#### STATE v. CLARA, a Slave.

A judge cannot be required to give instructions to the jury upon an .assumption of facts, not supported by evidence.

Where there are several possibilities of fact, different from the inference intended to be drawn from the evidence offered, a Judge is not required to note one such possibility, and specifically bring it to the attention of tine jul7-

Indictment for murder, tried before French, J., at the last Fall Term of Montgomery .Superior Court.

The defendant in this case was indicted with her son Jim, a slave, as an accessory before the fact, for killing their master, John E. Chambers; and they were put on trial together. Jim was convicted, and as to the defendant, the evidence of a slave, by the name of Sarah was, that on fhe'Snnday morning before the murder, (which was on Wednesday night,) the prisoner who belonged to the deceased and usually cooked for him, looked into a side-board drawer for bullets, but did not find any; she then told tlie witness, that if she would gel. some bullets, or if she could not get bullets, if she would get some caps and lead for some person, she would be well paid for it; that witness asked the prisoner what she wanted with these things — -to which she answered, “nevermind’; no harm.” That on Saturday night of the same day, Jim, the principal in the murder, asked her for the caps, and asked her if his mother did not tell her to get the caps and lead for him. The witness replied, that Clara did not call any names. Witness then told Jim there were no caps in the house; to which Jim said, “hush your lies, for he saw some in Mass. Roberts room, on the mantle-piece.” That witness got the caps and gave them to Jerry, another slave of the deceased, to give to Jim. That on Monday niglu following, she gave Jim a piece of lead. That on Tuesday morning following, (the day before the murder,) file prisoner asked witness if she had given the things to Jim ; to which she returned answer that she had. It was fur*26ther in evidence, that on the Monday morning before the murder, the prisoner, Clara, said to a witness, that ‘‘she felt sorry for her master — that he was going to die soon, and asked witness if she did not hear the hen crow in the black-jack, every morning when he came out.” The witness said she had not heard it.

It was further in evidence that after the murder had been-committed, the prisoner said to the witness, if Jim did kill his master, or had it done, it was no- harm; for it was life for life; and she had often heard that when it was life for life, it was no harm. That Jim was her child, and she- would not speak against him. This witness asked her what she wanted with the caps and lead? to which she answered,, never mind, she Itnew.

There was evidence that the deceased died of gun shot-wounds ; and a physician stated that the wound was made by shot of the size of squirrel shot.

There was evidence that the deceased was found with a bag drawn over his head ;■ that the bag was bloody, and that on Sunday week after the murder, the prisoner was seen washing-the bag.

The Court, after giving instructions applicable to the case of Jim, to which there were no exceptions, charged the jury that if they were satisfied from the testimony, under the rules laid down, that Jim- was guilty of the murder of the deceased, and that the prisoner not being present when the act was done, procured, counselled, commanded or advised Jim to do it, she would be guilty under this indictment; but, that before they could convict her, they should be satisfied beyond a reasonable doubt, that Jim committed the murder; and that before-the act was done, Clara procured, counselled, commanded or advised Jim. to do the act.

The counsel for the prisoner then asked the Court to instruct-the jury,, that if they believed Clara’s design was to furnish, the amunition to kill, meat, or for any unlawful purpose other-than the killing of the deceased, that upon this evidence they could not be warranted, in convicting Clara.

*27The Court declined to give the instruction prayed for, and the counsel for the defendant excepted.

Yerdict, guilty. Judgment and appeal.

Attorney General, for the State.

Blaol&mer, for the defendant.

Manly, J.

The instructions asked for were properly refused. There was evidence to satisfy the jury i-hat the homicide was inflicted by gun-shot wounds, and by the hands of Jim, the son of Clara. Assuming that load and gun-caps were-furnished by the directions of Clara, there is a purpose for furnishing them disclosed by the use immediately made of such articles by Jim. There was no evidence that he used, such ammunition for any other purpose, and the instruction asked for, therefore, had no basis to rest upon in the proofs. It involved an unsupported assumption of fact.

There are possibilities different from the inference intended to be drawn, which surround every evidentiary fact in a cause; but for a Judge to note one such possibility, and specially call it to the attention of the jury, would be giving it weight to which it is not entitled, and inviting the jury to draw from the fields of conjecture the material for making up a verdict.

The instruction asked for in any sense which may be ascribed to it was hypothetical, and therefore improper; but if the language in which the prayer is couched be considered, another objection to the specific prayer will be apparent. Interpreting the language used, viz-: <cu>pon this evidence the jury would not be warranted in convicting Clarato mean not only the evidence assumed, and noted in the hypothesis, but also all other facts in the cause, bearing upon her guilt, it is clear the instruction ought not to have been given. There was other evidence besides Clara’s agency in procuring amunition, and i'f that had been eliminated from the proofs altogether, there was still evidence upon which the jury ought to have been permitted to pass. Had the Judge, therefore, given the instruction asked, he would have superseded the jury in *28their proper province — a province made exclusively their own by the legislation of the State. Rev. Code, ch. 31, sec. 130.

Upon the whole, the instruction asked for ought not to have been given; and the entire record being considered by us, we are of opinion there is no error in the -same.

Per Curiam,

Judgment affirmed.