Browning v. State

HOMICIDE. The refusal of the court to grant a continuance on the affidavit of the defendant, that material witnesses are absent, when the state admits as true the facts expected to be proved by such witnesses, is no ground of error. A mistake in the copy of the special venire, by which the Christian name of a juror is slightly changed by mistake or inadvertence, is not error, especially when no objections are made before the trial. The circuit court, into which a criminal case has been removed by change of venue, must try the defendant upon a certified copy of the indictment, and not upon the original. Browning v. State, 30 Miss., 656. The court is not bound to instruct the jury in mere abstract propositions of law, which would mislead rather than enlighten the jury. The declarations of a messenger sent by the prisoner to a third party, if made with reference to the object of his visit, are admissible in evidence against the prisoner, if it be shown that they were made by his authority. Smith, C. J., dissenting. The admission of improper evidence when the defendant sustains no injury thereby, is no ground of error, or for setting aside the verdict. Smith, C. J., dissenting. What circumstances will amount to proof, can never be a matter of general definition ; the legal test of its sufficiency to authorize a conviction, is its power to satisfy the understanding and conscience of the jury. Absolute metaphysical demonstration is not essential to proof by circumstances. It is sufficient if they produce moral certainty, to the exclusion of every reasonable doubt. Cicely v. State, 13 S. & M., 211; McCann v. State, ib., 440. As to the case at bar, Smith, C. j., dissented. To judge of the weight of circumstantial evidence, is peculiarly within the province of the jury, and, therefore, a verdict on such evidence, unless it is opposed by a preponderance of testimony, or palpably without evidence to support it, will always stand. As to the case at bar, Smith, C. J., dissented. Where the jury in a capital ease, the trial of which lasted four days, lodged in a room at a public hotel, separate from the other guests, ate their meals at the table with the guests and boarders, but in a body at one end of the table, with an officer stationed between them and the other guests, were served at the table by the landlord and servants, were under the vigilant care of two sworn officers, could easily hear the conversation going on at the table, but none of the witnesses examined on the application for a new trial heard the case mentioned in the hearing of the jury, Held, that as the jury were always kept together, and under the supervision of a sworn officer, it is not to be presumed that any undue influence was exercised over them ; and that the manner in which they were fed, though an irregularity, was insufficient to vitiate the verdict. Fisheb, J., dissented. The refusal of the court to grant a new trial, asked for on the grounds of irregularity in the jury, and the want of evidence to sustain the verdict, was assigned as error; and on the hearing of the cause ou writ of error, Smith, C. J., and Handy, J., were of opinion that the irregularity in the jury was insufficient to vitiate the verdict, from which decision, Fisheb, J., dissented, while Handy, J., andFisHEB, J., (Smith, C. J., dissenting,) decided that the evidence supported the verdict. On motion to set aside the judgment of affirmance in the case, it was held, That as the same majority of the court did not agree on both grounds for refusing the new trial, the judgment of affirmance should he set aside, and the judgment of the court below reversed and the cause remanded. Handy, J., dissented.

Error to Holmes circuit court. Heotsy, J. The plaintiff in error was indicted with bis son, Gaston E. Browning, for tbe murder of John W. Neal. The indictment was found in Sunflower county, but on application of the defendants tbe venue was changed to Holmes county, where there was a severance bad, and at the November term, 1855, of the Holmes circuit court, tbe plaintiff in error was tried, convicted and sentenced to death. Before tbe jury was empanelled, the defendant applied for a continuance, on account of tbe absence of several witnesses which be deemed material for bis defense. In support of his application, he made an affidavit setting forth what he expected to prove by eacli of tbe witnesses who were absent. The district attorney admitted that the facts which the prisoner expected to prove by tbe absent witnesses were true, and should be so considered by the court and jury on the trial, and thereupon the court refused the application and forced the prisoner to go to trial, and the prisoner excepted. On calling the special venire, the name of J. J. Cowsett appeared on the list, and one John J. Cowsett appeared and answered to the name. In the copy of the venire furnished the prisoner, the juror’s name was written Joseph J. Cowsett, and the juror stated upon his examination that his father’s name was Joseph J. Cowsett, but that he (the juror) was summoned. The defendant then objected to proceeding any farther, because he had not been furnished with a true copy of the venire. The state consented for the juror to stand aside; the court overruled the objection; whereupon the prisoner excepted. After the jury Bad been empanelled and sworn, the district attorney offered to read to the court and jury a copy of the indictment against the prisoner and Gaston E*. Browning, regularly certified in the record from the circuit court of Sunflower county, to which the prisoner objected, and demanded that the original should be produced and read. This objection was overruled and the district attorney read the copy of the indictment to the jury. The district attorney then produced in court a paper which he stated was the original indictment, and which, on comparison with the copy read to the jury, differed in this, that in that portion of the copy which describes the mode in whieh the deceased was murdered, the word “neck” is omitted. The prisoner then objected to the reading of said copy because it was not a true one. This objection the court overruled, and the prisoner excepted. The substance of the evidence, as disclosed on the trial is as follows: . The deceased, John W. Neal, was engaged at the time of his death as overseer on the plantation of Hill and McNeill, in Sunflower. The last time he was seen by any of the witnesses was at said plantation, on the 23d day of July, 1854. On that day he ordered dinner earlier than usual, with the intention of going by prisoner’s house and crossing at his ferry and to visit a Mr. Pool, and return home that night. Deceased left home between twelve and two o’clock that day; he took a gun with him, which he said he wanted to sell or have cut off. He rode a elay-bank-colored horse, and wore an overcoat. He was in good spirits, and talked a good deal about the prospects of a good crop on the: plantation. He said just before he left, that it was possible that he would not return home that night, and that if he did not he would go by Sidon (a small town on Yazoo river), and bring home with him, on Monday morning, some files which were needed on the plantation. One witness accompanied him on his road-on Sunday evening about one mile, and returned immediately back to Mr. Cole’s, about one; mile from the house on the plantation, and two miles from where he left Neal, and when witness arrived at Cole’s it was : about three o’clock. This witness never saw deceased wear any bandages such as shown in court. A negro boy was sent after the files which Neal was to bring home with him ; witness directed the negro to go by Browning’s. The distance from McNeill’s plantation to Browning’s house, on the Yazoo river, was about six miles, and about two miles from Browning’s to Pool’s. - On Monday morning the horse which Neal rode on the evening before was in the possession of Gaston Browning, on the road leading from McNeill and Hill’s plantation to the house of the prisoner, and about one mile distant from the latter place. At this point Gaston Browning and some others were at work on the road. The horse was not carried to Browning’s house until Monday evening, when Gaston returned from working on the road. On Tuesday morning, the’ negro who had been sent after the files arrived at Browning’s, and stopped there, and informed the prisoner and his family that Neal had left on the preceding evening, carrying his gun with him, and had not returned. On Monday morning the skiff of the prisoner was found in Yazoo river, lodged, as it seemed, to a tree or limb, and about one mile below the prisoner’s house, and near to that bank of the river on which he resided Prisoner’s family were informed of this, and a negro boy and James Browning were sent to bring it up; > On Tuesday morning, after the arrival of the negro sent for the files, the prisoner and Gaston Browning solicited G. J. Petty to assist in searching the Yazoo river for the body of Neal, stating that they supposed he was drowned, and giving as a reason for such belief that Neal’s horse had been found on Monday morning, about one-half mile back of Browning’s house, in the swamp; that the negro had informed the family that Neal had left home on Sunday evening, and had not been heard of since ; that the skiff had been found as before stated, and that Neal, when crazy, at Browning’s house, the winter before, had threatened to drown himself in the deep hole in the river where the skiff had been found. Petty and the two Brownings went in Browning’s skiff down to Pool’s, who lives on the opposite side of the river, near where the skiff was found ; and Gaston went after Pool and asked him to assist in searching for Neal, telling Pool that the prisoner had sent him for that purpose, and also to get him to take his ferry-flat and assist in the search. Pool took his flat and he, and the Brownings, and Petty searched the deep hole where the skiff had been found, and where the prisoner said he supposed Neal was drowned. No trace of the body being discovered, and Pool deeming it very improbable that Neal was drowned, the search in the ferry-boat was discontinued, and Petty and the Brownings, at the suggestion of the prisoner, went in a skiff down the river to a plantation called Shell Bluff, about three miles from J. D. Browning’s. At this place the prisoner stated to N. S. Fields, who was overseer, and to J. C. Fields, who resided there, that he was searching for Neal’s body; that he supposed he was drowned, giving the same reasons as he had given to Petty; and he further stated to them that Neal had made a will, giving $300 to Mrs. Browning, and the balance of his estate to the prisoner; that he had told Neal that he did not want his property, and if he did not want any of his relations to have it, he ought to give it to the public schools; and that Neal was deranged at the time, and said he was going to drown himself; this happened the winter before. Browning asked Fields to keep a negro looking for the body, and to let the neighbors who lived on the river below know about the matter. Browning also said that McNeill, one of Neal’s employers, had requested, him to attend to his business, in the event anything should happen in his absence, and that he was going out to the plantation that evening. The prisoner, Gaston Browning and Petty started back up the river about eleven o’clock. After dinner the prisoner sent his son Gaston up the river to the house of the sheriff of Sunflower county, to carry an attachment, and from that place to McNeill and Hill’s plantation to look after their business. About the same time Petty, who lived about ⅛ quarter of a mile from Browning, started to work on the road leading to McNeill and Hill’s plantation, The prisoner also started with Petty, saying before he started, that he was going to the plantation to take charge of their business, as requested. Petty parted from the prisoner before they reached the fork in the road, where one road led to McNeill and Hill’s, and the other to Shell Bluff. It was shown, however, by witnesses for the state, that Mercer had written a letter to B., on Tuesday morning, requesting him to come down the river, and swear in some appraisers, and that Pool, who was at Browning’s on Tuesday morning before Browning left, in reply to a statement of Browning that he had received that letter, but would have to go to McNeill and Hill’s plantation, advised Browning to send Gaston out to the plantation, and to go himself and swear in the appraisers, and that the road to the place where the appraisers were to be sworn in, led by Shell Bluff. Soon after he parted with Petty, the prisoner arrived at Shell Bluff, as he stated, on his way down the river to swear in the appraisers. About five minutes after he arrived at Shell Bluff, the negro stationed on the bank of the river to watch for the body of Neal, reported that he saw a body floating down the river. The prisoner and J. C. Fields were then in the house at Shell Bluff, and at so great a distance from the body that J. C. Fields could not distinguish it, but the prisoner stated, upon the negro making the report, “ that it was the body of Neal; he could swear to it.” The body was floating on the face and belly, and very deep. Browning and the negro boy got into a skiff and rowed into the river. Browning attached a fishing-line to the body, and had the boat rowed about one hundred yards bélow the landing. As soon as the skiff and the body were fastened to the bank, the prisoner commenced untying the ropes about Neal’s body, but failing to untie them he came out on the shore, and asked N. S. Fields (who had arrived about the time the body was landed) for his knife, which Fields gave him. Browning then went to the end of the skiff farthest from the bank, and commenced to cut the ropes around Neal’s body. Fields protested against this, saying that the body ought not to be interfered with until a coroner’s inquest should be held over it. Browning said he was a sworn officer, and had a right to cut the ropes, and that he wanted to get Neal’s key. Browning then hitched the knife under the ropes, and in trying to cut them, raised the body so as to enable Fields to see that there was a bag of bricks attached to it. Fields remarked to Browning that he saw the bag of bricks, and Browning then cut the rope which attached it to the body, and it fell into the river where the water was about four feet deep. Browning then commenced unbuttoning Neal’s coat, and said he wanted to get Neal’s pistol. Upon being asked how he knew Neal had a pistol, he said that Neal owned one and always carried it. Prisoner then took a pistol from one side of Neal’s breast. N. S. Fields then saw a knife on the other Bide of Neal’s breast, and told Browning to take that up also. Browning replied that he did not think Neal had a knife. Fields said he saw one on his breast, and Browning then took it up. Browning also took from Neal’s pocket his pocket-book, and then came out of the skiff, and asked N. S. Fields to have a coffin made, and that they should proceed to bury him, saying that the body would be so offensive by the time a jury could be collected, that the law would not require the men “ to sit on it.” The two Fields objected, and one of them started off to summon the neighbors, and the prisoner and the other Fields remained on the premises. Some of the neighbors arrived that evening, and during the night a physician was sent for, who also arrived during the night. Before daylight of the next morning, when only eleven rhen besides the physician had arrived, Browning insisted on holding the inquest then, taking the doctor for the twelfth juror, and giving as a reason that the body would become still more offensive. This proposition was declined by the company present. On Wednesday morning the inquest was held, Browning, who was a justice of the peace, acting as coroner. The body, when discovered, had on the usual clothing, and also a heavy winter overcoat, which was buttoned up to the chin ; gloves were on the hands, and drawn up over the cuffs of the coat; strings of baling twine were around the gloves, over the wrists, and around the pantaloons, just above the ankles, but neither the feet nor the hands were tied together. The collar of the overcoat was turned up, and a twine string tied around it. There were two bandages, made of towels, about fourteen inches wide, around the body, under all the clothes; one of these extended from the hips up the body, its entire width ; the other was over the breast, extending down and meeting the other. They were both buttoned in front, and also tied with twine strings. The holes through which the twine strings were tied, seemed to have been cut with a knife. The twine strings were each of them short, Only passing through two holes iu the bandages, one on each side of the buttons. The buttonholes in one of the bandages were worked, as if intended for ordinary use. The lower bandage was fastened by straps of towels, running around the thighs, and tied in each groin in a very large knot. The upper bandage was fastened over the shoulders by similar straps, which were all tied into a large knot on the back of the body, at a place where it was thought by the witness that Neal could not have tied them. A twine string was also tied around the neck, and in the swollen condition that the body then was, it was very tight, and slightly imbedded in the flesh. The body was not taken out of the water until Wednesday morning. One of the witnesses who assisted in taking it out, stated that he then noticed that the neck was very limber, and hung to one side. The body was then much swollen, and decomposition had proceeded to a considerable extent. One of the eye-balls was protruded, and lay on the cheek; the other was alio protruded. There were four bruises on the head, one on the temple, and three on the occipital portion of the head. The bruises were small and round, and about the size of a silver dollar. The skin was not broken at either of the bruises,’nor at any other place on the body. The witness, Dr. Dodd, took off the scalp, and found coagulated blood under the skin, beneath the bruises; he also removed, with a saw, a part of the skull, and it was not ■ fractured externally or internally. He did not think that the blows caused the death of Neal. While making the examination, witness noticed that the neck was limber, and lie then said he thought it was luxated. He saw coagulated blood about the chest, also on the calves of the legs and on the thighs—that is, those parts appeared bruised.” Witness thought at the time that Neal had been hung, and that the discoloration of the chest was produced by a determination of the blood to that part while hanging. Upon cross-examination, he stated that his opinion that Neal was hung was based on the fact that the neck was dislocated. The brain was in a softening condition, so that no correct examination could be made of it. In Neal’s mouth was some tobacco, which had been chewed but very little, also some bread crumbs. P. A. Davis, a witness for the state, was one who assisted in examining the body at the inquest. He turnód the head round without moving the rest of the body, and remarked that his neck was broken. The prisoner was standing by ; the witness looked up at him as he made this remark, and the prisoner turned pale and leaned over the bank of the river. As the body was being taken- out of the water some one remarked that he believed Browning was the murderer, or was connected with it, from his looks. Browning was pale and excited. Most of the jury looked pale. The body was very offensive. During the inquest, Browning remarked that he thought Neal had been murdered by negroes. Browning remarked to N. S. Fields, on "Wednesday, that he had had a settlement with Neal, and had paid him the balance found due, which was $42.62. After the inquest was over, Browning opened Neal’s pocket-book; in it were a sovereign, half-eagle, and quarter-eagle, and some silver coin; there was also what was thought by one witness, the impression of a $20 gold piece. The pocket-book of Neal was produced in court, and a $20 gold piece and a new silver half-dollar were compared with the impression referred to; the former was found to be a little too large, and the latter very slightly too small to fill it. Soon after the body was buried, Browning said to the company present that'he would go out to McNeill and Hill’s plantation to see about their business. Some of the jury proposed to go with him, but he objected, saying that he was afraid that in the present excitement their negroes might be interfered with, or that they would be frightened and run off. Several of the jury, however, went with him. When they got there, Browning, in the presence of the others, endeavored to unlock Neal’s trunk but could not do it; thereupon Mercer took the key and opened it without difficulty. In the trunk were found some valuable papers and Neal’s will, all of which were, by the persons present, delivered to Browning and his receipt taken for the same. The prisoner and Gaston E. Browning were arrested for the murder of Neal on Friday, July 28th, 1854. On that evening or the next day—it does not appear which-—the prisoner’s house was searched, together with his whole premises. When it was proposed to search his premises, he did not object, but wrote to his wife to permit a full and thorough search. His house was situated on the west side of Tazoo river, which, at that place, runs from a direction a little east of north to a point of the compass a little west of south. A public road ran between, his yard-fence and the river, leading up the river bank to the residence of H. II. Southworth. This road unites at right angles with another road at the south-east corner of Browning’s yard; this latter road leads directly from the river, and is called the Sunflower road. From Browning’s house to the road leading up the river, the distance is about twenty-five feet; from the Sunflower road to an old house used as a saddle house, the distance is sixteen feet. The saddle house is an open entry between two rooms; there is a gate opening into the Sunflower road, nearly opposite the entry. Browning at that time kept a public house for the entertainment of travelers; he also kept a public ferry across the Yazoo river, where the Sunflower road touched the bank. Southworth’s residence is about three hundred and fifty yards north-east of Browning’s house, and on the road leading up the river. Southworth’s negro-quarters were about the same distance below Browning’s house and also on the river. Browning’s brick-kiln was about forty yards from his house up the river, and in the direction of Southworth’s and between the road and the river. Upon the search, there was found in the saddle house, a hemp rope about twelve feet long; this had a noose at one end of it, which hung out from the rope at right angles. On the rope near the noose were found several hairs, corresponding exactly in color and length with Neal’s hair; there were also several spots of what seemed to be blood on the rope, and that portion of it upon which the spots were, seemed to have been washed or dragged through the water. A small piece of towel was also found which corresponded in appearance with the bandages around Neal’s body. A bunch of twine was also found, much tangled and cut, so as to have a great many ends to the pieces of twine. A very minute search was made, but nothing else was found, except Neal’s saddle and bridle, which were on his home when in the possession of Gaston Browning on Monday. The saddle and bridle were in the saddle house, and the rope referred to was not all concealed, but lying on the floor of the saddle house. On Saturday, some of the witnesses examined Browning’s skiff’, and in it they found some spots of blood, which seemed to have been washed or rubbed. On Wednesday, the prisoner and several of the neighbors examined his brick-kiln. It was found, by comparing them, that the bricks in the sack exactly fitted places in the kiln from which bricks had recently been taken. N. S. Fields stated that there were some human foot-prints about the kiln, but he could not discover more than one which was perfect and entire. It was made by a coarse shoe or boot, of medium size, say No. 8 or 9 ; that Neal had on when found, thick boots of medium size, say No. 9 or 10. Neal’s boots were too large for witness, and the track at the brick-kiln was also larger than witness’s. During Browning’s trial before the committing court, one witness visited a maple tree situated about four hundred yards west of Browning’s, and about fifty yards north of the Sunflower road. The tree was in a thicket, and about twelve feet from an old trail loading from the Sunflower road. This witness saw tracks in this trail, but saw none immediately around .the tree, where leaves were on the ground. He also saw “ a mark on the tree.” J. 0. Reeves, a witness for the state, visited this tree the day after the trial of the prisoner before the committing court. There was a fork in the tree about thirteen or fourteen feet from the ground. He climbed the tree, and, in the fork, saw a slight indentation as if made by something drawn through. On visiting the tree a second time in company with J. Y. McNeill, about two weeks afterwards, they found some hairs of light color corresponding with Neal’s; they also, at that time, saw a rotten chunk near a small bush, broken, and both ends turned up, and, in the place where the chunk was broken, was an indentation which fitted one end of a large glim stick lying near by. This gum stick was about five feet long, two inches in diameter at one end, and three inches at the other end. There were some marks on the tree about seven feet high, as if made by a knife; witness could not tell whether it was fresh or not; and that he did not find any hairs at all on his first visit. McNeill proved, in addition to the evidence of Beeves, that there seemed to have been a good deal of trampling about the tree. Another witness, who visited the tree about the 8th of August, noticed “ that in the fork was an impression about the size of a walking-stick, a slight indentation of the bark, and, on each side of the fork, it was a little frazzled.” J. Y. McNeill, for the state, testified that Neal had a rifle-gun ; it was rather long, half-stocked, of medium size bore, and steel-mounted; the spring keeping the tallow box closed was defective, so that in hunting or other use the lid would sometimes open ; the stock of the gun was dark. * E. B. Bedus, for the state, testified that he was at Browning’s about a week before he started to the trial in November, 1854. He had his washing done there at that time. He and William Browning went up stairs—William a little .ahead of him. As they got to the top of the stairs, William Browning stepped forward quickly, and picked up a rifle-gun, and carried it to a corner of the room, and set it up by a clothes press. As he stepped forward and took hold of the gun, he remarked, “ I wonder what in the h—11 this gun is doing here!” It was leaning up against a bed. The gun was a rather long one,'and was half stocked ; it had a percussion lock, and was steel-mounted ; the tallow box was open; the stock was dark. Witness saw the breech of the gun, and about a foot in length of the barrel above the lock; he saw a small portion of the upper end of the barrel of the gun over William Browning’s shoulder. He afterwards went back, and did not find the gun where William put it, or anywhere else. Willliam Browning in carrying the gun had it in such a position as to have the triggers on the under side. Witness did not #ee the lock; it was on the left-hand side of the gun. The tallow box was on the right-hand side; it was round, and its lid was about the size of a half-dollar. Witness could not tell whether the rifle had a single or double trigger. Witness did not think he had said on Gaston’s trial that he could not tell whether it was whole or half-stocked, nor did die say on that trial that he only saw the upper end of the ramrod of the gun over Browning’s shoulder. He did not remember whether the ramrod projected beyond the muzzle or not Witness was not sure that the lock was on the left-hand side of the gun; he did not see it or notice it. He remembered seeing the cock; it was a percussion gun. Thomas Betters, for the defense, testified that he acted as counsel on the trial of Gaston Browning. He cross-examined E. B. Redus, touching the description of the gun he saw, and he distinctly remembered that Redus then said he only saw the upper end of the ramrod over William Browning’s shoulder, and did not see any of the muzzle of the gun, and that he further stated, that he could not tell whether it was a whole or half stocked gun. The remarkable fact that.Redus only happened to see the end of the ramrod impressed itself on witness’ mind as improbable. W. B. Helm and Wm. Carthian, who were also counsel for Gaston Browning, corroborated the statement of Thomas Botters, So also did J. M. West, a witness for the state, but understood Redus to say that he saw the muzzle down to the first thimble over Wm. Browning’s shoulder. Upon cross-examination he stated, “that he was not sure he said down to the first thimble ; something was said about a thimble;” witness could not say positively whether he said he saw from the muzzle to the first thimble, or from the lock to the first thimble from it. M. F. Nesbitt, the prosecutor, for the state, testified that he heard Redus give in testimony on the, trial of Gaston Browning. Redus stated, that he saw about a foot of the lower part of the barrel; he understood Redus to say the gun was half stocked* • William Browning, a son of tbe prisoner, testified on his behalf, that the gun referred to by Redus was brass mounted, and bel&ged to the prisoner. J. Y. McNeill, for the prisoner, stated that the lid of the tallow-box on Neal’s rifle was two and a half or three inches long, and that it was not so wide as long; it was made in the usual proportions. He thought it opened at the end of the stock by placing the finger nail under the lid and raising it. The lock of the rifle was on the right side, the tallow box was on the left side. Witness was not sure as to the shape of the tallow-box. There was only one plantation or residence on the road from McNeill and Hill’s to Browning’s, and it was proved that the only white person on that place was absent in the swamp, surveying, from ten o’clock A. m. to four o’clock p. m.; on Sunday the 23d of July, 1854. It was shown that Neal left home between twelve and two o’clock of that day. Pool and Dunaway arrived at Browning’s on that evening about two o’clock, and remained there about one hour and a half. Metz crossed the river at Browning’s ferry on the same evening at three o’clock, and saw Pool and Dunaway at Browning’s. Petty and Davis passed Browning’s about one half hour by sun, going from Southworth’s dwelling to his quarters. None of these parties saw anything of Neal or his horse. Pool and Dunaway saw all ' the family at home, and saw nothing unusual or suspicious in the conduct of any of them. Petty, when he passed with Davis, saw Gaston Browning. Dunaway crossed over the river in Browning’s skiff on Monday morning; the skiff had water in it and looked like.it had been washed. After the prisoner had been arrested, and on the morning after the search had been made, the prisoner, who was then on his trial before the committing court, called John W. Boyd to him, when the following conversation occurred, as related by Boyd: “ The prisoner asked me if we had discovered anything about his premises. I told him not much, and yet it might be a good deal. He then asked me if his children and negroes were scared. I told him they were Hot. He asked me if we found out anything from Ed, his negro boy, about a twenty dollar gold piece; I told him we had not; he then said Ed had found on Monday morning, a twenty dollar gold piece, in tbe ferry flat; that Ed brought it to him, and he gave it to his wife, and told her to put it away till the excitement was over, and if any one called for it, he could then have it. After the prisoner was arrested, Neal’s body was disinterred; and Dr. Fisher, who was present at the examination then made, testified that Dr. Loyd cut into the neck, and put his fingers into the incision, and moved the parts about; the neck was then luxated. Witness thought that Neal’s death was caused by luxation of the neck. Witness also examined the sack attached to Neal’s body and containing the bricks before referred to. He made out the letters E. Sm • ~h ; he took the dot for the dotting of an i, and the dash for the crossing of a t. E. Smith once lived in Sunflower county, and had recently died, and the place for landing his freight was Browning’s. The prisoner proved by his sons, William and James Browning, that he and Gaston Browning were at home on Sunday evening and during the night; that Neal never left there on that evening or night; and that they had not seen him since about two weeks before his death. Upon the rope found in the saddle house being shown them, they denied having any knowledge of it; but it was shown by two witnesses, that they had acknowledged, when the prisoner was on ¿trial before the committing court, that the rope was the prisoner’s ox-rope. John Garrell, for the prisoner, testified that he was at the plantation of McNeill and Hill, in the latter part of January, 1854; that Neal was then strangely affected; was drinking more than usual; that soon after twelve o’clock, N eal got into a skiff on a large lake, in front of the house, and remained there till midnight. He threatened to drown himself, and proposed to witness to will him all his property, after paying his debts; that witness frequently persuaded Neal to get out of the skiff, and come to the house, but he refused. It rained hard, and Neal stayed out in the skiff during all the time it was raining, and when he came into the house he was very wet, and he asked witness if he could come in ; he asked if there was any ether person in the room, and, Upon being told that there was not, he came. While he was in the skiff, Dr. Curtis and Mr. Cole came to the house, and witness sent word to Neal that Dr. Curtis wanted to see him. Neal sent word back for Dr. Curtis to communicate to witness what he had to say to him. He seemed to be afraid of some person. He referred to a difficulty he had previously had at Sidon, and said he had no friends. "Witness endeavored to persuade him that he had as many friends as his antagonist in that matter. The next day, the witness and Neal went to Browning’s and both stayed all night there; two strangers stayed there the same night. When supper was announced, witness went out to get a drink of water; Neal followed him, and witness asked where he was going; he said he Avas going after water. The company then went into supper, except Neal; after supper was over, the prisoner and witness went out to hunt for Neal; they found him in the ferry-boat, in the end farthest from the shore. Witness and prisoner endeavored to induce Neal to come out, but he would not come. The prisoner and witness then went to the house, and Mrs. Browning went down to the boat to try and get him out. Neal seemed to be afraid of the strangers ; and the witness and Browning endeavored to persuade him that the strangers would not hurt him, but could not succeed. As soon as Neal discovered Mrs. Browning coming, he turned loose the ferry boat, and floated down the river; the prisoner and witness followed, and overtook Neal about two hundred yards below the house; they then persuaded Neal to go back, but he would not go. They landed, the ferry boat, and Neal then spoke of drowning himself; witness told him to “ pitch in,” he would see it well done. Witness did not think Neal intended to drown himself. Neal got out of the ferryboat, and remained all night on the bank of the river; it was a very cold night, and some of Browning’s family sent Neal some fire, and he camped out. Neal could not be persuaded to leave his camp until about ten o’clock the next morning. He conducted himself very well the balance of the day; he drank a good deal during that day. Witness was unable to account for his strange conduct. Witness left Browning’s that evening and never saw Neai afterwards. Witness informed Browning of Neal’s conduct at the plantation the day previous to their arrival at Browning’s house. J. T. McNeill, on tbe subject of Neal’& derangement, testified as follows : “ I was Neal’s employer in 1854. In February, on my way from my residence in Claiborne county to the plantation in Sunflower county, I found Neal at Browning’s in a deranged state. When he first came to where I was, and began to converse, he seemed sane, but he soon showed symptoms of derangement, especially wlien I spoke of his going home. He seemed to think there was some person but there waiting to arrest him. On ascertaining the condition of his mind, I advised Browning to keep him at his house for a few days; that I thought he would get better, and that he ought not to permit any one to converse with Neal on the subject of his derangement. Browning told me that Neal had been there about a week. A few days after my arrival, I went to Browning’s after Neal, and he came home with me. During the summer, Neal did not appear to be deranged, but he had lost his wonted energy, and seemed suspicious of every one who came to the place.” McNeill further testified that on Thursday before Neal died, he left his plantation in Sunflower county to visit Claiborne county ; that he came to Browning’s to take a steamboat; whilst there the prisoner asked him how Neal was getting along; witness replied, £i Not very well, and if he did not do better he should discharge him when he came back.” The prisoner then remarked that he did not think Neal could get employment in the neighborhood; witness replied, he did not think Neal wished to do so, but that he thought he would go to North Carolina where liis relations were. Browning spoke of his son Gaston, and indirectly, as witness thought, as an overseer; he also mentioned in the conversation something about Neal’s will; witness understood him to say that Neal had made a will, giving Mrs. Browning $300, and himself the balance, after paying his debts. This witness stated that at the time of Neal’s death, a lawsuit was pending between witness and one Stoneburner, in which Neal was the only witness for McNiell; that after Neal’s death the suit was decided'against witness for the want, of Neal’s testimony; that in June before Neal’s death, Neal told witness that Stoneburner had said to him, “ Damn you, you will be killed ; I won’t do it, but some one else wilL” Stoneburner, at ibe time of Neal’s death, was living at Mr. Marye’s, about four miles from witness’ plantation, and about twelve miles from Browning’s; that Stoneburner had some negro carpenters; that some three or four weeks before his death, Neal showed witness a memorandum showing that Browning owed him $240. H. S. Cole testified that Stoneburner was at his house all day Sunday, the 23d of July, 1854, and left there about sundown; and Boyd, who was overseer for Mayre, stated that Stoneburner got home about sunset, and stayed there all night. ¥m. Duberry, for the prisoner, testified, that on the Tuesday evening on which Neal’s body was discovered, he crossed the river at Browning’s, and after he crossed over, he saw Browning’s little boy bring a turtle up the river in the skiff and land it, and that it was then bleeding at the mouth. James Browning, on this point, stated the same as Duberry. The statement in the prisoner’s affidavit for a continuance, as to what he expected to prove by Dr. Richards, and which was admitted by the state to be true, is as follows : “ That he, Richards, was present at the second inquest held over the body of Neal; that he is a physician by profession, and will state that, owing to the inartificial manner in which the examination of the body was made. by the physician in attendance, it is extremely doubtful whether the dislocation of said Neal’s neck was not produced by the persons who made the first examination of said body.” It was proven by F. C. Mercer, that Neal had some $300 in money, a few weeks before his death, which he said he was going to send to M. F. Nesbitt, to loan out for him, and that among his money were some $20 gold pieces. Jacob Metz crossed Browning’s ferry about twelve o’clock on the Sunday night before referred to; he called for the ferry-man to let him over, and recognized the voice of the prisoner calling his boy Ed, and commanding him to set Metz over; witness also observed that Browning’s skiff was not at the lauding, where it was when he crossed in the evening. The prisoner proved, by several witnesses, a good character for truth and honesty, and for peace, from the year 1886, up to the time that he was charged with the murder of Neal. The same instructions were given and refused in this case as in the case of Gaston Browning.1 The jury having returned a verdict of guilty, the prisoner moved for a new trial on the following grounds : 1st. Because the court erred in forcing the prisoner into trial, after he had made his affidavit for a continuance, because the state admitted the truth of the affidavit. 2d. Because the court erred in forcing him to trial, when he had not been furnished with a true copy of the special venire. 3d. Because the court erred in permitting the district attorney to read to the jury what purported to be a copy of the indictment. 4th. Because the court erred in refusing the 14th instruction asked for by the prisoner (being the same as the ninth, in Gas-ton’s case). 5th. Because the court erred in permitting illegal testimony to go to the jury. 6th. Because the jury found contrary to the law and the evidence. 7th. Because, while they had the case under consideration, they were permitted, and did board and eat, from day to day, at the public hotel, with all the guests and boarders, separated only by an officer sitting between them; and said jury were exposed to, and might hear the conversation of said guests and boarders, and were waited on and served at said public table by the landlord and servants at said hotel; and there were ample means- and opportunities for communication with said jury by means, of and through said landlord and servants. Upon the trial of this motion, Daniel W. Beall, for the prisoner, testified as follows : “I am one of the proprietors of the hotel kept at this place (Lexington). The jury that tried John D. Browning during the present term, were lodged and fed at said hotel during the trial, which lasted four days ; when at the hotel, before and after meals, and at night, they were kept in a room separate from the rest of the boarders and guests. They got tbeir meals at the public table, and usually at the same time with the other guests; they always occupied the west end of the table, six on each side; between them and the other guests I, always had provided a chair and plate on each side, to be occupied by an officer, or left vacant. The jury were usually conducted to the table by two or three officers, one officer preceding them; they were conducted from the table in the same manner. I noticed that the officers took unusual precaution to prevent any one from speaking to, or having any communication with the jury. I did not see the jury in the dining-room at any time, when there was not an officer sitting or standing by them. The jury could hear the conversation of the guests sitting nearest to them, when carried on in an ordinary tone of voice. On several occasions the jury got their meals after the other guests had eaten. My servants and myself served the jury at the table. I did not speak to any of the jurors, nor did any of the servants, as far as I know; I charged my servants not to speak to the jury, and so did the sheriff. I don’t think the case elicited more interest than such cases usually do.” Cross-examined: “ I did not speak nor hear any one else speak of the case in the hearing of the jury; during most of the time they were eating, I was at a carving table in a remote part of the room from the jury. I thought once of noticing for conversation about the case, and did .notice for awhile, but did not hear any thing said about it. I feel certain it was not mentioned at the table in my hearing. About twenty witnesses in the case were boarding at the hotel, and got their meals at the same table with the jury.” P. C. Richardson, for the prisoner, stated that he, on one occasion, inadvertently took one of the seats intended to be left between the jury and the guests; and that soon afterwards the jury came in, and one of them took the seat next to him, and thus situated they ate that meal; an officer stood behind them all the time. . The guests and boarders were usually talking during meals; the jury could hear those who were nearest to them. Witness did not hear the case spoken of at the table. J. M. West, the sheriff, for the state, testified, that he assisted in taking charge of the jury, in the case of John D. Browning. There was no conversation about the case in his hearing at the table where the jury ate. “ I was particular to listen and notice for it. I usually, while at meals, remained by the juror next to¿ the other guests, and on the north side of the table. I sometimes walked to the west end of the table to assist in waiting on the jury; there were usually two or three officers in charge of the jury in the dining-room; never less than two. The servants and Beall, with myself and bailiff, waited on the jury; the servants were ordered, and Beall instructed, not to speak to the jury. There was usually conversation going on among the guests, but not about the case; it would have attracted my attention. When I was at the extreme western end of the table, a word or so about the case might possibly have been uttered by guests nearest the jury, without my hearing it; but nothing like a regular conversation could have occurred. When I was at the western end of the table, there was always another officer about the jurors next to the guests.” Being cross-examined, he stated: “ It was possible that a servant, in waiting on the jury, could have handed to a juror, a written communication, without my seeing it; and it is also possible, that a servant might have whispered a word or so in the same way, though I think it very improbable, as I was on the lookout ; of course I could not look at all twelve of the jury at once. I was at every meal with the jury, except once at breakfast.” Samuel C. Johnson, for the state, stated that he acted as bailiff to the jury in the Browning case, and was with them at every meal they ate, except one. He usually stood or sat bfetween the jury and the guests, on the south side of the table. He heard no conversation about the case in the hearing of the jury, and saw no communication between any one and the jury, directly or indirectly. He thought he saw Richardson, at one meal, occupy a seat next to the jury, or the one next to it. James M. Haynes, for the state, testified that he was a regular deputy sheriff, and after conveying the prisoner to the jailer, upon the adjournment of court, he usually went to the hotel, where he arrived, sometimes before the jury finished their meals, and sometimes afterwards. He heard no conversation about the case in their hearing. This was all the testimony on the motion. The court overruled it, and the prisoner excepted, and sued out this writ of error.