Beck, P. J.
Mitch Williams was indicted for the mnrder of Foster Deal. Upon the trial he was convicted and sentenced to be executed. He made a motion for a new trial, which was overruled, and he excepted.
The homicide for which the defendant was tried and convicted occurred in 1906. The wife of the. decedent was introduced as a witness for the State, and testified that her husband was killed between sundown and dark, about dark, on November 26, 1905 [1906], some twelve years before the trial took place. Witness heard the shot of a gun, which was in the direction of the defendant’s house. When she went to the body of her husband he was lying on his back, dead, at Mitch Williams’ house, his arms being stretched out. Several people were standing around. The decedent was shot through the heart. Witness had a son named Frank Deal, who is now dead. He did not accompany his father to the house of Mitch Williams. The decedent was unarmed, the witness testified, and did not even have a pocket-knife with him. Another witness, who arrived on the scene an hour or two after the shooting, testified to facts which indicated that the shot which killed the decedent had been fired through a window and through a curtain hanging over the same, as the curtain was scorched. The body of the decedent was badly powder-burned. Witness saw a piece .of shell removed from the heart. “The shell had been run around just below the shot, and all of the wads and string or cloth struck him in the heart.” No weapon was found upon or about the dead body, though a thorough search was made. The evidence of certain officers introduced tended to show that the defendant fled and remained out of the State for about twelve years.
Ethel Williams, a young negro woman, as a witness for the State, testified that she was the daughter of Mitch Williams, and, among other things, as follows: “I don’t know what Mr. Deal did to make my father shoot him. I could not tell about that; I don’t know. When Mr. Deal first come to the house he shook the door, the back door, and told my father, Mitch Williams, to open the door; and he wouldn’t open it. I do not remember what he said. Then Mr. Deal come around to the window and called his Frank, [604]*604and immediately after lie called Frank my father shot him. I guess the shot killed him, Mr. Deal. That was in Macon county, but I don’t know how many years ago it’s been; but I guess it’s been twelve years ago. My father was named Mitch. . . I was too small to remember how he looked. I say I do not know how old I am now. I had no sister, but had three brothers at that time. The one next to me is named John, and he was too little to know anything about what happened. I don’t remember all that was said there that night. I only remember what I done said. When Mr. Deal come there that night, . . I do not know whether there was any cussing or not, but I can remember hearing Mr. Deal call his son Frank. He said nothing but to call Frank, when he come around to the window. There was no porch by that window as I knows of. I don’t know what sort of window it was. My father was in the house there with me and the children, but I do not know how long he had been there, and I do not know whether he had been there before that day in some time. I remember he had been gone, but how long I 'do not know; neither do I know how long he had been back. I don’t know what day of the week this was. My mother was at Carolina McKenzie’s. I don’t know that she had gone down there to see Gene Mack, or what she went down there for. She had been gone away from the house a good while when Mr. Deal . . came there and tried to get in the house, in the back door, and then came around to the window and my father shot him. I do not know what was said or done between them. I do. not know how long Mr. Deal stayed at the back door, and don’t know whether he called my father or not. He just said ‘Mitch’ at the door. That is all I remember he said, that’s all; but I think he said, ‘Open the door.’ He said nothing else, as I remember. I do not know what my father said. I don’t know whether Mr. Deal made any effort to open the door or not. Mr. Deal shook the door, but I don’t know how hard he tried to get in, but when he couldn’t get in the door he went around to the window. I don’t know that he tried to get in the window. I don’t know whether any one knows how old I am. I have been married. I saw the body of Mr. Deal the next day; it was outdoors, but whether it was by the window I did not notice. I guess it was on the same side of the window that he was shot from. I don’t know where my father got his gun when he shot Mr. Deal. [605]*605I don’t know whether there was a bed in that corner of the house; there was a bed in there, but I don’t know what corner it was in. I don’t know whether my father had a gun at the time Mr. Deal first came to the back door. It’s been so long that I could not tell whether I saw him with a gun or not. I never seed the flash of the gun. The only ones in the room was me and my father and little bitty brother, and the latter was asleep. I don’t know where my father went that night. After the scrape was done he left the house, and I reckon he took the gun with him. As to this I could not tell; I do not remember; I have not seen it since. I don’t know whether the gun was in the house when he came there that night; don’t know whether it was there or he brought it. I did not get up to see him when he left that night. I had the baby in my arms. If my father left the gun there at home I'did not see it. My father shot Mr. Foster Deal one time I reckon. I -did not hear the gun fire but once. It did not fire in the room .1 was in. It fired in the next adjoining room. I heard it fire in that house. There was another house about 100 yards from the house we lived in; I guess it was. The room the door to which Mr. Deal tried to get in was a room this way, and that was the room I was in. He could not get in that room or that door, and he went around to a window of another room. I don’t know what my father did when Mr. Deal tried to get in the door. I don’t know that my father tried to get out that window or not, but he went into that other room; he went out of the room I was in when Mr. Deal come to the door, I reckon, but I don’t know; I wasn’t watching. Father was in the room with me when Mr. Deal come to the door. I guess Mr. Deal left the door and went around to the window of the room my father had gone to, the other room; that was where the shooting was. I don’t know how long it took Mr. Deal to get around to that window, and I do not know how long it was the time he shook that door until he was around to that window. He was hollering for his son Frank when he left that door and went around to the window.” • »
L. B. Hamilton, testified for the State: “I was present at the coroner’s inquest held 12 years ago over the body of Foster Deal. I remember Ethel Williams. I remember her testifying before the coroner’s jury. At that time she looked to me like she was ten years old. I heard her testify, and she testified intelligently, [606]*606apparently, before the coroner’s inquest; that is, when questions were asked her - she answered them promptly. She gives very much the same story to-day as she did then.”
The defendant’s statement was as follows: “I had left the place; and when I come back home that Sunday in the daytime I come through Montezuma and walked out home. I met some friends on the road, and they said, ‘Don’t you go there; if you go there, he is making threats to kill you on the first sight.
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Beck, P. J.
Mitch Williams was indicted for the mnrder of Foster Deal. Upon the trial he was convicted and sentenced to be executed. He made a motion for a new trial, which was overruled, and he excepted.
The homicide for which the defendant was tried and convicted occurred in 1906. The wife of the. decedent was introduced as a witness for the State, and testified that her husband was killed between sundown and dark, about dark, on November 26, 1905 [1906], some twelve years before the trial took place. Witness heard the shot of a gun, which was in the direction of the defendant’s house. When she went to the body of her husband he was lying on his back, dead, at Mitch Williams’ house, his arms being stretched out. Several people were standing around. The decedent was shot through the heart. Witness had a son named Frank Deal, who is now dead. He did not accompany his father to the house of Mitch Williams. The decedent was unarmed, the witness testified, and did not even have a pocket-knife with him. Another witness, who arrived on the scene an hour or two after the shooting, testified to facts which indicated that the shot which killed the decedent had been fired through a window and through a curtain hanging over the same, as the curtain was scorched. The body of the decedent was badly powder-burned. Witness saw a piece .of shell removed from the heart. “The shell had been run around just below the shot, and all of the wads and string or cloth struck him in the heart.” No weapon was found upon or about the dead body, though a thorough search was made. The evidence of certain officers introduced tended to show that the defendant fled and remained out of the State for about twelve years.
Ethel Williams, a young negro woman, as a witness for the State, testified that she was the daughter of Mitch Williams, and, among other things, as follows: “I don’t know what Mr. Deal did to make my father shoot him. I could not tell about that; I don’t know. When Mr. Deal first come to the house he shook the door, the back door, and told my father, Mitch Williams, to open the door; and he wouldn’t open it. I do not remember what he said. Then Mr. Deal come around to the window and called his Frank, [604]*604and immediately after lie called Frank my father shot him. I guess the shot killed him, Mr. Deal. That was in Macon county, but I don’t know how many years ago it’s been; but I guess it’s been twelve years ago. My father was named Mitch. . . I was too small to remember how he looked. I say I do not know how old I am now. I had no sister, but had three brothers at that time. The one next to me is named John, and he was too little to know anything about what happened. I don’t remember all that was said there that night. I only remember what I done said. When Mr. Deal come there that night, . . I do not know whether there was any cussing or not, but I can remember hearing Mr. Deal call his son Frank. He said nothing but to call Frank, when he come around to the window. There was no porch by that window as I knows of. I don’t know what sort of window it was. My father was in the house there with me and the children, but I do not know how long he had been there, and I do not know whether he had been there before that day in some time. I remember he had been gone, but how long I 'do not know; neither do I know how long he had been back. I don’t know what day of the week this was. My mother was at Carolina McKenzie’s. I don’t know that she had gone down there to see Gene Mack, or what she went down there for. She had been gone away from the house a good while when Mr. Deal . . came there and tried to get in the house, in the back door, and then came around to the window and my father shot him. I do not know what was said or done between them. I do. not know how long Mr. Deal stayed at the back door, and don’t know whether he called my father or not. He just said ‘Mitch’ at the door. That is all I remember he said, that’s all; but I think he said, ‘Open the door.’ He said nothing else, as I remember. I do not know what my father said. I don’t know whether Mr. Deal made any effort to open the door or not. Mr. Deal shook the door, but I don’t know how hard he tried to get in, but when he couldn’t get in the door he went around to the window. I don’t know that he tried to get in the window. I don’t know whether any one knows how old I am. I have been married. I saw the body of Mr. Deal the next day; it was outdoors, but whether it was by the window I did not notice. I guess it was on the same side of the window that he was shot from. I don’t know where my father got his gun when he shot Mr. Deal. [605]*605I don’t know whether there was a bed in that corner of the house; there was a bed in there, but I don’t know what corner it was in. I don’t know whether my father had a gun at the time Mr. Deal first came to the back door. It’s been so long that I could not tell whether I saw him with a gun or not. I never seed the flash of the gun. The only ones in the room was me and my father and little bitty brother, and the latter was asleep. I don’t know where my father went that night. After the scrape was done he left the house, and I reckon he took the gun with him. As to this I could not tell; I do not remember; I have not seen it since. I don’t know whether the gun was in the house when he came there that night; don’t know whether it was there or he brought it. I did not get up to see him when he left that night. I had the baby in my arms. If my father left the gun there at home I'did not see it. My father shot Mr. Foster Deal one time I reckon. I -did not hear the gun fire but once. It did not fire in the room .1 was in. It fired in the next adjoining room. I heard it fire in that house. There was another house about 100 yards from the house we lived in; I guess it was. The room the door to which Mr. Deal tried to get in was a room this way, and that was the room I was in. He could not get in that room or that door, and he went around to a window of another room. I don’t know what my father did when Mr. Deal tried to get in the door. I don’t know that my father tried to get out that window or not, but he went into that other room; he went out of the room I was in when Mr. Deal come to the door, I reckon, but I don’t know; I wasn’t watching. Father was in the room with me when Mr. Deal come to the door. I guess Mr. Deal left the door and went around to the window of the room my father had gone to, the other room; that was where the shooting was. I don’t know how long it took Mr. Deal to get around to that window, and I do not know how long it was the time he shook that door until he was around to that window. He was hollering for his son Frank when he left that door and went around to the window.” • »
L. B. Hamilton, testified for the State: “I was present at the coroner’s inquest held 12 years ago over the body of Foster Deal. I remember Ethel Williams. I remember her testifying before the coroner’s jury. At that time she looked to me like she was ten years old. I heard her testify, and she testified intelligently, [606]*606apparently, before the coroner’s inquest; that is, when questions were asked her - she answered them promptly. She gives very much the same story to-day as she did then.”
The defendant’s statement was as follows: “I had left the place; and when I come back home that Sunday in the daytime I come through Montezuma and walked out home. I met some friends on the road, and they said, ‘Don’t you go there; if you go there, he is making threats to kill you on the first sight. He says he is going to kill you.’ And I says, ‘What have I done for him to kill me?’ I says, ‘Now I want to see my wife and children.’ They says, ‘If I were like you I wouldn’t go there.’ So I went over there that Sunday in the evening time, this afternoon, to see my ■wife’s mother, to her mother’s house; and I stayed there until between dark and sundown, and then my wife she come, she did. I says to her, just so; I says, ‘When you get back there now,’—I call her Hoog—‘when you get back there you get me a chicken and cook it good, and bake me a cake, cook me a cake.’ And when I got there that night I was sitting there with my wife on my knees and one baby in her arms, and Ethel and this little John was there. My wife says, ‘Mitch, Gene Mack says if you come back here he wanted to see you on some business, and for me to tell him.’ .1 says, ‘I don’t know what he wants to see me about,’ but my wife kept telling me about it, so I says, ‘Well, if you want to go up there, all right, go ahead.’ When she got up out of my lap I says, ‘Sister, take' the baby and lay it down.’ The quilt was off on that side, and when my wife walked out of the door she hollered and said, ‘Here is Mr. Deal,’ and when she said that he made a rift to the door and shook it a time or two. I was sitting there. He says, ‘Oh, God damn you, when you come out I expect to kill you to-night.’ I never said a word to him. I walked around in the house, it was a double bent house, but it did not have but one chimney to it and had two doors on each sidel I says to him, ‘What have I done to you?’ He says, ‘It don’t matter a God damn what you have done. I will kill you if you come out tonight.’ When I got to the door to peep out he had a gun just in this position, pointing it right at me. Well, I didn’t know what on earth to do. I walked around to the window, and when I got there he was standing in this position with the gun. Well, I said to myself, I said, ‘It’s sink or swim with me, and I am going [607]*607out.’ Then he says, ‘Come here, Frank. God damn him, we have got him now.’ When, when he said that I raised up and when I raised up he done that way and I knew then that was the last of me. Yes, sir, that was the way it was, and I left there. Then I started to come back. I hadn’t had no row with him at all, but when I left there and started to come back to see my wife and children; that was the way it was.”
1. Under the evidence the jury were authorized to find the defendant guilty. From the character of the wound and the place at whicluthe body was found, the jury were authorized to conclude that the defendant shot-and killed the decedent with malice aforethought, and not under any necessity of doing so to protect himself, his habitation, or his family.
2. The newly discovered evidence was not of such character as to require the grant of a new trial.
Judgment affirmed.
All the Justices concur, except Fish, G. J., and Atlcinson, J., dissenting.
Fish, C. J.
The accused was found guilty of . murder, and sentenced to be hanged. I can not agree that the jury was authorized, under the evidence, to find the verdict of murder. The accused introduced no evidence, and that for the State was substantially to this effect: The deceased, a white man, went at night to the home of the accused, a negro, uninvited, so far as it appears from the evidence to the contrary. The daughter of the accused, who was a child about ten years old at the time of the homicide, and who was the only witness present on the occasion, and mainly relied on hy the State upon the trial which was had some twelve years after the killing, testified that she was in a room of her father’s home with him, that he had just previously been away from home for some time, but how long she could not say; and (quoting the witness) “When Mr. Deal [the deceased] first come to the house he shook the door, the back door, and. told my father, Mitch Williams, to open the door;. and he wouldn’t open it. I do not remember what he said. Then Mr. Deal come around to the window and called his Frank, and iinmediately after he called Frank my father shot him. . . When Mr. Deal come there that night he shook or knocked at the door, I reckon. I don’t know whether he said anything else besides ‘open the door.’ I do not know whether there was any cussing or not, but I can [608]*608remember hearing Mr. Deal call his son Frank. He said nothing but to call Frank when he come around to the window. . . My father was in the house there with me and the children, but I do not know how long he had been there, and I do not know whether he had been there before that day in some time. I remember he had been gone, but how long I do not know; neither do I know how long he had been back. . . My mother was at Carolina McKenzie’s. . . She had been gone away from the house a good while when Mr. Deal came. I reckon my father was sitting dqwn when Mr. Deal come. I don’t remember anything much about it, except the fact that Mr. Deal came there and tried to get in the house, in the back door, and then came around to the window, and my father shot him. I do not know what was said or done between them. I do not know how long Mr. Deal stayed at the back door, and don’t know whether he called my father or not. He just said, ‘Mitch’ at the door. That is all I remember he said, that’s all, but I think he said, ‘Open the door.’ He said nothing else as I remember. I do not know what my father said. I don’t know whether Mr. Deal made any effort to open the door or not. Mr. Deal shook the door, shaken the door, but I don’t know how hard he tried to get in, but when he couldn’t get in the door he went around to the window. I don’t know that he tried to get in the window. . . The room the door to which Mr. Deal tried to get in was a' room this way, and that was the room I was in. He could not get in that room or that door, and he went around to a window of another room. I don’t know what my father did when Mr. Deal tried to get in the door. I don’t know that my father tried to get out that window or not, but he went into that other room; he went out of the room I was in when Mr. Deal come to the door, I reckon, but I don’t know; I wasn’t watching. Father was in the room with me when Mr. Deal come to the door. I guess Mr. Deal left the door and went around to the window of the room my father had gone to, the other room; that was where the shooting was. I don’t know how long it took Mr. Deal to get around to that window, and I do not know how long it was the time he shook that door until he was around to that window. He was hollering for his son Frank when he left that door and went around to the window.” The widow of the deceased testified that he was not armed when he left his home, [609]*609which was about one hundred yards from' the home of the defendant, and that shortly after he left home she heard the report of a gun in the direction of the home of the accused, and that she heard some one holler, whom she took to be her husband, immediately before the shot was fired. She did not go to where her husband’s body was immediately after he was killed; nor did it appear how long it was before she went there. When she got there she saw a crowd of men. She and another witness testified they saw the body of the deceased and the ground about it, searched for weapons, and none were found. The other witnesses did not arrive on the scene till more than three hours after the killing. The accused fled from the State immediately after the homicide, and was not arrested for some twelve years, when he denied his identity.
I am authorized by Mr. Justice Atkinson to say that he concurs in this dissent.