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State v. Haywood.

tiff has very well merited the payment of the costs of this suit. At any rate, it does not appear that, either in strict law or plain justice, he is entitled to recover.

PER CURIAM,

Judgment reversed and venire de novo.

prosely woong

STATE. BANVESTER HAYWOOD.

Evidence making a mere ground for conjecture that a homicide was acci dental, is to be regarded as no evidence.

Upon trials for murder, a killing by the prisoner having been proved, the burden of proof shifts to the prisoner.

When it was shown that the prisoner killed the deceased by shooting, and
made his escape, and afterwards said he had killed deceased but did not
know that the gun was loaded, the fact that the gun was out of order
and would not stand at half-cock, did not make it error for the Judge to
refuse to charge that "if the prisoner was handling the gun in a careless
and negligent manner, and it accidentally went off, the killing was miti-
gated to manslaughter," there being no evidence of negligent handling
or accident.

A charge upon the subject of insanity in criminal cases commended.
(Sutton v. Madre, 2 Jon., 320, cited and approved.)

MURDER, tried before Green, J., at May Term, 1867, of the criminal court of CRAVEN.

The prisoner, a colored man, was indicted for killing Tilicha Keyes, a colored woman. The deceased lived with the family of one Foreman, who kept a grocery. The pri soner and a brother had been drinking at the shop the day before the homicide. On the day of the homicide the pri soner had been in the shop, but went out and soon returned armed with a gun and pistol. As he entered he laid the pistol on the counter, and said "What in the hell is that you

State v. Haywood.

say," holding the muzzle of the gun to the head of the deceased and firing. She fell dead, and he immediately dropped the gun, took up the pistol and made his escape. He was arrested soon after, and made the declaration that he had killed the deceased but did not know that the gun was loaded. There was no evidence of ill will or a quarrel between the prisoner and the deceased at any time.

It was in proof that the lock of the gun was out of order, and would not stand at half-cock. It was shown for the prisoner that his father was insane, and under confinement at the time of his death; that the prisoner's "disposition was peculiar;" also that he had taken no food on the day of the homicide.

The prisoner's counsel contended that there was evidence of the accidental firing of the gun; and asked the court to "charge that if the prisoner was handling the gun in a careless and negligent manner and it accidentally went off, the prisoner would not be guilty of murder, but of manslaughter." His Honor refused, on the ground that there was no evidence to sustain that view of the case. The prisoner excepted.

The prisoner's counsel contended that "If subject to an insanity inherited from his father, the prisoner acted at the time under delusion excited by abstinence from food, and by the use of intoxicating liquors, amounting to insanity, he would be entitled to an acquittal." On this subject his Honor charged the jury as follows:

"That if the prisoner, at the time he committed the homicide, was in a state to comprehend his relations to other persons, the nature of the act and its criminal character, or, in other words, if he was conscious of doing wrong at the time he committed the homicide, he is responsible. But if on the contrary, the prisoner was under the visitation of God, and could not distinguish between good and evil, and did not know what he did, he is not guilty of any offense

State v. Haywood.

against the law; for guilt arises from the mind and wicked will.

Verdict of guilty; judgment of death, and appeal.

Manly & Haughton, for the appellant.
Attorney General, for the State.

PEARSON, C. J. The only ground taken in this court was that the Judge erred in declining to charge that, if the prisoner was handling the gun in a careless and negligent manner, and it accidentally went off, the killing was mitigated to manslaughter. His Honor refused so to charge, on the ground that there was no evidence to sustain that view of the case. There is no error.

The evidence relied on by the prisoner's counsel was "that the lock of the gun was out of order and it would not stand at half-cock." This evidence may have been ground for a "conjecture" that by possibility the gun went off accidentally, but standing alone it certainly was not evidence fit to be left to the jury, on which to find that such was the fact, as the onus of proof lay upon the prisoner, the killing by him having been proved. Sutton v. Madre, 2 Jon., 320.

It is true that in making out a fact by circumstantial evidence, a matter, which taken by itself would be of no importance, frequently makes an important link in the chain of circumstances by being taken in connection with other circumstances; but there must be a chain leading to the fact to be established, and one link taken by itself amounts to nothing. For illustration: it is proved that a father killed his child with a gun; this puts the onus on him; he proves that the child was a favorite of his; that the lock of the gun was out of repair, so that it would sometimes go off at halfcock by a jar or sudden motion, and that, at the instant it went off, he made an exclamation of surprise and exhibited

State v. Haywood.

the natural emotions of grief, (which would be admissible as part of the res gesta). Here is a chain of circumstances. proper for the consideration of the jury. In our case there is a middle link: i. e., The lock was out of order, and it would not stand at half-cock. But the prisoner is content with the fact that the State had offered no evidence of any ill will or quarrel between him and the deceased; so the link on that side is wanting, and, so far from there being a link on the other side so as to make a chain, the evidence is that, without expressing any surprise, he throws down the gun, picks up his pistol and makes his escape; and, even when arrested, puts his defence on the ground that he did not know that the gun was loaded. Thus the evidence in respect to the lock stands alone in reference to the allegation that the gun went off accidentally, and is hardly sufficient to suggest "a conjecture" that such might have been the fact.

We fully approve of the charge of his Honor upon the subject of insanity. It is clear, concise and accurate; and, as it is difficult to convey to the minds of jurors an exact legal idea of the subject, we feel at liberty to call the attention of the other Judges to this charge.

There is no error. This opinion will be certified to the end, &c.

PER CURIAM.

There is no error.

Broughton v. Haywood.

MATILDA BROUGHTON and others v. E. G. HAYWOOD and others.

A Clerk and Master, who sold slaves under a decree in a petition for partition, and instead of taking bond as the decree directed, received cash, is, with his sureties, liable for the amount so received, upon motion for a summary judgment under Rev. Code, c. 78, s. 5; and this, whether an action on the bond would or would not lie for the money, as received" by virtue of his office."

The Military Order, No. 10, s. 2, (April 11th, 1867,) does not forbid the

courts of the State to hear and try causes and render judgments and decrees; but it operates in analogy to injunctions against executions after judgment.

By Pearson, C. J. The Clerk and Master, having sold according to the order, had a discretion to take cash instead of a bond and security, and was liable to a suit on his bond for money received by virtue of his office.

When a Clerk takes a bond payable six months after date, if the debtor tenders the money at the day, the Clerk is bound to receive it without waiting for an order for collection.

MOTION for a summary judgment under Rev. Code, c. 78, 8. 5, tried before Barnes, J., at Spring Term, 1867, of the Superior Court of Law for WAke.

The defendant Haywood was Clerk and Master in Equity for Wake County in 1860, and upon the renewal of his bond in that year, the other defendants became his sureties.

An exparte petition was filed in the Court of Equity for Wake, at Spring Term, by the plaintiffs (some of whom were minors) for the sale for partition of certain slaves owned by them as tenants in common. A decree was rendered at that term, for a sale upon six months' credit, bond and security to be given by the purchasers. The defendant Haywood reported to Fall Term, 1860, that he had made the sale and had taken bond and security from the purchasers, except in the cases of W. F. Askew and P. J. Sterne, who tendered the cash, amounting to $1200, which was received.

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