Simeall, J.:
It is claimed first, that the indictment ought to have been quashed, because the grand jury was not constituted in accordance with the law, to-wit: Art. 1, sec. 13, of the constitution, and the, act of July 20th, 1870, pamphlet, page 88. The combined effect of these provisions is to abolish property qualifications for jury service, and impose the duty on all citizens alike, who are electors, and not within some special exemption. In all other respects, as to the mode of selecting-,' summoning, empaneling-, and preferring objections, the previous laws not abrogated by the constitution and act of 1870 apply.
The judicial records of the country . furnish mortifying-testimony, that many culprits have gone free, unwhipt of justice, because of technical' exceptions taken to the grand jury who preferred the indictments. For remedy for this [750]*750sore greviance, the legislature in 1857, made two important amendments of the law: 1st. No objection by plea or otherwise, shall be raised to empaneling the grand jury; but the empanelment shall be conclusive evidence of its competency and qualifications. Eev. Code, 499, art. 131. When the body has been organized, sworn and charged, it is too late to prefer objections. Any person interested, whose conduct may be the subject of its inquiry and investigation, “may challenge or except to the array for fraud.” This completely cuts off the plea in abatement, challenging the fitness and qualifications of the body or of any of its members.
2d. Art. 250, Eev. Code, 613, instructs the courts to regard all the laws of the state relating to the mode of selecting, drawing, summoning and empaneling all juries as “directory” merely; and after they are empaneled and sworn, though in an irregular and informal mode, they must be esteemed legal, and competent to perform all the duties belonging to juries; and this applies in both civil and criminal proceedings — to grand and petit juries. The cases referred to by counsel for the plaintiff in error, occurred prior to the adoption of the Eev. Code, and doubtless suggested to the legislature the necessity of a reformation of the law. It follows that the exception -taken to the grand jury ought not to prevail.
8d. It is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons ; large discretion must be confided to the court in the performance of this duty; nor will the action of the circuit court in this behalf be the subject of review here, unless some violation of law is involved, or a gross and injurious . exercise of discretion is shown. The primary object is to insure a fair, unbiased jury. Brown v. Gilliam, ex’r, 4S Miss., 641. The objection to the special venire is not well taken.
4th. It is next urged that the confession of the prisoner ought not to have been admitted, because he was not warned of the probable consequences, and it did not appear to have [751]*751been voluntary, etc. There does not appear in the record such formal confession as the cases cited by counsel refer to. The witness, who was within a few paces of the parties at the time of the shooting, and ran and heard vrhat was done and said, deposes as to the response of the defendant, as to the effect of his shot. This response was heard by a female witness, some thirty or forty yards off. The statement connects itself with the act, and forms part of the res gestee. It was clearly admissible.
Por the purpose of discrediting a witness, it is competent {.o prove that he made discordant statements, at other times and places, but to re-establish credibility, or to support what he has deposed on the trial, it is inadmissible to prove that he has made substantially the same statements, to a third person. Many years ago the British courts received such testimony; afterwards its propriety was doubted, and finally repudiated. The weight .of authority and reason is against it. Parker’s case, 3 Doug., 242; 1 Stark. Ev., 187; Brazier’s case, 1 East, 444; Barb., 410; 34 Wend., 465; 13 Vern, 208; Conrad v. Ariffey, 11 How. S. C., 490. The testimony of the witness Meadow, detailing the narrative made by the witness Smith to him, ought to have been excluded.
4th. The interrogatories put to the female witnesses were-doubtless for the purpose of presenting them as infamous characters and casting more or less suspicion on their testimony. We think the questions were legitimate. The witness may decline to answer the question, which may tend to criminate him or her, or bring them into disgrace and reproach; but this.is the privilege of the witness. It is the duty of the court to advise the witness of this privilege, to answer or not. The state cannot interpose the objection, nor does it follow if these females were of the character shadowed forth, in the testimony, that they must be discredited. The jury is the judge of the credibility of a witness. If the law esteemed a class of persons untruthful, because of the vocation, reprehensible and immoral, it would exclude them alto, gether. The manner, freedom from bias, consistency and [752]*752general bearing and deportment of a witness, are all subject to the scrutiny of the jury, affording generally abundant indications for a proper weight of testimony..
We esteem it not impertinent, to venture the suggestion to those representing the public justice in important trials, not to raise and press objections to testimony, especially on collateral and not vital points, unless clearly inadmissible. It is manifest that the answer to the interrogatories objected to by the state attorney, wouldliave had no material influence on the issue before the jury. The state has no right Lo exclude the answer, if the witness is unwilling to give it. In such cases it is the duty of the court to admonish the witness of the situation and privilege.
We would not disturb a verdict for any supposed error in the instructions, when the verdict is 'manifestly right on the evidence, and it does not appear that the accused was prejudiced by any one of the charges of the court. Wesley v. State, 37 Miss., 350. Nor has the accused a just ground to complain, if prayers for instruction are denied, when the true principle of law is embraced in those already granted. The court should charge the jury on all the points included in the written prayers; provided, they are applicable to the case. When the law upon a particular subject has been fully stated to the jury, the court may well decline to go over the same ground again, at the instance of either party.
There is some confusion in the fourth instruction granted ior the state. It- is incumbent on the state to prove the allegations of the indictment, or as it is phrased in the instruction, “make out its case.” The burden of proof rests upon the prosecution throughout the trial. “When a killing has been proved, the burden of proof changes, and it is then incumbent on the defendant to show excuse, or justification, etc., and if he has failed to do this, the jury may find him guilty.” Such is its language. But suppose the excuse or justification arise out of the facts attending the killing, brought out in the state’s evidence, must the jury convict? The true proposition of law is, if there be no excuse or justi* [753]*753fication for the homicide by the accused, shown in the evidence adduced by the state, then the accused is guilty of murder, unless he has, by his evidence, proved excuse or justification.
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Simeall, J.:
It is claimed first, that the indictment ought to have been quashed, because the grand jury was not constituted in accordance with the law, to-wit: Art. 1, sec. 13, of the constitution, and the, act of July 20th, 1870, pamphlet, page 88. The combined effect of these provisions is to abolish property qualifications for jury service, and impose the duty on all citizens alike, who are electors, and not within some special exemption. In all other respects, as to the mode of selecting-,' summoning, empaneling-, and preferring objections, the previous laws not abrogated by the constitution and act of 1870 apply.
The judicial records of the country . furnish mortifying-testimony, that many culprits have gone free, unwhipt of justice, because of technical' exceptions taken to the grand jury who preferred the indictments. For remedy for this [750]*750sore greviance, the legislature in 1857, made two important amendments of the law: 1st. No objection by plea or otherwise, shall be raised to empaneling the grand jury; but the empanelment shall be conclusive evidence of its competency and qualifications. Eev. Code, 499, art. 131. When the body has been organized, sworn and charged, it is too late to prefer objections. Any person interested, whose conduct may be the subject of its inquiry and investigation, “may challenge or except to the array for fraud.” This completely cuts off the plea in abatement, challenging the fitness and qualifications of the body or of any of its members.
2d. Art. 250, Eev. Code, 613, instructs the courts to regard all the laws of the state relating to the mode of selecting, drawing, summoning and empaneling all juries as “directory” merely; and after they are empaneled and sworn, though in an irregular and informal mode, they must be esteemed legal, and competent to perform all the duties belonging to juries; and this applies in both civil and criminal proceedings — to grand and petit juries. The cases referred to by counsel for the plaintiff in error, occurred prior to the adoption of the Eev. Code, and doubtless suggested to the legislature the necessity of a reformation of the law. It follows that the exception -taken to the grand jury ought not to prevail.
8d. It is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons ; large discretion must be confided to the court in the performance of this duty; nor will the action of the circuit court in this behalf be the subject of review here, unless some violation of law is involved, or a gross and injurious . exercise of discretion is shown. The primary object is to insure a fair, unbiased jury. Brown v. Gilliam, ex’r, 4S Miss., 641. The objection to the special venire is not well taken.
4th. It is next urged that the confession of the prisoner ought not to have been admitted, because he was not warned of the probable consequences, and it did not appear to have [751]*751been voluntary, etc. There does not appear in the record such formal confession as the cases cited by counsel refer to. The witness, who was within a few paces of the parties at the time of the shooting, and ran and heard vrhat was done and said, deposes as to the response of the defendant, as to the effect of his shot. This response was heard by a female witness, some thirty or forty yards off. The statement connects itself with the act, and forms part of the res gestee. It was clearly admissible.
Por the purpose of discrediting a witness, it is competent {.o prove that he made discordant statements, at other times and places, but to re-establish credibility, or to support what he has deposed on the trial, it is inadmissible to prove that he has made substantially the same statements, to a third person. Many years ago the British courts received such testimony; afterwards its propriety was doubted, and finally repudiated. The weight .of authority and reason is against it. Parker’s case, 3 Doug., 242; 1 Stark. Ev., 187; Brazier’s case, 1 East, 444; Barb., 410; 34 Wend., 465; 13 Vern, 208; Conrad v. Ariffey, 11 How. S. C., 490. The testimony of the witness Meadow, detailing the narrative made by the witness Smith to him, ought to have been excluded.
4th. The interrogatories put to the female witnesses were-doubtless for the purpose of presenting them as infamous characters and casting more or less suspicion on their testimony. We think the questions were legitimate. The witness may decline to answer the question, which may tend to criminate him or her, or bring them into disgrace and reproach; but this.is the privilege of the witness. It is the duty of the court to advise the witness of this privilege, to answer or not. The state cannot interpose the objection, nor does it follow if these females were of the character shadowed forth, in the testimony, that they must be discredited. The jury is the judge of the credibility of a witness. If the law esteemed a class of persons untruthful, because of the vocation, reprehensible and immoral, it would exclude them alto, gether. The manner, freedom from bias, consistency and [752]*752general bearing and deportment of a witness, are all subject to the scrutiny of the jury, affording generally abundant indications for a proper weight of testimony..
We esteem it not impertinent, to venture the suggestion to those representing the public justice in important trials, not to raise and press objections to testimony, especially on collateral and not vital points, unless clearly inadmissible. It is manifest that the answer to the interrogatories objected to by the state attorney, wouldliave had no material influence on the issue before the jury. The state has no right Lo exclude the answer, if the witness is unwilling to give it. In such cases it is the duty of the court to admonish the witness of the situation and privilege.
We would not disturb a verdict for any supposed error in the instructions, when the verdict is 'manifestly right on the evidence, and it does not appear that the accused was prejudiced by any one of the charges of the court. Wesley v. State, 37 Miss., 350. Nor has the accused a just ground to complain, if prayers for instruction are denied, when the true principle of law is embraced in those already granted. The court should charge the jury on all the points included in the written prayers; provided, they are applicable to the case. When the law upon a particular subject has been fully stated to the jury, the court may well decline to go over the same ground again, at the instance of either party.
There is some confusion in the fourth instruction granted ior the state. It- is incumbent on the state to prove the allegations of the indictment, or as it is phrased in the instruction, “make out its case.” The burden of proof rests upon the prosecution throughout the trial. “When a killing has been proved, the burden of proof changes, and it is then incumbent on the defendant to show excuse, or justification, etc., and if he has failed to do this, the jury may find him guilty.” Such is its language. But suppose the excuse or justification arise out of the facts attending the killing, brought out in the state’s evidence, must the jury convict? The true proposition of law is, if there be no excuse or justi* [753]*753fication for the homicide by the accused, shown in the evidence adduced by the state, then the accused is guilty of murder, unless he has, by his evidence, proved excuse or justification. Generally, the circumstances immediately surrounding and attending a homicide, give it complexion as criminal, excusable or justifiable, and the proof of these fixes its character. These circumstances.generally, as in this case, are developed by the testimony for the state, whilst establishing the main part of the killing. It tends to mislead the jury and involve them in confusion, by separating the single fact of death by violence at the hands of the accused from the other concomitant circumstances, and deducing from the killing alone, a presumption as to its character.
The use of a deadly weapon is prima facie evidence of« malice, because a man must be taken to intend the neces-| sary and usual consequences of his act. To shoot or stab, oij strike with a bludgeon, indicates a purpose to take life ; but if the one or the other be employed to disable an adversary, in the very act of making a murderous and malicious assault then the presumption is overcome. The proof of the use, in the case hypothecated, of the deadly weapon, with attending circumstances, would show the excuse. Where the circumstances of the killing are known, and in evidence to the jury, the deductions and inferences should be made from all the facts. Where the death ensues from a gun-shot wound, or a stab, or other violent means, but no witness saw the act done, and the circumstances are unknown and unproved by the state, here the mode of killing raises a strong presumption of malice. If the act is traced to the accused as the guilty agent, that presumption continues until he overcomes it by evidence showing excuse or justification. If he offers no explanation of the killing 5 if he fails to show that it was an act of necessity, done se defmiendo, the inference of malice, from the use of the deadly weapon, remains. What we mean to affirm is, that where the mode, manner and circumstances of the killing are in evidence to the jury (although life was taken by a deadly weapon), the character of the act, whether [754]*754criminal or not, and then its grade, whether murder or manslaughter, or whether excusable or not, is to be gathered from the entire body of the testimony. Tó use a deadly weapon justifies the inference, that the accused meant to kill, but whether he was excusable, on the ground of se defendeudo, depends on the facts and circumstances with which he was environed at the time. The law'esteems the-life and limb and bodily safety of every human being equal; therefore, every man may protect his life and limb at whatever hazard, but the danger must be present, immediate and imminent. A fear or apprehension, arising from previous threats, which have been communicated, afford no excuse, none whatever, unless at the time of the killing ah effort was being made to ,• carry the threat into execution, and a necessity, apparent or real, existed at the time to slay, in order to prevent it. We discover no substantial objection to the other instructions granted for the state.
The first instruction refused, at the prayer of the deceased, invited the court to charge the jury as to the weight or effect of testimony, and was properly refused.
The second instruction, whilst true as an abstract proposition, was inapplicable to the case. The accomplice was supported in many, if not all of the material parts of his testimony. The female-witnesses, one of them especially, proved the shooting. It was by no means a case where conviction depended on the unsupported testimony of an accomplice.
The third instruction was also properly refused. The fact that a man is permitted by law to carry arms, and the further fact that many persons do bear about on their persons deadly weapons, do not, in the slightest degree, diminish their responsibility for an improper use of them. We cannot, and do not sanction the proposition, that because the evil habit to some extent prevails of carrying deadly weapons, and the risk is thereby increased of an unlawful use of them, that, therefore, the law should look with more tenderness upon homicides committed by this class of persons. The excuse for the practice is, that it is done for self-protection. If, how[755]*755ever, instead of this, they are used for offense, and upon persons unarmed, there is no reason, grounded either in correct sentiment or in the principles of law, which, would demand any relaxation or loosening of the criminal jurisprudence. It was always the doctrine of the law that if aman arms himself for the fight, and draws his adversary on to the conflict, and slay him, it is murder. In what better light does h'e stand, who is habitually armed, and upon a sudden quarrel and fight with an unarmed adversary, slay him, that is, if he push the quarrel on and, invite the blow. A previous arming, as preparation for a renconter, evinces deliberation, and is proof of express malice. But we repudiate, with the circuit court, the idea contained in this instruction, “ that if an armed person (not with reference to a controversy with the deceased), become involved in a difficulty with deceased, and took his life with such weapon, “ that malice cannot be inferred simply from the fact of the use of such weapon.” This would give very large immunity to those who habitually„go armed, and would apply a different measure of responsibility for the results and consequences of their difficulties, from those who go about unarmed. We have said that the law; infers from the use of a deadly weapon, an intent to kill; and if the facts and circumstances do not show excuse and justification, it is criminal and malicious; if the weapon be drawn-from its accustomed resting place in the belt or pocket, it in no degree mitigates or relieves the' act. The question still1 remains — was the homicide necessary • was there excuse or justification ?
The court had .already fully instructed the jury as to the character of doubt which will warrant an acquittal, and might properly decline the prayer of defendant on that subject, as presenting nothing additional to guide the jury. The samé remark applies to the next succeeding instruction, which had been fully explained to the jury, and in much ampler terms.The next two charges asked, contain correct principles, and ought to have been given. The principles in the last three [756]*756charges refused, are embraced in others which were given and it was not error to decline to repeat them.
For the errors herein indicated, the judgment is reversed'., and cause remanded for a scire facias.