Churchill et al. vs. Corker, adm'r.

the express power to dispose of that remainder, appearing upon the face of the deed, and the execution of the power having been proven, it prevented the husband from taking, whether she had a vested remainder or not.

It is further assigned, as error, that the Court refused to charge, that if a separate estate was created in the trustees, the trustees, should have sued, and not the plaintiff.

Without saying more upon this head, it is sufficient to remark, that upon the death of the wife, the probate of the will and the death of the husband, the property vested in the legal representative of the wife; whenever the remainder vested in one capable of taking and holding, the trust, being functus, would cease of course; and no estate whatever remained in the trustees.

Counsel find fault with the Court for telling the jury not very emphatically to be sure, that "he believed there was some proof," that Calvin B. Churchill got the property in dispute by his wife. Chance, one of the witnesses, swore to it, positively; and there was no evidence to the contrary; there was no dispute about the facts; and this was conceded by counsel in arguing before the jury as admitted here. Surely then, the Court did not trench upon the province and privilege of the jury in saying, "he believed" there was some proof upon this very immaterial point. He did not say, that the fact was or was not proven, which by the Act of 1849, is prohibited; but stated merely that there was some proof "he believed" to a certain point. This is not forbidden by the statute.

I fear I shall weary the profession with this case. Some of the smaller grounds, may have been overlooked. Suffice it to say, they are all overruled, and the judgment of the Circuit Court affirmed generally.

Judgment affirmed.

Martin vs. The State.

GREEN MARTIN, plaintiff in error, vs. THE STATE OF GEORdefendant in error.

GIA,

[1.] When two persons are indicted together, and a true bill found against both, but one only is arrested, arraigned, and put upon his trial, a general verdict, “We the jury find the defendant guilty," is sufficiently certain as to the individual intended.

[2] A juror who, while consulting with his fellow-jurors in a criminal case, refers to another offence, alleged to have been committed by the defendant, saying "he is a bad man any how," and especially if he acknowledges that this other imputed crime influenced the jury in convicting the accused, evinces a bias of mind that disqualifies him from serving as a juror.

Murder, from Washington county.

HOLT, March Term, 1858.

Decided by Judge

Green Martin was indicted for murder of his negro. Upon the trial the following evidence was adduced: Dr. Lucien Q. Tucker being sworn: I am a physician; I was practicing on the 9th day of May, 1857; I was requested by Mr. Martin to examine the negro boy; this was on the 11th May, 1857. I examined; Green Martin asked himself; I found the boy disfigured by bruises; I had no instruments; I did not probe the wounds; the bruises were on his breast, sides, wrists, and ankles, and his face; I borrowed a pocket knife and cut into the boy's neck, and found a dislocation of his neck; his name was Alfred; he was the property of Green Martin; was taken out of the grave; I suppose a dislocation of the neck caused his death; bruises were severe, and on the side the skin was broken, produced by violence; they were caused by something hard; the appearance of the bruises around the wrists and ankles were caused by a rope; the bone upon which the head rests is called the atlas; it was dislocated; a fall will produce dislocation; the fall must be violent; a fall backwards from a chair has produced it; a jerk may produce it; choking without a jerk will not; the boy was disinterred; does not know how long the y was buried; judging from the wounds, they appeared to

Martin vs. The State.

have been of recent date; suppose the boy's neck had been dislocated; he found that, and knew it was sufficient; the boy was buried in an old field belonging to Thomas Wright, of Washington county, about one mile and a half from the residence of the defendant; the dislocation of the atlas causes death by pushing forward, and presses upon the wind-pipe, and causes suffocation; appeared of recent dateof few days.

Cross. I was called for a post mortem examination; I found him at the grave; the grave yard was a negro grave yard; I saw other graves there; I can't tell how many places the skin was broken in exactly; I remember two, I found one in his side; the body was swollen very little; I can't tell the depth of the bruises from external appearances; the one on the side was cut through the skin; after a dislocation of the neck on the ground, the person could not rise again; witness thinks pushing the bone forward would produce strangling; the witness says that a dislocation of the neck caused the death of the boy. I cannot say that the bruises produced the death; the witness says that the grave did not present the appearance of concealment; he says Mr. Martin asked him to go and examine the boy; it was at the Coroner's request; some person was with Mr. Martin when he asked him, but he does not remember who; the dislocation. of the atlas will cut off all connection between the body and brain; all action afterwards would be but spasmodic-death would instantly ensue.

Miss Catharine Martin sworn and says: I am the daughter of Green Martin; I reside at my father's house in the county of Washington; I have resided at home, my father's, ever since the 9th of May, 1857. My father is the owner of slaves; he owned a negro boy by the name of Alfred; the boy is dead. He died on the 9th of May, 1857, at my father's house in the county of Washington, State of Georgia. My father, two sisters, and my brother Godfry and myself were present. My brother Godfry is not present in the coun

Martin vs. The State.

ty. I don't know where he is; I have seen him once since the 9th of May, 1857, on Sunday night week afterwards. Alfred was over twelve years of age at his death; does not know how much over, but between twelve and thirteen. Was in good health up to that time as far as she knew. He was struck three licks with a rope by Godfry about three o'clock P. M. I saw my father choke him about twelve o'clock, no one present but myself. He then threw him on the ground and sat down on him astraddle of him. Short time after he then choked him and threw him down the second time again; my brother Godfry then poured water on him. My father then got off of him, and did not trouble him any more. My father did not sit down on him the second time. I saw my brother Godfry kick him down. The boy then again got up. I have been sworn twice on this case; once by Mr. Daniel at the Coroner's inquest, next time at Dr. McBride's; John Ivy, Henry Wood, Silas Daniel were the Justices. There was a saddle used by Godfry on that occasion; the saddle was put on the negro, my father was sitting present as close as to you (Hook) [distance about 20 feet.] About one half hour after, my father choked the boy down the second time, until my brother Godfry put the sad ́dle on him; the witness did not see the boy during the time; she was in the house, the boy was on his all fours. My brother put the saddle on him and then got upon it; he remained some quarter of an hour, I suppose; he sat upon the boy, but did not make him carry him. My father was present. After the riding the boy carried the saddle into the house by the order of my father, and then returned to the yard. When the boy returned to the yard, I saw my brother Godfry kick him down; my father was sitting on the bed scaffold in the yard, seven or eight feet from my brother. It was between three and four o'clock. One hour before the boy's death, after the boy was kicked down, and he got up and my brother slapped him down, but did not see him or my father strike him with a stick. Witness does not know

Martin vs. The State.

what followed immediately. Witness did not see the boy dragged by a rope; he was hit three licks with a rope by her brother. It has been nearly a year since I testified before the Justices, but do not remember testifying to the fact that there was a rope around his body; does not remember seeing a rope around his body one-quarter of an hour before his death. The whipping commenced about twelve o'clock, while my father was sitting on the boy. Did not see him choke him nor strike him. I saw him dead about an hour by sun, near six o'clock. Did not go to the boy, but saw him while passing; he was naked, but she does not know who stripped him. My father did not carry him to the house, but my brother carried him to his mother's house and laid him out. I saw him next morning in his mother's house, but did not examine him. My father and brother did not bury him secretly; they did not request him to be buried secretly. I do not remember to have said that with a rope around his waist he dragged him fifty yards. I came to town with my two sisters and Washington Gilbert on last Wednesday; I have stayed at Mr. Langmade's ever since. I was over twenty years at the time this occurred. Witness saw the boy next morning after his death; she saw no bruises before his death, nor when he was lying in the yard dead. Witness does not remember that her father and brother requested that the boy should be buried secretly, nor any intimation that way. The body was swollen considerably next morning. The boy was buried on the 10th of May, near sunset. Witness, two sisters, James L. Scott, one cousin, and William Dent, and several negroes. My father did not attend, in consequence of sickness; he was vomiting. No one attempted to interfere during the events which she has testified. Her mother was not living. She and her sisters were there, but did not bother them for fear they might bother her.

Cross.-The slaves of Green Martin were not particularly under control of her brother; they all worked together. VOL XXV.-32