Handy, J.:
The plaintiff in error was indicted at the May term, 1857, of the Bolivar circuit court, jointly with a slave named George, for the murder of Lelia Virginia Jones by poisoning, alleged to have been committed on the 27th February, 1857. At the November term, 1857, the plaintiff in error was put on trial separately ; and after the testimony was closed, and the case submitted to the jury, and they had deliberated of their verdict, [1463] they returned into court five minutes before the expiration of the last hour of that term of the court, and stated that they were unable to agree upon a verdict; and they were thereupon discharged by the court, and the case continued. At that same term another indictment was found against the parties for the same offense, and upon this they were tried separately, and at May term, 1861, the plaintiff in error was convicted, and the judgment rendered, which is now sought to be reviewed by this ■writ of error, a nolle prosequi upon the former indictment having been entered at March term, 1858.
This indictment contains two counts; the first charging Josephine and George as principals in the commission of the offense, and the second charging Josephine as principal and George as accessory before the fact. Various exceptions were taken, in behalf of the plaintiff in error, to the rulings of the court on the trial, and also to the overruling of her motion for a new trial, and of a motion in arrest of judgment.
The errors assigned are very numerous, and we will proceed to consider such of the assignments as are necessary and proper for us now to determine.
¥e will first consider the assignments of error having reference to the trial of the special pleas, which set up the trial at November term, 1857, and the discharge of the jury by the court, without their having found a verdict, as a bar to the second indictment, which was for the same offense, and relied on that trial as an acquittal. On the trial of the issue made by these pleas, the prisoner proposed to interrogate the jurors summoned to try them, whether they had formed or expressed an opinion of the guilt or innocence of the prisoner of the crime of murder, as charged in the indictment; but the court refused to allow the questions to be propounded, .and allowed questions to be put to the jurors, whether they had formed or" expressed an opinion in relation to the issues made by the special pleas, and whether they had expressed or held any personal bias, animosity, or ill or good will to the defendant. To this ruling the prisoner excepted, and now assigns it for error.
It is very clear‘that the ruling was correct. The office of the jury in this matter was to try issues wholly distinct from the [1464] question whether the prisoner was guilty or innocent of the crime charged in the indictment. It was a single and separate issue, upon the determination of which it cannot be presumed that any prepossessions they may have entertained in relation to her guilt or innocence of the crime of which she was charged could influence their minds. To such a case, the examination of jurors, which prevails in practice in capital cases in this state, has no application.*
• Again, it is assigned for error that the court refused to give the instructions asked in behalf of the prisoner on the trial of the special issues, and that the court gave instructions in lieu of those which are alleged to be erroneous.
The first and second instructions,- as asked for the prisoner, were substantially given in the first and second instructions given by the court, and in a more accurate and intelligible form for the direction of the jury. The third, as asked for the prisoner, states that the court has not the power, in a capital case, to discharge the jury after the evidence is closed, and the case submitted to the jury, and no verdict is rendered, upon the ground that the jury say that they are unable to agree on a verdict, and such a discharge would operate as an acquittal. The instruction granted in lieu of this states, in substance, that, under such circumstances, the court has not the power to discharge the jury upon the ground that they say that they are unable to agree upon a verdict, and that such discharge, upon that ground alone, would entitle the defendant to an acquittal; but that the court has the power to discharge the jury in such case, when there is a legal necessity for so doing. This qualification was not only more correct, as a general rule, than that asked in behalf of the prisoner, but it was more applicable to the state of evidence touching, the question before the jury, which showed that the discharge was a matter of necessity, inasmuch as the term of the court was within a -few minutes of its expiration when the jury returned into court and made known their inability to agree, and. were discharged.
The fourth instruction states that, under the circumstances set forth in the first instruction, the court has no power to dis[1465] charge the jury, unless on account of some “ actual, positive, pressing necessity.” These terms are objectionable, because they were calculated to mislead the jury when applied to the circumstances of the ease before them. The court, therefore, properly qualified the instruction■ by using the words “unless on account of some legal necessity.”
For the same reason, the fifth.instruction was properly refused. It states that the mere fact that the term of the court was about to expire was not such a necessity as would justify the court in discharging the jury. The court, on the contrary, instructed that the fact that the term of the court was about to expire within a few moments, without the jury having agreed, or being able to agree, on a verdict, was such a legal necessity as would justify the discharge of the jury. This was correct as a legal rule, and it was plain and pertinent to the evidence upon which the jury had to act.
The first and third instructions given at the instance of the state contain a more full reference to the circumstances of the discharge of the jury, as shown by the evidence, and are manifestly correct.
But it is insisted that the second instruction in behalf of the state is erroneous, in directing the jury that if the record in evidence satisfied them that the court discharged the jury on the previous trial of the prisoner, and ordered a mistrial to be entered, that record is conclusive evidence (if there be nothing in' the record itself to contradict the presumption) of the fact that the court properly exercised its discretion, and that a case of necessity for the discharge existed, &c.
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Handy, J.:
The plaintiff in error was indicted at the May term, 1857, of the Bolivar circuit court, jointly with a slave named George, for the murder of Lelia Virginia Jones by poisoning, alleged to have been committed on the 27th February, 1857. At the November term, 1857, the plaintiff in error was put on trial separately ; and after the testimony was closed, and the case submitted to the jury, and they had deliberated of their verdict, [1463] they returned into court five minutes before the expiration of the last hour of that term of the court, and stated that they were unable to agree upon a verdict; and they were thereupon discharged by the court, and the case continued. At that same term another indictment was found against the parties for the same offense, and upon this they were tried separately, and at May term, 1861, the plaintiff in error was convicted, and the judgment rendered, which is now sought to be reviewed by this ■writ of error, a nolle prosequi upon the former indictment having been entered at March term, 1858.
This indictment contains two counts; the first charging Josephine and George as principals in the commission of the offense, and the second charging Josephine as principal and George as accessory before the fact. Various exceptions were taken, in behalf of the plaintiff in error, to the rulings of the court on the trial, and also to the overruling of her motion for a new trial, and of a motion in arrest of judgment.
The errors assigned are very numerous, and we will proceed to consider such of the assignments as are necessary and proper for us now to determine.
¥e will first consider the assignments of error having reference to the trial of the special pleas, which set up the trial at November term, 1857, and the discharge of the jury by the court, without their having found a verdict, as a bar to the second indictment, which was for the same offense, and relied on that trial as an acquittal. On the trial of the issue made by these pleas, the prisoner proposed to interrogate the jurors summoned to try them, whether they had formed or expressed an opinion of the guilt or innocence of the prisoner of the crime of murder, as charged in the indictment; but the court refused to allow the questions to be propounded, .and allowed questions to be put to the jurors, whether they had formed or" expressed an opinion in relation to the issues made by the special pleas, and whether they had expressed or held any personal bias, animosity, or ill or good will to the defendant. To this ruling the prisoner excepted, and now assigns it for error.
It is very clear‘that the ruling was correct. The office of the jury in this matter was to try issues wholly distinct from the [1464] question whether the prisoner was guilty or innocent of the crime charged in the indictment. It was a single and separate issue, upon the determination of which it cannot be presumed that any prepossessions they may have entertained in relation to her guilt or innocence of the crime of which she was charged could influence their minds. To such a case, the examination of jurors, which prevails in practice in capital cases in this state, has no application.*
• Again, it is assigned for error that the court refused to give the instructions asked in behalf of the prisoner on the trial of the special issues, and that the court gave instructions in lieu of those which are alleged to be erroneous.
The first and second instructions,- as asked for the prisoner, were substantially given in the first and second instructions given by the court, and in a more accurate and intelligible form for the direction of the jury. The third, as asked for the prisoner, states that the court has not the power, in a capital case, to discharge the jury after the evidence is closed, and the case submitted to the jury, and no verdict is rendered, upon the ground that the jury say that they are unable to agree on a verdict, and such a discharge would operate as an acquittal. The instruction granted in lieu of this states, in substance, that, under such circumstances, the court has not the power to discharge the jury upon the ground that they say that they are unable to agree upon a verdict, and that such discharge, upon that ground alone, would entitle the defendant to an acquittal; but that the court has the power to discharge the jury in such case, when there is a legal necessity for so doing. This qualification was not only more correct, as a general rule, than that asked in behalf of the prisoner, but it was more applicable to the state of evidence touching, the question before the jury, which showed that the discharge was a matter of necessity, inasmuch as the term of the court was within a -few minutes of its expiration when the jury returned into court and made known their inability to agree, and. were discharged.
The fourth instruction states that, under the circumstances set forth in the first instruction, the court has no power to dis[1465] charge the jury, unless on account of some “ actual, positive, pressing necessity.” These terms are objectionable, because they were calculated to mislead the jury when applied to the circumstances of the ease before them. The court, therefore, properly qualified the instruction■ by using the words “unless on account of some legal necessity.”
For the same reason, the fifth.instruction was properly refused. It states that the mere fact that the term of the court was about to expire was not such a necessity as would justify the court in discharging the jury. The court, on the contrary, instructed that the fact that the term of the court was about to expire within a few moments, without the jury having agreed, or being able to agree, on a verdict, was such a legal necessity as would justify the discharge of the jury. This was correct as a legal rule, and it was plain and pertinent to the evidence upon which the jury had to act.
The first and third instructions given at the instance of the state contain a more full reference to the circumstances of the discharge of the jury, as shown by the evidence, and are manifestly correct.
But it is insisted that the second instruction in behalf of the state is erroneous, in directing the jury that if the record in evidence satisfied them that the court discharged the jury on the previous trial of the prisoner, and ordered a mistrial to be entered, that record is conclusive evidence (if there be nothing in' the record itself to contradict the presumption) of the fact that the court properly exercised its discretion, and that a case of necessity for the discharge existed, &c.
, If it were conceded that this instruction is not correct in stating the legal presumption in favor of the act of the court, and the force and effect of the record, yet it would not be error of which the plaintiff in error could complain, since the statements of the record are amply sufficient' to justify the action of the court in discharging the jury, and there was no evidence adduced tending in any degree to impair or destroy the force of the facts stated in the record, or of the act of the court in discharging the jury. Hence, under such circumstances, it was immaterial that the court instructed the jury as to the conclu[1466] sive character of the record; for it was, of course, conclusive when there was no evidence offered to impeach it, whether such evidence would have been competent or not, if offered; and the instruction did no prejudice to the plaintiff in error.
The next assignments of error which we will • consider are those relating to the instructions given at the instance of the state, and those asked in behalf of the prisoner, and either refused or modified.
The principal ground of error in these instructions insisted on, is those parts of the fourth, fifth, sixth, and seventh for the state, which hold that if the jury were satisfied from the evidence that the prisoner was an accessory before the fact in the commission of the crime charged, they should find her guilty as charged in the indictment. This qualification was also ' added by the court to the fifth, tenth, and thirteenth instructions given by the court, by way of modification of the instructions asked in behalf of'the prisoner.
It will be observed that the prisoner was charged in both counts of the indictment as principal, and not as accessory; and the question is, whether it was competent to find a verdict of conviction against her under this indictment, if the jury should be satisfied from the evidence that she was guilty as accessory before the fact.
The rule is well settled at common law that this could not be done. Rex. v. Winfried and Thomas Gordon, 1 Leach, 515; 1 East C. L., 352; Rex v. Plant, 7 Carr. & P., 575; Hughes v. The State, 12 Ala. R., 458.
This rule was probably considered by the able and learned judge who tried this case, as altered by the provision of the Rev. Code, 572, art. 2, that “ every person who shall be an accessory to any murder or other felony, before the fact, shall be deemed and considered as principal, and indicted and punished as such, and this whether the principal has been previously convicted or not.” But this statute cannot be applied to this case, since the crime was committed before the statute was in force; and it is expressly provided by the Revised Code, which contained the first enactment of the provision, that no offense committed previous to the time when the acts therein contained should take [1467] effect, and no indictment or prosecution pending at the time ■said acts should take effect, should be affected by the adoption of the Code, but should remain subject to the laws in force before the said Code should take effect, except that all proceedings had after the Code should take effect, should be conducted according to its provisions. Bev. Code, 44, art. 6. From this it is plain that, while the modes and forms of procedure upon indictments or prosecutions for offenses previously committed should be according to the provisions of the Code, yet the position of parties charged with such offenses, as to all substantial rights of defense, remained subject to the laws existing before the Code went into operation.
The matter here involved was a substantial right of the prisoner, and not a mere question of form of proceeding. By the law in force at the time of the commission of the alleged crime, she was not subject to conviction as an accessory before the fact upon the indictment charging her only as principal, but was entitled to be informed by the indictment what degree of guilt she was charged with, and what offense in law she was called on to answer. This was a valuable right. But to make the statute under consideration applicable to her case, would be to impair the right, of defense existing by the law in force at the time the act was committed; and this, we think it clear, the legislature did not intend to do. If this view be correct, it follows that the instructions are erroneous in the particulars above stated.
But it is insisted by the attorney-general that, though this be error, yet it shall not cause a reversal, because the evidence clearly showed that the verdict was right. "We do not deem it proper to express any opinion upon the sufficiency of the evidence to sustain the verdict. But it is a sufficient objection to this view, that it is a ease depending on circumstantial testimony, in which it is not clearly apparent whether the jury found their verdict upon the belief that the prisoner was guilty as principal or as accessory. In order to maintain the position contended for, it would have to appear clearly from the record that the jury found or should have found their verdict upon the former view, and not upon the latter. The rule is, that where an instruction which is erroneous is given upon a material point in [1468] the cause, a judgment rendered in accordance with it will be reversed, unless it manifestly appear, from the whole record, that no prejudice was done to the party complaining, and that the judgment was clearly correct. But, in cases depending on circumstantial evidence, which are rarely ever so presented as to be entirely clear of doubt, which, from their nature, require the greatest circumspection and caution, as well from the courts as the jury, and in which the judgment of the jury upon the facts is so conclusive of the cáse, it is of the highest importance that the jury be not misdirected as to rules of law; for a case of that nature will but rarely occur, where an appellate court can say that the jury were not influenced by the erroneous instruction. "We cannot say so in this case, and hence cannot adopt the view presented.
In other respects, there is no error in the action of the court ' in giving, refusing, and modifying the instructions.
It is again assigned for error that the court overruled the prisoner’s objection to the testimony of the witness La Fayette Jones, her master, in relation to her conduct and deportment towards the witness, or his wife or family, what she may have said expressing content or discontent towards him or his family, or of her situation and condition of kindness or unkindness towards himself and family, and all acts of obedience or disobedience, subordination or insubordination, in the witness’ family. The answers of the witness were pertinent to these inquiries.
"We think that this testimony was proper and competent, as tending to show the state of feeling of the prisoner, and as connected with the question of motive on her part to commit the act . charged against her.
Another error assigned is the refusal of the court to allow the prisoner’s counsel to interrogate the witness Jones, on cross-examination, to show that his slave Eliza, who was on his plantation at the time of the poisoning, had been recently before that time his cook, but was then put out into the field to work, had previously stated, shortly after Jones’ marriage to his present wife, that she had poisoned his first wife, and that she would soon put her present mistress under ground; and whether the witness, on hearing- these statements, had not arrested the slave [1469] Eliza, with intent to deliver her to the' officers of the law for punishment, on the charge of poisoning his first wife; and, further, whether the witness had not been, for some time prior to the poisoning in this case, in the habit of sexual intercourse with said Eliza; and also, whether, on the day of purchasing the prisoner, and on the day before the poisoning in this case, the ■yitness had sexual intercourse with the prisoner.
As to the proposed examination with reference to the slave Eliza, it is evident that the ruling of the court was correct. No fact is shown tending to connect her with the poisoning in this ease. She was working on the plantation and in the field, and was not in the kitchen or about the house; and she is not shown to have had any opportunity to commit the act. Her statements, therefore, in relation to a previous poisoning, and her intention to commit the crime again, were clearly irrelevant. So, also, was the proposed examination as to the witness’ sexual intercourse with the slave Eliza.
"With respect to the question as to the witness’ intercourse with the prisoner, it is to be observed that the objection to it was not made by the witness, and on the ground of the nature of the" question, but by the state; and the only ground upon which the state could have made it, was that it was irrelevant. It is upon that ground that it is now contended by the attorney-general that it was inadmissible. On the contrary, it is insisted, in behalf of the plaintiff in error, that the testimony sought by the question was relevant, with reference to' the point of motive on her part to commit the crime, and ténded to show that, if the witness was in the habit of sexual intercourse with her while she was in his family, and about the time of the poisoning, that she was not discontented with her condition, and could have had no maliee to lead her to commit the crime; and that it was calculated to rebut the testimony on the part of the state, introduced for the purpose of showing her discontent with her condition, and of thereby laying the foundation for malice on her part. In this point of view, and for this purpose alone, we think that the question was competent, and should have been allowed by the court, leaving it for the jury to determine whether, if answered in the affirmative, it was a sufficient an[1470] swer to the imputation of malice on her part against Mrs. Jones, on account of the chastisement which she had caused to be inflicted upon her, or, perhaps, on account of the alleged sexual intercourse of her husband with the prisoner, or against Jones himself, in consequence of his having chastised her on the morning of the poisoning, and thereby changed her alleged kind feelings to those of revenge against him.
Again, it is insisted, that the court erred in overruling the prisoner’s objection to that part of the testimony of the witness Jones, in which he said, that the prisoner, when examined as a witness on the trial of George for the same offense, stated that when she was coming up on the steamer Ingomar, from New Orleans, to Jones’ house, after his purchase of her, she took from a girl on the boat some free papers.
We do not perceive how this testimony could have worked a prejudice to the prisoner, and therefore its admission would not alone justify a reversal of the judgment. But it was objectionable, because it was her statement, made while under examination, on oath, on the trial of George, in relation to the crime with which she was also charged; and it was, therefore, not competent evidence on her trial. 1 Arehb. Or. Prac. &'Plead, (by Waterman, 6th ed., 1853), 126,127, and cases cited in notes.
Several errors are assigned in relation to objections made in the court below, to the validity of the indictment, by motion to quash it, objection to reading it, motion in arrest of judgment, and the like.
All these objections are founded on the position, that the record does not show that the indictment was returned into court by the foreman of the grand jury, in the presence of the grand jury.
Without a particular statement of the grounds of these proceedings, we deem it sufficient to say, that the rulings- of the court upon them were correct.
With reference to the assignments, because of the refusal of the court to quash the indictment on the ground of insufficiency of its averments, for misjoinder of counts, and the refusal of the court to compel the district attorney to elect upon which of the counts of the indictment he would try the prisoner, it is suffi[1471] cient to say, that they have already been decided to be untenable in the case of George v. The State, at the last term.
There are several assignments of error, having reference to particular circumstances which occurred on the trial and connected with it, such as objections to the venire facias / and to, proceeding to trial, on account of the insufficient time of service of a copy of it on the prisoner; objections to the qualification of.a juror; and the refusal of application's for continuance. These objections depend upon special circumstances attending the trial, and as they are of but little importance in principle, and will not be likely to arise again upon a future trial of the case, we consider it unnecessary to state our opinion in relation to them.
. The last assignment of error which we will notice, is that raising an objection to the jurisdiction of the court, on the ground that the prisoner was not tried before two justices of the peace, before she was indicted in the circuit court. This objection is based on the statute, Bev. Code, 250, which provides, that for all offenses not charged to be capital, slaves and free negroes, except in particular cases, shall be tried before two justices of the peace and five slaveholders. It is manifest that this statute has no application to offenses charged to he capital / and the only provision in it, in reference to such cases, is that which directs that, if, upon investigation, it shall appear to the justices and slaveholders that the slave so tried by them is guilty of any crime punishable with death, by the laws of this state, the slave shall be committed for trial by the circuit court. But this clearly has reference to a case where the slave is charged with an offense not capital, and it appears, on examination by the tribunal, to be a capital case. There is, therefore, no just ground for this assignment.
With regard to the assignment presenting for review the sufficiency of the evidence to support the verdict, we deem it improper to express an opinion, because, for the errors above stated, the judgment will be reversed, and a new trial awarded; and an expression of our opinion on this point might prejudice the determination of the case'upon the new trial.'
' ■ Judgment reversed, and cause remanded for a new trial.