Which instructions the court refused; but instructed the jury: "That the state was bound to prove that the defendant be money upon a game of pocre, played at cards in Johnson county," etc.

The jury found the defendant not guilty, a new trial was refused the state, and she excepted and appealed.

In criminal prosecutions by indictment or presentment, the accused has a right to a speedy public trial by an impartial jury of the county or district in which the crime shall have been committed. Bill of Rights, sec. 11.

The statute provides that "when any offence may be committed on the boundary of two counties, etc., the indictment may be found, and trial and conviction thereon had, in either of such counties. Gould's Dig. ch. 52, sec. 109.

Cases may occur in which the crime may be committed on the boundary line between two counties; for example, the card players, in this case, might have placed themselves on the line, if they had thought proper, and engaged in playing and betting there. In such cases it would certainly be a narrow construction of the provision of the bill of rights, in relation to venue, to hold that the offender would not be subject to indictment at all.

The court below refused the first instruction, on the ground perhaps that it was not warranted by the evidence.

The second instruction was, perhaps, refused for the same

reason.

The statute also provides that "if it is uncertain where the boundary is, the indictment may be found, etc., in either county." Ib.

Here there seems to have been no uncertainty as to where the boundary line between the counties of Johnson and Yell was, because it had been surveyed, and as it must be supposed, marked. (Gould's Dig. ch. 43.) But the uncertainty was as to the place where the offence was committed-whether it was on the one side or the other of the line. It seems that the parties retired to a place on the head waters of Shoal creek, in the

woods, under a mountain, and there engaged in gaming. The only witness who was present, could not, or did not state, whether it was on the one or the other side of the line. He did not help run the line, and only knew from reputation where it was. The place where the gaming occurred, was right about where he had understood the line run, but was not certain on which side of the line it was.

The line being designated by law, and having been surveyed and marked, the case did not fall, we think, within the mischief intended to be remedied by the statute.

The indictment charged that the offence was committed in Johnson county, and the venue not having been clearly proven as alleged, we shall not reverse the judgment of the Circuit Court refusing the state a new trial.

Affirmed.

THOMPSON VS. PATTERSON ET AL.

The appellant having been made a witness, and the jury, who heard his statement having rendered a verdict against him, and the presiding judge who had an opportunity of observing his manner of testifying, having refused to set aside the verdict, this court being unable to say that there was a total want of evidence to sustain the verdict, affirms the judgment.

Thompson vs. Patterson et al.

Appeal from Van Buren Circuit Court.

Hon. WILLIAM C. BEVENS, Circuit Judge.

(JANUARY

JORDAN, for the appellant, contended that the appellant was merely an agent, and not personally responsible.

Mr. Chief Justice ENGLISH delivered the opinion of the Court. Patterson & Bradley sued Thompson before a justice of the peace of Van Buren county, for $20, given by them to him in exchange for a counterfeit bill of the Canal Bank of New Orleans. They obtained judgment against him, and he appealed to the circuit court, where the cause was tried anew by a jury, the verdict and judgment were again in their favor, a new trial refused, and he appealed to this court.

The court gave an instruction to the jury of its own motion, and also an instruction moved by appellant, but it is not complained that either of them was erroneous.

We are asked to review the evidence upon which the cause was tried, and it is insisted that the verdict is totally unsus. tained.

Thompson, the appellant, was introduced as a witness, and with the exception of proof that the bill was counterfeit, and was tendered back to him before suit, the case was tried entirely upon his own statement.

His statement follows:

"Some time prior to the institution of this suit, there was a stranger at my house, who had horses for sale. He asked me to change a twenty dollar bill, which I refused to do. At this time he had bought fifty cents worth of something of me, and paid me for it-did not want to change bill to pay me. He requested me to get the bill changed for him-I took it and went to Mr. Barbee's store, and he refused to give gold and silver for the bill. I next went to Purvatt's and he did not want to change the bill. I disclosed to each of them that it

was not my money, but belonged to the horse drover. I then returned the bill to the drover, and he asked me if I had tried at every place in town to get the bill changed. I told him that I had not. He then requested me to go and try again, which I consented to do. I then went to James H. Patterson, who is engaged in business with John Bradley, and showed him the bill, and told him that it belonged to the stranger at my house, and that he was desirous to have it changed-Patterson said. he was indebted in the city of New Orleans, and wanted the bill on that account, it being a bill on Canal Bank of said city, and would give the change for the bill, but his money was at his house, and that he had not time to get it. I then told him that if he wanted the bill I would hand the money to the man myself, and proposed leaving the bill with Patterson at that time. He told me to take the bill along, which I did. I went back to the drover, and handed him in exchange for the bill, twenty dollars in change, [here the bill was presented to appellant, and identified]. The day after I saw Patterson about changing the bill, I took the bill to him, and handed it to him, and he then handed me twenty dollars. After the bill was brought, or sent back here, and after Patterson had tendered me the bill, I bought some drugs from a French doctor, and I went to Patterson to get the bill to pay for them. I asked Patterson if it would be proper to pass it-Patterson said I could pass it if I liked, but that he would not pass it for the State-I then declined to take the bill back."

On cross examination by his counsel, he stated as follows: "I did not consider that I ever owned the bill. There was nothing said at the time I handed the bill to Patterson, and he gave me my twenty dollars, about the changing of the bill. I handed it to him in accordance with the conversation the day previous. Patterson is considered the best judge of paper money in the community, and the bill which I took for the drover, to get changed, he pronounced a good bill. I told Patterson that the bill did not belong to me, that it belonged to the drover. What I did, I did merely as a matter of accommoda

tion to Patterson and the drover. Patterson said the bill would suit him to pay a debt in New Orleans as well as gold, and he wanted it for that purpose."

What impression the appellant made upon the minds of the jurors by the manner in which he testified, we do not know, nor can we tell what portion of his statement they believed, and what portion they discredited, if any.

It seems that after the bill had been tendered back to him, and he was informed that it was spurious, he was disposed to put it upon the French doctor for his drugs, and went to Patterson to get it for that purpose, but when Patterson indicated to him that this would not be right, he declined to take back the bill. What impression this portion of his evidence made upon the jury, and whether it tended, in their judgment, to discredit any other portion of his statement, we have no means of determining.

When he first took the bill to Patterson, he expressed a willingness to change it, in the belief, of course, that it was genuine. Let it be supposed that when appellant took the bill to him on the next day, he had discovered it to be spurious, would he have been legally bound to take it off appellant's hands, and pay him twenty dollars in good money for it? We doubt if he would, for appellant does not positively state that Patterson requested him to advance the money to the drover for him, and agreed to take the bill, and repay him.

A jury of his neighbors, who heard his entire statement, rendered a verdict against him. The presiding judge, who had an opportunity of observing his manner of testifying, refused to set the verdict aside; and we cannot undertake to say that there was a total want of evidence to sustain the verdict; or, that another trial, if awarded, would result more favorably to him.

The judgment must be affirmed.