By the Court.
Lumpkin, J.
delivering the opinion.
We propose to examine, briefly and in their order, the several grounds upon which the new trial was asked and refused in this case.
[1.] The first complaint is, that the triors were permitted to’ retire with the Juror who was challenged, in order to find whether or not he stood indifferent between the State and the defendant.
That challenges to the array were tried publicly, there can be no doubt. The practice in such case, was for the Clerk to state to the triors the cause of challenge; and after he had so done, to conclude thus: “and so your charge is, to'inquire whether it be an impartial array or a favorable one” ; and if the triors affirmed it, the Clerk entered underneath the challenge, affirmatur; but if the triors found it favorable, the entry was calumnia vera. {Trials per Pais, 165.)
The rule, however, as to the trial of challenges to the polls, seems not to be so well settled. Colee and Bolle are silent upon this subject, and a different practice seems to have obtained in the State Courts touching it. It is every where agreed that the truth of the matter alleged as cause of challenge, may be made out by witnesses; and also, that the Juror challenged may, on his voire dire, be asked such questions as will test the state of his feelings, provided they do not tend to bring the Juror into infamy and disgrace.
This Court suggested, as the better practice, that the trial be conducted in the presence of the Court. We are still of that opinion. We do not feel at liberty, however, to decide, authoritatively, that this shall be done; especially as a contrary course had pretty generally obtained in the oldest Circuit Courts.
[118]*118In this case, the presiding Judge seems to have blended tho two modes. After the Juror challenged was asked such questions, in open Court, as the Solicitor General and the defendant’s Counsel saw fit to propound, the triors were allowed to retire with the Juror, for further examination. We still think the practice objectionable. And the fact that the triors are officers of the Court, acting in a judicial capacity, and liable to be punished for any misdemeanor, does not obviate the difficulty. The privilege thus conceded, is liable to gross abuse. We have reason to know that it is often abused. Better that this, as well as all other trials, be conducted openly — publicly. It is one of the best safeguards of a sound and correct administration of justice.
[2.] As to the remark which fell from the bench in the presence of a full panel of Jurors, that it Vas a strange thing that a man should have a decided opinion as to the guilt or innocence of the accused, without having heard the testimony in the case, we think it was incautious, and should not have been made, calculated, as it was, to intimidate the Jurors from that free and frank declaration, as to the state and condition of their minds, which it is the object of the examination to elicit. It does not appear, however, as it should do, that it resulted injuriously to the prisoner.
[3.] We see no error in the instructions given by the Court to the triors; nor in his refusal to charge them as requested. The law was stated correctly.
[4.] As to the fourth ground upon which the motion for a new trial was made, in reference to Francis M. Blackman, it is neither more nor less than granting to the Juror the privilege of correcting a misapprehension as to Ms answer. Is it possible that such permission should be denied?
[5.] We know of no limit to the right which belongs to the Court, of interrogating witnesses, either in civil or criminal cases, especially the latter. The life or death of a man may hang upon a full development of the truth. The presumption that this liberty will not be honorably and impartially exercised, is not to be tolerated for a moment. Counsel, in their [119]*119zeal to acquit tbeir clients, seem to take it for granted that the only object of Courts is to convict. Until called upon to discharge the solemn and responsible functions of a Judge, they never can fully appreciate the high sense of obligation under which they act, to God and their fellow citizens.. “|Thy life for the murderer’s life, if he escape,” is the solemn denunciation of the Almighty! When they see, therefore,, that a material fact has been omitted, which ought to be' brought out, it is not only the right, but the duty of the presiding Judge, to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly. And let it be remembered,, that Counsel seek only for their client’s success; but the Judge must watch that justice triumphs !
[6.] The next error assigned is, that the Court declined to charge the Jury as requested in writing, “that in a case where there is but one witness to the immediate fact of killing, as in this case, then the previous peaceable and good character of the prisoner is, of itself, sufficient to raise a reasonable doubt of his guilt.”
The first objection to this request is, that the proof did not warrant it. It is ingeniously drawn to meet the letter, perhaps, of the evidence, but not the substance of the testimony. It is true that Penelope S. Epps is the only witness who, in the language of the request, swears to the “ immediate fact of killing.” But read the statement of Sandford Roberts, and what a perversion of the evidence to assume that the widow of the deceased was the only witness of the homicide. Erase her testimony, entirely, from the record, and the Jury would have been more than justified in finding the prisoner guilty upon the evidence of Roberts. Indeed, if they believed him, they could not have done otherwise. The nakedi facts not only corroborate the testimony of both these witnesses, but, unexplained, point to John Epps as the murderer of his father.
Again: While it is shown that the defendant was a quiet [120]*120and peaceable man, it also appears that he had, for some time previously, cherished a spirit of bitter resentment toward his father for the wrongs which he accused him of inflicting upon his mother and sisters. In the presence of Joshua Stevens, he declared that if the old man brought the relations of his present wife to his house, that one or both of them would die. Similar expressions, indicating the feelings and purposes of the defendant, were proven by other witnesses. The general placability of the defendant, therefore, weighs not a feather under these circumstances.
The conclusion, then, is clear, that the legal proposition embodied in the request to charge, does not arise upon the facts of this case. Is the principle itself tenable ? We think not. Suppose there be but a single witness to the homicide, and yet, his character is such as to place his veracity beyond question, and he testifies under such circumstances as to preclude the possibility of mistake as to the identity of the slayer and all the accompanying circumstances, would the bare fact that the defendant was a mild and inoffensive man, be, of itself, sufficient to create a reasonable doubt as to his guilt? We should be slow to enforce such a doctrine.- In cases of doubt, character is essential; and in all such cases, should preponderate in favor of innocence, especially where life is involved; but where the charge is positively proved, it cannot avail. Such is our understanding of the law.
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By the Court.
Lumpkin, J.
delivering the opinion.
We propose to examine, briefly and in their order, the several grounds upon which the new trial was asked and refused in this case.
[1.] The first complaint is, that the triors were permitted to’ retire with the Juror who was challenged, in order to find whether or not he stood indifferent between the State and the defendant.
That challenges to the array were tried publicly, there can be no doubt. The practice in such case, was for the Clerk to state to the triors the cause of challenge; and after he had so done, to conclude thus: “and so your charge is, to'inquire whether it be an impartial array or a favorable one” ; and if the triors affirmed it, the Clerk entered underneath the challenge, affirmatur; but if the triors found it favorable, the entry was calumnia vera. {Trials per Pais, 165.)
The rule, however, as to the trial of challenges to the polls, seems not to be so well settled. Colee and Bolle are silent upon this subject, and a different practice seems to have obtained in the State Courts touching it. It is every where agreed that the truth of the matter alleged as cause of challenge, may be made out by witnesses; and also, that the Juror challenged may, on his voire dire, be asked such questions as will test the state of his feelings, provided they do not tend to bring the Juror into infamy and disgrace.
This Court suggested, as the better practice, that the trial be conducted in the presence of the Court. We are still of that opinion. We do not feel at liberty, however, to decide, authoritatively, that this shall be done; especially as a contrary course had pretty generally obtained in the oldest Circuit Courts.
[118]*118In this case, the presiding Judge seems to have blended tho two modes. After the Juror challenged was asked such questions, in open Court, as the Solicitor General and the defendant’s Counsel saw fit to propound, the triors were allowed to retire with the Juror, for further examination. We still think the practice objectionable. And the fact that the triors are officers of the Court, acting in a judicial capacity, and liable to be punished for any misdemeanor, does not obviate the difficulty. The privilege thus conceded, is liable to gross abuse. We have reason to know that it is often abused. Better that this, as well as all other trials, be conducted openly — publicly. It is one of the best safeguards of a sound and correct administration of justice.
[2.] As to the remark which fell from the bench in the presence of a full panel of Jurors, that it Vas a strange thing that a man should have a decided opinion as to the guilt or innocence of the accused, without having heard the testimony in the case, we think it was incautious, and should not have been made, calculated, as it was, to intimidate the Jurors from that free and frank declaration, as to the state and condition of their minds, which it is the object of the examination to elicit. It does not appear, however, as it should do, that it resulted injuriously to the prisoner.
[3.] We see no error in the instructions given by the Court to the triors; nor in his refusal to charge them as requested. The law was stated correctly.
[4.] As to the fourth ground upon which the motion for a new trial was made, in reference to Francis M. Blackman, it is neither more nor less than granting to the Juror the privilege of correcting a misapprehension as to Ms answer. Is it possible that such permission should be denied?
[5.] We know of no limit to the right which belongs to the Court, of interrogating witnesses, either in civil or criminal cases, especially the latter. The life or death of a man may hang upon a full development of the truth. The presumption that this liberty will not be honorably and impartially exercised, is not to be tolerated for a moment. Counsel, in their [119]*119zeal to acquit tbeir clients, seem to take it for granted that the only object of Courts is to convict. Until called upon to discharge the solemn and responsible functions of a Judge, they never can fully appreciate the high sense of obligation under which they act, to God and their fellow citizens.. “|Thy life for the murderer’s life, if he escape,” is the solemn denunciation of the Almighty! When they see, therefore,, that a material fact has been omitted, which ought to be' brought out, it is not only the right, but the duty of the presiding Judge, to call the attention of the witness to it, whether it makes for or against the prosecution; his aim being neither to punish the innocent nor screen the guilty, but to administer the law correctly. And let it be remembered,, that Counsel seek only for their client’s success; but the Judge must watch that justice triumphs !
[6.] The next error assigned is, that the Court declined to charge the Jury as requested in writing, “that in a case where there is but one witness to the immediate fact of killing, as in this case, then the previous peaceable and good character of the prisoner is, of itself, sufficient to raise a reasonable doubt of his guilt.”
The first objection to this request is, that the proof did not warrant it. It is ingeniously drawn to meet the letter, perhaps, of the evidence, but not the substance of the testimony. It is true that Penelope S. Epps is the only witness who, in the language of the request, swears to the “ immediate fact of killing.” But read the statement of Sandford Roberts, and what a perversion of the evidence to assume that the widow of the deceased was the only witness of the homicide. Erase her testimony, entirely, from the record, and the Jury would have been more than justified in finding the prisoner guilty upon the evidence of Roberts. Indeed, if they believed him, they could not have done otherwise. The nakedi facts not only corroborate the testimony of both these witnesses, but, unexplained, point to John Epps as the murderer of his father.
Again: While it is shown that the defendant was a quiet [120]*120and peaceable man, it also appears that he had, for some time previously, cherished a spirit of bitter resentment toward his father for the wrongs which he accused him of inflicting upon his mother and sisters. In the presence of Joshua Stevens, he declared that if the old man brought the relations of his present wife to his house, that one or both of them would die. Similar expressions, indicating the feelings and purposes of the defendant, were proven by other witnesses. The general placability of the defendant, therefore, weighs not a feather under these circumstances.
The conclusion, then, is clear, that the legal proposition embodied in the request to charge, does not arise upon the facts of this case. Is the principle itself tenable ? We think not. Suppose there be but a single witness to the homicide, and yet, his character is such as to place his veracity beyond question, and he testifies under such circumstances as to preclude the possibility of mistake as to the identity of the slayer and all the accompanying circumstances, would the bare fact that the defendant was a mild and inoffensive man, be, of itself, sufficient to create a reasonable doubt as to his guilt? We should be slow to enforce such a doctrine.- In cases of doubt, character is essential; and in all such cases, should preponderate in favor of innocence, especially where life is involved; but where the charge is positively proved, it cannot avail. Such is our understanding of the law.
[7.] If there be error in the seventh ground, it was committed against the State, and not against the prisoner. The proof was, that the killing was wilful — not accidental. And Counsel for the accused had no right to ask a charge upon any other hypothesis. We concur, however, with the Court, in holding that had it been accidental under the circumstances supposed, it would still have been murder. If one goes to the house of another to take his life, and a death-struggle ensues on the one part to execute the felonious purpose, and on the other, to escape, and death ensues from the fortuitous firing of the gun, what is there, in such a case, to mitigate the offence ? A man points his rifle at me with intent to [121]*121shoot, and by some means, the ball is prematurely discharged; and I am killed. Can this be manslaughter ?
[8.] Was James Dee a competent Juror ? And if not, was the exception taken in time ?
Decisions might be cited from the Courts of our sister-States, directly sustaining the ruling of Judge Jackson.. But we prefer to affirm it upon indisputable ground. By the-38th section of the Judiciary Act of 1799, (Cobb’s Digest, 545-’6,) no person is capable to be of a Jury for the trial of felony, who shall not bo qualified to vote at elections for members of the Legislature; and if any person, not qualified as aforesaid, shall be returned on any Jury, he shall be discharged on the challenge and proof thereof, of either of the parties, or on his own oath, of the truth thereof: Provided that no exception against any Juror,, on account of his qualification, shall be allowed after he is sworn.
Now it is admitted, that to qualify one to vote for tho Legislature, he must usually have resided in the county for six months, and considered it his home or place of residence during that period. (Gobi’s Digest, 239.) And consequently, Mr. Dee, the Juror, having lived in Clarke County for four months only last preceding, the trial, he was incompetent to serve as a Juror. But it is equally clear, that under the y>n>viso of the Act, the objection comes too late, not having been taken before the Juror was sworn. And it is no excuse that the disqualification was not known to the party or his Counsel. The Statute makes no such exception. It was their duty to have made inquiry, either of the Juror himself or of others.
An extreme case has been put to test the validity of this construction. Suppose, say Counsel, one or more of the Jury had been slaves or free persons of color, or females, and the.disqualification had not come to the knowledge of the prisoner, as in this case, until after verdict? Our answer is, that if the disqualification was such, whatever it might be, as not to impinge the constitutional provision, that trial by [122]*122Jury, as heretofore practised, should remain inviolate, the» verdict would stand. It might or might not, according to the nature of the disqualification, constitute a good ground for the interposition of the Executive. But a want of residence is no such ground; it is rather a recommendation, when the public mind becomes excited by the perpetration of" a great crime, as in the present case.
[9.] It is next assigned as error, that Joseph M. Williams, conversed with William Wood and another Juror, after they wore sworn to try the case. This transpired in open Court, and in the presence of the Judge. With a crowded courtroom, it is impossible to prevent some casual remark of this sort. A Juror is, unexpectedly to himself, sworn and put upon the panel; he whispers to a friend some message to his family, or gives some directions concerning his horse. While we condemn the practice, as no one should speak to the Juror, nor he to them, without leave of the Court; still, no case has been found which decides that this is such an irregularity as will entitle the prisoner to a new trial; such misconduct as will require the verdict to be set aside. The Solicitor General offered to show that no such conversation took place.- But the Court dispensed with the proof, the de- . fendant’s Counsel not pretending that his client was prejudiced.
[10.] The last error assigned is, that John C. Benedict, one • of the Jurors who tried the case, having denied, under oath, that he had ever formed or expressed any opinion as to the guilt or innocence of the accused, when it appears from the affidavit of one Biggs, that he had previously formed and expressed a decided opinion, unfavorable to the prisoner, which fact was unknown to the prisoner or his Counsel until after ■ the verdict was rendered.
When the motion for a new trial was made, this ground was . supported alone by the oath of Biggs. And the Court refused to sustain it, because as the presiding Judge certifies, “ it was affidavit against affidavit.” Time was given until the ■ next morning to offer additional proof, as to the incompetency [123]*123of Benedict, which not being produced, the motion was overruled — the Court being compelled to adjourn to reach Walton Court, which had been already postponed a day on account of this trial. No application was made for further time to file additional evidence. Two other depositions were subsequently obtained, after the case was finally disposed of and transmitted to this Court, with the remark by his Honor, Judge Jackson, that the Solicitor General, residing in Lawrence - ville, had had no opportunity of procuring counter proof; nor had Benedict, the Juror, the opportunity of being hoard in his defence. The Circuit Court has passed upon the case as it was originally presented, and we can only review his decision. Whether the statements of Winfrey and Booth would have influenced him to award a different judgment, we have no means of determining. Of one thing we are fully convinced, namely: that there is no reason for attributing this verdict to passion or prejudice. Eor we very much doubt whether twelve men in the county could have been found, who would have rendered any other. This unfortunate man, not ■very bright at best, addicted to liquor and solitary in his habits, had suffered his spirit of resentment to engross Ms mind, ■ until it had become almost, a monomania with him; and thus possessed, he imbrues his hands, not in the blood of his brother, but of his father. Would that he were not only almost, but altogether, what his Counsel claim him to be, dolí inca■* .pax !