#### STATE v. ROBERT T. WILLIAMS.

Where a female suddenly disappeared from the neighborhood where she lived, and the hypothesis was that she had been murdered, and her body consumed by fire, certain metalic articles of a female dress having been found among the ashes, where a large quantity of wood had been burned, it was Held to be competent for the purpose of showing her identity, to show that the deceased had worn such things previously to her disappearance, and that the length of time elapsing between the period of her wearing such articles, and of her disappearance, though it would proportionally weaken the force of such testimony, yet, could not destroy its competency.

The rule which seems at one time to have prevailed in England “ that upon charges of homicide, the accused shall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the body,” Held not to be of universal application, but that where the identity of the bpdy is completely destroyed by fire or other means, the corpus delicti, as well as other parts of the case, may bo proved by presumptive or circumstantial evidence.

It was Held sufficient, in & bill of indictment, for murder, to charge that it was done “in some way and manner, and by some means, instruments and weapons to the jury unknown.”

INDICTMENT for MURDER, tried before Bailey, J., at the last Spring Term of EocMnghain Superior Court.

The indictment is as follows:

“S Superior Court of Law,

The jurors for the State, upon their oath present, that Nobert T. Williams and Murray L. Williams, late of the county of Nockingham, not having the fear of God before their eyes, but being moved and seduced by the instigation of the devil, on the first day of December, in the year of our Lord one thousand eight hundred and fifty-nine, with force and aims in the county aforesaid, in and upon one Peggy Hilton, alias Peggy Isly, in the peace of God and the State, thou and there being, feloniously, wilfully, and of their malice aforethought, did make an assault, and in some way and manner, and by some means, instruments and weapons to the jurors unknown, did then and there feloniously, wilfully and of tlieii* *447malice aforethought, deprive her, the said Peggy Ililton, alias Peggy Isly, of life, so that the said Peggy Hilton, alias Peggy Isly, then and there instantly died.

And so, the jurors aforesaid, on their oath aforesaid, do say that the said Robert T. Williams and Murray L. Williams, her the said Peggy Hilton, alias Peggy Isly, in the manner, and by the means aforesaid, to the jurors aforesaid unknown, then and there feloniously, wilfully, and of their malice aforethought, did kill and murder against the peace and dignity of the State. T. Settle, Sol.”

The defendant, Robert T. Williams, was alone put on his trial.

William Isly married the mother of the deceased, and it was in proof that the latter lived with them within half a mile of the defendant’s house.

There was evidence tending to show that Robert Williams, the defendant, had criminal intercourse with Peggy Isly for a year or two. The deceased left the house of her step-father on Thursday night the first of December, 1859, about ten o’clock, and took with her one calico frock, two petticoats and a piece of cloth, all of which were wrapped in her apron.— She has not since been seen.

The prisoner w;as one of the special court of Rockingham, and was one holding the court on that Thursday, and left the village of Wentworth after night, between seven and eight o’clock.

Several days after Peggy Isly’s disappearance, the neighbors collected together for the purpose of making some search for her. On Sunday 11th of December, they examined about Troublesome creek, which flours through the prisoner’s land. About six hundred yards from defendant’s house, on a private place, near the creek, they discovered where a “log heap” had been burned. The fire was not out, but a few of the logs or parts of the logs -were still burning. A search -was made among the ashes, and a good many fragments of bones were found. Some of these were shown to the prisoner, but he denied knowing any thing about them. Most of these bones *448were found in the centre, of the log-beajx They also-found a? substance in the ashes that was sliek like- tallow.

There was evidence that the prisoner was informed that am other search was intended, and on. the next day a good many persons went to the place where the log pile had been, and found the burnt place dug up. This had been done by a-son. anda slave., belonging to. the prisoner, by his direction.

Standing near the place-of the log pile*, and near the- creek was a hollow beach, tree, which on Monday, the 12lh ®f that month, was on fire.

On the 23rd of January, 1860, the- coroner of the- county,, with many persons, went to the creek, with the purpose of making a further search and holding an inquest- The prisoner alleged that the place of the log pile was intended for a plant-bed ; that it had been prepared for that purpose, and that after the 11th and 12th of December, it had been enlarged, and in doing so, the beach tree had been burnt d'own. A search was made in the stump of this tree, and in it was found a black substance, which the witnesses called bones. The creek was dragged and they found bones, three hair-pins, three common pins, one button, one eye of a hook and eye and a grain of wheat, also a black substance and fire coals, similar to what was found1 in the place of the- burnt log-pile.. Most of the articles found in these several1 researches were preserved by the coroner and produced in Court.

Four physicians and one dentist were examined, who stated that among the bones, they recognised part of a human scull and part of the cheek bone of a human being. The dentist deposed to the identity of human teeth among the bones exhibited.

It was further in evidence, that the prisoner said “ he had no doubt of the death of Peggy Isly, and that the bones found in the creek were hers; that her step-father or some of his boys had knocked her in the head and thrown her body on the log-pile, and he did not blame Isly for trying to- get his head out of the halter by putting others in.”

It was further in evidence, that Peggy Isly was in the habit *449of wearing hair-pins. Two witnesses were examined as to this — one stated that she commonly wore hair-pins, but she could not state that she had worn them shortly before she left, or when she left. The other stated that she was in the habit of wearing hair-pins some two or three years before her disappearance. This testimony was objected to, and being admitted, defendant’s counsel excepted.

It was further in evidence, that it was not usual • to^ burn plant-beds for tobacco, as early as the 10th of December, nor was it usual to prepare the ground and burn it in the way the prisoner had at this log pile; that it was usual to bum with skids, and not before January or February 5 that the prisoner himself was particular in preparing his ground and used skids. This testimony was excepted to.

It wTas further in evidence, that the Monday before Peggy Isly was missing, she got from the witness fourteen common pins, seven of which were large and the others small ones.

It was further in evidence, that the prisoner was courting a young a lady in the neighborhood, and that some six weeks before the cliristmas of 1859, she asked him if he had been to see Peggy Isly, to which he replied, he never had been to see her, and never intended to court her.

James Jones testified, that in a conversation with the prisoner, he said he expected under the gallows, to confess every crime he was guilty of; that it was probable he would confess sooner, but this one crime, he never would divulge.

The Court was requested to instruct the jury, that there was no evidence, in the case, identifying the bones and pins found, as being part of the bones and apparel of the deceased. The Court declined to give this instruction, but on the contrary, told the jury that there was evidence, that the bones and pins found, were a part of the body and dress of the deceased. Defendant’s counsel excepted.

The Court further instructed the jury, that the testimony being circumstantial, ought to be as satisfactory as the positive testimony of one credible witness ; that they must be sat*450isfied, beyond a reasonable doubt, and the following rules were read from a book, viz:

1st. That the circumstances, from which the conclusion is drawn, should be fully established.

2nd. That all the facts should be consistent with the hypothesis.

3rd. That the circumstances should be of a conclusive nature and tendency.

4th. That the circumstances should, to a moral certainty, actually exclude every hypothesis but the one proposed to be proved.

Defendant’s counsel again excepted.

The jury found the defendant guilty of murder, and sentence being pronounced, he appealed to this Court.

In' this Court, besides the exceptions above set out, the defendant’s counsel moved in arrest of judgment, because the offense was not sufficiently charged in the bill of indictment.

Attorney General, with whom was MeLean, for the State.

Morehead, for the defendant.

Battle, J.

On his trial, the prisoner made two objections to the admission of testimony which were over-ruled, and prayed an instruction to the jury which was refused, all which are set forth in his bill of exceptions as the grounds of his application to have the judgment against him reversed, and a venvre de novo awarded. lie has also submitted a motion that, if another trial be refused him, the judgment shall be arrested for an alleged insufficiency of the indictment.

In order to understand the pertinency of the objections to the testimony, as well as that of the instruction which was prayed, it is necessary to observe that every criminal charge involves two things; first, that an offense has been committed; and, secondly, that the accused committed it. In the present case, neither ol' these things could be proved by direct or positive testimony, so that it became necessary on the part of the' prosecution, to resort to circumstantial or pre*451sumptive evidence for the -purpose of establishing both. After the finding of what were alleged to be the charred bones of a human being in the ashes of the log pile, and in the creek, it became all important to identify them, if possible, as parts of the remains of theeupposed deceased, Peggy Isly. The first testimony objected to, was offered to show that certain hair pins which were found among the bones in the creek, belonged to her, and with that view it was proposed to prove that she was in the habit of wearing such pins. No objection was, or could be, offered to the proof that the pins were found-; and, we presume, that none would have been made to a statement that she had such in her hair when she left home. But as the witnesses could not testify to that fact, the point of the objection was to the proof that she had been in the habit of wearing them sometime before; and particularly for so long a time as two years before the time when she was last seen. The objection, it will readily he perceived, applies more against the force than the competency of the testimony. The fact, if it had been so, that the hair-pins formed a parfof her head-dress when she left home, might have been proved as one, in a chain of cir* ■cumstances, to show that the human bones found in the creek were those of a female, and that, that female was probably the supposed deceased. The testimony actually offered and <given, tended to prove, though with less strength-, the same thing, and it was, therefore, pertinent and natural-. There can be no doubt that it was open to the prisoner to reply to this testimony, and to proven if he could-, that the supposed deceased had never worn hair-pins, for the purpose of negativing the inference that the remains were her;s.

The testimony offered to 'show the proper season for burning plant-beds for tóbacC'o, and the manner in which the prisoner usually prepared his, bad too obvious a tendency to conneetbim with the transaction relative to the burnt human bones, *452fasten him to the guilty deed. See State v. Bill, 6 Jones’ Rep. 34.

. The question raised by the instruction which the prisoner requested the Court to give to the jury, is one of much more importance than those which we have already considered, and has been attended with more trouble in the discussion and decision ofit. The instruction prayed and refused, was “that there was no evidence in the case identifying the bones and pins found, as being part of the bones and apparel of the deceased.” In support of the propriety of his prayer, the counsel for the prisoner conterds that, if it were admitted that the bones found in the log pile, the beach stump, and the creek, were those of a human being, there is no part of the testimony which shows, from any particular mark about them, or relating to them, that they were the bones of the supposed deceased more than any other dead body; and that, in this respect, the case differs essentially from that of Rex v. Clews, 4 Car. and Payne 221, (19 Eng. Com. Law Rep. 354,) where the body of a man was, after lapse of twenty-three years, identified by his widow, from some peculiarity about his teeth; and also from that of the celebrated case of Commonwealth v. Webster, 5 Cush. Rep. 295, where the remains of Dr. Parkman were identified, from a similar cause, by a dentist. Assuming that there was no such testimony given on the trial, the counsel insists upon,, it, as an established rule of law, that the corpus delicti must be proved by direct or positive testimony, before the accused can be convicted of the offense charged against him. The authorities upon which the counsel relies in support of his position, are Lord Chief Justice Hams and Lord Stowell. In 2 Hale’s Pl. Cr. 290, the learned author says, “I would never convict any person of murder or manslaughter, unless the facts were proved to be done, or, at least, the body found dead.” Lord Stowell, in pronouncing his celebrated judgment in Evans v. Evans, 1 Hagg. Con. Rep. 105, said “when a criminal fact is ascertained, presumptive proof may be taken to show who did it — to fix the criminal, having there an actual corpus delicti; but to take presumptions, in order to swell an *453an equivocal and ambiguous fact into a criminal fact, would, I take it, be an entire misapprehension of the doctrine of pre•sumptions.” So, Mr. Starkie in his valuable work on Evidence, (see. 1, Star. Ev. 575 of 3d Ed.,) lays it down as an established rule “that upon charges of homicide, the accused «hall not be convicted unless the death be first distinctly proved, either by direct evidence of the fact, or by inspection of the •body.” Mr. Best, in his Treatise, on the Principles of Evidence, thinks that the language of these eminent authorities is too broad, and that the general principle which they lay down must be taken with considerable limitation. After noticing that, iu some offenses, the evidence establishing the existence of the crime, also indicates the criminal, while in others, the traces or effects of the crime are visible, leaving the author of it undetermined, he proceeds to remark thus of the latter: “In most cases, the pi’oof of the crime is separable from that of the criminal. Thus, the finding of a dead ■body, or a house in ashes, may indicate a probable crime, but do not necessarily afford any clue to the perpetrator. And there, again, a distinction must be drawn relative to theeffeet of ¡presumptive evidence. The corpus delicti, in eases such as we are considering, is made up of two things: first, certain facts forming its basis; and, secondly, the existence of criminal agency as the cause of them. Now, it is with respect to the former of these that the general principles of Lord Stow-3ell and Sir Matthew Hale, especially apply, and it is the established rule that the facts which form the basis of the corjncs delicti ought to be proved, either by direct testimony, or by presumptive evidence of the most cogent and irresistible •kind.” See Best Prin. of Ev. 321, (66 Law Lib, 205-206.) — - 'The admission of proof of the corpus delicti by presumptive •evidence-of any kind, is manifestly a qualification of the strict rule laid down by the great Judges whose remarks we have quoted. This qualification of the rule is contended for by the celebrated Jeremy Bentharn, who says “Were it. not so, a murderer, to secure himself with impunity, would have no more to do but to consume, or. decompose the body by fire, *454by lime, or by any other of the known, chemical menstrua, or-to-sink it in- an unfathomable part of the sea;” 3 Smith. Jud. Ev. 234. Mr. Best states.in a-note to-page 323 of his work, that lie believed that eminent J'udge, Baron. Rolfe, after-wards Lord Chancellor CraNWORTii, had instructed a grand jury- that the rule excluding presumptive evidence of the bar sis of the corpus delicti was not universal. Such, too, seems, to have- been the opinion, ©f Best, Judge, in. the elaborate opinion which he gave in the case of Rex v. Burdett, 4 Barn. and Ald. 95, (6 Com. Law Rep., 358.) In speaking- of presumptive evidence, he- says, “ un-til- it pleases Providence to give us means beyond those our present faculties afford, of knowing things done-in secret, we must act on presumptive proof, or leave the- worst crimes unpunished. I admit, where presumption, is attempted to be raised;,, as to thocorjms delicti,. that i-t ought to be strang-and cogent.” The same view of the* rule- is taken by the later writers on the subject, and we adopt it as the correct one* See Will’s Circum. Ev. 204, (41 Law Lib. 85.) Wharton’s Am. Cr. Law, Sec. 747. We hold, therefore, that his Honor committed no error in refusing to-give the instruction as- prayed, and we cannot discover anything in the charge, which he did give, of-which-the prisoner-has any just cause of complaint.

The motion- for the reversal of the judgment and the grant ©f a venire d-e novo is o-ver-rnled, and that brings up for consideration the motioir for an arrest of the judgment. This isfonnded- upon the alleged insufficiency c-f the indictment, and the objection to it is the means whereby the homicide is charged to have been committed, are-stated-to be to the jurors-unknown. The indictment is substantially, if not literally, the same with the fourth- count, of the indictment against Dr-Webster, which, after argument and matare deliberation, waesustained by the judgment of the Supreme Judicial Court of Massachusetts see Commonwealth v. Webster, 5 Cush. Rep. at p. 296. If the person killed be a stranger, it is well settled that it may be charged in the indictment, that his name, if the fact be so, is to the jurors unknown, and we-are onaMe-to, *455perceive any difference, in principle between such a charge, and one where the instrument and means of death are, in fact, not known to those who- are called u-pon to find the bill. The motion in arrest of judgment is, therefore, refused ; and it must be certified to the Superior Court o-f law for the county of Kockiugham, that there is no- error in the record.

Per CuriaM,

Judgment affirmed.