By the Court
Lumpkin, J.,delivering the opinion.
My judgment is, that a new trial should be granted in this case, on the ground, that the Court erred in refusing the motion made by the prisoner for a continuance.
Upon a dispassionate examination of the evidence in this record, can it be denied but that there is a mystery enveloping this tragedy ? How, where, when, and by whom, was Hall killed ? There is more or less uncertainty attending each head of this inquiry.
In candor, I confess that I think it possible, if not probable, the fatal blow was inflicted by the prisoner, and between the dwelling-house and grocery; and yet, my mind is not free from doubt, as to these material facts.
It is frankly admitted by the prosecuting officer, that no reliance can be placed upon the uncorroborated testimony of Mrs. Hall, the wife of the deceased. Such depravity has rarely been witnessed, as was exhibited on this melancholy occasion by this miserable woman. Whitworth’s conviction must rest alone upon his own confessions. And under other circumstances, perhaps, they would be deemed sufficient and satisfactory, notwithstanding it is conceded he had no controversy or cause of quarrel with the deceased. If he struck at all, it must have been to avenge the offended pride of his kinsmen, Holloway and Brock, whose credit had been stopped at the grocery, or to accomplish some more unholy purpose, by removing Hall out of their way. They instigated the blow. It was inflicted with Holloway’s gun. Is it impossible, in the condition the prisoner was in that night, for him to have been made to believe that he, and not Holloway or Brock, was the slayer?
This, at least, is the theory of the prisoner’s defense, and *19a deep impression has been made upon the public mind as to its probability, if not its truthfulness. Hence the mammoth petition from the neighborhood where the trial was had for his pardon, including, it is said, eight of the jurors who tried the case, the other four having left the country. Hence the almost unanimous vote of the Senate and the large majority vote of the House for the bill, introduced by Mr. Echols (who was the Sheriff of Chattooga at the time) that arrested Whitworth. The veto of the Governor, if I remember right, (I have not the message before me), was put upon technical grounds, and not upon the merits; and mainly because this writ of error was pending before this Court.
A clear legal right, then, having been withheld from the prisoner, and evidence thereby kept back from the jury, which was germain to the prisoner’s line of defense, I am unwilling that his blood should be upon my hands. If, with all the testimony before the jury, they see fit to convict the defendant, it is their province and privilege to do so. But why should I desire to thrust myself into the jury-box, and usurp their functions ? I have neither the wish nor, in my humble opinion, the right to do so. It is for them, and not for me, to say what weight the absent proof shall have, in determining the guilt or innocence of the accused.
Judge Story, in commenting upon the clause in the Constitution of the United States — and which is but a re-enactment of the British Statute of Edward III., which requires, in cases of treason, the confession to be made in open Court, to j ustify a conviction — speaks of this provision as founded upon the great policy of protecting men from “unguarded confessions, to their utter ruin.” “It has been well remarked,” he says, “that confessions are the weakest and most suspicious of all testimony; ever liable to be obtained by artifice, false hopes, promises of favor or menaces, seldom, remembered accurately, or reported with due precision.” Story’s Com. on the Con., 3d vol., 671.
Read the testimony of John D. Knowles and E. M. Fant, as to the state of the prisoner’s mind when these confessions were made, and no one will wonder at the subsequent excitement which has resulted from this trial and conviction.