of malice, or the legal presumption that this homicide was murder. We are not warranted to pronounce such a judgment in the face of a statute which makes "willful, malicious, and excessive beating," by whatever mode of beating, one of the enumerated modes of perpetrating murder in the first degree: and, therefore, this court is unanimous that the homicide in question was murder, and not manslaughter. Moreover, the jury, who have convicted the prisoner, were the proper tribunal to weigh the facts and circumstances, as well as the testimony in the case. And in conformity with the principles in regard to granting new trials, settled in McCune v. Commonwealth, 2 Rob. (Va.) 771, and Hill v. Commonwealth, 2 Gratt. 594, this court can not, even if this court had differed from the finding of the jury, undertake to set the verdict aside, because the jury decided against the evidence or without evidence.

The fourth ground of exception taken by the prisoner (which is the second upon the merits), is that the punishment found by the jury is excessive. No question has been raised by the counsel as to the degree of the murder which the prisoner has perpetrated. Nor does the court consider that as a question propounded in this case for their adjudication. It is to be distinctly understood, that no opinion whatever as to the degree of the murder, is to be supposed as intimated in the present judgment. The degree of punishment, in prosecutions like the present, the legislature has thought proper to intrust to the jury, as a peculiar province belonging to them, and not to the court. At the same time the legislature has affixed limitations upon the exercise of their powers, when it prescribed the minimum and the maximum of penitentiary confinement, as the punishment for the several felonies. The exercise of a power by the courts to control or disturb the verdict of jurors, as to the duration of the penitentiary confinement, would be one of great responsibility, and which this court can never be disposed to usurp. Whatever may be the power of the courts in this respect, is a matter which this judgment will leave wholly undecided. It is sufficient that in the unanimous opinion of this court, this case can justify no interposition of the court on the ground that the punishment found by the jury has been excessive.

The foregoing are all the grounds upon which the prisoner, McWhirt, has asked for a new trial. These grounds having been unanimously overruled as to him, are also unanimously overruled as to Ferguson, whose case in the foregoing particulars, the court regards as substantially the same in point of

guilt with that of McWhirt, with no other real discrimination than that of principal in the first and second degree in the same felony. But there is another ground on which Ferguson founds his application for a new trial, peculiar to himself: and this ground is the refusal of the circuit court to grant to this prisoner a continuance of his trial to the next term.

McWhirt had been tried on Saturday the ninth of May; and Ferguson, when set to the bar on the succeeding Tuesday morning the twelfth, moved for a continuance, which was grounded upon the affidavits of the prisoner and his counsel, as to the absence of Edward A. Kenedy and Livingston Kenedy, material witnesses, who had been duly summoned to the court to testify in the prisoner's behalf. The depositions of these two witnesses, as taken at the examining court, had been read at the previous trial of McWhirt by consent; and the object of their testimony was to show that the deceased was subject to fits, and that the deceased might have died in consequence of fits, which would produce in the interior parts of the head, appearances similar to those which had been ascribed to the violence of the beating he had received from McWhirt. The testimony of these witnesses had, to the fullest satisfaction of the judge of the circuit court, been utterly discredited by a great number of witnesses, who proved that they were entirely unworthy of belief. The commonwealth's attorney proffered that the same depositions might again be read on Ferguson's trial, liable to be discredited in the same manner as in McWhirt's trial. But the prisoner, by his counsel, and in his affidavit, insisted that he could not safely go to trial without having the Kenedys personally present at the trial; and that he wished to have an opportunity of obtaining testimony to sustain the credit of said witnesses; and confirm the facts to which they would testify; which testimony would be important and material to the defense: the prisoner having now been informed that their credit would be assailed. It was in proof, that one of the witnesses resided in the county of Orange, about twenty miles from Spottsylvania court-house, and that the other had lately removed to Fredericksburg, about twelve miles from the same court-house. The circuit court, in overruling the said motion for a continuar ce, till the next term, intimated its willingness to postpone the trial to a future day of the then term; and suggested Friday following as the period of postponement (it being at the time the motion for continuance was made about midday of Tuesday); and also intimated that, if moved for in behalf of the prisoners, attachments should forthwith be

AM. DEO. VOL. XLVI-14

issued and dispatched by order of the court, to have the said Kenedys before the court in time for trial on Friday, if the trial should be postponed to that day.

The counsel for the prisoner, nevertheless, insisted upon the continuance to the next term, unless a more distant day of the then term should be fixed upon as the day of postponement beyond Friday; which last mentioned day, it appeared to the satisfaction of the circuit court, as stated by it in the bill of exceptions, would allow full time in the interval, to the prisoner to enforce by the process of the court, or otherwise, the attendance of the said Kenedys; and might also afford to the prisoner an opportunity, if he or his counsel should think proper, to summon other additional evidence in his behalf. The motion for continuance, notwithstanding these intimations, being still insisted on, was overruled by the court.

This court, without adverting to the consideration, how far the motion to put off the trial on account of the absence of witnesses, in this case, was on account of the absence of witnesses as to character, 1 Chit. Cr. L. 492, is unanimously of opinion, that the motion was properly overruled; and that the court tendered to the prisoner, in the intimations which it gave, all the indulgence that the prisoner could expect or claim at its hands. The judgment of the circuit court is unanimously sustained.

Writ of error denied.

Murder, what Constitutes: See notes to Commonwealth v. York, 43 Am. Dec. 373; State v. Scott, 42 Id. 148.

DISTINCTION BETWEEN MURDER AND MANSLAUGHTER: See Slaughter v. Commonwealth, 37 Am. Dec. 638, and cases collected in note thereto.

PROVOCATION NEVER DISPROVES MALICE; it only removes the presumption of malice which the law raises without proof: State v. Johnson, 35 Am. Dec. 742. Words, however aggravating, are not considered sufficient provocation to extenuate the killing of a person so as to render it manslaughter: Commonwealth v. York, 43 Id. 373.

FACT OF KILLING IS PRIMA FACIE EVIDENCE OF MALICE, and unless overcome by preponderating proof the other way, it must be held murder: Commonwealth v. York, 43 Am. Dec. 373, and note.

THE PRINCIPAL CASE IS CITED to the point, that where a defect appears on the face of a writ, a motion to quash is the proper mode of taking advantage of it, in Wash's Case, 16 Gratt. 537. To the point that to justify the granting of a new trial the evidence should be plainly insufficient to warrant the finding of the jury, in Vaiden's Case, 12 Id. 728; and Read's Case, 22 Id. 944.

CASES

IN THE

SUPREME COURT

ОР

ALABAMA.

GODBOLD V. BRANCH BANK AT MOBILE.

[11 ALABAMA, 191.]

DIRECTORS OF BANK ARE NOT LIABLE TO IT for injury resulting to it from

acts of theirs which, though unlawful, were done in good faith, with a view to promote the interest of the bank, and in the exercise of powers vested in them.

BANK DIRECTOR IS NOT SEVERALLY LIABLE FOR ACT OF MAJORITY of the board, although he voted with it. If directors composing the majority are liable at all, they are jointly liable. Per ORMOND, J.

CASE by the defendant against the plaintiff in error. The opinion states the facts.

A. F. Hopkins, for the plaintiff in error.

Phillips, contra.

ORMOND, J. This action is against the defendant, as one of the majority of the board of directors of the Branch Bank of Mobile, by whose act a sum of money was appropriated to compensate another director, as an agent of the bank. In the Branch Bank of Mobile v. Collins, 7 Ala. 95, this was held to be illegal, and that the money so unlawfully received could be recovered from the director receiving it, by action of assumpsit. This action is against an individual director, who, by voting with the majority, participated in the unlawful act, but did not receive the money.

The act incorporating this, as well as the rest of our banks, placed it under the control of a president and directory. The second section of the charter declared that, "for the management of the concerns of said bank, the legislature shall annually

proceed to elect, by joint vote of both houses, a president and fourteen directors, whose office shall continue for one year," etc. The power here conferred on the directory, is to those composing it, collectively, and not as individuals, and like all other grants of power to a body of men acting in a corporate, political, or judicial capacity, is to be exercised by the majority, unless the act creating the body otherwise limits, or declares the mode in which it shall act or manifest its determinations. The only limitation in the charter of this bank is, "that not less than six of the directors shall constitute a board for the transaction of business, of whom the president shall always be one;" and as it does not require that each member of the board shall concur in the performance of any act, it follows necessarily that the act may be done by a majority of the board present. This, however, is not left to inference, as the act requires the board to keep a minute of its proceedings, and authorizes any member to require the yeas and nays to be recorded. That it is not the vote which any director may cast which constitutes an act for which he might be afterwards held responsible, is evident from the fact that it requires a majority to do any act as a board of directors, and that it is only as one of the majority that a director can participate in the action of the board. He has no capacity to act as a director, but as an integral part of the board, and the act, when done, is not the act of each member individually, but is the result of the joint action of the majority collectively. A vote given by a member in the minority, has clearly no influence upon the action of the board, yet until the result of the ballot or vote is ascertained, his voice is as potent as one which the result ascertained to have been in the majority. It follows, necessarily, that an act done by the board, is not the act of the individual members who, by voting in the majority, have produced the result, but the act is the consequence of the joint action of those directors, who, by their vote, have carried the proposed measure.

The case of the Franklin Ins. Co. v. Jenkins, 3 Wend. 130, is the converse of this. There, four persons were sued as directors, for a waste of the funds of the company, and the court held, that as they did not constitute a majority of the board, they were incapable of doing any corporate act, and could not therefore jointly, as directors, have wasted the money or effects of the corporation, but if liable at all, were liable individually. That is the precise principle involved in this case. In both counts of the declaration, the act complained of, is charged to