Davis vs. The State of Georgia. confined the jury to the law only given them by the court, and to the facts only that were testified to by the witnesses from the stand, and excluded from their consideration facts from blood stains presented to them on the defendant's clothing that was exhibited by the state, and upon which defendant relied to rebut the hypothesis that he killed and carried and threw the body of the deceased in the creek. (5.) Because the court charged, in connection and qualifications of its charge to the jury on the subject of doubt, "It (doubt) must arise out of the evidence, or for the want of sufficient evidence." (6.) Because the court charged, in connection and qualification of its charge, upon the subject of admissions, "If an admission or statement was voluntarily made, you may consider it, with the other evidence, in making up your verdict."-The error alleged was, that this was too general, and assumed that an admission was made, and left the jury to determine only whether it was voluntary, and not also whether it was made at all. (7.) Because the verdict is contrary to the following charge of the court: "The burden is upon the state, not only to prove that the defendant killed the deceased, but also to prove to the satisfaction of the jury, beyond a reasonable doubt, that he killed with the intent, at the time, to do so; and if the killing was the result of accident, the defendant would not be guilty." (8.) Because the court, after charging the jury, “It is not necessary to prove a killing by positive evidence, or by the testimony of an eye witness, who actually saw the crime committed," added, "a defendant may be convicted on circumstantial evidence alone," without any explanation of the nature and quantity of circumstantial evidence required to authorize a conviction. (9.) Because the verdict is contrary to the following charge of the court: "A person shall not be found guilty of any crime or misdemeanor committed by misfortune or Davis vs. The State of Georgia. accident, and where it satisfactorily appears there was no evil design or intention to commit crime." (10.) Because the court charged the jury as follows: "If you find that the defendant killed the deceased, then you cannot, outside of the evidence in the case, assume or suppose such killing to have been done by accident. The mere fact that accidents may happen in the careless use of fire-arms would not alone, aside from the evidence in the case, authorize you to find the killing was the result of accident."-The error alleged is that this charge is argumentative, and expresses the opinion of the court on the weight of the evidence in the case. (11.) Because the court charged the jury: "If you find that the defendant killed the deceased, then the law presumes that the homicide was felonious, and this presumption would remain until it was removed by evidence or circumstances proven in the case."-This charge was calculated to mislead the jury, in that it indicates that the presumption of malice from the killing could only be rebut. ted by evidence introduced by the defendant, when it may be rebutted by the facts and circumstances proved by the state. (12.) Because the court allowed W. D. Kellett to state in evidence what the defendant said in a conversation that he (Kellett) had with defendant,-counsel for defendant objecting upon the ground that Kellett was sheriff, and defendant was under arrest at the time under charge of killing the deceased, and that his statements were not freely or voluntarily made, to-wit, Kellett was allowed to testify that he asked defendant, "How many guns did you fire down there in the woods the day before that?' "How many guns did you fire below the bridge?" He said, "I never fired any in the woods; I only fired one in the cane patch." DABNEY & FOUCHE; J. M. BELLAH, for plaintiff in error, cited 1 Chitty Cr. L., 325; 4 Bl. Com., 306; Arch. Cr. Pl., Davis vs. The State of Georgia. 64; 1 Whart. Cr. L., §§500-1; Proff. Jur. Tr., §59 and cit.; 4 Ga., 339; 45 Miss., 114; 47 Id., 39; 30 Id., 408; 50 Id., 165; 52 Ala., 182; 35 Id., 421-5; 28 Ark., 410, 19 Id., 178; 59 Ill., 68; 8 Id., 71; 39 Il., 157; 46 Ind., 463; 42 Id., 393; 21 Id., 79; 18 Id., 428; 19 Id., 98; 23 Id., 150; 6 Id., 440; 1 Kansas, 313; 27 Cal., 65; 13 Fla., 651; 30 Tex., 404, 428; 2 Va. Cas., 527; 7 Humph., 155; 9 Yerg., 198; Waterman U. S. Cr. Dig., 327; Cobb's Penal Code, 213; 1 Starkie Ev., 572-4; 34 Ga., 342; 38 Id., 295; 46 Id., 637; 22 Id., 235; 3 Gr. Ev., §29 and notes, §134; 1 Starkie Ev., 565 (a); 2 Id., 719; 1 Whar. Cr. L., 737, 750; Roscoe Cr. Ev., 15, 29, note. CLIFFORD ANDERSON, attorney general, by brief; C. T. CLEMENTS, Solicitor general; JOHN W. MADDOX, for the state, cited Code, §3916; 26 Humph., 155; 1 Kansas, 313; Cobb's Penal Code, p. 208; 1 Chitty Cr. L., 225; 33 Ga., 257; 53 Id., 196; 59 Id., 308; 57 Id., 102-7; 30 Id., 869. JACKSON, Chief Justice. Two youths-one verging into manhood, the other a mere boy-were seen out hunting together. The elder carried a double-barrelled shotgun; the boy, a small single-barrelled shotgun. Each had a dog along with him. The elder returned safely home with dog and gun; the other, with his dog and gun, did not return. The agonized father and mother, with such neighbors as they could get to aid them, scoured the neighboring country in search of the lost boy, only in age just entering the twelfth year, and their only child. Vainly the woods were explored all night; the missing dog was whistled for and called for, as well as the lad whom he followed, and not until late in the afternoon of the next day was the mystery unravelled, and the body of the boy found in Chapel creek, a short distance from its flow into the Chattooga river. The back of his head was found shot almost away, a large hole made in, and shot were extracted from the face and the front parts of the head, Davis vs. The State of Georgia. such as a shotgun would carry; one of the pockets of his pantaloons was turned and emptied of its contents; there were some few dim drops of blood between the spot where the body was drawn out of the water and laid on the banks of the stream by the two men who found it, and a bunch of alder bushes some forty feet off, and near these bushes were a large pool of blood and some clods of brains on the ground, and two pocket-knives, one open, the other shut, and other trinkets identified as belonging to the murdered boy. One of the alder stocks was cut off by a knife some three or four inches from the ground, and through other stocks shot had passed, mowing down some and tearing others, as they passed into the ground, where some shot were found, about in the places where shot would tear through the alder bush and strike the ground, as they passed the head of the unfortunate lad from a gun shot behind him a little way in his rear. Some short distance nearer the river, another smaller pool of blood was found, and mixed with it was the hair of a dog, and in the river hard by, the dog, likewise shot, was found and pulled out, and identified as the boy's dog, his travelling companion in the hunt, and for whom father and mother had vainly whistled and called the night and morning before. The boy's little gun has never been found; doubtless its weight holds it fast somewhere in the bottom of the creek or river. There could have been no suicide by the poor boy; his arms and hands could not have pointed his gun where the load of shot entered the back of his head. His own gun was gone; it was the only instrument he had which could have made the wound; had it done the deed, it would have been by his side; it could not have walked away. The boy could not have walked a step after such a shot; instantaneous was his death, as all the doctors testified, and he could not have pulled himself forty feet to the creek and drowned himself and buried his gun there. Nor could it have been accident. Not accident of his Davis vs. The State of Georgia. own, because he could not have reached the water from the pool of his own blood and brains, alone. Not accident by another's shot, because every circumstance tells of desperate deliberation. The deadly shot, right in the spot where it would most quickly produce death, the concealment of the body beneath the water, the killing the dog after the master, and burying him under water, too, lest the whining cur should tell instinctively the place where the boy he loved died, and the water under which the body lay--neither accident nor suicide can account for this horrid death. The irresistible conclusion is that the boy was murdered-heinously, shockingly murdered; and but a single issue is left for trial, and that is, who did the atrocious deed? The jury have replied that the perpetrator is the youth of some sixteen summers, who left their homes that afternoon with the murdered boy, and who returned without the lad; that he returned also with his hands stained with the blood of the boy, and with the mark which God put on Cain's forehead, branded by truth, of which God is still the author, on his youthful brow. "Be sure thy sin will find thee out" Omniscience has declared, and His word is truth itself. The presiding judge who tried the case approved this verdict as the truth, and the youthful plaintiff in error says it is not; and as the last resort, save the mercy of the governor which may pardon the crime, he invokes the interference of this court to review the case again, examine the law and investigate the facts, and determine whether the truth has been ascertained and declared by the court below and his guilt legally established. The great question is this: Do the circumstances proved and exhibited in this record show, beyond all reasonable doubt, the guilt of the accused; or, in other words, do the links in this chain of circumstances so twine around and bind the accused as to make the knot, tied by all combined, hold him as it can hold no other person; or, in the |