Opinion of the Court by
NapLon, Judge.
The appellant w7as indicted for the murder of one Hiram Wilson, was tried and convicted of murder in the first degree. The prisoner filed his motion for a new trial, and in support of said motion introduced certain affidavits. The affidavit of Mr. Tracy stated, that on the morning of the day on which the trial of Lisle commenced, he saw David Morrow (one of the jurors) in the street, near his house, and en-quired of him what was done with Lisle, who answered that he did not know he ought to express any opinion- — but remarked that it did not make any difference, as he supposed all the jurors had made up their opinions. That he had made up his opinion and was.for hanging Lisle. This was, as the affiant believed, said in reply to the father of witness who .was in his company. This affidavit was corroborated by another affidavit of Ellery Tracy, the father of the first af-fiant, who deposed substantially to the conversation with Morrow, as the first affiant had represented it. The affidavit of William Kanes was also introduced, who deposed that about a week before the term of the court at which Lisle was tried, David Morrow was at his house, and had a conversation writh the affiant about the proba ole guilt of said Lisle, in which conversation, Morrow among other things said that “Lisle was a fool for not running away when he was out of jail, for if he was not hung, it was useless to have laws or a jail.”
The affidavit of the prisoner was also read, which stated that at the time the jury were sworn, he had no knowledge that Morrow, one of the jury, had before that time expressed an opinion, as to the guilt or innocence of the affiant, but had never ascertainéd that fact, until after the verdict of the jury was rendered..
The State then offered the affidavit of Morrow, the juror, [429]*429who declares that after he had been sworn to answer questions, he, with others was asked whether he had forrqed or expressed an opinion in relation to the guilt or innocence of the accused, to which he replied that he had, but that his opinion was founded on rumor only. The affiant further stated, that that opinion had not been formed from any thing he had heard from any witness in the cause, or from any personal knowledge of the facts — that that opinion had no bias or prejudice on his mind m rendering his verdict, but he made up his opinion from the facts in evidence, and moreover that he entertained no ill will or malice against the accused.
^ person in-dieted for a waive hi» py of the in-dictraent, and if he pleads and goes to trial without making objection for the want of such copy, he cannot obj ect after ysrdict.
[429]*429So much of this affidavit as related to what the juror had stated on his examination was admitted to be read; but the remainder was excluded.
It also appeared in evidence, on the motion for a new trial, that no copy of the indictment had been given to the prisoner, or his counsel, before ordering the trial of this cause, nor had any been demanded by tiie defendant or his counsel, nor had any objections boon made to going into trial for want of such copy.
On this evidence, the court overruled the motion for a new trial, and the defendant appealed to this court.
1. The first ground upon which the appellant seeks a reversal of this judgment, is thefailuro of the clerk to.furnish him or his counsel with a copy of the indictment, forty eight hours before he was arraigned.
This duty is imposed upon the clerk by our statute, (Rev. Co. 465,) and is obviously for the purpose of enabling the defendant to prepare his defence. If the clerk neglects his duty in this particular, the defendant had undoubtedly a right to delay his trial, until the statute was complied with; but if he pleads without such copy of the indictment,-and makes no objection for the want of such copy, can he after verdict, claim a new trial for this cause! I think not. The Supreme Court of Mississippi thought not, under a similar statute and under asimilar state of facts, (3 Howard Rep. 429,) and sustained their opinion upon common law authorities as well as upon principle. In England, the defendant is entitled to a copy of the indictment and caption, upon de[430]*430mand, and yet it has been held, that though demanded, if the party goes into trial without such copy or with an imperfect copy, he cannot object after verdict. Chitty crim. law 405. Foster crim. law, 229-30. 1 East. pleas of the Crown, 112, 113. The right of the defendant in England, after a demand of the copy of the accusation stands precisely on the same grounds, which they do under our statute without any demand, and the opinion of Foster and East and Chitty is conclusive on this point so far as the adjudications in England are concerned.
The case of the People v. McKay, (18 Johns R. 212,) has been supposed to conflict with this position. In that case, the court decided, that where a prisoner was tried at a court of Oyer and Terminer and goal delivery for murder and convicted, wiihoutavemre returned and filed, it was necessary to arrest the judgment and grant a new trial. The opinion I apprehend is not at all apposite. The grounds of that decision as appears from the opinion of Judge Spencer, were, that the process of venire was indispensibly requisite at common law, and by the statutes of that state; that this process must be regularly returned, and the process itself, together with the return, must be on the record, and its omission is an error apparent on the face of the record: of course under such circumstances, the court could do no otherwise then arrest the judgment, however technical or formal the objection.
In the case now before the court, the objection is not merely technical, but is founded on matters in pais. The order upon the clerk, if any had been made, for a copy of the indictment, would have formed no part of the’ record, its omission cannot appear by the record. No prejudice to the.prisoner can be shown to have resulted. There is nothing therefore of strict technicality, which has not been waived, and no merits in any other respect, which could induce-the court to grant a new trial.
, 2. The only other question for consideration, is the propriety of refusing to grant anew trial in consequence of the alleged incompetency of one of the jurors. Whether this [431]*431juror was incompetent or not, I do not think it necessary, in this case to determine. It has been suggested in argument, that the section of our statute, (Rev. Co. 490, § 11,) which provides that a juror, who declares ón his voir dire that he has formed and expressed an opinion, may nevertheless be -sworn, if that opinion be grounded merely on rumor, and is not such as could bias or prejudice his mind, is an evasion of the constitutional requisition, which declares that every offender shall have a fair and impartial jury. It is supposed, that a juror, who has formed an opinion, no matter from what sources of information, is not such an impartial juror as the constitution contemplates.
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Opinion of the Court by
NapLon, Judge.
The appellant w7as indicted for the murder of one Hiram Wilson, was tried and convicted of murder in the first degree. The prisoner filed his motion for a new trial, and in support of said motion introduced certain affidavits. The affidavit of Mr. Tracy stated, that on the morning of the day on which the trial of Lisle commenced, he saw David Morrow (one of the jurors) in the street, near his house, and en-quired of him what was done with Lisle, who answered that he did not know he ought to express any opinion- — but remarked that it did not make any difference, as he supposed all the jurors had made up their opinions. That he had made up his opinion and was.for hanging Lisle. This was, as the affiant believed, said in reply to the father of witness who .was in his company. This affidavit was corroborated by another affidavit of Ellery Tracy, the father of the first af-fiant, who deposed substantially to the conversation with Morrow, as the first affiant had represented it. The affidavit of William Kanes was also introduced, who deposed that about a week before the term of the court at which Lisle was tried, David Morrow was at his house, and had a conversation writh the affiant about the proba ole guilt of said Lisle, in which conversation, Morrow among other things said that “Lisle was a fool for not running away when he was out of jail, for if he was not hung, it was useless to have laws or a jail.”
The affidavit of the prisoner was also read, which stated that at the time the jury were sworn, he had no knowledge that Morrow, one of the jury, had before that time expressed an opinion, as to the guilt or innocence of the affiant, but had never ascertainéd that fact, until after the verdict of the jury was rendered..
The State then offered the affidavit of Morrow, the juror, [429]*429who declares that after he had been sworn to answer questions, he, with others was asked whether he had forrqed or expressed an opinion in relation to the guilt or innocence of the accused, to which he replied that he had, but that his opinion was founded on rumor only. The affiant further stated, that that opinion had not been formed from any thing he had heard from any witness in the cause, or from any personal knowledge of the facts — that that opinion had no bias or prejudice on his mind m rendering his verdict, but he made up his opinion from the facts in evidence, and moreover that he entertained no ill will or malice against the accused.
^ person in-dieted for a waive hi» py of the in-dictraent, and if he pleads and goes to trial without making objection for the want of such copy, he cannot obj ect after ysrdict.
[429]*429So much of this affidavit as related to what the juror had stated on his examination was admitted to be read; but the remainder was excluded.
It also appeared in evidence, on the motion for a new trial, that no copy of the indictment had been given to the prisoner, or his counsel, before ordering the trial of this cause, nor had any been demanded by tiie defendant or his counsel, nor had any objections boon made to going into trial for want of such copy.
On this evidence, the court overruled the motion for a new trial, and the defendant appealed to this court.
1. The first ground upon which the appellant seeks a reversal of this judgment, is thefailuro of the clerk to.furnish him or his counsel with a copy of the indictment, forty eight hours before he was arraigned.
This duty is imposed upon the clerk by our statute, (Rev. Co. 465,) and is obviously for the purpose of enabling the defendant to prepare his defence. If the clerk neglects his duty in this particular, the defendant had undoubtedly a right to delay his trial, until the statute was complied with; but if he pleads without such copy of the indictment,-and makes no objection for the want of such copy, can he after verdict, claim a new trial for this cause! I think not. The Supreme Court of Mississippi thought not, under a similar statute and under asimilar state of facts, (3 Howard Rep. 429,) and sustained their opinion upon common law authorities as well as upon principle. In England, the defendant is entitled to a copy of the indictment and caption, upon de[430]*430mand, and yet it has been held, that though demanded, if the party goes into trial without such copy or with an imperfect copy, he cannot object after verdict. Chitty crim. law 405. Foster crim. law, 229-30. 1 East. pleas of the Crown, 112, 113. The right of the defendant in England, after a demand of the copy of the accusation stands precisely on the same grounds, which they do under our statute without any demand, and the opinion of Foster and East and Chitty is conclusive on this point so far as the adjudications in England are concerned.
The case of the People v. McKay, (18 Johns R. 212,) has been supposed to conflict with this position. In that case, the court decided, that where a prisoner was tried at a court of Oyer and Terminer and goal delivery for murder and convicted, wiihoutavemre returned and filed, it was necessary to arrest the judgment and grant a new trial. The opinion I apprehend is not at all apposite. The grounds of that decision as appears from the opinion of Judge Spencer, were, that the process of venire was indispensibly requisite at common law, and by the statutes of that state; that this process must be regularly returned, and the process itself, together with the return, must be on the record, and its omission is an error apparent on the face of the record: of course under such circumstances, the court could do no otherwise then arrest the judgment, however technical or formal the objection.
In the case now before the court, the objection is not merely technical, but is founded on matters in pais. The order upon the clerk, if any had been made, for a copy of the indictment, would have formed no part of the’ record, its omission cannot appear by the record. No prejudice to the.prisoner can be shown to have resulted. There is nothing therefore of strict technicality, which has not been waived, and no merits in any other respect, which could induce-the court to grant a new trial.
, 2. The only other question for consideration, is the propriety of refusing to grant anew trial in consequence of the alleged incompetency of one of the jurors. Whether this [431]*431juror was incompetent or not, I do not think it necessary, in this case to determine. It has been suggested in argument, that the section of our statute, (Rev. Co. 490, § 11,) which provides that a juror, who declares ón his voir dire that he has formed and expressed an opinion, may nevertheless be -sworn, if that opinion be grounded merely on rumor, and is not such as could bias or prejudice his mind, is an evasion of the constitutional requisition, which declares that every offender shall have a fair and impartial jury. It is supposed, that a juror, who has formed an opinion, no matter from what sources of information, is not such an impartial juror as the constitution contemplates. It may be said however in relation to this, that it might be a nice point in metaphysics to determine howfar the mind was compelled to assent to or dissent from the truth of asupposed state of facts, when presented to its contemplation, anuthatfor theordinary purposes of life, we are well .assured, that an opinion or rather inclination of the judgment, founded on a supposed state of facts, when it is unaccompanied with any prejudice or ill will to the parties concerned, will very readily be re? moved and changed, by the presentation of a different state of facts, and the person whose judgment is invoked is as capable of doing justice as though he had never heard any incorrect or -imperfect statements in relation to the matter. However this may be, it is of no consequence for the decision of this case, whether the juror was incompetent or not. If the juror was incompetent, and that incompetency was known to the defendant before the trial, he cannot now-seek to reverse the judgment on that ground.
petenov^of'a |ovr"rial,1 * ?yhore mconvpetti»-waaknowA ^crt^. ;'°r wasswó™
This is not only consistent with justice-, but amply sustained by the authorities, without, so far as I have been to discover, a dissenting voice. 3 Marsh 330. 1 Binney 27. 4 Bibb 272. 4 Littell 118. The case of Bell v. Howard is di- . . . . .rectiy m poiht. The court said, m relation to such an jection, “It is apparent, that when the juror was called on the trial, he disclosed the fact of his having made up an opinion before he was sworn. Bell should therefore have ted to the uiror before he was sworn, and bavins failed [432]*432¿o so, it was too late after trial, to make the incompetency the juror a ground for a new trial, 4 Litt. 118.
The consequeucos which would follow any other doctrine seem indeed too monstrous to be tolerated. I apprehend, on this point, there can be no difference in the rule in civil and criminal cases, and if incivil cases, either party may receive incompetent jurors, and after taking the chances of the opinion of the juror being in his favor, make it a ground for reversing tbs verdict, when it is discovered to be otherwise, there could be no end to litigation.
It has been urged however, that the answer of Morrow, the juror, to the double interrogatory propounded to him, being general, might have been applied by the defendant to either branch of the question, and he might have been understood by defendant to ha vejormed an opinion,hut not to have expressed one. If the answer of the juror was equivocal, it was the duty of the defendant to have obtained a more satisfactory one, at the time. He had ample power for so doing, and in the event of a remaining dissatisfaction, he had his peremptory challenges, by which the juror could have been disposed of. Our law, in tenderness to human life, has thrown most ample guards around the accused ,• it not only yields to every just requisition, but allows much even to the whims and caprices of the defendant; so that not only an impartial public may concur in the justice of his sentence, but even the prisoner himself may be satisfied, that all his fancies have been consulted, in the choice of his triers. Counsel are assigned him to enable him judiciously to use all these advantages. If however he will voluntarily waive these privileges, he cannot afterwards complain of his own laches. Judgment affirmed.