Mccann v. State

Muedee. Circumstantial evidence has heen received in every age of the common law, and it may rise so high in the scale of belief as to generate full conviction. When after due caution this result is reached, the law authorizes its ministers to act upon it. What circumstances will amount to proof, can never he matter of general definition ; the legal test is the sufficiency of evidence to satisfy the understanding and conscience of the jury. It is sufficient if they produce moral certainty, to the exclusion of every doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature. In cases depending upon circumstantial evidence, a number of links often concur in forming the chain. It cannot be said what bounds are to circumscribe the inquiry. All which may tend to elucidate the transaction should be admitted. A jury may believe that part of a confession which charges the prisoner, and reject that part which is in his favor, if they see sufficient grounds for so doing. The union and concurrence of various detached circumstances may produce full conviction, when either of them standing alone might leave room for much doubt. An objection taken to an indictment, because it charges the offense as at common law, whilst the punishment is inflicted by statute, cannot prevail.

Error to Lowndes circuit court. Ro&ees, J. At the September term, 1848, of the court below, the grand jury returned into court, through their foreman, an indictment against James McCann, for murder, and John F. Toland for being accessory to the murder of Andrew Toland. The indictment contained two counts. The first against Mc-Cann, charging him with the murder of Andrew Toland by shooting him with a pistol on the bach of the head, on the 1st day of April, 1847. It is in the common law form, and concludes, “ against the peace,” &c. The second count charges John F. Toland as accessory before the fact. McCann was arraigned at the same term of the court, and pleaded not guilty; and it was ordered that Toland be tried separately, on his motion. At the March term, 1849, the defendant was tried, and the following is the evidence adduced on the trial: James J. Toland, a witness for the state, deposed, that on the 14th of April, 1845, on Monday night, in Lowndes county, Andrew Toland was killed; the body was found on Tuesday morning; he saw the body, ten or twelve feet from the road, the left foot over the right one; he was lying on his back ; from his eyes down all his face was gone; his head was connected with the body by the skin on the back part of his neck ; all the face bones and neck bones were gone; all the brains eaten out of the skull by the hogs; the hogs were eating the body when found; knew it was the body of Andrew Toland from the clothing and the bones of his feet; deceased was his uncle; the body was found about eleven miles from Columbus, near Profitsfield, on the right of the Gilmer road, near Cross’ lane, some two or three hundred yards from the mouth of the lane, in a thicket of bushes. Witness was acquainted with the Gilmer road; it leaves the Robinson road beyond Westport; Whitfield’s plantation is on it, four miles from Columbus; Mills’ house is to the left of the road, seven or eight miles, and Gilmer’s plantation to the right, ten miles from Columbus; Cross’ plantation is to the right, and Profit’s on the left side of the road; McGowan’s is on the same road, twelve miles from Columbus; Lyon resides west of the road, about a mile from the Gilmer road. The Mc-Cann road intersects the Gilmer road at the corner of McGowan’s field; there is a road running off from the Gilmer road, just this side of where the body was found, towards McCann’s, by Lyon and Smith’s lane, and a path turns off at the comer of Smith’s field through the woods, which leads into the McCann road, which leads to McCann’s house. A map of the road was shown to witness (which was copied in the record), and he proved its correctness. Newsom lived about a quarter of a mile from Mills’, to the left of the road, and a thick wood was between the house and road; woods all the way from Gilmer’s to where the body was found, and about three hundred yards beyond to Cross’ lane, from that and on to McGowan’s lane, about a mile ; about one and a half miles to where Toland lived; near where the body was found, there was the mark of a ball on the sapling six feet from the ground; the ball struck the sapling diagonally from the road; knocked the bark oif and fell to the ground. Hamilton’s lane is six miles from Columbus, Howland’s over six miles; it is three quarters of a mile from Gilmer’s to where the body was found. Witness knew the body and helped to lay it out, and has never seen Andrew Toland since. The face was entirely gone, and there was a wound in the back of the neck; it looked like a slit three quarters of an inch long, when the skin was stretched, but when the skin wras put its natural position it looked like a hole; he thought it was a bullet hole; his hat was powder-burnt and had blood on it; there was plenty of blood under his head, in his clothes, and on the ground. No other wounds were on the body except where the hogs had broken the skin on his fingers. The soil was red potash land. There was a saddle on the ground vrith blood on the right stirrup leather. Witness thought that single ball would not carry away all the face, but that the hogs had eaten it; the hogs could not have made the wound in the back of the neck, they could not have gotten to it to make it. He saw no bones that the hogs had. chewed; don’t think that a ball could have blown the face away; he thought a musket loaded with twenty or thirty buckshot could have done it. The skull was sound above the eyes, and the head was held on the body by the skin of the back of the neck; a good many persons were on the ground when witness got there; he left home about twelve o’clock. He said further that a part of the skull bone on the right side was detached. John P. Krecker testified, that he saw McCann, the prisoner, Frank Toland, an Irishman named Kinch, and another by the name of Mallory, eight or ten days before the murder, on the Columbus bridge, in conversation together, some twenty or thirty feet on the bridge. Kinch was leading a horse; witness did not hear the conversation between them. McCann had his back towards witness; he put his hand in his pocket, and when he saw witness looking at him, he pulled some papers out of his pocket and put them into another pocket, again put his hand into his pocket, and pulled out something, and turned his back on witness ; he saw Frank Toland take something out of his pocket like a powder gourd, put it to his mouth and pulled out the stopper, and poured something into McCann’s hand; supposed it was powder; he thought their actions strange. The bridge was a retired place.; they stood about there some twenty or thirty minutes. Witness was bridge keeper, and called to them to pay the toll. Kinch and Mallory passed on over, and Toland and McCann returned and paid toll. Witness saw and knew McCann four or five days afterwards ; did n’t know every one that crossed the bridge; he has often seen men pour powder out of a gourd into their own hands, but never into another’s. The gourd was about the size of an orange. The singularity of their conduct attracted his attention. He said it was unusual for persons to act as they did. Samuel T. Sappington testified that between nine and twelve o’clock on the day that Andrew Toland was said to have been murdered, Toland and McCann came to his grocery, and remained until about three o’clock in the afternoon. They were a great part of the time in a billiard room up stairs in a conversation together, at that time the billiard room being a private place. About one o’clock a young man by the name of Bird invited them to dine with them at Mr. Fletchall’s. Toland at first refused to go, because he said his father was in town, but after-wards went. Witness did not know what they were doing up stairs; they appeared to be transacting business ; they were very friendly, and frequently visited his house. Witness saw a pistol in his grocery that day or a day or two before; didn’t know who left it; neither of the two shown was the one. E. B. Gaston testified that he saw the prisoner with Frank Toland, the day before the news of the death of Andrew Toland reached town, near Sappington’s, in an alley between the drug store of f-ineenm and tbe cabinet shop, some ten or twelve feet from the street; saw them from his store through the window. From their gesticulations, witness thought they were quarrelling, and came to his door to see, and found them very friendly, with their arms around each other’s necks. Henry Sullivan testified that he was ferryman at Columbus. On the day of the murder McCann crossed the ferry going home, about two hours by An. Andrew Toland, the deceased, crossed about one hour by sun, and Frank Toland when the sun was some twenty minutes high, or about sunset. "Witness does not recollect all who crossed the ferry that day; Mr. Mize and several others crossed. He recollects about old Mr. Toland, Frank Toland, and McCann crossing, it being called to his mind so soon afterwards. Mr. Toland spoke to him about it, and he expected to be called to testify about it; didn’t recollect whether McGowan’s wagon crossed that day, nor all who crossed, it is so long ago; McCann, J. F. Toland, and Andrew Toland crossed the river, going in the direction of the Gilmer road. Sandifer testified that he was in Columbus the day the old man was killed; was riding along the Gilmer road with Riddle, when McCann overtook them at Whitfield’s lane, and rode with them some three or four miles; they stopped at Mills’ and got water; saw deceased near Rowland’s, riding behind a wagon; after riding about a quarter of a mile from Mills’, McCann turned off about dark to go down to Newsom’s; he overtook them about sundown; witness and Riddle kept the Gilmer road, and went some five or six miles beyond Prairie Hill; all passed the wagon together about seven miles from Columbus; McCann drank water at Mills’; from Mills’ to Newsom’s is some two or three hundred yards; they rode pretty much together, sometimes scattering; McCann was a little ahead when they parted; New-som’s is about one hundred yards from the road, with woods between the road and the house; don’t think McCann said anything about supper. About a mile from Newsom’s, at Gilmer’s gate, a man passed them at full gallop; he was dressed in black, and had a cap on. Witness didn’t recollect anybody being with' old Mr. Toland when they passed him ; he was riding just behind the wagon; they crossed the ferry when the sun was an hour or an hour and a half high; no other white person overtook them that night after they passed the gate. Riddle testified that he thought it was in the spring of 1845; a gentleman rode up to them some three or four miles from Columbus ; said his name was McCann; they rode on together to Mills’ and got water; went on together to Newsom’s, where McCann said he was going to get supper, and asked witness if he would go down and get some, too ; he saw old Mr. Toland at Hambleton’s gate; there were several of them together; witness left town about an hour by sun; McCann overtook him where the sandy land meets the prairie, and they rode on to New-som’s together; they rode some four or five miles an hour; he thought old Mr. Toland rode not half so fast, that he was traveling slow behind a wagon ; McCann told his name when he came up ; he had whiskers and wore a black hat. After McCann left them, a man rode by them very fast; he was a small man with a cap on ; they passed old Mr. Toland’s house that night as they went on, but saw no horse standing in the yard. Robert Profit testified that he saw old Mr. Toland on the morning of the day of the murder; he met him in the road coming from Columbus, riding a small sorrel sway-back mare; he stooped considerably and rode in that way; he heard the report of a gun or rifle an hour or a half an hour after dark, in the direction his body was found; it is nearly half of a mile from witness’ house to the place; he met deceased at the northwestern corner of witness’ field, and about half a mile behind him met McCann, coming toward Columbus; first saw McCann in the narrow lane between Cross’ and McGowan’s; they passed the residence of the deceased that morning, but did not stop ; before they got to the house they saw Frank Toland and his mother standing in the yard in apparently close conversation ; when he rode opposite the house they parted; Frank was dressed in black with a cap on. Old Mr. Toland was dressed in a light summer coat and a broad-crown hat; McCann was riding a pretty good-sized sorrel’ horse, not very tall, but good sized; witness saw the body and examined it; all except the top, the head had disappeared ; there was a wound on the back of the neck marked with powder, the hat was powder-burnt; saw the ball-mark on the tree six feet from the ground; he saw no other wound on the body; he could see no other wound on the body; could see no appearance of horse tracks on the ground; other people were there before witness; the body was thirty or forty feet from the road, in a clump of post oak bushes ; there were tracks to the right of the road along the road, but none traceable that turned out of the road. Witness was on the jury of inquest, and no accusation was made against any one. The coroner’s jury met on the ground about twelve o’clock, and commenced their investigations about dark, and got through about ten o’clock p. h. The wound was about one inch long, and appeared as if made by a bullet; when the head was down the wound was round, the hogs had eaten the face away; all the face bones were gone; nothing was left but the skull. Witness heard the report of a gun about a half an hour or an hour in the night; there was no horse in the yard when witness passed Mr. Toland’s in the evening. Josiah S. Morehead testified that he saw the body of Andrew Toland, after he was killed, near the road-side at Profit’s fence; he saw hogs eating him ; he was riding along the road coming to town ; first saw the hat, and got down to take it up, when his horse scared, and thus he first discovered the body; he saw the prisoner and his father that morning, four or five miles from there, going to witness’ father’s house; he stopped to talk with them; they were going to witness’ father to get bail, the grand jury having found a true bill against them for an assault with intent to killprisoner appeared to hurry his father, and urged him to go on; when witness .picked up the hat, he saw that there was blood, and smoke on it, and blood in the road under witness’ feet; he saw where the body was dragged, as if to throw it between tho logs, and then drawn to the thicket, the body lying on the back, with the hands on the back. George E. Lyon testified that he lived a mile and a half from Cross’ lane; heard the report of a gun a while after dark, about a half an hour or an hour, in the direction the body was found; some ten or twenty minutes after heard a horso running from that direction; the horse was galloping, but witness did not see it; went in south-westerly direction through Smith’s lane, and turned off at a corner of a field through a woods path that intersects the McCann road; prisoner lived with his father at the time; witness was at his shop at the time about fifty yards from the road; Smith’s lane is one half a quarter long; report of gun was loud; he heard it distinctly; witness thought it was some one shooting turkeys; it was a moonlight night, with flying clouds; one not acquainted with the road, would not have taken that direction. James Whitfield testified that he was on the inquest; saw the hat, a new chip one, and powder-burnt; deceased had an old round-top hat in one of his pockets; the wound on the back of the neck was powder-burnt, and the skin black and dark. O. H. Milliean testified that he was on the inquest; saw the ball mark on a small tree, and a twig cut therefrom on the side next the road, about on a level with the mark; witness examined the wound on the back of the neck; the face was all gone. John Cross testified that Morehead found the body and came and told him; he went to see it, and then went to inform the neighbors; did not get back until after dinner; the body was lying on the back, with the feet from the road; was present before the jury; no one was accused of the murder at the time. ——- Morehead testified that the prisoner was at his house between seven and eight o’clock the morning the body was found; he appeared natural and staid an hour or three quarters; he came with his father, and wanted his father to go, after sitting a few minutes; after a while he again wished his father to go; the father told him “ not to be in a hurry—it is not often we get with our friends;” the bottle was handed round, and the old man took two drinks; prisoner said again, “ Let us go ; if you don’t, I will,” and got up, and looked out to where the horses were tied ; witness couldn’t say why prisoner wished to get his father off; has seen the old man pretty merry. Joseph Morehead testified that he saw prisoner at his house the next day after the murder; he appeared to be uneasy; got up and went to door and looked up and down the lane twice. Witness took the bottle out and treated the old man. McCann lived four miles from witness. Prisoner twice asked his father to go, and then said, with an oath, if he would not go he would leave him. Henry N. Jones testified that he examined the wound on the body at the back of the neck; it was powder-burnt; the flesh was about the thickness of a man’s hand; some powder-bum inside of the wound, and a blackness about where the ball struck and entered. Witness saw the tree where the ball struck. Nich. Morgan testified that he heard the report of a gun in the direction where Toland was killed ; shortly after the report he heard a person riding up Smith’s lane; first heard the riding in the lane between Lyon’s and Smith’s fields; heard Lyon’s dogs break out; the rider turned off into the woods at the corner of Smith’s field intersecting the McCann road, in the direction of McCann’s house; from where the horse turned off at the comer of Smith’s field to the neighborhood road leading out to McCann’s is not very far; a stranger would hardly have seen the neighborhood road; witness was about half a mile from the place of killing, when he heard the gun distinctly; the sound of the report was ordinary; could not see the horse distinctly ; saw a glimpse of him and some one on him ; witness could not tell whether the report was that of a pistol or not; the night was still and calm. Henry Quarles testified that on the day the body was found, he saw McCann going westwardly; he looked like he was going off; had no saddle-bags that witness recollects ; it was three or four miles from Cross’ lane, between twelve and two oclock; his brother Pat was with him; they were going through the woods and riding fast for going through the woods ; witness had not then heard of the death of Andrew Toland, but heard it an hour afterward. Jeremiah Dowsing testified that some day or two after the murder, he heard some one at Noxubee turnpike about two o’clock at night calling out; from the voice he thought it was McCann ; he did not see him ; had known him before; said he wanted to buy corn and fodder for his horse ; that he had been lost in the swamp; Noxubee turnpike is ten or twelve miles from Prairie hill. Wiley Boss testified that during the second week of the Carroll circuit court, at Carrollton, he saw; the prisoner ; but did not recollect the day. Witness had business with Mr. Gilder; lie went into Judge Johnson’s office and went np-stairs, and as he struck the landing, the prisoner rose up from a bed where he was lying behind Mr. Gilder; prisoner put his hand into his bosom and backed into a corner; witness saw the butt-end of a pistol in his bosom ; Gilder said witness was no officer ; witness had a paper in his hand for Mr. Gilder; witness asked what it meant, and Mr. Gilder said that old Mr. Toland had been killed, and McCann had left on account of it. In the mean time prisoner had returned to the bed and knelt down on it. Witness put his hand on McCann and told him, if he had killed Toland, he had better leave. He replied that he had not killed him, but was accused of it, and in proof that he had not killed him said, that Toland’s children had given him money and weapons to leave, and promised to write to him. He further said that Mr. Toland had been found killed and nearly eaten up by the hogs; that it would be very hard for him to prove his innocence, as he was the last man seen by an overseer that night behind Toland, near Cross’ lane, before Toland was killed. Witness told him he had better leave. Prisoner sold his horse in Carrollton. It was after twelve o’clock when witness first saw him, and the sun was about two hours high when he left on foot, with his saddlebags on his arm, and took the road to Williams’ Landing. It was agreed that the day when witness saw McCann, was Thursday, second week of Carroll circuit court, 1845. Elijah W. Smith testified that he first saw the prisoner aboard the stage on the Jackson and Memphis road, in the county of Lafayette. Witness pursued and overtook him at the dinner-stand, eight miles from Oxford, towards Memphis. Witness went in, took hold of him, and arrested him for James McCann, when he replied that it was not his name, that he had never known anybody of that name, that his name was Wilson or some such name ; that he did not wish to be detained ; that he was on his way to Tennessee to see his relations. Witness searched his pockets and found receipts in the name of James McCann, and had the same name on his shirt; witness told him he would have to go back with him, and on their way back, three miles from Oxford, he acknowledged that his name was McCann; said he had heard Toland was killed, and that he did not know he could prove himself clear. At first he wanted to go back to Lowndes county ; he was examined and committed to prison in Oxford. When witness went to take him back to Columbus, he seemed to change his mind and wished to be tried in Oxford, stating as a reason why he did not want to go back, that it would be a damned long tedious case. He requested witness to write to Frank Toland, or let him write. When arrested, he had a pair of pistols (shown in court and identified by witness), and powder and ball. Champion testified that he saw the prisoner in custody of Smith, when taking him back to Lowndes county, at Pontotoc; his cousin was with him, and knew McCann. Witness spoke to prisoner, and told him they had him in a tight place. He replied that he thought not, and asked what people said about it. Witness replied that they said he had killed Toland. Prisoner said he knew he was accused of it, and that was the reason why he left. Witness’ cousin remarked to prisoner that it was strange he left before he was accused; to which the prisoner made no reply. L. W. Ward testified that he was one of the jury of inquest. He saw the body lying twenty-five or thirty feet from the road, head towards the road, the skirts of his coat in the rear of his head; the coat was a Kentucky jean one, with velvet collar. Witness was acquainted with deceased; he was fifty or sixty years old. Witness didn’t recollect seeing marks where the body was dragged ; it was after twelve when he came to the ground. James McGowan testified that he heard the report of the gun or pistol on the night of the killing; it was near a mile from where the body was found to his house; it was about three-quarters of an hour after daylight; he heard the report distinctly ; it was nearly all prairie between where the body was found and witness’ house; thought a gun could be heard distinctly that distance. Witness was sitting on his portico at the time, and thought it was some one shooting turkeys. He Went on the ground about eleven o’clock, saw the mark on the tree where the ball struck; told some one to search about the root of the tree for the ball, and it was picked up by some one in witness’ presence (a ball was shown in court which he thinks the same) ; didn’t recollect seeing McCann or Toland on the day ■ of the death; he heard bnt the one report of a gun, or pistol that night. This was all the testimony on the part of the state. For the defendant,-- Kiddle testified that he was traveling with the prisoner the night of the killing, and saw no pistol or gun on him; did not see any weapon on him. Henry N Jones testified that he saw nó pistol on the prisoner; was not close to him; he rode past witness; did not think of pistols ; supposed he anight have had pistols and witness did not see them. Patrick McCann testified that he was the brother of prisoner; had seen one of the pistols shown him ; gave it to the prisoner the day he started s away; had it in his trunk four or five days before ;■ got it from Frank Toland to give to Chandler; was at home the night of the murder; prisoner returned about half an hour after dark; didn’t , know that Frank Toland was at witness’ -father’s house the- day the body was found, but saw him riding by the field where witness was at work planting com or plowing. "Witness spoke to him; but held no conversation with him ; it was about ten o’clock ; prisoner was away from home with his father at the time; he started away from home two or three hours after Witness saw Toland; witness went with him to go to Wallace’s; prisoner said he was going away ; they rode sometimes through the woods ; he told witness he was going away because he was indicted for an assault with intent to kill, and he did not intend that they should make him give security ; he did not say where he was going when they parted ; be bade witness good-bye ; he rode a chestnut-sorrel horse ; ha started froijp. home the day of the killing, after breakfast, to go-to town; witness’ father was at home when prisoner and he left Frank Toland and prisoner were very friendly, like most young men, and once went to South Carolina together. Witness Was-not intimate with Frank Toland, but was acquainted with ©Id man Toland. -McCann testified-that he was a brother of prisoner; was; at homo the night of the killing; prisoner returned home: about; half an hour in the night. Walter Troup testified that he went to old Mr. McCann’s the day the body was found; was within one hundred and fifty yards of the house, and saw a gentleman riding towards the house ; it was about twelve o’clock; he had black clothes and a cap or low-crown hat on; he was afterwards satisfied it was Frank Toland. Witness was then talking with Patrick McCann, who was then plowing near the stable in the field. Witness’ business was with old Mr. McCann, and Patrick told him he was not at home. Witness was not nearer than three hundred .yards to the person who was so going to the house, and left before he got to it. He saw a gentleman sitting, at that time, in the passage, but did not know who it was. This was all the testimony. Numerous charges were asked and given on both sides, and are found in the record, but not embodied in the bill of exceptions, and are not considered by the court. The jury found the prisoner guilty. His counsel moved for a new trial, assigning various grounds, which was overruled, exceptions taken, embodying the evidence as heretofore set out. The prisoner then moved in arrest of judgment, because, 1st, The indictment was insufficient; and, 2d, Because there was a misjoinder of counts and alleged offenders; the motion was overruled, and the prisoner sentenced to be hung. Sharkey, J. 0., on McCann’s application, ordered this writ of error.