Wheeler, J.
Several grounds have been urged for reversing the judgment in an argument on behalf of the appel- ‘ lant of surpassing ability. But an attentive consideration of the case as presented by the record, has disembarrassed it, to our minds, of its apparent difficulties. In order to its disposition it will suffice to notice briefly those of the errors assigned, which have been mainly relied on ; and it is proposed to do little more than state our conclusions.
It is insisted that the Court erred in refusing to admit evidence of the character of Buckley, the party assaulted, as a quarrelsome, pugnacious man. To this it must be answered that, according to the defendant’s own statements and the version of the evidence on which his defence is rested, the character of Buckley could have had no influence on his conduct, for the reason that at the time of the assault the defendant did not know him. To admit the proposed evidence on the ground insisted on, that is, as affording presumptive evidence [531]*531that the party injured was the aggressor, when he was the only party who appears to have sustained any injury in the rencounter, would be going quite too far, and further, it is believed, than any principle or precedent would warrant. It would be to resort to an extremely fallible and dangerous test of truth in such a case ; to substitute for legal evidence, very remote and merely possible conjecture. Where a person is found to have such marks of violence on his person, confessedly inflicted by the hand of another, it can scarcely be seriously contended, that it would be either philosophical or legal to refer them to the character of the sufferer as their cause. We think the proposed evidence was properly rejected.
It is further insisted that the Court erred in refusing to give the third instruction asked by the defendant. And we do not doubt the general correctness of the legal proposition, which the instruction was intended to embody. But we think the Court might well refuse it in the terms in which it was asked. It assumed what the evidence, we think, did not warrant. It is scarcely a supposable case that a knife so used as to inflict the wounds, which it is indisputably proved were inflicted, could have been used, as the instruction asked supposes. “ not in a way to indicate a reckless disregard of life and wanton cruelty;” unless under particular circumstances, which do not appear in this case, but which should satisfactorily appear, to warrant the assumed hypothesis, or to excuse or alleviate the crime of having made such use of a deadly weapon. And, indeed, the ground on which the defence appears to have been mainly based, of the supposed attempt by the party assaulted to commit the crime of arson, seems to us so devoid of any solid foundation in the evidence as scarcely to have deserved to be seriously entertained as a defence. It can scarcely be regarded otherwise than as a mere fabrication and pretence, which the Court and jury might not improperly have rejected altogether; and which, it is very evident, the jury did not credit. If, however, the accused was entitled, under the evidence, to have the benefit of this defence, (since, [532]*532■ whether legitimately or not, it was before the jury,) it was accorded to him as fully as he could, with the semblance of reason claim, in the general charge and in the instructions given at his request.
It was incumbent on the defendant seeking to justify the use of such violence in defence of his person, habitation, or property, to make out satisfactorily in evidence, the facts on which he relied to justify or extenuate. From such acts of violence, the law presumes malice; and it devolved on the defendant to repel this legal inference, by showing circumstances of justification,-excuse or extenuation. If such circumstances existed, but were not susceptible of proof, that was his misfortune. The law demands evidence, and will not rest its conclusions on conjecture. The Court can only be required to charge the law applicable to a state of case which it may be supposed the jury may probably, or at least rationally .adopt as the conclusion of fact deducible from the evidence on which to rest their verdict. We think, as presented, the instruction asked was not improperly refused.
We deem it unnecessary to revise the charge given, in the matters complained of, for the reason that it is very evident, we think, that the jury were not, and cannot have been misled to the prejudice of the defendant, by reason of the supposed erroneous ruling.
Again, it is insisted that there was not a legal verdict, because, it is said, all the jurors did not yield their free assent.
The question is whether, under the circumstances, the Court should have received the verdict; and, though we have felt some hesitancy on this point, our conclusion is that it was not error to receive it. The juror was fully admonished by the Court of his duty. But he would neither consider further of his verdict, nor would he disagree to the verdict of his fellow jurors, but assented to it. Yet he persisted in saying that he had doubts as to the intention of the accused to commit the crime of murder; but he yielded to the majority. Whether those doubts should have prevented the juror from assenting [533]*533to the verdict, depended, of course, upon their strength; and that was a question which he alone could determine. While the law respects individual judgment, and will not receive a verdict to which every juror has not yielded his voluntary consent, it cannot prevent him from yielding, if he will, his-own judgment, in deference to the opinions of his fellows.. And it would, perhaps, be impossible to administer the law through the means of jury trial, if, in the numerous cases which involve complicated and difficult questions, upon which honest minds may differ in their conclusions, each juror should persist in the conclusions of his own judgment, and would pay no deference to the opinions of his fellow jurors. The law does not require this obstinacy in the maintainance of individual independence of judgment. It expects jurors to compare opinions, and yield such deference as they conscientiously can to the opinions of each other, in order to concur if possible in a verdict. And formerly the practice was to constrain juries to agree ; and for the purpose of accelerating unanimity, they might be kept without meat, drink, fire or candle, till they were unanimously agreed ; and if they held out, and could not agree, though they were not to be threatened or imprisoned, the Judges might carry them round the circuit from town to town in a cart. (3 Bl. 375.) Though these usages have become obsolete, still it is not compatible with the nature of the duty that jurors should in all cases obstinately persist in maintaining perfect independence of individual judgment. Perhaps the only difference between the present and the case of most findings of juries is, that the juror had the candor, and felt it a duty when interrogated testate the fact that he did act in deference to the opinion of his fellow jurors ; while another might not feel it his duty, as it certainly would not be, to make the disclosure. In the case of The Commonwealth v. Drew, (4 Mass. 398-9,) it was objected that one of the jury did not agree to find the prisoner guilty of murder, but only of manslaughter; and that he concurred in the verdict from a mistaken sense of duty, believing [534]*534he must assent to the verdict of the majority.
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Wheeler, J.
Several grounds have been urged for reversing the judgment in an argument on behalf of the appel- ‘ lant of surpassing ability. But an attentive consideration of the case as presented by the record, has disembarrassed it, to our minds, of its apparent difficulties. In order to its disposition it will suffice to notice briefly those of the errors assigned, which have been mainly relied on ; and it is proposed to do little more than state our conclusions.
It is insisted that the Court erred in refusing to admit evidence of the character of Buckley, the party assaulted, as a quarrelsome, pugnacious man. To this it must be answered that, according to the defendant’s own statements and the version of the evidence on which his defence is rested, the character of Buckley could have had no influence on his conduct, for the reason that at the time of the assault the defendant did not know him. To admit the proposed evidence on the ground insisted on, that is, as affording presumptive evidence [531]*531that the party injured was the aggressor, when he was the only party who appears to have sustained any injury in the rencounter, would be going quite too far, and further, it is believed, than any principle or precedent would warrant. It would be to resort to an extremely fallible and dangerous test of truth in such a case ; to substitute for legal evidence, very remote and merely possible conjecture. Where a person is found to have such marks of violence on his person, confessedly inflicted by the hand of another, it can scarcely be seriously contended, that it would be either philosophical or legal to refer them to the character of the sufferer as their cause. We think the proposed evidence was properly rejected.
It is further insisted that the Court erred in refusing to give the third instruction asked by the defendant. And we do not doubt the general correctness of the legal proposition, which the instruction was intended to embody. But we think the Court might well refuse it in the terms in which it was asked. It assumed what the evidence, we think, did not warrant. It is scarcely a supposable case that a knife so used as to inflict the wounds, which it is indisputably proved were inflicted, could have been used, as the instruction asked supposes. “ not in a way to indicate a reckless disregard of life and wanton cruelty;” unless under particular circumstances, which do not appear in this case, but which should satisfactorily appear, to warrant the assumed hypothesis, or to excuse or alleviate the crime of having made such use of a deadly weapon. And, indeed, the ground on which the defence appears to have been mainly based, of the supposed attempt by the party assaulted to commit the crime of arson, seems to us so devoid of any solid foundation in the evidence as scarcely to have deserved to be seriously entertained as a defence. It can scarcely be regarded otherwise than as a mere fabrication and pretence, which the Court and jury might not improperly have rejected altogether; and which, it is very evident, the jury did not credit. If, however, the accused was entitled, under the evidence, to have the benefit of this defence, (since, [532]*532■ whether legitimately or not, it was before the jury,) it was accorded to him as fully as he could, with the semblance of reason claim, in the general charge and in the instructions given at his request.
It was incumbent on the defendant seeking to justify the use of such violence in defence of his person, habitation, or property, to make out satisfactorily in evidence, the facts on which he relied to justify or extenuate. From such acts of violence, the law presumes malice; and it devolved on the defendant to repel this legal inference, by showing circumstances of justification,-excuse or extenuation. If such circumstances existed, but were not susceptible of proof, that was his misfortune. The law demands evidence, and will not rest its conclusions on conjecture. The Court can only be required to charge the law applicable to a state of case which it may be supposed the jury may probably, or at least rationally .adopt as the conclusion of fact deducible from the evidence on which to rest their verdict. We think, as presented, the instruction asked was not improperly refused.
We deem it unnecessary to revise the charge given, in the matters complained of, for the reason that it is very evident, we think, that the jury were not, and cannot have been misled to the prejudice of the defendant, by reason of the supposed erroneous ruling.
Again, it is insisted that there was not a legal verdict, because, it is said, all the jurors did not yield their free assent.
The question is whether, under the circumstances, the Court should have received the verdict; and, though we have felt some hesitancy on this point, our conclusion is that it was not error to receive it. The juror was fully admonished by the Court of his duty. But he would neither consider further of his verdict, nor would he disagree to the verdict of his fellow jurors, but assented to it. Yet he persisted in saying that he had doubts as to the intention of the accused to commit the crime of murder; but he yielded to the majority. Whether those doubts should have prevented the juror from assenting [533]*533to the verdict, depended, of course, upon their strength; and that was a question which he alone could determine. While the law respects individual judgment, and will not receive a verdict to which every juror has not yielded his voluntary consent, it cannot prevent him from yielding, if he will, his-own judgment, in deference to the opinions of his fellows.. And it would, perhaps, be impossible to administer the law through the means of jury trial, if, in the numerous cases which involve complicated and difficult questions, upon which honest minds may differ in their conclusions, each juror should persist in the conclusions of his own judgment, and would pay no deference to the opinions of his fellow jurors. The law does not require this obstinacy in the maintainance of individual independence of judgment. It expects jurors to compare opinions, and yield such deference as they conscientiously can to the opinions of each other, in order to concur if possible in a verdict. And formerly the practice was to constrain juries to agree ; and for the purpose of accelerating unanimity, they might be kept without meat, drink, fire or candle, till they were unanimously agreed ; and if they held out, and could not agree, though they were not to be threatened or imprisoned, the Judges might carry them round the circuit from town to town in a cart. (3 Bl. 375.) Though these usages have become obsolete, still it is not compatible with the nature of the duty that jurors should in all cases obstinately persist in maintaining perfect independence of individual judgment. Perhaps the only difference between the present and the case of most findings of juries is, that the juror had the candor, and felt it a duty when interrogated testate the fact that he did act in deference to the opinion of his fellow jurors ; while another might not feel it his duty, as it certainly would not be, to make the disclosure. In the case of The Commonwealth v. Drew, (4 Mass. 398-9,) it was objected that one of the jury did not agree to find the prisoner guilty of murder, but only of manslaughter; and that he concurred in the verdict from a mistaken sense of duty, believing [534]*534he must assent to the verdict of the majority. The Court declined to hear the inquiry, observing that if it were proved, it could not avail the prisoner on any legal principles, by which alone the Court must be governed.
It is further insisted that the principal witness for the prosecution was not entitled to credit; that his testimony is contradictory, and ought not to be believed ; and that the verdict for this cause should have been set aside and a new trial awarded. It is to be regretted that there is too much reason to doubt the veracity of this and another witness who testified to a personal knowledge of matters immediately connected with the rencounter. But there is certainly quite as little reason to credit the account given by the defendant and his principal witness, as that given by the witness for the prosecution. If his situation was such as to suggest to him a strong motive for withholding the truth, so, it would seem, was that of the principal witness for the defendant. And if the narration of the former should be rejected as wholly unworthy of credit, so should that of the latter; and it is probable both should be rejected. But it is to be borne in mind that it is not Buckley, the party assaulted and the witness, who is seeking redress for his wrongs. If it had been left to his option, perhaps this case would never have been the subject of a judicial investigation. But it is the State that is demanding satisfaction for the violated law. And there are certain facts, which are brought to light by the testimony of credible witnesses, about which there is no dispute, and can be no mistake ; and which are amply sufficient to justify holding the defendant responsible for the outrage which they show to have been committed, until he shall have made good his justification or excuse by satisfactory evidence. These are the wounds inflicted upon the witness, confessedly by the hand of the defendant, of such a nature as manifests an intention to take life. The witness may have sworn falsely, but those wounds are facts; they address themselves to the evidence of the senses ; they “cannot lie.” It maybe true, therefore, that the wit[535]*535ness was not worthy to be believed. The jury may not have believed, it is not necessary that they should have believed him. The verdict does not rest on his unsupported testimony. There is evidence ample besides it.
Finally, it is insisted that a new trial ought to have been awarded, on account of the newly discovered fact that the of-fence was not committed within the county. It is believed that there has been no instance of the grant of a new trial on such a ground as this. It is a principle governing applications for new trials on the ground of newly discovered evidence, that it must be such as reasonable diligence on the part of the defendant could not have discovered at the former trial. (Whart. Am. Cr. L. 657, 659, et seq.) It cannot be that a fact so notorious as a county boundary, or the evidence to prove it is of that character. Besides, it is an admitted fact that the county of Shelby claimed and exercised actual jurisdiction over that territory.
We,are of opinion that there is no error in the judgment, and it is affirmed.
Judgment affirmed.