. (as App said to me,) arid I had repeated to Posey. On Friday evening he sent a couple of little negroes from the spring, to go and tell their mistress the spring house door was broken open. When she came, he said to her, you have often accused master Martin with having to do with others, and if you will go with me I will show you the fact. She started, but stopped, and said she knew he wanted to kill her — that he wanted to have to do with her, and she said she would have him hung. He said you might, or might not; that he threw her into the edge of the mill-pond and drowned her, and Louisa and Franklin helped him to bury her, at night. Soon before I was arrested, I had a conversation with Elbert Posey. He said, (talking of the killing of Mrs. Posey,) and the negro, if Martin was taken up, he would be hanged, and wanted me to take him and Eliza off; offered me money to do so. I declined. He asked me if I would travel with him; I said I would if they were not along. He said he had about $350 ; the idea was, they were to travel by Rail Road, &c. Heard Martin say he intended to marry Eliza about the 1st of June, and go away — this was after Elbert made the offer. It was said Martin was deranged about the time of this offer.
    M. I was Posey’s overseer; several times I brought liquor there, and hid it out. Mrs. Posey was opposed to this, and complained to Martin of it at one time, perhaps two or three weeks before her death. Once, at the mill, App came to me, and complained that his misttess would not give him enough to eat; and he stated his master had promised to send him away, if he would put his wife out of the way, and he feared he would not. I said to him, if he would put his mistress out of the way, I would cany him away if his master did not. Martin P. was generally drinking. Negroes frequently complained to me of want of enough to eat. I was friendly, but not too much so, with Eliza. Martin’s supposed derangement was not long before I was brought to jail — a few days. He appeared that way, I suppose, till 1 was brought to prison. When I came to Hatcher’s from Aiken, I said I wanted 1-2 gallon of whiskey, to carry to my fathers, to meet Blewit Jones. On Saturday morning had some conversation with Ben Hatcher, sen. but don’t remember he said I looked as if I had been after some rascality the night before. I left Hatcher’s about 9 o’clock on Friday night, went by Martin Posey’s, and returned there about day on Saturday ; went towards the coal kiln, by the Edgefield'road, within twenty steps of it; thought I had better get away, for from what I heard before, if Mrs. Posey had been destroyed, (as I expected,) her body was there. Martin said Gabriel Holmes was there the day before, at dinner, and he supposed she had gone home with him; and Shaw said the same thing. I did not mention my suspicions to Posey, nor when he told me afterwards he had sent after her to Holmes’s. Never told him I went to the fire. On Sunday morning, before Mrs. P’s. body was disinterred, I told Martin P. Franklin had informed me that App had destroyed Mrs. Matilda; don’t remember I stated where she was buried. On Sunday I went to Alfred Hatcher’s, and found Ben Hatcher there. Ben H. asked me if any discovery had been made, and I told him no, we had not found her. It was a plot between Martin and me that 1 should not tell we had found out any thing about it, and he was to tell the people who came to hunt, that I was gone before the negroes had told him about App’s confession. I did not want to be on the jury of inquest, and something about it passed between me and Martin. Rans-ford was coroner over Mrs. Posey’s body, and took down the testimony, I told him something about Franklin’s coming to me, which was true, he did so tell me ; but it was a made up affair; but this I did not tell the inquest. I was afraid to tell all I knew ; suppose I was sworn to tell the whole truth, and was asked to do so. I was afraid, because it was as easy to kill me and burn a coal kiln as over Mrs. Posey.- (At this point, the foreman of the jury being sick, and so reported by his physician, the Court was about to order the record to be withdrawn from the jury, when, on the part of the prisoners, and in their presence, it was proposed, and assented to by the Solicitor, that in the place of the juror so sick, one, to be named by the prisoners, of those challenged, should be substituted, and the evidence read to him — Amon Lindsay was accordingly presented, and accepted and appointed foreman. The juryman having said that he had heard all the testimony offered, except a part of Kirkland’s, it is agreed that the testimony of that witness, so far as it has been given, sha[| ^ read to him from my notes.)
    
      Kirkland continued. — Don’t remember Franklin told me, on Sunday morning, where Mrs. Posey was buried, nor whether I said this the other day. (Witness repeats what he told the inquest — the story of Franklin, and that he told Posey what Franklin had said.) I searched the negro houses after Franklin’s communication. 1 did not expect to find App, for it was a made up affair. It was not made up between me and Martin that Franklin should come to me at first, as he did. When I told him, (Posey,) it was then made up that App should run away, and Franklin should come again and tell me, (as before,) and that I should not tell this, Franklin did come a second time. Franklin first came to me that night. I think I told the inquest I had not seen App since Saturday night, about dark, and that was true, for 1 did not see him again that night. Franklin was examined before the inquest, and denied he told me what he did, and I went back before the inquest to correct him in this. I told the jury I had threatened Franklin if he told it, as 1 did not wish the other negroes to know it, lest App should get hold of it and escape. I don’t remember I ever said to any body, soon before Mrs. Posey’s death, that I expected shortly to own a sett of mills, 20 negroes, &c. or to that effect; never that I remember — I don’t know what I may have said. 1 may have said my wife would have a buggy to ride in ; may have said I expected to be rich. Don’t remember I ever told Mrs. Posey I expected some one to kill her. I carried Jeff home about two weeks before Mrs. P. disappeared. I am not a conjuror; may have said to some people, 1 could do some things. Martin has said to me he thought I had the powers Jeff had; and I may have said I could do all Jeff could, for I thought he could not conjure any one’s life away — I may have professed to others the powers of conjuration. Martin Posey has said to me, he may as well tell me, for he knew I knew it any how. I remember being with Rhodes once, at a fire, but I don’t remember the conversation with him. I expect I have said to Rhodes, that I knew nothing about the death of Mrs. Posey. Don’t remember any thing said to him about going to Lexington with a gun to be repaired, as likely to make people say I was guilty of killing Mrs. Posey. Mrs. Posey was several times searched for; I knew all the time where App told me she was, and did not put any one on the true trail. I did not help to bury her. In going from Hatcher’s to my father’s, on Friday night, I exchanged horses, at Martin P’s. for I had ridden fast. Don’t know which of App’s legs was sore; he limped a little ; lay up with it a few days before Mrs. Posey’s death. I did not hear soon enough of the inquest over App, to appear there; got as far as my father’s and he said it would be over before I could get there. 1 can’t state all the places I was at between inquest over Mrs. Posey, and the day Martin Posey went to kill App. On the night of the inquest, on Monday, I was at Martin Posey’s.— On Tuesday evening, I was at Alfred Hatcher’s ; at night, probably, I was at Martin’s. On Wednesday night I was at my father’s-, except a little while at old Mr. Posey’s, though I did not go into the house.. Martin Posey started some time after breaklast to kill App. I saw the pistols first, about the time he started ; I had borrowed, but not bought them ; had them perhaps from October; never agreed to buy them. I I think the}*- were empty on Thursday morning, or one of them ; think balls were there fitting them. I put powder in one of them on Thursday morning. Before day on Thursday morning, App rode behind me towards Bog branch, on Posey’s horse, (John,) that dragged his feet. May, that morning, have said to, Elbert Posey, or some one, to tell my father to ride on the line of the horse’s tracks, to put them out.— Elbert said he was going that morning to Martin’s, and went with me. App, on Thursday morning, wanted me to carry him ofF, which I refused, but I promised him to send his master to him, who might carry him off if he pleased. App feared, he said, they would hunt him with dogs. I did show Martin Posey the way to Bog branch ; I have said a good deal to the Poseys to induce them to think I would not betray them, fearing if they got in a close place, they would get me into a priminary. I can’t say what all I may have said. I suppose I was arrested before Martin Posey ; can’t say exactly whether for both murders. I expect to be benefittedby my testimony, as I am put up here to tell the truth. I don’t know what they are going to do with me; have some reasons to think I may escape conviction.
    HK (Do you expect any other benefit than that arising from telling the whole truth 1 Objected to as a leading question. Held competent.)
    
    1 know of no other benefit than that of telling the truth ; expect it to be a benefit to me here and hereafter. I think it was before Elbert offered me money to take Martin and Eliza off, that Martin told me he intended to marry Eliza. On Wednesday evening I was to meet Elbert at the bars of his father’s plantation, to know whether I had seen App at the bridge. He did not come, and that was the reason 1 and my father went to Francis Posey’s; there was no arrangement to meet that night at Francis Posey’s. When I told App I would take him off if his master did not, I did not think he would kill the woman ; did not think he would do it at all. Luke Lott arrested me.
    
      8. Elizabeth Kirkland:
    
    Saw Elbert Posey on Saturday evening, after Mrs. Posey was missing; he said, Martin has lost his wife. I asked how. He said, I don’t know, I expect she has gone off and hung herself. My daughter said, no, Elbert, if she has been destroyed, some one else has done it. He said, any how, she has gone. I said, well, I reckon she has not gone so far but what she will come back. He said, true, she is gone, and where she will never come back. 1 followed him out in the yard, when he was about to go ; I said, Elbert, do you think any of the black ones on the place would destroy the woman 7 He said yes, I think there are, about four. I said, which? He named them- — Jake, Franklin, App and Julia, either of them would not be too good to destroy her; and now Martin is certain to be taken up about it. Old Posey said, (as to Wilson’s confessions in jail,) he did not know what Wilson was after, talking in that way, but he’d be bound they would never get any thing out of him. Wilson, my son, came to my house the night Mrs. Posey disappeared, perhaps between 10 and 11 o’clock ; left there about cock-crow ; I set up till he went off. I expected others there that night, Joseph Mims and Blewit Jones.
    H. Elbert Posey appeared concerned about the disappearance of Mrs. Posey; it was that way he talked.
    9. Blewit Jones :
    
    I was to meet Wilson Kirkland on Friday night, at his father’s. I and my uncle, Mims, were to be there in relation to a trial, to take place next day, at Samuel Posey’s. He was to come and bring some spirits. I attended the trial; we were to stay there that night; my uncle did not come, and I did not go. 1 was at Alfred Hatch-er’s the day Kirkland was arrested ; there on the same trial; Samuel Posey was trying the case. Going with Elbert Po-sey from Hatcher’s to his father’s, he wanted me to go away with Martin, and said he was beside himself, and was not willing to go with any person but Wilson Kirkland, and would not know me from Wilson ; that he was going away. I said they had arrested Kirkland, and asked what was to become of him if Martin went away. He said his brother would make a confession sufficient to clear Kirkland. When we got to Francis Posey’s, Martin being there, after supper Elbert said to Martin, Jones has comeaud will go away with you, and you must make a confession to him, to clear Kirkland. Martin answered yes, or well, which was all he said. He, (M. P.) appeared in his right mind. Elbert said squiie Johnson was sent for to be there that night to marry Martin and Eliza.
    K I fix the particular Friday night I was to meet Wilson Kirkland. Martin did not, then, appear to be drunk. I was taken up about the death of App; Wilson Kirkland is my cousin.
    
      M W- The night I was to meet Kirkland, was that of the day when it was said Mrs. P. disappeared. t
    10. Hinchey Winn:
    
    I was one that arrested Martin and Eliza Posey. I saw, first, Francis Posey, and asked where his son was ; he said he did not know, might be there, he had been to church. It was about 9 at night. He was without hat, in shirt sleeves; same thing, perhaps, passed two or three times. Elbert Posey was asked where his brother Martin was ; answered, he did not know, might be there.-— The old lady gave me no satisfaction, and I sat by a young lady, and persuaded her to answer, the old man being near, and she told me where Martin was. I demanded keys of the old man; he said he had none. We went up stairs and ransacked some rooms; came to one, door shut; called Martin; got no answer; old lady consented we might stand in the yard and talk to Martin, which we did ; some of us ; I went to the head of the steps. I again went out in the yard, and I asked Martin why he was concealing himself; he was not afraid of us. He asked me who I was; I told him. I went back to head of steps with light; called him and told him to open the door, that I wished to see him. He said I could not. I threatened to knock it down. He said, if so, I must do it at my own risk. I said I would, and if he was going to shoot, he must prepare to do it, and if he had a weapon in his hand I would blow his brains put. He then opened the door, and Mr. White arrested them. I saw Eliza sitting in the room ; I asked old Mr. Posey for a couple of horses for them to ride; he said he had none. I asked Elbert, and he said there were no horses there. I insisted upon one at least, for the girl; and Elbert went and brought a mule, poor and on three legs. Old Posey, I think, is a man of good property. Old P. wanted to know who would pay the expenses of those horses, at the village ; I replied he would have to do it himself. When we were about to start, Elbert said to Martin, we could fool him (Martin) with our bailing, but they could not fool him, (Elbert.) I spoke to Martin as to something said by Kirkland here, not stated; he said Kirkland knew nothing about it. Martin produced a horse he called his.
    11. Virgil White:
    
    I was with Winn. When we went up, Elbert said, walk in, gentlemen. I asked for Martin ; he said he did not know where he was ; I again asked Elbert, and he deuied his being there. I told him I had found out where he was, and I intended to see him. He said, to tell you the truth, he is here, but you can’t see him to-night. Since that time, on return dajr, Elbert said he wished they would arrest him on a warrant. When Martin came down, he said tome, you have not got the right person. I asked him who he was; he said, Gabriel Holmes was the last man seen with my wife. H
    
      12. Caleb Kirkland:
    
    I was at home part of the 1st March. Martin Posey that day about 11, and he said he was on P111’1811*1 lhe negro App, and asked me if I would not go . j t0]¿ him I was very busy; he pressed, and at last I agreed. I asked who else was going; he said the crowd were gone on. So we went to my house; my wife asked where we were going; he said he was going after App; had heard of him ; she asked him to stay to dinner, he declined, said the company would leave. She asked, how will you catch him, you have no dogs. He said, I have a negro better than all the dogs; he hurried me, and I saddled and we put off. In going, we conversed about the negro; he said, when I asked where’s the crowd, they are on ahead.— When we got t’other side of Mims’s mill, I said, where will we meet the crowd ? He said, 1 am only going after the negro, there is nobody along, and I tell you 1 am obliged to kill him. I said, what for; and he answered, he must not talk ; I am forced to do it, for it will hang about three or four of our other (or best negroes;) his father said he must do it. I said, how are you going to kill him; he opened his bosom and showed me the weapons. I said, then I can’t go any further, you are going to kill the negro. He said, by God, he would ! he was going on ; he would kill him. I said, if you are determined on killing him, go and do it, I would not.— He said, by God..he would, and put off; and soon I heard two pistols; I did not go to see, for fear I might be shot down. This was at the head of Bog branch; I was three or four hundred yards off. He overtook me, and said be had killed the damn’d negro, and felt better satisfied since, than he had ever done before. I said I would not. He said he would then marry the girl, and go to California, and that would stop all their mouths. That morning I saw the old man Posey, who came to my field where I was ploughing, and insisted for me to ride that day with Martin, without saying for what. Night before I was at old Posey’s ; had some invitation to go there. Old man and Elbert were standing in the lane talking ; I went to them, and said ; what’s the fraction ? or what’s to pay now? Elbert said they had got Fiauklin out with the weapon to kill App. I said, that’s something; old man said one brother in rascality could not kill another, but he would have to be killed, for he must not be heard to talk, for he had talked too much already. I said, it’s a terrible affair. He said it was. I said, this beats any thing I have ever known. Elbert had left directly as I walked up, and did not hear what the old man said. I left and went to where he,and my son were • they were talking about the killing of App, and Franklin’s having the weapons. EL bert said, he had to run as hard for his life, as he ever did in his life, after the attempt was made to kill the negro and failed. 1 said, it is a terrible affair. He will have to suffer who gave the weapons to the negro, and said to my son, let’s go home ; and 1 went home, taking the thicket home, fearing the negroes would kill us. I heard Elbert say that no man could catch a negro they had, (or had any thing to do with,) with their dogs. This was said when they were hunting App with their dogs.
    H- I observed a conversation once between Martin and his wife, and he came out and said, by God, the negroes would kill her, it did not make any odds how soon. Said he had promised Eliza to take care of her, and he intended to marry her as soon as the opportunity of things would permit.
    MK I was at inquest over body of Mrs. Posey. I did not tell the conversation I had with Martin about the negro having killed her, for I did not then know the fact, and old Po-sey’s family and mine were friendly. Never saw App after inquest; I saw him a few days after the murder of Mrs. Po-sey ; never saw him after, to know him certainly. Saw a negro near my house after night; heard him hail my son ; I was afraid to give information to a magistrate, but told my family same day I left Martin Posey — told my wife and daughter. I sent for Gabriel Holmes and Holsenback, but they did not come, and asked others, but could not get advice. Martin Posey told me on the way back, that the negro had killed his wife, and he had killed the negro; (had shot him,) and now he would marry the gal, go to California, and that would stop all their God damn’d mouths.— Heard two reports of fire arms, in tolerable quck succession. I did not know Wilson Kirkland had taken the negro there, nor that he wanted me to go on his tracks, to obliterate them. I was not at the inquest over App; was not cited, and was busy. Wilson came to me in the new ground, between two and three, saying he was going to inquest; and I said I thought he was too late. From nine to ten miles, about, from Martin Posey’s to head of Bog branch; from three to four miles from his house to mine; from my house to Bog branch, by the road, seven or eight miles. On the Wednesday night I was at old Posey’s, I was there perhaps half an hour; Wilson K. and Elhert were at the well, and I did not, that night, .tell any body to tell Franklin to come to me. I did, that night, fear I would be killed by some of the Poseys, or their negroes. Next day Martin said a company had gone on, and so I did not so much fear being killed that day; but I would have feared it then, if he had told meat first he was going to kill the negro. I think the sun was shining on Thursday. The moon did not shine on Wednesday night before, but I think the stars gave some light; not cloudy, I think. I am not a conjuror; some things I can do by “ using” for it: that is, as to things that may come on a horse or man, without medicine; I use words, and by rubbing and washing with water, sometimes — words I use as you rub it 'down, aie, “ in the name of the Father, Sou, and Holy Ghost, amen !” This I do in curing fistula, and the same in curing the head-ache. I rub the horse all over. I believe in the efficacy of the remedy, and can prove it on the place. I never doctored Mrs. Posey; never cured her head-ache by putting silver between her toes; never used any witchery or conjuration about F. Posey’s hogs, nor employed any “using”- — nothing ever occurred about silver, or a fire in a ring. I never said Mrs. Posey was bewitched; don’t remember I ever “ used,” for Mrs. Posey’s héad-ache, or any thing else. I never got any thing from Martin for Mrs. Posey, nor from Fiancis, for “ using” for his hogs. I never taught App, and never spoke five minutes with Jeff. Have taught W ilson to use for fistula, grubs, sweeny on horses, and big neck on people. I can cure and help them all. 1 can’t foretell events ; 1 did not foretell how long Jackson Holmes would be imprisoned, &c. in Barnwell. The day-of the inquest on App, was the first day 1 heard his body was found. Before we got to Giles Mims’s mill, Martin said App had killed his wife, and he wished he could come across him ; thought he was in Lexington ; said he would arrest him. We had some talk also about their having been out before to kill him.. He told me he meant to kill App after we passed Mims’s mill. We crossed a branch through, two of them, between Mims’s mill and Bog branch ; don’t know whether we got down at either; I did not charge the pistols or either, at either of the branches, or elsewhere; never heard my son say he had bought them; knew he had borrowed them; Elbert and my son both told me so. My son said to Elbert, he would like to borrow them awhile, arid Elbert said, you can get them in my trunk. At the arrest of Martin and Eliza, I was at old Posey’s ; don’t know whether he was in the house when they got there, but he went in after and passed me. I can’t read or Write.
    13. Henry Raines:
    
    I hunted for App three or four days after inquest over Mrs. Posey, and began the day before inquest; neither of prisoners aided me. Saw Elbert Posey during search at Martin Posey’s mills, but we did not speak ; others were there, for half an hour; he spoke to the constable, did not offer to hunt with us.
    H The day I saw Elbert, was on the day, I think, aeon-stable was there to take up other negroes.
    14. Robej't J Butler:
    
    I was at Martin Posey’s two or three weeks after Mrs. Posey-was found; with my dogs, hunting for App, asked Posey to assist. He said he was afraid to leave Eliza, and she was afraid to stay alone; declined to go. Some one proposed to go and hunt on Edisto river. Martin said, he is not there, Pll be damn’d if I have not as good a right to know where he is, as any body else: he is no where else but on an island about Augusta. Some one said Boatwright’s negro had run away ; Martin Posey said he might be there, or on the island, and if he would hunt at either of those places, he would go. I said I did not think he was on the island. He said my dogs could not run his negro; I said they could, if he was on the earth, and would make a track. He offered to bet $ 1,000. I offered to bet the last dollar I had if he would place him where I could get on trail. He said he reckoned he had the worst luck of any man. “My wife was all swelled up last year; I have lost two negroes, (naming a boy dead,) and App is dead, or as good as deadand pointing to Eliza, said, “Eliza is all swelled up now.” I was at the grave where Mrs. Posey was buried ; Martin was with me, aud invited me along the edge of the pond, till we came to the place of burial. I spoke of going by a pine; he suggested we should go back as we came, but we went by the pine, and he came dogging along behind. I hunted that day, or part of the next, and meeting with Coleman, and still unsatisfied, we went again to the place of burial, aud in going we found a weeding-hoe, leaning against a stump on the side next the house; 1 took it to the house, showed it to Posey, and he said he thought it his hoe. I suggested there was blood on it, and he said he thought there was. He suggested on a third occasion, that we should remount at the woods aud go round a new road towards the grave, and not through the woods, being the third time he suggested we should not go straight through the woods. Elbert Posey once declined to go with us, on the ground that he was busy.
    15. Tillman Kirkland:
    
    I am brother to Wilson Kirkland. Elbert Posey, in May or June, I think, said he wanted Wilson Kirkland bailed out, and to go away till after Court; and “1 want you to give security that aint worth the bond.” 1 told him 1 could not do it, that he could not. — He came to me again, and said he had employed Mr. Brooks to bail Wilson, or try, and on that day wanted me to come up here on the matter. Elbert said he would pay the expense.
    jxj. Two or three weeks between the two conversations ; said he or his brother Sam, or both, had employed Mr. Brooks.
    16. Alfred Hatcher:
    
    After the frost in April, Elbert Posey said he wanted me to come up here and get Wilson out; with a little money he could be got out, aud he had $40; said if we could get him bailed, he could get some of his friends in Lexington of no acebunt, to stand, and get Wilson out of the way, and forfeit the bond. — When Mrs. Matilda was sick last year, in hot weather, in summer I think, Elbert Posey said, when I asked him how she was, she was 
      “ pretty sick; and God damn her, I wish She ivas dead;” anq j think he added, “ and in hell.” I asked why; he said she and Martin can’t live together, and he wished she was dead. Martin once told me he had whipped her a little, but said he was sorry fo.r it, and never intended to whip her any more. Martin got pistols at my house on Wednesday after his wife was found. He came to me for the pistols, and I said I knew nothing about them; if any were there my wife or Kirkland’s knew ; he went where they were, and came out with them — large horseman’s pistols.
    ¡x<. Asked me whether Wilson Kirkland did not have some pistols there; knowing nothing about them, I referred him to my wife and Kirkland’s. Kirkland said, on the Fiiday Mrs. P. disappeared, at night, he was going to his father’s to meet Jones and Mims, and wanted whiskey for them ; came next day, took a dram, and went to bed; slept, good, part of the day. One night, can’t say what one, Wilson Kirkland sent a jug full of liquor by App to Martin Posey ; I think, but am not certain, that was after Mrs. P. disappeared. On Saturday morning Ben Hatcher said to Wilson, you look like you had not slept last night; he said he had not; went arid got a dram and went to bed. Nigf¡t before, Wilson told Hatcher he did not expect to sleep that night; was going to his father’s to meet Jones.
    17. John M. Randall:
    
    Martin Posey told me, coming from Barnwell, last winter, squire Holmes came-to his house, and as they were going to McClendon’s, Holmes said, Martin, you would never have had Tilda if it had not been for her property ; he said to Holmes, you said she should never have any of your property, and if that is what you are upon, you may take her and go with her; I could have bettered myself, and could do it yet, and if I am the longest liver, I will leave your children a poor family.
    18. Gabriel Holmes:
    
    Lewis Holmes, my father, died November, ’47; I am administrator: estate sold for about $29,-000; 6 distributees. Matilda H. Posey was my sister; she left four children ; Eliza is another sister, is a widow since August, 1848. 1 knew App; he was sold about 1 Lth January, ’48; was at inquest over App, true name was Appling. Saw remains ; think they were App’s; he was from 28 to 30, I suppose. On 16th February, was at M. Posey’s; dined there with my sister and Shaw. I never saw her again till inquest over her; was at M. P’s. near every day after. He said he thought I knew where she was, and threatened to take me up, as I was there last at dinner. I was engaged in search for Mrs. Posey; when we went oti horseback, he rode next the grave, on the right; we were on the left.
    >xj. I was next to him; Rhodes was there. I was not drunk that day; I had drunk some. I said something about taking the two boys ; some debts owing to father’s estate.
    
      19. John Shaw:
    
    Was at M. P’s. at work; went on fth February ; Mrs. Posey disappeared 16th. Saw Frank Posey and Martin out 15th, in garden, talking about an hour; walking about in the garden. On the morning of the 8th, heard Mrs. P. say, old fellow;, (or young fellow,) 1 have caught you at last. A negro was sawing, I heard no more. Eliza was there then, not at breakfast; she went off that day. M. P’s. children and 1 eat breakfast; G. Holmes was there, on the 16th, Martin was at Rhodes’. Saw Mrs. P. last, about three, north comer of the house. I met Posey when I came down, going out of the door; I asked him where he had been ; he said he had just taken a snack; asked where Matilda was ; I said I saw her in the yard not long before. We walked in, and talked, and I asked him what he wanted; he said clean clothes; I said they would do in the morning. He said he had left Rhodes’s at four; I said it must be then half after. I asked him how he came. He said he came along by the creek. He asked me to take a drink, and we started to get it. Before we left the house, I saw App go out of the gate; we went to the jug. He said, some big-footed rascal has been here. I suggested App ; he went to mill and I to the house; he returned, took a seat, and said: 1 would give $10,000 (or 10,000 worlds) if Matilda was here. We have had some disputes, but damn a house without a woman. If she does not want to live with me I don’t want to live with her. — One sock was lying on the table, and he picked it up and said, here’s one done, I don’t know when I’ll get. the other. If App had returned along the road I saw him go before I reached the house, I must have seen him ; went after I finished my work back to M. Posey’s, after sale day, in March, and saw Eliza Posey there, in the room. I asked Posey if he was sick; he said no, he was just cooling off. Eliza was not fully dressed. I saw no negro man but App about the lot, on the 16th February, except Jake and two others, at work, with me.
    ¡xj. A girl was there bringing water. Franklin attended the mill. I told Martin Posey I thought Matilda might have gone home with Gabriel Holmes.
    20. Allen Smith :
    
    I was at M. Posey’s before the 16th February ; I met him and Kirkland going from mill to house, and I asked for some timber for a wagon body; we went back and he spoke of a fray at the house; that Tilda had rose on Eliza, and ran her off, and he had a saddle there, and was waiting for a cart to get a horse to go after her. He stipposed she had stopped at Gabriel Holmes’s. — He said he would as soon die as live, and in one week, or less, there would be hell to pay on that place.
    ¡x¡. Posey was drinking pretty smart.
    21. Cullen Rhodes, (recalled.)
    On morning Mrs. Posey’s body was found, I asked Posey if any thing was divulged; he said yes, App has confessed he had to do with her, and had drowned her, and buried her near the head of the spring branch. I asked if we should go to the grave. He said, let’s go and meet the company at Thomas’s old field. Posey, while we were going, said, if the damn’d rascal was caught, he expected he would bring as many into the scrape as he could. I had asked him at the house if he had App secured; he said no, he and Kirkland had hunted for him, and did not find him. I live 3 or 4 hundred yards from Posey’s; heard nothing before of the confession. Martin P. never proposed to hunt for App; (states distances of spring, mill, grave, &c.) I proposed to Posey to take up his negroes, and thought they could tell him something about his wife. He said, it was not worth while to be at that trouble and expense; he could extract from them by a stranger as much as if they were carried to jail. The neighborhood determined to hunt till the body was found. I met Kirkland on my way to Aiken, three miles from my house ; saw him in Aiken on the day Mrs. Posey disappeared; left him in Aiken; sun an hour high. Posey has often spoken of what he would be worth; $17,0000 in spite of hell, and probably $20,000. Heard this the first evening after her death, on Sunday morning.
    ¡x¡. Saw Gabriel Holmes that day; he was drinking ; spoke of taking the two youngest children home with him. He has no wife. Before the death of his wife, M. Posey spoke in same way as to what he would be worth. I was his surety, and was uneasy; saw W. Kirkland after App’s death, in March, about middle. He said he was going to cany a gun to Lexington, to be worked on, and he expected people would say he was going to run App oft. I told him public suspicion was strong against him and Posey, and if he had not run him, I hoped he would not. He said he had not and would not. That he knew nothing about Mrs. Posey’s death.
    i*j . M. Posey not in the habit of visiting my house for a year; not since he began to drink.
    21. Samuel Nichols.
    
    Saw M. Posey, on the 16th February last, at my school house, near his house, about 11 o’clock; staid there till half after 12 ; went with me to Rhodes’;- did not eat dinner, said he had been to dinner.
    [xj, I began my school 22d January.
    ¡xj jx). Posey had not been there before, had three children at school.
    22. Milton Rhodes,
    
    Was at Cullen Rhodes’ on 16th February ; he told Mrs. Rhodes he had been at dinner. — He said to Mrs. R. he would rather than $500 he had such a wife as she was. Said he would be worth $17,000, and perhaps $20,000.
    M. He was drinking; had heard him say so before his rvife’s death; left him at Rhodes’ at 3 o’clock,
    
      2a Lem M. Churchill.
    
    Was at M. P’s on the 17th February last. Saw him come out of the negro house; after vain efforts to find him in the house, his daughter went to a negro house and he came out. A negro came out and leaned on a fence while we conversed.
    24. Daniel Holsenback.
    
    On 25th February, went with Martin Posey to grave, and he said the company ahead was going too far to the right. He pointed out the direction to squire Rhodes, which we pursued and reached the grave. His directions were right.
    25. Dr. Addison, (recalled)
    Was at inquest over Mrs. Posey; examined body, (describes wounds on head, shoulders, &c. ;) were sufficient to produce death.
    >*¡. Wounds Í thought were produced by a stick.
    26. Wm. M. Johnson.
    
    Question by Solicitor: Were you applied to by either of the prisoners at the bar, to marry Martin and Eliza Posey ?- Objected for prisoner, as having no connection with the issue. Solicitor. — May be important as shewing preparation to quit the country. — Held not competent.)
    
    EVIDENCE FOR THE DEFENCE.
    Prisoners offer warrant against Wilson Kirkland, 6th April, ’49, on information of G. Holmes, charged with aiding or abetting or knowing to the murder of Matilda Posey; also warrant against same, 22d June, 1849, on same information, charging him with counselling and advising her murder, and that he was present at the fact.
    Warrant 22d June, ’49, charging W. Kirkland, on same information, with counselling and advising, and being present at the murder of App.
    Warrant against Elbert and Francis Posey in this case, was issued 27th Sept., 1849.
    Warrant against Martin in this case, was of same date.
    Warrant against Martin for the murder of his wife, was on the 7th April, 1849, on information of G. Holmes, same form as against W. Kirkland.
    
      27.Marshall Posey.
    
    Know Wilson Kirkland ; knew Mrs. Posey and Martin and Caleb Kirkland. Seven years ago Mrs. Posey was sick with head ache; Martin went for Caleb Kirkland, who came, and professed to be a witch doctor. He took several bits of money of Martin, put it between his feet, took it in his hands, and rubbed it, and then rubbed with his hands her head, which got easy; but she said she did not know whether it was from fright. He put the money in his pocket, told me and Martin Wm. Rowe had give her the headache. Sunday after Mrs. Posey was missing, I went to Martin’s to see if she was gone, and met W. K. at the gate, and saw him and App at the carriage-house talking; that is, on Sunday evening. They were alone; did not hear what was said. Saw them day before at Alfred Hatcher’s, and W. K. gave App two half gallons of liquor.
    M. Martin Posey told me he would give me f1,000 if I would get Polly Rowe to ride Gabriel Holmes to death — she was supposed to be a witch.
    28. William Grice:
    
    Was at Alfred Hatcher’s on Saturday, 17th February; saw Wilson Kirkland and App together there in a room where liquor was kept; saw him give App two jugs liquor there.
    ÍH- I think Daniel Holsenback was there; I am bound over for the State. I had heard from squire Rhodes that Mi-chell had come down with a couple of pistols to take the Shaw’s creek boys, dead or alive; I believed it, and I saw one pistol in his possession. I told him I was already bound over in two cases, and would have to be here any how. I did not object to be bound over, but said I had no horse, and would not walk to the village.
    29. James Ransford:
    
    Am magistrate; held inquest over Mrs. Posey. W. Kirkland was sworn there, in form of Act of ’39 ; don’t remember any special charge to him ; think he was requested to state all he knew about the matter in hand. 1 repeatedly invited all information. Think I was rather precise in the examination. Nothing induced me to be particularly so as to Wilson Kirkland, for I think I never heard his name before. He stated that on Sunday morning, two hours before day, Franklin came to him in or near the house lot, (he had occasion to go out not dressed,) and told him App had confessed he had murdered his mistress ; that he went in and roused up Posey, and told him of the fact; that Mr. Posey lay down for a while, but they went out and searched for App, and could not find him ; and think he said he had not seen App since Saturday night; had known him ■'or five or six years, and his character was bad. He said he had told App on Monday, (19th,) to burn coal for the shop, and App said he had burnt some on Saturday. After negro Franklin had been recalled, Kirkland came forward voluntarily, and made a statement as to a discrepancy between his testimony and Franklin’s, (who denied he saw Kirkland on Sunday morning.) Kirkland said as to that, when Franklin had told him, he said to F. if he told it to any one he would be the death of him; and his reason for that threat was, lest App should escape. (Question as to. whether Franklin said before the inquest that he had or had not seen Wilson Kirkland Sunday morning. Objected to by the State. What Franklin said is incompetent. For prisoner, it is proposed to prove that Franklin did say before the inquest what Kirkland denied here he did say. Question held competent.)
    When Franklin was re-examined, he then said that he had told Kirkland at his room, that App had confessed the murder, but that he did not then see Kirkland, and that he when first examined, forgotten the fact. It was after this W. Kirkland made the above explanation. Think Kirkland said he had not seen App since Saturday night; (witness refers to memorandum.) I am now of opinion he said he had not seen App since Saturday evening.
    M. I examined Francis Posey only as to character of Franklin. He said nothing as to the death of Mrs. Posey.— Elbert did not come forward; don’t know whether he was there. Martin Posey was examined, and said what is put down by me, (read from the MSS. evidence,) vide copy.
    
    ¡*S H Caleb Kirkland did not come forward; don’t know he was there.
    30. Benjamin Hatcher, sen.:
    
    Saw W. Kirkland on Friday, 16th February, at Alfred Hatcher’s. He staid till after supper; was fixing to go off. I asked him where he was going : he said to Martin Posey’s and his father’s, and should not sleep that night. I asked him what mean thing he was. after; he made no reply. He came back next morning. I said you have told the truth, for you don’t look like you had slept. He said he had not. On Sunday, 25th February, saw him at 4. Hatcher’s, sitting with another. I asked him if he had heard any thing of the lost woman ; he said he had not. He swore next day before the jury, that on Sunday, before day, an hour or two, Franklin had come and told him App had confessed the killing of his mistress, and where he might go and find her. I was at the inquest; think I saw Caleb Kirkland there. After the inquest I asked Wilson Kirkland why he told me on Sunday he knew nothing of it. He said they were afraid App would get hold of it, and clear himself
    M. I think Elbert Posey was at the inquest. (I told Kirkland my people told me App was at my house, and could catch him. I did not see App; don’t know he was there.) I was not called on at the inquest, and gave no evidence.— Sam Posey was sitting with Kirkland on Sunday, when I approached, and spoke to Kirkland as above.
    31. Tarlton McClendon:
    
    Don’t consider Caleb Kirkland’s character good from what I can hear of others, and myself believe. From that character I could not afford to believe him on oath. Wilson’s about the same.
    H- I was bound over by the State, and I refused to be examined by the Solicitor, as I did not think he had any right then. I have not answered any questions on the side of the prisoners, till now. I have lived about 3 or 4 miles from the Kirklands. I have spoken unfavorably of Martin Posey.— (Question by Solicitor — has not Martin Posey proposed to settle a debt he owed you since this prosecution commenced ? Objected to by prisoners, on the ground, it is irrelevant. Solicitor — wish to show witness’s testimony is affected by these ^ circumstances. Question overruled.)
    
    ^ ' Prisoners’s counsel have chatted with tne about this matter; went to Mr. Carroll’s office because I understood he wanted to chat with me. I have not conversed with any juror; not with Bennett Smith or Ambrose Eipley, about this matter during the Court, nor said I was to do it; never told my wife so.
    REPLY BY THE STATE.
    32. Robert Butler:
    
    (Question as to a reward that had been offered while he was hunting for the negro. Held incompetent because not in reply.)
    33. Wm. M. Johnson:
    
    (Question by Solicitor — did you see a string at the inquest over the negro App ? Objected to for prisoners, as not being in reply. Solicitor — the object is to sustain a part of the testimony of Wilson Kirkland as to Martin Posey’s confession, that he had first tied App. Held competent for that end.) I was at the inquest and saw a string. (By the State — what was its appearance ? Objected to because its appearance can’t sustain Wilson Kirkland.— Question held to be too general. Question varied,) witness answers, the string was tied ; I saw it where the carcass was ; it was tied in two knots, one circle was two or two and a half inches in diameter.
    The testimony closed.
   Curia, per Withers, J.

The second ground taken in this case for a new trial, grows out of misapprehension, as is stated in the report.

As to the first ground, so far as it relates to the father and the brother of Martin Posey, it is quite unnecessary to consider it; for they were acquitted, and even if any error had been committed in conducting the trial upon circuit as to them, they are not parties to this appeal, and have not suffered in the result, supposing any ruling below to have been erroneous.

If we are to consider the question presented in the first ground of appeal, imputing error in admitting evidence against Martin Posey, to show his guilt in procuring the murder of his wife by the instrumentality of the slave Appling, to have been distinctly made upon the trial, we must, nevertheless, announce that we can discover no error in that particular. The reasons which induce and justify this opinion are sufficiently developed in the report to render it unnecessary to enlarge upon the subject.

The argument here has really been upon the facts; and it is urged that inasmuch as the case of Martin Posey, who was convicted as principal, rested upon the same evidence (being that of accomplice) as the cases of Francis Posey, his father, and Elbert Posey, his brother, who were indicted as ( accessaries and acquitted, there is inconsistency in the verdict, and hence that it should be deemed too unsatisfactory to stand.

We are obliged to say that we perceive evidence to our understandings abundantly sufficient to sustain the conclusion of the jury, which affirmed the guilt of Martin Posey. If they interpreted favorably so much as applied to the ac-cessaries, we cannot perceive how that shall change the condition of the principal. That the whole body of the evidence pressed with equal weight upon all the accused, it would be preposterous to affirm. Many glaring diversities are obvious upon the surface. The circumstantial testimony attributes to the convicted the appalling crime of having procured the murder of his wife, through the slave whose murder is imputed to him in this indictment. The like testimony had procured his conviction of that great felony before another jury but the week preceding. The ^accessaries were not implicated in this first and most horrible act in the tragedy. The lust and avarice that may have brutalized him, are not traced to them as motives to either of the felonies,— The first deed of blood had not jeopardized their lives — the sword of justice was already pointed at his. They could not be held to account for that brutal indifference which enabled him, a husband, to stand as a stone before the corpse of his murdered wife, the mother of his children, — who, perchance, had been otherwise violated by the servile agent of his cool malignity: the concealments, the prevarications as to the locality of Appling, disclosed in the testimony of Butler— the like as to his guilty knowledge of the murder of his wife, the manner of it, and the agent — as disclosed in the testimony of Rhodes and Wilson Kirkland — all these were indications of guilt peculiar to the prisoner.

This must suffice to indicate the course which the judgment of this Court has taken upon this, the leading ground of appeal. Let the testimony speak the rest. We construe this and much more of it to be corroberative of those who were called accomplices. Touching them the jury were duly admonished — -and we should feel unwarranted in disturbing their verdict, however fatal to the prisoner.

The motion must, therefore, be dismissed,

The whole court concurred,

Motion refused,

CASES AT LAW, ARGUED AND DETERMINED IN THE COURT OF APPEALS OF SOUTH CAROLINA, AT CHARLESTON, JAN. AND FEB. TERM, 1850. ADD THE JUDGES PRESENT.  