By the Court.
McDonald, J.
delivering the opinion.
[1.] This Court, at the Savannah June Term last, in the [164]*164case of Ralph (a slave) vs. The State of Georgia, decided that the Act of 28th February, 1856, in relation to the qualification, selection and impanneling of Jurors, is constitutional, and that it is law in regard to offences committed before its passage. It violates none of the constitutional rights of the people, and is perhaps better adapted 'to the obtainment of impartial Juries than either the Common Law or antecedent Statutes. We, therefore, reverse the decision of the Circuit Judge on that point.
[2.] The Act does not define deafness as a disqualification for serving on a Jury. Nor does it sickness of any description; and yet, it is not error for the Court to excuse a person who is sick, from serving on a Jury; nor can it bo to excuse one who is laboring under the infirmity of deafness. The Court discharged the Juror without consulting the prisoner, and he had a right to do it; but in this case, the prisoner did not object, and cannot now say there was error.
[8.] It was in the discretion of the Court to have allowed the re-examination of Mrs. Patterson; but that the Court refused to permit it, is no error. The object was to have her testimony taken down, which had been' inadvertently omitted. The taking down of the evidence has nothing to do with the trial of the case. The verdict of the Jury would bo good if it were entirely omitted. But the Court would, doubtless, in all cases, allow evidence to be taken down which had been omitted by mistake or accident, upon its being re» duced to writing or stated to the Court; and on disagreement between Counsel, call the witness, not for re-examination, but merely to state the testimony already given.
[4.] The witness, Caroline E. Patterson, had been examined, and was recalled to explain her evidence. If the witness had committed any errors in delivering her evidence, she had a right to correct them. The principal error was her denial that she had made the affidavit on which the warrant was issued. But that statement seems to be satisfactorily explained. She had narrated the circumstances to Samuel C. Patterson, who superintended the drawing of the affi[165]*165davit. It was taken from a form book, and when prepared, he said it was unnecessary to read it to her, and it was not read to her. She denies that it was read to her, though the Justice’s recollection differs from hers and Samuel C. Patterson’s. He thinks it was read over to her. Peter J. Gray, who was present, thinks it was not read to her. In the brief of the evidence, as taken by the examining Magistrates on the return of the warrant issued on that affidavit, Mrs. Patterson is represented as having sworn that “ the said boy Jess -took up her dress and attempted to have sexual intercourse,” &e. The Court ought not to have charged the Jury that if .Mrs. Patterson had sworn falsely, or contradicted herself in any material point, she is not to be believed in any particular. If she had sworn falsely, wilfully and knowingly, she would not have been entitled to credit, in any respect. But -that was not the request; and the weight of evidence would not justify the inference. She had stated the facts to one of the witnesses who immediately retired with the Magistrate to write the affidavit, which was instantly prepared and brought to her; and she had a right to suppose that it was drawn in accordance with her statements.
The affidavit for a warrant was taken from a form book, as ■ stated, and contains the direct and positive charge of rape. On the next day, when the affiant, Caroline E. Patterson, was examined before the committing Magistrates on the warrant issued against Jess, her testimony was committed to writing; the copy of the written evidence contains no such -charge; and on a further examination before four Magistrates, (and when or why this examination -was taken, does not appear,) she is represented as swearing to an attempt • only. Her testimony on this point is consistent, throughout, when it is taken down as she delivers it, and is only contradicted by an affidavit which the weight of evidence shows •was not read to her, and -which seems not to have been written in accordance with her statements. It was natural enough for her to have denied making an affidavit which contained matter that she knew she had not authorized to be [166]*166put in one to be drawn for her. She seems not to be conversant with writing, and had not, probably, written enough to ••acquaint herself with her own signature; and may, therefore, have placed her denial of it, more on the matter it contained than on the hand-writing; for although she had examined, she did not tcom to know that Mr. Hutchinson had signed it, and immednucly declared, that if it was the paper he signed, she had signed it.
[5.] The charge of the Court was quite as favorable to the prisoner, on the second request of his Counsel, as his case warranted.
The first part of this request has already been considered, and the second, as to the witness’ manner of testifying, whatever it may have been, would not warrant a charge of acquittal. It is true, that in making up their verdict, the Jury have a right, and it is their duty, to weigh the whole evidence; and in doing that, to regard the witness’ manner. But the manner is not always a safe criterion for judging of the credit of a witness. Difference of temperament, and habits of life and business, may produce a difference of manner in tbe most bonest and upright witnesses, when put on the stand in a public a.nd crowded court-room. Imperturbable depravity might he able to make there a greater apparent •exhibition of candor and sincerity, than the most scrupulous! but disconcerted integrity.
[XLjj The Court charged, substantially, as was asked in the third request. The Jury were told that the evidence relied •on. to establish the innocence of the prisoner, might bo regarded as badges of his innocence, if not contradicted by other and better evidence. This was, in effect, telling the Jury that they ought to be controlled by the weight of evidence.
As flight is not always evidence of guilt, or, at least, in some cases, very slight evidence of it; so, the fact that a person accused of a crime has not fled, is very equivocal evi-' deuce of his innocence.
The Court ought not to have charged the Jury as asked in [167]*167the fourth request, even with the qualification. . The circumstance relied on in that request, as tending to establish the innocence of the prisoner, we consider as not of the slightest value for that purpose.
[7.] The Court did charge.as requested fifthly, and it was. right that he should; it was his duty, also, to explain what is meant by reasonable doubt; but we think there was error in his explanation, and in, the instances put by way of illustration.
[8.] The explanation was rather as to the effect a reasonable doubt should have on their finding, than as to the nature or kind of evidence that should leave a reasonable doubt resting on the mind. There is no question as to the effect of a reasonable doubt.
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By the Court.
McDonald, J.
delivering the opinion.
[1.] This Court, at the Savannah June Term last, in the [164]*164case of Ralph (a slave) vs. The State of Georgia, decided that the Act of 28th February, 1856, in relation to the qualification, selection and impanneling of Jurors, is constitutional, and that it is law in regard to offences committed before its passage. It violates none of the constitutional rights of the people, and is perhaps better adapted 'to the obtainment of impartial Juries than either the Common Law or antecedent Statutes. We, therefore, reverse the decision of the Circuit Judge on that point.
[2.] The Act does not define deafness as a disqualification for serving on a Jury. Nor does it sickness of any description; and yet, it is not error for the Court to excuse a person who is sick, from serving on a Jury; nor can it bo to excuse one who is laboring under the infirmity of deafness. The Court discharged the Juror without consulting the prisoner, and he had a right to do it; but in this case, the prisoner did not object, and cannot now say there was error.
[8.] It was in the discretion of the Court to have allowed the re-examination of Mrs. Patterson; but that the Court refused to permit it, is no error. The object was to have her testimony taken down, which had been' inadvertently omitted. The taking down of the evidence has nothing to do with the trial of the case. The verdict of the Jury would bo good if it were entirely omitted. But the Court would, doubtless, in all cases, allow evidence to be taken down which had been omitted by mistake or accident, upon its being re» duced to writing or stated to the Court; and on disagreement between Counsel, call the witness, not for re-examination, but merely to state the testimony already given.
[4.] The witness, Caroline E. Patterson, had been examined, and was recalled to explain her evidence. If the witness had committed any errors in delivering her evidence, she had a right to correct them. The principal error was her denial that she had made the affidavit on which the warrant was issued. But that statement seems to be satisfactorily explained. She had narrated the circumstances to Samuel C. Patterson, who superintended the drawing of the affi[165]*165davit. It was taken from a form book, and when prepared, he said it was unnecessary to read it to her, and it was not read to her. She denies that it was read to her, though the Justice’s recollection differs from hers and Samuel C. Patterson’s. He thinks it was read over to her. Peter J. Gray, who was present, thinks it was not read to her. In the brief of the evidence, as taken by the examining Magistrates on the return of the warrant issued on that affidavit, Mrs. Patterson is represented as having sworn that “ the said boy Jess -took up her dress and attempted to have sexual intercourse,” &e. The Court ought not to have charged the Jury that if .Mrs. Patterson had sworn falsely, or contradicted herself in any material point, she is not to be believed in any particular. If she had sworn falsely, wilfully and knowingly, she would not have been entitled to credit, in any respect. But -that was not the request; and the weight of evidence would not justify the inference. She had stated the facts to one of the witnesses who immediately retired with the Magistrate to write the affidavit, which was instantly prepared and brought to her; and she had a right to suppose that it was drawn in accordance with her statements.
The affidavit for a warrant was taken from a form book, as ■ stated, and contains the direct and positive charge of rape. On the next day, when the affiant, Caroline E. Patterson, was examined before the committing Magistrates on the warrant issued against Jess, her testimony was committed to writing; the copy of the written evidence contains no such -charge; and on a further examination before four Magistrates, (and when or why this examination -was taken, does not appear,) she is represented as swearing to an attempt • only. Her testimony on this point is consistent, throughout, when it is taken down as she delivers it, and is only contradicted by an affidavit which the weight of evidence shows •was not read to her, and -which seems not to have been written in accordance with her statements. It was natural enough for her to have denied making an affidavit which contained matter that she knew she had not authorized to be [166]*166put in one to be drawn for her. She seems not to be conversant with writing, and had not, probably, written enough to ••acquaint herself with her own signature; and may, therefore, have placed her denial of it, more on the matter it contained than on the hand-writing; for although she had examined, she did not tcom to know that Mr. Hutchinson had signed it, and immednucly declared, that if it was the paper he signed, she had signed it.
[5.] The charge of the Court was quite as favorable to the prisoner, on the second request of his Counsel, as his case warranted.
The first part of this request has already been considered, and the second, as to the witness’ manner of testifying, whatever it may have been, would not warrant a charge of acquittal. It is true, that in making up their verdict, the Jury have a right, and it is their duty, to weigh the whole evidence; and in doing that, to regard the witness’ manner. But the manner is not always a safe criterion for judging of the credit of a witness. Difference of temperament, and habits of life and business, may produce a difference of manner in tbe most bonest and upright witnesses, when put on the stand in a public a.nd crowded court-room. Imperturbable depravity might he able to make there a greater apparent •exhibition of candor and sincerity, than the most scrupulous! but disconcerted integrity.
[XLjj The Court charged, substantially, as was asked in the third request. The Jury were told that the evidence relied •on. to establish the innocence of the prisoner, might bo regarded as badges of his innocence, if not contradicted by other and better evidence. This was, in effect, telling the Jury that they ought to be controlled by the weight of evidence.
As flight is not always evidence of guilt, or, at least, in some cases, very slight evidence of it; so, the fact that a person accused of a crime has not fled, is very equivocal evi-' deuce of his innocence.
The Court ought not to have charged the Jury as asked in [167]*167the fourth request, even with the qualification. . The circumstance relied on in that request, as tending to establish the innocence of the prisoner, we consider as not of the slightest value for that purpose.
[7.] The Court did charge.as requested fifthly, and it was. right that he should; it was his duty, also, to explain what is meant by reasonable doubt; but we think there was error in his explanation, and in, the instances put by way of illustration.
[8.] The explanation was rather as to the effect a reasonable doubt should have on their finding, than as to the nature or kind of evidence that should leave a reasonable doubt resting on the mind. There is no question as to the effect of a reasonable doubt. When the mind of the Jury cannot come to a satisfactory conclusion on the issue before them, from the evidence properly considered, they should leave the parties as they found them. This is the rule both in civil and criminal cases, but a greater caution should be observed in coming to a conclusion, when life or liberty are involved in the issue; and this constitutes the difference. But a doubt cannot satisfy the mind of the innocence of a party, more than it can of his guilt; nor can a doubt satisfy the mind that it would be wrong to convict. But the existence of a doubt, the absence of that amount and quality of evidence which ought to satisfy the impartial and unprejudiced judgment of a reasonable and conscientious man of the guilt of the accused, would render it improper to convict. Doubt ceases when there is conviction. There can be no conviction where there is doubt. But a man may be satisfied, that where there is an equipoise in his mind, after putting in the balance all the circumstances, pro and con, a particular measure or project; or in other words, where there is a doubt, it would be wrong for him to act. But this explanation does not define or describe a reasonable doubt. It is no more than the abstract proposition, that a man’s judgment ought to be convinced before he acts. The charge requested was, “if there was a reasonable doubt on the mind of the Jury, that the [168]*168crime was not committed,” &c. If the crime was not committed, the prisoner could not be guilty. If the evidence submitted/to the Jury was unsatisfactory to them that the’ crime charged in the bill of indictment had been committed; (not by Jess, but by any one ;) if their minds were in equilibrio on that point, and their judgments were not satisfied by the evidence, then there was a reasonable doubt on their minds as to the proof of the crime, without which the prisoner could not be guilty.
It is not the doubt that satisfies, but it is the insufficiency of the evidence, in some of the respects in which it may be proper to consider it, that leaves the mind in such doubt as to render it improper to act upon it. If the mind is wavering, unsettled, cannot be satisfied, from the evidence, whether the crime was committed at all, it would be wrong to -convict. But the Jury ought never to be left to infer or to conjecture that they can create for themselves a doubt and act upon it, for the exculpation of the guilty. A thousand fancies may suggest themselves to skeptical minds, to create unsubstantial doubt — as, that witnesses may not remember accurately, may be mistaken, may swear falsely, &c. &c. &e. Such things are not allowable. Witnesses must be believed, unless they be impeached in some of the modes which the law declares sufficient to throw suspicion on their testimony. If their evidence be in no manner impeached, it is entitled to implicit belief, and the Jury which disregards it incurs the guilt of wilful or reckless error.
[9.] The Court ought not to have charged the Jury as asked in the sixth request. The Jury was not authorized to consider circumstances not in proof. If in proof, they were evidence.
[10.] We say that neither was there error in the Court in refusing to charge as asked in the 7th request. The Jury ought not to have received any instructions, that would have-allowed them to go out of the evidence to search for a doubt on which to acquit^the prisoner.
It is unnecessary to consider the errors growing out of ex[169]*169ceptions to the argument of the Solicitor General, made in the Court below. It may not be amiss, however, to observe, that while the safety of society requires the faithful prosecution of offenders against the laws, the State does not ask their conviction but upon a calm and dispassionate investigation of'' the charges against them.
[11.] There is no error in the charge of the Court to the Jury, that they were not responsible for the effect of their-verdict. Such a charge may become proper when the Counsel for the accused puts his defence not upon the evidence, but on the punishment prescribed by law for the offence for which he is indicted.
[12.] The charge of the Court was right, in respect to the credit due to Mrs. Patterson’s evidence. It was given, of-course, in reference to the mode of impeachment resorted torn this case. What has already been said in regard to the affidavit to obtain the warrant, need not be repeated here; and the weight of evidence is corroborative of the balance of' her testimony.
[18.] The^ charge of the Court as to the effect of an affidavit taken by a witness, which was not read to her, and the contents of which she did not know at the time, taken apart from all other evidence, or there being no other evidence to that point, is not correct.
Eor a witness who makes an affidavit which is untrue, without knowing its contents, and having no reason to know them, is not entitled to credit; but a witness who states. his evidence to the writer of the affidavit, and who swears to its contents when drawn, without reading or hearing it read, is not guilty of perjury, though the facts be not truly set out in the affidavit; for the witness, in such case, has a right to believe that the affidavit was drawn according to his statements. The Court charged, in this case, under the evidence given ; and we think, for reasons already set forth, that there was no error.
It is not alleged in the record that the emphasis and repe[170]*170tition of the closing part of the charge, in regard to the form of the verdict of the Jury, were such as were calculated to-impress the mind of the Jury unfavorably to the prisoner.. There were two counts in the indictment: one for rape; the* • other for attempt to commit rape. It was proper that the ■ attention of the Jury should have been called directly to the ■ fact, that the count in the bill of indictment for rape had been abandoned, and that they went to trial on the count for-attempt to commit rape, exclusively; and that their verdict ■ should be, guilty of that particular offence, and not for the.other, if they should find a verdict of guilty.