#### The State v. Norman Gillis.

Where upon the trial of an indictment for arson, the evidence was that the prisoner had in hia possession bank notes similar to some stolen from tho house, when the arson was committed, and that he gave contradictory accounts of the mode in which he obtained them, an instruction to the jury that these contradictions were evidence to prove that he did not come honestly by them, is not erroneous. And these declarations lead to prove the guilt of the prisoner.

Tliis was an indictment for ARSON in burning the dwelling house of one McKendre, in Moore county.— The evidence was entirely circumstantial. It was proved that the last time McKendre left his house, just before it was burnt, there was in it a chest which, among other things, contained two bills of a hundred dollars each, one of fifty and one of ten dollars — all issued by the Bank of the United States : that directly after the arson, this chest was found in the woods near the house, broken open and rifled of its contents. That the pri-. soner was entirely destitute of personal property. That he pretended to go to the south for the purpose of obtaining money for a horse, which he alleged he had sold upon a credit. That two days after the arson, he was sixteen miles below Fayetteville, and was then in possession of notes similar, in their amount and number, to tiiose taken from the chest, and stated that he had received them for the sale of his crop of Cotton — that on another occasion, he said he had obtained them by building a house in the State of Tennessee — that a few days after-wards, he was in Wilmington when he bought a coat and paid for it in a note of the Bank of the United States for fifty dollars — that from Wilmington he went to Fort Johnston, on his way to Charleston, and while going down the river was seen in possession of two bills of the Bank of the United States for one hundred dollars each — that at Fort Johnston, he professed to be desirous of going to Charleston, to collect money due him for the sale of a horse — that he then stated that he had raised the money in his possession by the sale of a ne-*607gr0) before lie left home — that although there were two ttiodes of conveyance from Fort Johnston to Charleston, he embraced neither, biit returned to Wilmington, where j,e excjiange({ two United States Bank bills of one hundred dollars each for others, giving a premium of two and a half per Cfcnt“-thai soon after this, he was seen in Bladen county, When he said he had been to Charleston, and was on his way home to pay off an execution which had been levied on his land ; and that there, he expressed a wish to exchange two hundred dollars for South-Carolina Bank notes, saying that directly after his return he shbuld travel, and that money of the latter description would shit him best,

His Honor, Judge Sbaweii, in his charge to the jury, explained to them the purpose,for which the various Circumstances above mentioned, liad been offered in evidence, and left it to them to say, whether those circumstances satisfied their minds of the guilt of the prisoner beyond a rational doubt. If they did, that it was their duty to convict him. His Honor also instructed the jury, that the giving inconsistent and contradictory accounts in relation to the manner in which the prisoner said he obtained the bills, was evidence to prove that he did not come honestly by them. The prisoner was convicted and judgment of death being pronounced, he appealed,

Badger, for the Prisoner.

The Attorney General for the State,

GastOn, judge.

To assist juries in complicated cases to arrive at a correct conclusion upon disputed facts, by advising them as to the nature, bearing and tendency of the proofs; but at the same time to withhold any intimation of an opinion as to the weight of the whole or any part of the testimony, is one of the arduous duties which the law enjoins upon Judges who preside at the trial of issues. This duty is the more important and the more difficult, where the evidence is entirely circumstantial, where the quality of each circumstance is to be precisely ascertained, and the effect of them combined, accurately determined by the triers. And it swell# into *608one of awful magnitude, when the issues of life and deatli depend upon .its faithful, correct,and judicious per-formancc. The exception made in this case, imposes upon us tiie responsibility of examining, whether the prisoner has well founded cause of complaint of the mani tier in which this duty was discharged by the Judge below.

The exception is directed solely to' that part of the charge,'in which his Honor instructs the jury, that inconsistent and false declarations of the prisoner,iii relation to the manner in which lie obtained the bank-bills in his possession, were “ evidence to prove tiiat he did not come' honestly by them.” It is insisted that this instruction was erroneous, for that in the first place, such inconsistent and contradictory declarations do not in law prove more than that some of them are false; and secondly, that if they amount to proof of a dishonest acquisition, they do not, as the judge intimates, furnish evidence that the prisoner stole the bills which the prosecutor lost, or committed the arson of which he was accused. To form a correct judgment of the validity of the objections, it is indispensable that we should first ascertain the meaning of the instruction to which they apply. Are we to understand the judge as having declared that the contradictory statements did prove a dishonest acquisition; or only,that they were evidence having á tendency to prove it, relevant to that purpose, and fit to be weighed by the triers, with a view to the determina, tion of that fact? We cannot doubt but that the former is not, and that the latter is the sense of the instruction which he intended to give, and which the jury understood his words to convey. The difference between proof of an allegation, and evidence to prove an allegation, is so obvious that we cannot permit ourselves tó believe that, it was overlooked by the judge, or confounded by the jury. It is pointed out in the beginning of “the statement” which forms á part of the transcript. « The evidence was entirely circumstantial, and consisted of the testimony of witnesses to prove &c. &c.” The'statement pretends not to affirm that any facts '«''ere rproviU, *609jjU^. ge£g tj,c evi,]ence offered to prove tliem, in order t(,at tI,e faring of the instructions upon testimony might be seen and determined. It was the duty of thejudge ,j.Q s|,ew tlie jury, the application of the evidence to the material facts in controversy/ and it was also his duty to refrain from the expression of an opinion whether it did or did not prove such facts. His language is appropriate to the former purpose, and is within sphere of his legitimate province; and we cannot from a weak and over-strained humanity, or in a spirit of perverse criticism, conjecture, that it may have been designed to effect, dr without intention may have effected, the latter purpose, and thus invaded the province of the.jury.

Satisfied that this was the instruction given, we proceed in the exercise of our defined and limited jurisdic-4ion, .to cn,quire whether in this instruction there be le:gal error, And-upon an anxious and deliberate consideration of all that lias been urged in argument, and of all which our own reflections can suggest, we are bound :.to declare that we see no -error- Contradictory declarations with respect to a fact, do not indeed, absolutely and directly, prove more than that all of tliem cannot consist with the fact. Jill may, some of tliem must be ¡untrue. If made by an individual in regard to a matter of which lie lias positive knowledge, lie is guilty of falsehood. But the fact of falsehood once established, it becomes,'in many cases,an important piece of evidence to ascertain other facts — the causes which induced, and the ends to be promoted by a resort to falsehood. There is direct testimony of an arson,committed under circumstances, clearly indicating that a robbery was at the same time, perpetrated by the incendiary. An individual, who before the commission of these crimes was destitute of money, and of property, immediately thereafter quits the neighborhood, travels to a considerable distance to and fro without an assignable motive, is in the possession of four bank bills, constituting a large sum of money, corresponding in amount, and in the character and the respective denominations of the bills; with those stolen from the prosecutor, and busies himself in con*610verting these into bills of another kind, and of less value, for which he gives a premium.

No mind capable of d rawing a conclusion from connected facts, can hesitate to acknowledge that such testimony strongly attaches to this individual,the charge of the theft and the arson. But in addition to these facts, there is another circumstance. In the course of his wanderings, he gives many relations to different persons at different places, with respect to the manner in which this money, so strangely in his possession and so strangely used, lias been acquired by him ; and these relations are wholly inconsistent with eacii other. The connection between such conduct and the motives for it,the consciousness which it indicates, and the interests which are intended to be served by it, are unquestionably matters well meriting the consideration of those, whose grave duty it is,by all the means in their power,to ascertain the truth of the imputed charge. Falsehood,diversified in its forms, hut always repeated on this point, clearly tends to shew a consciousness of dishonest acquisition, and a solicitude to embarrass inquiry and to prevent detection. That i t proves dishonest acquisition is not an inference of law,nor was it the instruction of the Judge; but that it is relevant to that fact, and is evidence for that purpose,lit to be considered and weighed by thejury, seems well warranted by reason, observ ation and experience. Whether by it-selfor in connection with the other matters testified,it produces a conviction so settled and undoubting as to induce the Jury to infer that fact,as one proved to exist, must be Jeft,as-it lias been left,to their integrity, their intelligence & their acquaintance with the ordinary concerns of human life. We see no intimation of opinion from the Judge that a dishonest acquisition of the money, in the prisoner’s possession,was evidence that he stole the money lost by the prosecutor, and committed the arson charged in the indictment. But it does appear to us, that the fact of such dishonest acquisition, supposing it established, is a circumstance which much strengthens the other evidence,ás to the identity of the bills taken from the prosecutor, with those disposed of by the prisoner. Both sets had *611been shewn to for the same amount; to consist of bills of the same bank, and each bill of each set to be of the same denomination. The prisoner acquired what he disposed of, at the time when the prosecutor lost his.— These were strong co-incidences. Add to them that the prosecutor had his taken away. dishonestly, and the prisoner acquired his dishonestly, and who does not feel its force? When better evidence cannot he had, circumstantial proof is'as admissible to identity of things or of persons, as to any other matter. No objection was taken to the admission of any part of the evidence offered to .establish this identity,- and unless it be in law inadmissible for this purpose, we are bound to consider it of a proper character, and fit therefore to be hoard and considered. The sufficiency of the evidence either to identify the property stolen, or to establish that the thief w as also the house-burner,or to shew that t he prisoner was both, are enquiries into which ave cannot enter. These were proper enquiries, first for the exclusive ami unbiased decision of the jury — and afterwards of the Judge who presided at the trial. The case shews that both have made these enquiries, each in the order prescribed by the law, and both of them,no doubt,in the conscientious discharge of duty. After explanation of the purposes for which all the various circumstances had been given in evidence, the Jury were instructed that “if these circumstances satisfied their minds, beyond a rational doubt,of the guilt of the prisoner, it was their duty to convict him ; but unless they produced this full satisfaction, it was their duty to acquit him.” Thus instructed, they have on their oaths pronounced him guilty. The Judge from whom a new trial was asked, upon his oath “to do equal justice to the public and to individuals,” refused to set aside the verdict. The judgment of the law necessarily follows, unless an error be shewn in the proceedings. None such is seen by us, and we must therefore direct the court below to pronounce sentence of death against the prisoner.

Pee Cubiam. — Judgment ajfetrmbd.