J. B. Hinkle and his son Albert were indicted for the murder of J. J. "Worsham. The killing occurred on December 21, 1892. J. B. Hinkle was tried in January, 1894, and was found guilty with a recommendation to life imprisonment. His motion for a new trial was overruled, and he excepted.
1. In defining to the jurors the meaning of the statutory questions put to them on their voir dire, the court gave instructions which were assigned as error, and which were in substance as follows: Prejudice means a prejudging of the case from any cause. If you have a settled and fixed opinion either as to the guilt or the innocence of the accused, no matter from what cause that opinion is derived or upon what it is based, whether rumor, hearsay, newspaper reports, evidence upon former trial, or from anything else, if it is a fixed and settled opinion and one that will not readily yield to the testimony, you would be disqualified on that ground. The question relates to the present condition of your mind; not whether you have had an opinion at some past time. An opinion which is not fixed or settled, that will yield readily to the testimony, even though the juror may have formed and expressed an opinion from having read a newspaper report of the evidence upon a former trial, would not of itself disqualify him. Bias means a leaning or inclination towards or against the accused. The question whether the juror is perfectly impartial means, whether he is perfectly perpendicular between the State and the accused, whether he is in such condition as to be swayed the one way or the other by the testimony.
2. Several grounds of the motion for new trial were based on the allegation that three of the jurors who tried the case were not legal and competent, for that, [598]*598before they qualified, they had stated that Hinkle and his son were guilty of murder arid ought to be hung, and that if they (the jurors) were put upon the jury they would hang the Hinkles, etc. Numerous affidavits were offered to support these grounds, and were met by affidavits of the jurors attacked, and by other affidavits supporting their good character and corroborating them as to various circumstances. On the hearing of the motion, movant offered affidavits by a number of persons, to the effect that the character of one of the affiants for movant (by whom it was sought to prove one of the allegations against the jurors) was good, and that deponents would unhesitatingly believe him upon oath upon all occasions. The court declined to consider the affidavits so offered, and error was assigned upon this ruling.
Fort & Watson, Hudson & Blalock, Little, Wtmbish & Worrill, James Dodson & Son, Pilsbury & Winchester, J. A. Ansley, C. W. Bass and H. D. D. Twiggs, for plaintiff in error. J. M. Terrell, attorney-general, J. M. DuPree, solicitor-general, R. L. Berner, E. A. Hawkins, E. F. Hinton, J. A. Hixon and W. K. Wheatley, contra.
3. The third head-note sufficiently states the facts with regard to the withdrawal of Eugene Hinkle as a witness.
4. The clerk of the court was allowed to testify that on December 18, 1892, as appeared by the minutes, a case was tried in said court between Dr. Burt, plaintiff', and J. B. Hinkle, defendant, and that Worsham testified in the case. This was objected to as immaterial and irrelevant, and because the clerk had been in the courtroom during the ti’ial.
5-7. A report of the other grounds of the motion, beyond what is indicated by the head-notes, would not be useful here.
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