Willis vs. Willis, adm'r, &c. Jury, that "if they should believe that his mother got Tom, her son, (the defendant) to go after her negro to Alabama, simply as her agent, with a promise, on her part, to give him the negro at his return, or at her death, then his possession in Alabama and on the way back, was his mother's possession, and did not amount to a delivery, in law; and the gift, or promise to give, was void for want of delivery; and they should find for the plaintiff." In few words this may be ascertained. The testimony of Isaac Golden, if credited, showed a positive gift of the slave by Mrs. Willis to her son Thomas. But there was other testimony varying from this-perhaps conflicting-let us see what that proves. The testimony of Trapp shows that he heard Mrs. Willis say, that she had told Tom, that "if he would go to Alabama for Esther he might have her," and that he went and got her. He also stated, that Mrs. Willis, at the same time, said, "she expected the negro to be Tom's at her death." Thomas W. Harris swore, that Mrs. Willis died in possession of the slaves in dispute, and he states that, which if it be not contradicted, may be considered as equivalent to a declaration, she had been in possession of these slaves all the time of his acquaintance with her, which was twelve years or more before her death. He further testifies, that he had never heard her say that she had given Esther to Thomas Willis, but that she had given another servant. Green Jordan testified, that the negroes had been in possession of Mrs. W. for twenty years before her death; that he had heard that Esther had been in Alabama and was brought back by Thomas Willis; but that he had never heard the old lady say anything about the gift, or Tom's claim to the negro. There was evidence, also, of a gift by deed, from Mrs. Willis to Tom Willis, of one of Esther's children, which he had had recorded in the proper office. Now let all of these circumstances be considered together. Mrs. Willis had said, that if Thomas Willis would go to Ala Willis vs. Willis, adm'r, &c. bama for Esther, he might have her. He went and got her. But the slave presently afterwards is found in the possession of the mother, and, with her children, so continues for many years, even until the death of Mrs. Willis. No evidence, (this is aside from the testimony of Golden, it will be remembered,) of a personal gift or delivery by the mother to the son, of the slave Esther, is given. But it is shown, that she made a solemn gift, by deed, of one of these children to this son, (who had the deed recorded, as if he trusted to it for his title,) and she makes declarations to some of her neighbors inconsistent with the idea that she had given Esther to her son Thomas. Considering these circumstances as uncontradicted by any other testimony in the case, they certainly authorize a presumption, and that not a weak one, that though Mrs. Willis had said, that if Thomas would go to Alabama for Esther he might have her; yet, that though he had gone for her, she had not kept her promise for some reason, and never had, in fact, given the slave to him. If this were so, he went to Alabama as the agent of his mother, took possession as her agent, and his possession was her possession. Now this may be contradicted by other testimony in the case, especially, the testimony of Isaac Golden. But it was for the Jury to decide between the conflicting testimony; and it was the duty of the Court to call their attention to both views of the case thus presented. This, we think he did, very ably and fairly, when he made the charge to which exception is taken. [2.] Though the testimony of Isaac Golden be received as a positive statement, to the effect that Esther had been given, by Mrs. Willis, to the plaintiff in error, and the other facts stated, only authorize a presumption to the contrary; yet, when we look to the character of the conversation testified to by Golden, occuring some twenty years before; and when we reflect that the witnesses were all in the presence of the Jury; that they had the benefit of their demeanor and appearance at the trial, may have had a knowledge of their characters;' and thus, by preference, have derived their conclusions from Stokes vs. The State. the presumptive evidence; we are not enabled to say, in the language of the Legislature, that "the verdict was decidedly and strongly against the weight of evidence.". We cannot, therefore, authorize a new trial. No. 5.-ARMISTEAD T. STOKES, plaintiff in error, vs. THE STATE OF GEORGIA, defendant in error. [1] There may be cases of voluntary manslaughter, in which there was no assault made upon the person killing, by the person killed. [2.] "The regular mode of examining into general character, is to inquire of the witnesses whether they have the means of knowing the former witness' general character, and whether, from such knowledge, they would believe him on his oath." Indictment for murder, in Wilkes Superior Court. Tried before Judge ANDREWS, September Term, 1854. Armistead T. Stokes was indicted for the murder of James Henly. On the trial, the following evidence was submitted to the Jury: WILLIAM C. DENT, sworn: Was present when difficulty happened in this county on 12th February, 1853; was at Stokes' to help raise a house; just before dinner a dispute arose between Mr. Curry and prisoner, when we were raising house; no fight, but an offer, when Mr. Henly interfered and prevented it. Prisoner then went to his house. Witness and Henly also went to house to dinner. When we got there, found prisoner lying on the bed. Henly and witness sat down to dinner when several words occurred between prisoner and Henly; about what, witness does not recollect. Henly told prisoner if he wanted a thrashing and would go to the road he, Henly, would give it to him. Prisoner and Henly then VOL. XVIII.-3 Stokes vs. The State. started from the house-Henly before and prisoner following him. Witness followed after; when some 8 or 10 steps from the road, prisoner struck Henly. Henly was a few steps in advance of prisoner when they left the house; remained about the same distance apart until the blow was struck; heard no words between them. Witness was some 4 or 5 steps behind them. Prisoner walked behind all the way from the house to where blow was struck; saw the blow struck; prisoner was behind and rather to the right. Henly fell when the blow was given, and was dead as soon as witness reached him; blow was over the right breast, and struck over right shoulder of Henly. Witness did not see the knife when blow was struck; saw a knife that evening said to be the one with which the blow was struck. After Henly fell, prisoner went back to house. Saw Henly make no offer to strike prisoner, while on the way to the road; the road was some 130 or 140 yards from house, and outside of the inclosure where the stabbing took place. Witness was invited by prisoner's boy to houseraising. Cross-examined: Witness does not recollect what the quarrel between prisoner and Henly in the house was about; witness had no recollection of having words with prisoner in the house; witness had been drinking before dinner; the quarrel occurred soon after we set down to the table; has no recollection of any words that passed between prisoner and Henly, until invitation to go to road. Mrs. Stokes was waiting on table; did not hear her say any thing during quarrel; does not know that quarrel was about Mrs. Stokes. Witness did not know that prisoner and Henly were really angry until they started to the road. There was a gate on the way to the road-road from Mallorysville to Petersburg, about 4 or 5 steps from gate; open space between gate and the road which could be travelled; heard no words when blow was struck. Witness was some 4 or 5 steps behind Stokes when blow was struck, and Stokes followed Henly from house two or three steps behind. Saw blow struck, but saw no knife; both walking on when blow was given. Henly offered no resistance when Stokes vs. The State. blow was struck. After deceased fell, witness went to field, sent a boy over to Mr. Curry's and went, himself, to Andrews. Before they left the house, Henly told Stokes if he (Stokes) wanted a thrashing and would go to the road he, Henly, would give it to him; recollects not a word or syllable said in quarrel by Stokes or Henly before the challenge to go to road; recollects nothing said by Mrs. Stokes. Witness did not state, on former examination, that Mrs. Stokes put in during the quarrel. Direct, resumed: Witness heard prisoner and Henly running on while at dinner, but did not know or believe they were quarrelling; was common with prisoner to be running on. Gate was about one hundred yards form house; conversation was between all of us, at the new house, about the wagon left by Stokes, when he went off with Judge Barkesdale. SIMPSON CURRY sworn: Witness was employed by prisoner as overseer in the year 1853. Prisoner proposed to build a house for witness. Prisoner told witness, three times, to ask James Henly and George House to assist in raising the house; on the day of house-raising a difficulty occurred between witness and prisoner, about dividing expenses of liquor for the hands. Stokes had a knife and witness had a hand-stick. When witness was in the act of striking prisoner, Henly, the deceased, interposed and caught witness' arm. Stokes left quick after the difficulty. A short time after Stokes left, the horn blowed and Dent and deceased left for the house; did not see deceased again until after his death. Mr. Dent sent a boy after him. Witness saw no knife where the body lay; did not remain there but a few minutes. Witness then went to Mr. Willis'. Next saw Mr. Stokes in the yard, while I was out to the road where Henly was dead; some hundred yards from where Henly laid to where Stokes was standing. Witness told deceased's children while passing through the yard, that if Stokes had whipped Henly he could not whip him, witness. By the time witness got to the road, Stokes came out into the yard and said something to witness; witness does not recollect what, and witness hallooed to him, "you have killed this |