Jackson v. Jackson et al.

nized by the supreme court of Massachusetts in the case of Stearns v. Stearns, 1 Pick. 157.

We consider the construction contended for in behalf of the plaintiff in error founded on good reason, and that it is the correct rule upon the subject.

But it is insisted in behalf of the defendants in error, that the plaintiff here has no right to complain, because no exceptions were taken to the commissioners' report, and it was regularly confirmed by the court, and it does not appear that he was injured by the valuation of the slaves advanced to him and allotted to him in the partition.

The error as to the valuation of the slaves is in the decree for distribution, and was carried out in the division made under it. The writ of error certainly extends to the decree and to errors of law apparent on its face. And we think that the correct rule is, that when error of law manifestly appears, the presumption of law is that it was to the prejudice of a party complaining of it, and that the judgment will be reversed by reason of it, unless it appear by the record that it did not operate to the injury of the party complaining.

But the facts appearing of record create a presumption almost as strong as proof, that the slaves advanced to the plaintiff in error were of greater value at the time of the distribution than at the time of the advancement. It appears by the record that two of the slaves were each twenty years of age, and the other was thirteen years of age, at or about the time of division in 1853, and that they had been given to the plaintiff in error in 1846 or 1847; so that two of them were about thirteen years of age, and the other about seven years of age, at the time of the advancement. It is thus apparent to the knowledge of every one acquainted with such property, that in every probability, the slaves must have been much more valuable intrinsically at the latter than at the former period, and that the plaintiff in error must have been injured by the rule of valuation prescribed by the decree.

The decree is reversed, the commissioners' report set aside, and the cause remanded to be proceeded with according to the principles herein stated.

28 684 d83 295

Turner v. The State.

WILSON TURNER vs. THE STATE.

By the statute of 1822, (Hutch. Co. 314,) it is provided that where a party having received a wound in one county, dies in consequence of such wound in another county in the State, the indictment should be found in the county where the death occurs, and not in the county where the wound was inflicted. Stoughton v. The State, 13 S. & M. 255, cited and confirmed.

The evidence in this case does not show that the death occurred in the county of Y. It would not, however, for this cause be proper to quash the indictment, although the judgment must be reversed.

IN error from the circuit court of Yazoo county, Hon. E. G. Henry, judge.

The opinion of the court contains the facts of the case.

J. M. Moore, for appellant.

The first point I shall call the attention of the court to in this case is, that the record does not show, otherwise than by the indictment, that the grand-jury were summoned from the county of Yazoo, or were citizens of said county. The statute requires the assessor to return to the court"a list of the names of all freeholders, being citizens of the United States, within his county, and householders," &c. Hutch. Co. 886, § 1.

No person can be subjected to punishment for any offence unless a conviction be had upon an indictment found by a grandjury of the county in which the offence was committed. Laura v. State, 26 Miss. R. 176.

The record must affirmatively show those indispensable facts without which the judgment would be void. Dyson v. State, 26 Miss. R. 383.

In regard to matters which by law should appear in the record, no presumption can be indulged which would either contradict the record or supply a defect. Laura v. State, 26 Miss. R. 176.

2d. The record does not show that the grand-jury were regularly elected and impanelled, &c. The record must show

Turner v. The State.

that the grand-jury were duly elected and impanelled, &c., and its omission cannot be cured by the recital of it in the indictment. Abram v. The State, 25 Miss. R. 589.

3d. The record does not show, otherwise than by a recital of the clerk, that the bill of indictment was indorsed by the prosecutor. Hutch. Co. 1005, § 69; Cody v. The State, 3 How. 27; Peter v. The State, Ib. 433.

4th. The record must show the accused was served with the copy of bill of indictment, and the special venire summoned to try the cause. Vide Hutch. Code, 1003, § 49.

5th. The evidence does not show that the deceased died in the county of Yazoo, the court was without jurisdiction, and the verdict of the jury and the judgment of the court are therefore void. Vide Green v. State, 23 Miss. R. 509. It is indispensable that the indictment should aver that the murdered party died in the county in which the indictment is found against the accused. State v. Orsell, 1 Dev. 125; Riggs v. The State, 26 Miss. R. 51. The prosecutor must prove any fact and circumstance stated in the indictment which is materially necessary to constitute the offence charged. John v. State, 24 Miss. R. 569.

6th. The evidence of the attending physician clearly shows that the deceased died of a fatal disease prevailing at the time, and that the nurse or attendant, without his knowledge, and in violation of his practice, administered remedies which were highly injurious. "It is clear," says Mr. Alison," that if death be not owing to the effects of the wound, but to a supervening accident or misfortune, though induced by the first violence, the prisoner cannot be convicted of homicide." Vide Roscoe's Criminal Evidence, 703. See also Campbell and McMillan's Cases; Alison's Prin. Criminal Law of Scotland, 147, and cited in Roscoe's Criminal Evidence, 705.

7th. There was no evidence before the jury which identified the prisoner, nor was there any proof that the deceased was one of the parties engaged in the rencontre.

8th. The reading of the bill of indictment only until the case was submitted to the jury, was in gross violation of criminal

Turner v. The State.

practice, and was of itself a good cause for a new trial. 4 Black. Comm. 355.

D. C. Glenn, attorney-general, for the State.

Mr. Chief Justice SMITH delivered the opinion of the court. The plaintiff in error was tried upon an indictment for murder, in the circuit court of Yazoo, and convicted of manslaughter in the second degree. The evidence adduced on the trial is contained in the bill of exceptions taken to the decision of the court, on a motion for a new trial.

The errors assigned are, 1. That the record does not show that the grand-jury, by whom the indictment was found, were selected, summoned, and impanelled in the mode prescribed by the statute; and, 2. That a new trial should have been granted because the verdict was not sustained by the evidence.

1. In reference to the last exception, it is very clear that the proof was insufficient. There was no evidence offered, either direct or circumstantial, which showed that the death occurred in the county of Yazoo, in which the bill of indictment was preferred. This was essential to give the circuit court of that county jurisdiction. For, by the statute of 1822, Hutch. Code, 314, it was expressly provided, where a party having received a wound in one county, dies in consequence of such wound in another county in the State, that the indictment should be found in the county where the death occurs, and not in the county in which the wound was inflicted. Stoughton v. The State, 13 S. & M. 255.

In the case cited the proof was, that the wound was inflicted in Perry county, and that the death occurred in Harrison county. The indictment was found in Perry county; and this court reversed the judgment and quashed the indictment, upon the ground that the circuit court of that county could take no jurisdiction of the offence. In the case at bar the evidence does not show that the death did not occur in Yazoo. It failed to show that the death did occur there. Under these circumstances, although the judgment must be reversed and the ver

Green v. The State.

dict set aside, it would be improper for this cause to quash the indictment, for it may be true in point of fact, that the death did occur in Yazoo county, in which event the court of course had jurisdiction.

2. The first exception is untenable. In our opinion the record shows with sufficient certainty, that the grand-jury were selected and impanelled in the manner directed by the statute.

Judgment reversed, and prisoner remanded for a new trial.

GEORGE N. GREEN VS. THE STATE OF MISSISSIPPI.

Where a record contains the following entry: "No. 400, State v. G. N. G. This day the grand-jury, under the care of their proper officer, by the hands of their foreman, J. R., returned into open court a bill of indictment against G. N. G., the defendant in this case, for murder, indorsed by the foreman of the grand-jury, a true bill: " and immediately follows the indictment answering the description of it contained in this entry, and indorsed and numbered in the same manner as the entry; immediately following which, is an entry of the case with the same number and style of parties above stated, showing the arraignment on the indictment, and the plea of not guilty. The same circumstances of identity appear in various other proceedings taken in the case:- Held, that the indictment immediately following the entry of its return into court by the grand-jury, in conjunction with the additional evidence of identity, remove all reasonable doubt as to the proper identity of the indictment in the record.

It is not a sufficient ground upon which to arrest a judgment, that more or less than the legal number of persons required to constitute the grand-jury, were summoned and in attendance, and that out of these the grand-jury were drawn; as the venire does not constitute a part of the record. Byrd v. The State, 1 How. 253, cited and confirmed.

The venire can only be made a part of the record by bill of exceptions; moreover after the party has pleaded in bar to the indictment and been convicted, it is too late to urge objections to the constitution of the grand-jury by motion in arrest of judgment. Held, that such objections are proper subjects for pleas in abatement. Leathers v. The State, 26 Miss. R. 73, cited and confirmed.

Every killing is presumed to be malicious, and amounts to murder, until the contrary appears from circumstances of alleviation, excuse, or justification;