1. Where, on appeal, it appears that the trial court heard evidence on an application for a continuance, but that evidence is not shown in the record, an exception to the overruling of the application cannot be considered.

2. An application for a continuance on the ground of the absence of a witness is properly overruled where the testimony of the absent witness would be merely cumulative.

3. Where a girl a little over five years of age testified that she knew it was wrong to tell stories; that she would go to heaven if she did not lie, and go to hell if she did; that she went to Sunday school, but did not know that she would be punished if she did not tell the truth in court-she was a competent wit

ness.

4. On appeal, a motion to "quash the jury box," unsupported by evidence, cannot be considered, even if good on its face.

Appeal from circuit court, Quitman county; Sam C. Cook, Judge.

Shack Trim was convicted of murder, and appeals. Affirmed.

The only eyewitness to the killing was a little girl-Nora Hoskins, a daughter of the deceased woman. She testified that Shack Trim killed Edith Hoskins one morning about sunup; that she was lying in the bed, and Shack had slept in the room on a quilt, and killed her mamma because she would not let him sleep with her. The testimony as to the age of Nora was that she was about five years old at the time the killing occurred. Nora was asked if she knew that it was wrong to tell a lie. She answered, "Yes, sir." She was then asked if she knew what would become of her if she told a lie. She answered, "No, sir." She was asked what would become of her when she died, if she told a lie. She answered, "I don't know."

2. See Criminal Law, vol. 14, Cent. Dig. § 1328.

She was asked if she knew she would be punished if she told a lie. She answered, "No, sir." The following questions were put to her: "Q. What do they do to you when you tell stories at home? A. Whip me. Q. Then you know it is wrong to tell stories, don't you? A. Yes, sir. Q. You know it is wrong to tell a story, do you? A. Yes, sir. Q. They ever tell you about heaven and hell? A. Yes, sir. Q. What do they say about little girls that tell the truth? A. They go to heaven. Q. Where do little girls that tell stories go? A. Go to hell. Q. Do you know whether they make you tell the truth in the courts? A. No, sir. Q. Tell you in Sunday school what becomes of bad children, don't they? A. Yes, sir. Q. They tell you in Sunday school that if you tell stories that you go to hell, and, if you be good and tell the truth, you go to heaven, don't they? A. Yes, sir." Defendant made a motion for a continuance on the ground that his mother, Viney Trim, a material witness, was sick and unable to attend trial, and he expected to prove by her that she was present when Sarah Hope, one of the state's witnesses, asked Nora Hoskins who killed her mother, and that Nora replied she did not know, and Sarah reiterated it a number of times, and, after much urging, Nora said that Shack Trim killed her; and he also expected to prove by her that Nora said on a number of occasions that she did not know who killed her mother; that she was asleep. Defendant's motion for a new trial was overruled, and he appeals.

R. W. Millsaps, for appellant. J. N. Flowers, Asst. Atty. Gen., for the State.

CALHOON, J. The objection to the overruling of the application for continuance because of the absence of the defendant's mother, from sickness, cannot be considered, for two reasons: The court heard evidence on the application, and it is not shown in the record; and there was other testimony adduced by defendant as to this statement of the state's witness Nora Hoskins. So the testimony of Viney Trim, the mother of the accused, would have been merely cumulative.

Nora Hoskins was a competent witness, notwithstanding her youth.

We cannot consider the motion to "quash the jury box," because unsupported by evidence, even if good on its face, which we do not now decide. Affirmed.

OWENS v. STATE.

(82 Miss. 18)

(Supreme Court of Mississippi. March 2, 1903.)

HOMICIDE-STATE'S WITNESS-INDUCEMENTS

-CORROBORATION-INSTRUCTION-VERDICT -ASSESSMENT OF PUNISHMENT.

1. Where one previously convicted of the same homicide and sentenced to execution tes

tified for the state that no inducements had been held out to obtain his testimony, it was error to permit the district attorney to testify to the same effect.

2. Where a state's witness, who had been arrested by decedents for illicit distilling, testified that decedents were killed by L. during a difficulty between witness and decedents over a pistol, an instruction that if L. went to defendant's house on the night of the killing and told defendant that the officers were at witness' house, and that he and witness wanted to kill the officers, whereupon defendant gave L. buckshot shells and told him to go back and kill the officers, and that L. attempted to kill such officers, but was prevented from doing so, and thereafter witness and the officers engaged in a quarrel, and while so engaged L. shot and killed them, not because defendant had told him to do so, but because of the trouble between witness and the officers, defendant was not guilty, was improperly refused.

3. In a prosecution for homicide, in which the jury was required to fix the penalty, the following verdict was returned: "We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the court,"-after which the court asked each juror what he meant by the verdict, receiving replies that none of the jurors meant that the death sentence should be imposed, that "term" meant that he should not be imprisoned for life, each differing as to the term from 12 months to life imprisonment, whereupon the court entered a verdict fixing the penalty at imprisonment for life, and sentenced defendant accordingly. Held, that the verdict returned by the jury was insufficient to sustain the judgment, and that the verdict entered by the court was not justified.

Appeal from circuit court, Marshall county; P. H. Lowrey, Judge.

"To be officially reported."

Whit Owens was convicted of murder, and he appeals. Reversed. See 33 South. 722.

The evidence showed that in November, 1901, John and Hugh Montgomery, who were deputy United States marshals, went to the house of one Mathis, in Lafayette county, with a warrant to arrest Mathis for illicit distilling; that they reached the house about sundown, and were persuaded to remain there that night. That night they were both murdered, and the house burned. Mathis had been tried and convicted of the murder, and sentenced to be hung, at the time of the trial of Owens. Mathis was introduced as a witness for the state, and testified on crossexamination that he went into the room with the two Montgomerys for them to go to bed, and Hugh Montgomery had taken a pistol away from him in August, and put him in jail, and gave the pistol to the jailer; that John Montgomery got to bed first, and he (Mathis) held the light for them to get to bed, and sat down on the footboard, and Hugh sat down and talked, and finally pulled off his coat, and pulled off a scabbard and laid it under his pillow, and then pulled off his pants, and "I asked Hugh to let me see that pistol you pulled off the scabbard,' and he says, 'I will show it to you some other time,' and I said, 'Let's see it now.' I had seen the handle, and knew it was mine. I says, 'You told me a damned lie about that

pistol; you have got it, and I want it;' and he grabbed around for his pistol, and says, 'God damn you, I will take you to town tonight,' and as he done that the negro (Orlandus Lester) jumped in the door and shot Hugh on the side of the head, and John was reaching around for his pistol, and he shot John." He also testified that no inducement had been offered him to testify against Owens. The fifteenth instruction asked for defendant and refused was as follows: "The court further instructs the jury that, although they may believe from the evidence that the witness Lester went to the house of defendant of his own accord, or was sent there by Mathis on the night of the killing of said officers, and that he (Lester) told defendant that the officers were at Mathis' house, and that he, or he and Mathis, wanted to kill said officers, and that the defendant gave Lester some buckshot shells and told him to go back to Mathis' house and kill said officers, and that the negro (Lester) did go back to the house of Mathis, where the officers were, and attempted to kill said officers, but was prevented by said Mathis from doing so, and that afterwards, and on the same night, Mathis and Hugh Montgomery engaged in a quarrel about a pistol, and that while they were so engaged the negro (Lester) shot and killed said officers, not be cause Owens had told him to do so, or had in some way influenced him, but alone, because of the trouble between Mathis and Hugh Montgomery, then the jury should find the defendant not guilty." The opinion of the court contains a further statement of the facts. Defendant's motion for a new trial was overruled, and he appealed.

Stephens & Stephens, for appellant. Monroe McClurg, Atty. Gen., for the State.

WHITFIELD, C. J. It was error to per mit the district attorney to testify that no inducement had been offered Mathis to testify against Owens. Mathis had expressly stated himself, when asked, that no inducement had been held out. The only possible effect of this testimony was to permit the state to bolster the testimony of its witness Mathis in this unwarranted way. This has been expressly condemned twice by this court. Madden v. State, 65 Miss. 176, 3 South. 328, where the court said: "On the trial, one Morris, indicted for the same offense, was introduced by the state as a witness. He distinctly and fully testified to the guilt of the appellant on direct examination. On cross-examination he stated that some days after the burglary, and while he was confined in jail, he sent for the attorneys who had been engaged to prosecute the parties charged with the crime, and, being informed by them that any one of the number who would divulge all the facts would not be prosecuted, he determined, as he says, 'to make a clean breast and come clear.' To break the

force of this statement, the state was permitted, over the objection of appellant, to prove by the counsel referred to by the witness that no such promises were made. This should never have been permitted. Whether the statement made by the witness on crossexamination was true or untrue was not relevant to the guilt or innocence of the defendant. The single purpose of the state in contradicting that statement was to break its force and effect as going to show that the inculpating testimony delivered on direct examination had been induced by promises of immunity from punishment. It was an effort to support the evidence given on direct examination, and to discredit that drawn out on cross-examination, and it was not competent to do either. A witness cannot be corroborated by proving that on other occasions he had made statements conforming to his testimony, for such statements are but hearsay; nor can one who introduces a witness directly attack his credibility by proving facts irrelevant to the issue." And Williams v. State, 79 Miss. 555, 31 South. 197. It was error to refuse the instruction asked by the defendant. The idea presented in this instruction is that, if Lester killed the officers, not because of anything Owens had told him to do, but merely and solely to protect Mathis, the appellant would not be responsible for that; and the testimony of Mathis furnished the defendant with a basis on which to predicate his right to this instruction.

The fourteenth instruction granted for the defendant does not cover this precise proposition, and the refused instruction, being a correct proposition of law, ought to have been granted. The defendant has the right to have the jury instructed upon any theory that the testimony may reasonably present. It must be admitted that Mathis' testimony was certainly sufficient to justify the giving of this instruction. As to the truth or falsity of Mathis' testimony in this connection, we, of course, make no comment.

The jury first returned into court this verdict: "We, the jury, find the defendant guilty as charged, and ask for the mercy of the court." This clouded verdict needed to be cleared up, as held in Smith v. State, 75 Miss. 556, 23 South. 260. This jury had been fully instructed as to the form of the verdict, as had the jury in the Smith Case, and what was said in the Smith Case, reviewing the authorities on that proposition (Penn v. State, 62 Miss. 477; Shines v. State, 42 Miss. 333; and Gibson v. State, 38 Miss. 310), is directly in point in this case. We stated then, and now reaffirm the proposition: "The thing to be ascertained is 'the will and intention of the jury' in their finding. That is what the court should know, that the proper sentence of the law may follow upon their actual finding, not upon what is not their actual finding. Of course, the legal effect of the verdict in this case,

in the words used, is, by legal construction, death. But the words employed in a verdict are the mere vehicle for conveying the jury's will; and where there are words in the verdict raising an 'apparent cloud' as to what the actual intent of the jury is, the court, whether asked or not, should 'dispel that cloud,' and have the jury make plain their meaning. And the court, of course, had the amplest power to do this, and, if necessary, to send them back to the jury room to render a clear and unambiguous verdict; and most especially should this ample power be exercised in a capital case." Following this announcement in 75 Miss., 23 South., the learned court below sent the jury back to put their verdict in proper form, the court having first asked the jury what they meant by the "mercy of the court," and a member of the jury having said, "We thought he should have been put in the penitentiary." This occurred at 6 o'clock in the evening, and at 6:40 the jury returned a second verdict in the following words: "We, the jury, find the defendant guilty as charged in the indictment, and fix the penalty to serve a term in the state penitentiary, and ask the mercy of the court." When this verdict was rendered one of the jurors, Simpson, said: "I would like to explain. Before we assessed any time we knew we could not fix any length of time, and we thought by asking the mercy of the court it would be all right; we did not have the form properly drawn up." The jury did have the forms properly given in the instruction, and, if the learned circuit judge had simply directed the jury to go back and read the instruction as to the form of their verdict, and then render a proper verdict, it would have been a very easy thing for the jury to have done that, if they had really agreed on a verdict; or if, as the record discloses was the fact, they had not really agreed on any verdict, a mistrial could have been entered. When this second verdict was rendered, the court first polled the jury in the usual way, and then each juror was asked what he meant by the verdict. Juror Frazier said that he "meant for the judge to fix the number of years, even if it extended to the life sentence"; Juror Higgins said that he "meant from 20 to 25 years in the penitentiary, and that he did not mean life imprisonment in the penitentiary"; Juror Puryear said that he "meant from 20 to 25 years, and did not mean life imprisonment"; Juror Wade said he "meant to leave the term of years to the judge, even if it meant life imprisonment"; Juror Eason said the same thing; Juror Crawley, that he "did not mean life imprisonment, but left it subject to the judge as to time"; Juror Hart said that he "meant about 25 years"; Juror Mobly said he "left it to the judge as to time, but did not mean life imprisonment," adding, "We did not expect it to be made for life is the reason we asked the mercy of the court"; Juror Hardin said, "I could not hang him

according to my view of the testimony, and thought he deserved 10 or 15 or 20 years in the penitentiary. I did not think he deserved life imprisonment"; Juror Morton said that he "left it to the court, except that he did not mean life imprisonment"; Juror Simpson said that he "left the time to the court, but intended a very short term-5, 10, or 15 years-did not mean life imprisonment"; Juror Sharp said that he "meant 12 months in the penitentiary; he did not mean life imprisonment." Each and every one of the jury, asked by counsel for the state and for the defense, expressly stated that no one of the jury meant that the defendant should be hung. The court seems to have directed the verdict to be entered up in the following form: "We, the jury, find the defendant Whit Owens guilty as charged in the indictment, and fix the penalty at imprisonment in the state penitentiary for life." It is perfectly obvious that no such verdict was rendered by the jury, and it is equally obvious that the jury had not agreed upon any verdict at all.

To show what an utterly clouded verdict it was, we have, on the one hand, the action of the court directing the verdict to be entered in the form we have just given, and sentencing the prisoner upon the verdict to imprisonment in the penitentiary for life; and we have the district attorney, on the other hand, actually excepting to the action of the court in not sentencing the prisoner to be hanged. It is plain that the court did what he did because he thought the legal effect of the verdict was imprisonment for life. It is also plain that the district attorney based his exception upon the idea that the legal effect of the verdict was a simple finding of guilty of murder, upon which the death penalty should follow. No more conclusive proof of the utterly clouded state of this verdict could be furnished than the spectacle of the judge and the district attorney disagreeing as to what the verdict meant. The only strange thing is how there could be any difference of opinion as to the real nature of the verdict. It seems to us perfectly plain that the jury had not agreed upon the number of years, differing about that from 12 months to life imprisonment, and hence that they had really reached no legal verdict upon which the judgment of the law could follow. It is the duty of the jury to sentence the prisoner to life imprisonment, where that is to be done-not the court. The learned judge below was entirely correct in refusing to enter the death penalty when every member of the jury said that was not his verdict; but he erred in treating the verdict as a sentence for life imprisonment at the hands of the jury. The matter was of exceedingly simple solution. It would have been perfectly proper for him to have taken from the charges for the state the one as to the form of their verdict, and directed the jury to retire, read that charge,

33 So.-46

and put their verdict in form. Jurors are men unlearned in the law, and there could be no possible objection to the court's selecting and handing to them the charge as to the form of their verdict when form was the only thing involved. Had this been done, the jury would very soon have disagreed, or returned a proper verdict. From the testimony it would seem that they would doubtless have disagreed. At all events, the one result or the other was certain. We are of the opinion that this verdict was not a legal verdict-not one upon which the judgment of the court could have been legally pronounced. The precise case was decided in Weatherford v. State, 43 Ala. 320, where the court said: "The appellant was indicted in the city court of Mobile for the crime of rape. On the trial, the jury returned a verdict in the following words, to wit: 'We, the jury, find the prisoner guilty, as charged in the indictment, and sentence him to imprisonment in the penitentiary.' Before he was sentenced by the court, the prisoner, by his counsel, moved to arrest the judgment for the following reasons: '(1) Because the verdict rendered in the case by the jury is contrary to law, and does not declare what the punishment shall be. (2) Because the court cannot pass sentence upon the verdict rendered in the case, the court having no power or discretion to fix the length of time of imprisonment, and the jury having to fix the same, it being their province to do so.' The court overruled the motion, and sentenced the prisoner to hard labor in the penitentiary for his natural life. The prisoner excepted to the ruling and sentence of the court. The judgment of the court was suspended, and the case is here for revision. Section 3661 of the Code provides that 'any person who is guilty of the crime of rape, must, on conviction, be punished, at the discretion of the jury, either with death, or by imprisonment in the penitentiary for life, or by hard labor for the county for life.' The entire punishment for this crime is in the discretion of the jury, and the court has nothing to do in the matter, but to pronounce the sentence of the jury. The attorney general argues that the law determines the duration of the punishment, where it is either in the penitentiary, or hard labor in the county. This is true, but, notwithstanding, it must be found by the jury, and not fixed by the court. Who can tell but, if the jury had been instructed that imprisonment in the penitentiary must be for life, they might not have determined to inflict the milder punishment, to wit, hard labor for the county for life? But why speculate about this matter? The wiser and safer course is to do just what the law requires, and to do it in the way the law requires. We have determined at this term, in the case of Edgar v. State, a case very like this, that the jury must, by their verdict, determine both the character and extent of the punishment."

What is said in this case about the entire punishment being in the discretion of the jury, under the section cited from the Alabama Code, applies perfectly to that part of a sentence in a murder case under our law which fixes the punishment at imprisonment in the penitentiary for life. Whether that shall be the sentence is for the jury, and not the court, to say.

Two things were made certain by the testimony elicited from the jury in this case: First, that not a single juror meant by his verdict that the death sentence should be imposed; second, that 10 of the jurors meant he should not be imprisoned in the penitentiary for life. We think it is equally certain that, not meaning he should be hung, and differing about how long he ought to be imprisoned in the penitentiary-from a 12 months' period to a life period-the jury had never really agreed upon any verdict. Had the court pursued the course indicated, there would have been a verdict upon which judgment could have been legally pronounced, or there would have been a mistrial. It was the duty of the court, under the circumstances, to have required the jury to go again to their room, read the charge as to the form of the verdict, and then return—if they agreed-a legal verdict in proper form.

There are other errors complained of, but, as they are such as would not likely occur again, we have noticed only those which are vital.

Reversed and remanded.

(82 Miss. 31)

OWENS v. STATE.

(Supreme Court of Mississippi. March 9, 1903.) MURDER-CHANGE OF VENUE-PREJUDGMENT.

1. In an effort to kill a witness against unlawful distillers one W. was killed by mistake, and defendant and another were indicted for the offense. Defendant was also indicted jointly with others for the murder of two officers of the law. These killings were part of a scheme to rid the distillers of prosecution, and were all committed in the same county, and there triable. The killing of W. caused little agitation, but on the killing of the two officers great excitement prevailed. Defendant was granted a change of venue in the cases against him for the murder of the officers, but was refused one in the other case. It was conceded that prejudgment existed in the two former cases by reason of the fact that those indicted with defendant declared him the moving spirit that compassed the officers' death. Held that, as there was no direct proof that defendant was connected with either crime, his relation to each crime being made up of the evidence of those indicted with him for the murder of the officers, the excitement and prejudgment must have existed in both cases, and defendant was entitled to a change of venue under Code, § 1411, giving prejudgment as a ground therefor.

Appeal from circuit court, Lafayette county; P. H. Lowrey, Judge.

Whit Owens was convicted of murder, and appeals. Reversed. See 33 South. 718.

W. V. Sulivan and Stephens & Stephens, for appellant. Wm. Williams, Atty. Gen., for the State.

TERRAL, J. The appellant, Whit Owens, was convicted in the circuit court of Lafay ette county of the murder of Hamp Williams, and was sentenced to be hanged. From that sentence he takes this appeal.

One of the principal grounds of complaint which he makes is the refusal of the court to grant him a change of venue for the trial of said cause. The present indictment against Owens related to the killing of Hamp Williams, who was accidentally shot and killed by Orlando Lester in the effort to kill Walter Jones. The killing of Williams created but little agitation in the public mind, but the killing of John A. and Hugh Montgomery, two officers of the law, committed not long thereafter, created great excitement. Owens was also indicted for their murder, which was committed in the process of arresting Will Mathis, also charged jointly with Owens and Lester in the commission of the offense. Now Hamp Williams was killed in the effort to kill Walter Jones, who was a witness against Lester, Mathis, and Owens, one or all, for the unlawful distillation of spirituous liquors. There seems, therefore, to have been a general connection of purpose in the attempted killing of Walter Jones and the killing of the Montgomerys. The several killings were a part of a scheme to rid Lester, Mathis, and Owens of all prosecution for the unlawful distillation of liquors. All these crimes were committed in Lafayette county, and were there triable according to the rules of law. Upon the killing of the Montgomerys, great agitation arose in the county. The defendant, with others, was arrested and carried to Oxford, the county seat. Great masses of citizens assembled there, and much excitement prevailed. A special term of the circuit court was immediately called. Bills were found against Owens for the murder of the Montgomerys, and for the murder of Hamp Williams. Upon the application of Owens, a change of venue was properly granted to him as to the cases against him for the murder of the Montgomerys, but his application for a change of venue in the Williams case was overruled.

We are not able to escape the conclusion that all the reasons that support the judgment of the court for a change of venue in the two Montgomery cases exist also in reference to the Hamp Williams case. The statute (Code, § 1411) gives three grounds for a change of venue: (1) A prejudgment of the case; (2) a grudge; and (3) ill will to the defendant. Now it must be admitted that ill will or a grudge to the defendant may grow out of matters not intimately connected with the case, and independent of any relation of the case of the killing of Williams to the cases of the killing of the Montgomerys. We think a change of venue should have been