Keith, P.,
delivered the opinion of the court.
Petitioner was indicted by a grand jury in the Corporation Court of the city of Charlottesville on September 19, 1904, for the murder on the 4th of September preceding of his wife, Fanny M. McCue. At a subsequent term of the court he was tried upon this indictment, and on the 5th day of November the jury found him guilty of murder in the first degree. The court sentenced him to be hanged, and he thereupon applied to this court for a writ of error, which was refused, the court being of opinion that the judgment complained of was plainly right. At a subsequent day a supplementary petition was filed, asking the court to rehear its judgment refusing the writ of error, and upon the original and supplemental petitions the case is now before us for consideration.
The first assignment of error is to the judgment of the Corporation Court upon a plea filed by the petitioner, in which he alleges that Lyman, one of the grand jurors finding the indictment, was not a resident of the city of Charlottesville. To this plea the Commonwealth, by its attorney, filed a replication.
[986]*986Thereupon the court empaneled a jury, and made up and propounded to it the issue, whether or not said Lyman was at the time of finding the indictment a resident of the city of Charlottesville. This issue was found by the jury in the affirmative, and the action of the court in overruling prisoner’s motion to set aside the verdict, and entering judgment thereon, constitutes the petitioner’s first assignment of error.
It was decided in Commonwealth v. Cherry, 2 Va. Cas. 20, that by force of the common law, where a bill of indictment is found by a grand jury, one of whom is an alien, or otherwise disqualified by law, the bill or presentment may be avoided by plea. Commonwealth v. Long, 2 Va. Cas., Ib. 318.
In Commonwealth v. St. Clair, 1 Gratt. 568, it was pleaded in abatement to the indictment that one of the grand jurors was not a free-holder. Upon that plea an issue was made up, tried at the bar of the court by a jury, the issue found for the defendant, and the indictment quashed.
In Day v. Commonwealth, 2 Gratt. 563, the prisoner pleaded in abatement that one of the grand jurors was at the time of finding the indictment a surveyor of a highway. To this plea the attorney for the Commonwealth replied generally, and thereupon the court decided the issue against the prisoner. The General Court was of opinion that the issue so joined was one of fact, and that it should have been submitted to a jury, and for this error the judgment was reversed añd a new trial awarded.
Counsel for petitioner criticise the replication which the court permitted to be filed to the plea in this case upon the ground that it concludes with an offer “to verify” when it should have been “to the country.”
We shall not stop to inquire into this nicety of pleading. The injury of which the petitioner complained was that he had been indicted by a grand jury upon which there was a juror [987]*987incompetent by reason of the fact that he was not a resident of the city of Charlottesville. That issue was submitted to a jury, which heard the evidence and decided it against him. We cannot permit .the grave interests presented in this case to be determined upon a consideration so trivial. It is certain that no right of the prisoner was prejudiced by the ruling of which he complains. The verdict of the jury upon this issue must be considered in this court as upon a demurrer to evidence, and the evidence, when so considered, was, in our judgment, sufficient to sustain it.
The second assignment of error is as to the qualification of the petit juror, J. Y. Stockdell, who was challenged by the petitioner.
He was asked if he had formed or expressed an opinion, to which he replied: “I formed an opinion on the newspaper evidence.” He was reminded by counsel that in law the prisoner was presumed to be innocent, and was asked, “In your present state of mind could you go on that jury, starting out with that presumption of innocence in your mind ?”
A. “I could not say that I could, sir, for the reason that I have read this evidence. Haturally there is some impression on my mind, but I cannot say that it is biased or prejudiced. The only thing I have heard is one side as published in the newspapers. I must say that everything I read in the newspapers was one side.”
After further question and answer counsel asked the juror this question: “In spite of what you have read and heard, you could go upon this jury and give the prisoner a fair and impartial trial according to the instructions of the court and the evidence as detailed by the witnesses?”
A. “I feel that I am a fair-minded man.”
Q. “But I also understand, Mr. Stockdell, that what you have read of this case has destroyed in your mind the presumption [988]*988of the prisoner’s innocence; that you would not go on the jury presuming him to be innocent ?”
A. “I don’t know about that. It is a question as to drawing a line between thinking him innocent and knowing him to be guilty, which I don’t know.”
In answer to other questions the juror stated “that as a fair-minded man I could render a verdict according to the law and the evidence; not biased. I have no prejudice one way or other”; and that as to innocence or guilt he would be governed by the evidence and the instructions of the court.
After numerous questions had been asked and reiterated, the object of which was to ascertain the precise character and strength of the opinion which the juror had formed and expressed, counsel asked him the following question:
“Do you feel at this moment that there is a presumption in your mind that this defendant is an innocent man ?”
To which he replied: “I would like to say this: that I feel that I am an honest and unbiased man, and as such that I could enter this jury unprejudiced and unbiased, and give the prisoner a trial according to the law and the evidence. If I did not feel so, I would want to be turned out, but at the same time I feel that I could serve, and am called here to serve, and that it is therefore my duty to serve.”
(By the court): “Do you feel that you can go into this trial leaving your mind open to the evidence, free from any previously read accounts in the newspapers, and go through the trial believing him innocent until he is proved guilty ”
A. “Yes, sir.”
And thereupon the juror was accepted.
The cases upon this subject are almost without number, and they are not to be reconciled. The trend of recent decisions is in the direction of limiting, rather than extending the disqualification of jurors by reason of mere opinion. Whatever [989]*989the mind receives has an effect upon it, passing with almost infinite gradation from a mere impression to a fixed belief. The State strains every nerve to disseminate knowledge. By the diffusion of education it hopes to create a higher citizenship and to find the means of repressing vice and crime; but if the courts take an extreme position upon this subject, and hold that every opinion shall work a disqualification for service as a juror, the administration of justice will be confided, not to the most intelligent, but to the most ignorant of our citizens. The courts, therefore, while resolute in seeing that every man shall be tried by an impartial jury, inquire into the quality and degree of the opinion, and to that end search the conscience of the juror upon his voir dire, and look into the sources of the information upon which his opinion rests.
jSTo man can read the rigid examination to which this juror was subjected without being impressed with his fairness, with his desire to deal justly by the prisoner, and with his conscientious purpose to discharge his duty as a citizen.
In Moran’s Gase, 9 Leigh. G51, two jurors were examined upon their voir dire. One stated that he had heard the case spoken of in the town, and rumors in regard to its circumstances, upon which he had expressed no opinion, though he believes those rumors to be true, and if they should turn out upon the trial to be true, he has a decided opinion in regard to the case; but he feels no prejudice, and is satisfied that he shall be able to decide the case upon the evidence which may be given in, uninfluenced by the rumors he had heard. Ilis opinion was that if the prisoner had stabbed the deceased under the circumstances which he had heard, he ought to be punished. The other juror stated that he had made up no decided opinion; that he had heard a part of the evidence of one witness and formed an impression, and if the residue of the testimony should run that way, that impression would be confirmed; that so far as [990]*990tlie evidence went lie had a decided opinion, if the rest should not run against it; hut that he had no prejudice, had not expressed any opinion, and was prepared to decide the case according to the evidence which might he given in, uninfluenced by the portion of evidence he had heard. Both jurors were held to be competent.
In Smith v. Commonwealth, 6 Gratt. 696, a juror stated that he had read the evidence as published in the newspapers, and had formed and expressed the opinion, though it was not a decided one, that the prisoner was guilty; that he was satisfied that he could give the prisoner a fair and impartial trial, notwithstanding his impressions, and without being influenced by them, on hearing the evidence adduced at the trial. Another stated that he had formed and expressed a decided opinion, founded on a report of the evidence before the mayor, published in the papers, but not such an opinion as would influence his mind if accepted as a juryman; that the opinion so formed would naturally be recalled to his memory, but that he would be governed solely by the evidence which might be given in court. Held that both were competent jurors.
In Clore’s Case, 8 Gratt. 606, a juror stated that he had not heard any of the evidence, nor had he heard any report of it from those who had heard it, but from the rumor of the neighborhood he had formed an opinion which at the time he spolce was existing on his mind, and which he should stick to unless the evidence turned out to be different from what rumor had reported it to be; that he had no prejudice nor partiality for or against the prisoner, and believed he could give him a fair and impartial trial according to the evidence that should be given in. Held that he was a proper juror.
In Jackson’s Case, 23 Gratt. 919, Judge Moncure, delivering the opinion of the court, goes fully into this subject. He says: “There is no question, perhaps, about which there has [991]*991been, more apparent conflict of decision in this State, or in regard to which it is more difficult to derive from our many 'cases on the subject any definite rules which will apply to all cases that may arise. The object of the law is to secure to every man who is charged with a criminal offense a trial by an impartial jury. And this rule has been established by the cases, if no other, that if a venireman has formed, and still more, if he has formed and expressed, a decided or substantial opinion as to the guilt or innocence of the accused, no matter upon what ground it was formed, whether from having heard the evidence on some former trial or examination, or from mere rumor or otherwise, he is an incompetent juror to try the case; and if, on the other hand, his opinion be merely hypothetical, he is not incompetent on that ground. The difficulty is in determining in any given case, whether the opinion be decided or substantial, or merely hypothetical, there being in almost every case some peculiarity of circumstance. And the desire to remove or lessen this difficulty by laying down certain other rules for our guidance has been the fruitful source of the apparent conflict in many of the cases. Thus, if a venireman has formed an opinion as to the guilt or innocence of the accused from having heard the evidence on a former trial or examination of the case, it would be difficult, if not impossible, to regard such opinion otherwise than as decided or substantial, within the meaning of the rule, and he would generally, if not always, be considered an incompetent juror, even though he might think and say that he could give the accused an impartial trial. So, on the other hand, if a venireman has formed an opinion as to the guilt or innocence of the accused, from mere rumor, the presumption, in the absence of evidence to the contrary, is that such opinion is merely hypothetical, "and will be so considered, even though he speak of it as a decided or substantial opinion, if he says he has no prejudice against the accused and thinks he can give him [992]*992a fair and impartial trial. But if the court he satisfied, either from the venireman’s own statement or otherwise, that the opinion is in fact decided or substantial, he will be an incompetent juror. There are intermediate cases which often give rise to difficulty on this 'subject. The venireman may have formed an opinion from having heard a part only of the evidence on a former trial, or from having heard the whole or part of the evidence given on a former trial, through persons who were present, in whose veracity and accuracy he may have more or less confidence, or from having read an account of such evidence in a newspaper. We cannot lay down any rule for the government of such cases except the general rule before stated, and the court must determine, as best it may, whether the opinion be decided or substantial, or merely hypothetical. It would be dangerous to lay down a rule, and no case has ever decided that a venireman who has formed an opinion from accounts received from witnesses out of court, and still less from accounts received from others, as to statements made by witnesses, either in or out of court, is therefore necessarily an incompetent juror, even though he may regard the persons from whom he received his information as persons of general veracity and accuracy, and may credit what he has heard from them. We know that witnesses who make statements out of court of transactions about which they may have testified in court, still more persons who profess to detail what they may have heard in or out of court often speak carelessly, and generally omitting particulars which may be very material. And we know that those who listen to them often listen carelessly, and, though they almost always form some impression or opinion of the case from what they hear, yet that opinion is not always, and perhaps not often, decided or substantial in the meaning of the rule aforesaid. The court must determine that question in all such cases, in view of all the circumstances.”
In the course of his opinion he cites numerous authorities, [993]*993and quotes with approval the language of Judge Summers, in Moran’s Case, supra, in which he uses the following language: “Sustaining challenges to jurors for favor on slight grounds tends to place the administration of public justice in the hands of the most ignorant and least discriminating portion of the community, by which the safety of the accused may be endangered and the proper administration of the laws put to hazard; and we are therefore not disposed to enlarge the grounds of challenge beyond those properly deducible from the eases heretofore decided.”
As we have said, the cases are not reconcilable, but we believe those we have cited establish a wise and salutary rule. When to these considerations it is added, as has been frequently reiterated by this court, that great weight is justly due to the opinion of the trial judge, who sees and hears the venireman, we have no hesitation in rejecting this assignment of error. »
These considerations lead to the same conclusion with reference to the juror Wood.
The next exception is as to the competency of the witness, Kaufman, who was introduced by the Commonwealth to prove that a piece of cloth found in the bath-room on the day following the alleged homicide was a-part of the undershirt worn by the prisoner on that occasion.
Kaufman, it appears, is engaged in the clothing business, and is a salesman of and dealer in underwear, but has never manufactured it. Fontaine Eddins, a clerk in a clothing store, was introduced for the same purpose, and both were permitted to testify over the objection of the prisoner.
•In this there was no error. It was for the court to say what evidence should be admitted. It was for the jury, before whom the witnesses were subjected to investigation as to their source of knowledge, to determine upon their credibility, and the weight to be given to their testimony.
[994]*994The eleventh exception is to the admission of a conversation between the prisoner and his son, William McOue, as testified to for the Commonwealth by the witness, Martin. In this conversation petitioner, according to the witness, said that he (his son) knew that the statement made by Ernest Orawford about petitioner’s having drawn a pistol upon his wife was not true, to which petitioner’s son replied by aflirming that petitioner did draw a pistol upon his wife. This is objected to upon the ground that there is no suggestion or approximation with respect to the time at which the occurrence took place, which was the subject of this conversation; that it nowhere appears “whether it was a week, or a month, or a year, or five years, or ten years before the homicide.”
The testimony with respect to the incident in the jail was not introduced as proof of the circumstance narrated. It does not prove* or tend to prove, and there was no purpose in its introduction to prove, that the accused at any time threatened his wife with a pistol and that she sought the protection of her son. Ernest Orawford had testified before the jury that William McOue so stated to him, and Martin’s testimony was introduced solely for the purpose of showing that McOue endeavored to induce his son to deny the statement attributed to him by Orawford. If the eircumstance to which Orawford referred was inadmissible for remoteness in point of time, or for any other reason, objection to it should have been made when Orawford was upon the stand, but there could be no objection to it when introduced for the purpose indicated.
The precise language of the prisoner on that occasion was as follows: The prisoner said to his son: “You know it is not so about what Ernest Crawford said about my drawing a pistol on your mother.” To which the son replied: “You did; and she run in the room and got in the bed with me, and asked me not to let you shoot her.”
[995]*995IN or is the testimony of Martin inadmissible because “it was, in effect, an accusation against the prisoner which he then and there controverted and denied.” The conversation was brought about by the prisoner who was apparently seeking to find the means of weakening the force of Crawford’s statement, and he said to his son, “You know it is not true that I drew a pistol on your mother”; and the denial comes from the son: “You did; and she run in the room and got in the bed with me, and asked me not to let you shoot her.”
What was said, with all the attending circumstances, was before the jury, and we are of opinion that there was no error in this ruling of the court.
There are several exceptions to evidence which seems to us to be immaterial, and to discuss which would unduly protract this opinion. That, for instance, of the witness Covington, who testified that he spoke to petitioner’s wife at about twenty minutes before 8 o’clock; that he took off his hat and bowed to her, but that she did not speak. Of the witness Hurley, who heard the prisoner say that his wife’s jealousy diminished his pleasure and enjoyment in life.
The fifteenth exception is to the testimony of Dr. Helson, who was permitted to testify as to the effects of a blow struck by a sandbag or other similar instrument.
It hardly requires the learning or experience of a practitioner of medicine to know that if a man was struck by a sandbag a blow sufficient to render him unconscious, there would be, at least, some slight discoloration or extérnal mark or after effect consequent upon the blow. This assignment of error is also overruled.
The assignments of error from the 16th to 33d, inclusive, present a question of much importance in this prosecution.
William McCue, a son of the prisoner, was introduced as a-witness by the Commonwealth; and it speedily appearing that [996]*996he was adverse to the Commonwealth and favorable to the prisoner, the Commonwealth, alleging that it was surprised, asked and was permitted to introduce evidence to show that the witness had made statements inconsistent with his testimony.
So much of sec. 3351 of Va. Code (1904) as is pertinent to this inquiry is as follows:
“A party called to testify for another, having an adverse interest, may be examined by such other party according to the rules applicable to cross-examination.
“(1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but he may, in case the witness shall, in the opinion of the court, prove adverse, contradict him by other evidence, or, by leave of the court, prove that he has made, at other times, a statement inconsistent with his present testimony, but before said last mentioned proof can be given, the circumstances of the supposed statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement. In every case the court, if requested by either party, shall instruct the jury not to consider the evidence of such inconsistent statements except for the purpose of contradicting the witness.”
The law just quoted is so comprehensive in its terms that we shall content ourselves with observing that it warrants the action of the court in this case unless, as the petitioner insists,' its operation is to be confined to civil cases. The law of evidence is in general the same in civil and in criminal cases. In each case the object is the same — to place evidence before the jury which will enable it to arrive at a just decision upon the issues. It has long been a subject of investigation before courts, text-writers and legislatures how far it is permissible for a party to contradict his own witness. .
In Wigmore on Evidence, Vol. 2, sections 891 to 908, in-[997]*997elusive, the whole subject is exhaustively discussed, and the views of eminent authorities given.
Lord Ellenborough is quoted as saying, in Alexander v. Gibson, 2 Camp. 555: “If a witness is called on the part of the plaintiff who swears what is palpably false, it would be extremely hard if the plaintiff’s case should for that reason be sacrificed; but I know of no rule of law by which the truth is on such an occasion to be shut out and justice is to be perverted.”
Chief Justice Tindal’s remarks, in Bradley v. Rieardo, 8 Bing. 58, are cited. “The object of all the laws of evidence is to bring the whole truth of a case before the jury; . . . but if this contradicting evidence were excluded, that would no longer be the just ground on which the principles of evidence would proceed, but we should compel the plaintiff to take singly all the chances of the tables, and to be bound by the statements of a witness whom he might call without knowing he was adverse, who might labor under a defect of memory, or be otherwise unable to make a statement on which complete reliance might be placed.”
The reasoning and authorities range all the way from permission to refresh the memory of an adverse witness by cross-examination to the practice which finds expression in the statute under consideration of proving his inconsistent statements.
In England the subject was referred to a commission composed of eminent jurists, and they reported in favor of the admission of impeaching testimony by proof of contradictory statements. Eor the admissibility of the proposed evidence it is said that this course “is necessary as a security against the contrivance of an artful witness who otherwise might recommend himself to the party by the promise of favorable evidence (being really in the interest of the opposite party), and afterwards by hostile evidence ruin his cause; that such a [998]*998power is necessary for the purpose of placing the witness fairly and completely before the court, and for enabling the jury to ascertain how far he deserved to be believed; that the ends of justice are best attained by allowing the fullest power for scrutinizing and correcting evidence, and that the exclusion of the proof of contrary statements might 'be attended with the worst consequences. The chief objection to the proposed evidence appears to be that a party, after calling a witness as a witness of credit, ought not to be allowed to discredit him. The objection proceeds upon the supposition that the party first acts on one principle, and afterwards, being disappointed by the witness, turns around and acts upon another, thus imputing to the party something of double dealing or dishonest practice. But it is evident that this does not apply to the case where a party, having given credit to a witness, is deceived by him, and first discovers the deceit at the trial of the cause. To reject the proposed evidence in such a case, and repress the truth, would be to allow the witness to deceive both jury and. party.”
In Babcock v. People, 13 Colo. 519, 22 Pac. 818, Judge Elliott said: “The tendency of recent legislation, as well as of modern decisions, has been to relax somewhat the rules of evidence, so as to afford better opportunity for the development of truth. Modern experience has also shown that a party may sometimes, be deceived in the character and animus of a witness whom he has called, as well as in the testimony he is expected to give; and he learns after the witness begins to testify — a very inopportune time — that he has to encounter bitter and unscrupulous opposition where he had expected to receive only fair and honorable treatment. This may be evidenced by reluctance or evasion on the part of the witness in answering questions, or by too great readiness in making or volunteering damaging statements contrary to his previous version of the matter. Under such circumstances, .... in extreme cases, where it is ap[999]*999parent that a witness is giving testimony contrary to the reasonable expectation of the party calling him, such party should be allowed to cross-examine such witness for the purpose of refreshing his recollection with the view of modifying his testimony or of revealing his animus in the case, . . . and to ask him if he has not theretofore made other or different statements from those he has just given in evidence.”
In this whole discussion, as given in Wigmore, the reasoning adduced and the authorities cited apply indifferently to civil and criminal cases, the civil cases being, of course, far the more numerous.
The English statute is given, passed in pursuance of the recommendation of the commission on procedure heretofore referred to. “A party producing a witness shall not be allowed tq impeach his credit by general evidence of bad character; but he may, in case the witness shall, in the ojnnion of the judge, prove adverse, contradict him by other evidence, or by leave of the judge prove that he has made at other times a statement inconsistent with his present testimony.”
“It is easy to imagine,” says the author, “the confusion caused by this bungling paragraph, for the showing of an error by ordinary contradiction provided for in clause 3 was already freely permissible without interference by the judge and whether or not the witness was adverse; . . . As the statute stands, the present class of evidence, self-contradictipns, is admissible only by leave of the judge, and in case of a witness deemed adverse by the judge. In the United States fortunately only a few jurisdictions have adopted the English statute. But the variety of attitude in the different jurisdictions, and the indiscriminate citation of rulings from other courts, together with the indecision of the earlier English precedents, has tended to produce confusion in our law, even within the rulings of the same jurisdiction. The sound and simple remedy would be by statute to [1000]*1000abolish all limitation on this kind of evidence, and this step has in some States already been taken.”
The English statute quoted was passed in the seventeenth and eighteenth of Victoria. It applied only to civil cases; but by statute of the twenty-eighth and twenty-ninth of Victoria it was extended to criminal cases.
In Hickory v. U. S., 151 U. S. 303, 34 L. Ed. 170, 14 Sup. Ct. 334, which was upon an indictment for murder, Chief Justice Fuller says: “When a party is taken by surprise by the evidence of his witness, the latter may be interrogated as to inconsistent statements previously made by him for the purpose of refreshing his recollection and inducing him to correct his testimony.; and the party so surprised may also show the facts to be otherwise than as stated, although this incidentally tends to discredit the witness. . . . But proof of contradictory statements of one’s own witness, voluntarily called and not a party, inasmuch as it would not amount to substantive evidence, and could have no effect but to impair the credit of the witness, was generally not admissible at common law.
“By statute in England, and in many of the States, it has been provided that a party may, in case the witness shall, in the opinion of the judge, prove adverse, by leave of the judge, show that he has made at other times statements inconsistent with his present testimony, and this is allowed for the purpose of counteracting actual hostile testimony with which the party has been surprised.”
This citation is of value in two aspects. In the first place, it shows what the common,law was; it shows the tendency of modern thought upon the subject; and, although made in a case where a man was on trial for his life, rests the statements of law upon adjudications in civil cases.
Under these circumstances the Legislature of Virginia adopted the statute which we are now considering. Its lan[1001]*1001guage is broad and general; there is not a suggestion upon its face of the purpose to limit its operation to a particular class •of cases. The evils are the same in criminal cases as in civil. It is invoked to-day by the Commonwealth. It may be tomorrow the last hope of an innocent man.
Against all this it is urged that the statute is found in the Code under the title of “Proceedings in Civil Oases.” Embraced in that title are a number of chapters upon a great variety of subjects, many of which are obviously of a civil nature, others specifically declared to be of that character. In the chapter upon “Evidence,” in which section 3351 is found, there are sections which, either from their subject matter or by their express terms, apply to civil cases. There are other sections which by their express terms apply to criminal cases — for example, sections 3346, 3352 and 3352a, the first mentioned referring to the competency of husband and wife to testify for or against each other in civil and criminal cases. We find, therefore, section 3351 placed in the midst of sections applicable alike by their terms to criminal and civil cases; and the operation of that section not extended upon the one hand, nor limited upon the other to a particular class of cases, but its application to be determined by other considerations. We cannot think that the mere collocation of this section should override every other consideration, and require the courts to confine it to civil cases, when it is a remedy for an evil as great in criminal as in civil cases, and the consequences of which may be even more serious.
We are of opinion that these assignments of error are not well taken.
A careful perusal of the instructions' satisfies us that they fairly submitted to the jury the principles of law by which they should be governed in the consideration of the evidence. It would be impossible to prepare instructions to which an ingenious critic might not present plausible objection. The defini[1002]*1002tion of “reasonable doubt” is attempted by the court. It is a difficult, if not an impossible, task so to define it as to satisfy a subtle and metaphysical mind bent upon the detection of some X3oint, however attenuated, upon which to hang a criticism. But no unbiased person can. read those instructions without having the conviction forced upon him that every safeguard which the benignity of the law throws aroiuid a prisoner upon trial was accorded to the petitioner in this case.
Two instructions asked for by the petitioner were refused by the court, one of which undertakes to define reasonable doubt, as follows: “The court instructs the jury that by reasonable doubt is meant such doubt as would cause a man of average X3rudence to hesitate about a matter of his own of like importance to himself as the case on trial is to the accused.”
It would have been impossible for the jury to make any practical ax3plication of the proposition sought to be formulated in this instruction. There could be no case of importance to a man such as “the case on trial was to the accused,” unless he himself stood upon his deliverance before a jury charged with a capital offense.
But the instruction was properly refused upon the further ground that the instructions of the court upon the subject of reasonable doubt were ample and correct guides to the jury ux>on that branch of the case.
The court was asked to instruct the jury “that under the humane policy of the law of this State it is considered infinitely better that ninety and nine (that is, an indefinite number of) guilty persons should escape punishment than that one innocent person should be punished; and, therefore, it is far better that the jury should err in acquittal than err in convicting.”
We have heard it said, and it is sometimes stated in the opinions of courts, that it is better that ninety and nine guilty persons should escape than that one innocent person should be pun[1003]*1003islied. W e have no fault to find with the expression as a rhetorical phrase, but as a guide to a jury in reaching a conclusion it is of no value. .That no guilty man should escape is equally indisputable, but it would hardly find a proper place in an instruction to a jury. The object of courts and juries is to shield the innocent and to punish the guilty, and in this case the jury were told that the accused was presumed to be innocent until his guilt was established by the Commonwealth beyond a reasonable doubt; that this presumption of innocence goes with him through the entire case and applies at every stage thereof, and that if, after having heard all of the evidence, the jury have a reasonable doubt of the guilt of the accused, upon the whole case, or as to any fact essential to prove the charge made against him in the indictment, it is their duty to give him the benefit of the doubt, and find him not guilty. And, further, that if upon the whole evidence there is any reasonable hypothesis consistent with the innocence of the accused, they must find him nor guilty; that the failure of the evidence to disclose any other criminal agent than the accused, is not a circumstance which may be considered by the jury in determining whether or not he was guilty of the crime wherewith he is charged; that he is presumed to be innocent until his guilt is established, and he is not to be prejudiced by the inability of the Commonwealth to point to any other criminal agent, nor is he called upon to vindicate his own innocence by naming the guilty person.
It is also to be observed that the court was careful in instructing the jury as to the weight to be given to the evidence of contradictory statements made by the witness William McCue, and others. The jury was warned that this evidence was admissible only to contradict the witness, and not to be taken as substantive proof of the facts related by the witness or, in the terms of the statute, that they were not to consider the evidence of such inconsistent statements except for the purpose of contradicting the witness.
[1004]*1004During the closing argument for the prosecution Captain Micajah Woods, who had assisted the prosecution, arose, and in the presence of the jury, said to the court: “With the gracious consent of the gentlemen on the other side and the Commonwealth’s attorney I would like to make one statement, not pertaining to the merits of this case, but in view of the attack, which may not have been so intended, but which sounded to me ungenerous, as an ungenerous attack made upon me by the distinguished gentleman, and who has made so able a speech, I desire to say that I refused a large fee in this case to prosecute”--
Counsel for the prisoner objected to the statement and asked that the jury be discharged in view of that statement.
It appears in the bill of exceptions that counsel for the prisoner had, in his argument, criticised the position of Captain Woods in acting as prosecutor, under the compulsion of public opinion, of a man he admitted had been his friend for twenty years.
The right of the public prosecutor to have associated with him an attorney to assist in the prosecution is established law in this State, and is not a proper subject of animadversion. He is as lawfully there to assist the prosecution as counsel for the defense to defend the prisoner; and, so long as he keeps within proper bounds, he is not open to criticism before the jury. It would be a strange thing if counsel for the accused were permitted to criticise opposing counsel, and that the latter should be obliged to submit in silence under the penalty we are asked to impose in this case. There is no merit in this exception.
The jury having rendered a verdict of guilty of murder in the first degree, the accused moved to set aside the verdict, among other reasons, because the jury were permitted during the pro-, gress of the trial to read, and did read, certain newspapers containing references to, and comments upon, the case, pending the trial of the same.
[1005]*1005It appears that “before the jury was sworn, and in response to. a request from one of the jurors, the court stated to the members of the jury that they might be permitted to read such portions of the daily newspapers as in no way related to this trial, but that they must scrupulously avoid any parts of said, papers as had any reference to this trial, which the said members of the jury then and there severally promised to do.. And. the sergeants were then instructed to carry out this instruction of the court. At the time this instruction was given neither the. prisoner or his counsel, they being present, made objection,, though they were not asked by the court if they had objection.”
In Hunter v. State, 43 Ga. 483, after some of the jury were-in the box, but the whole not impaneled, and in the presence of the court, those sworn were seen by counsel for accused reading a newspaper which contained an article reflecting upon the counsel for prisoner, and no motion was made or notice then taken in regard thereto. -It was held that this was not such, irregularity upon the part of the jury as would be sufficient to-set aside the verdict, and that such acts transpiring in the court room, and in the presence of the court and of counsel, when not. objected to, will not be favorably regarded after the verdict.
In Bulliner v. People, 95 Ill. 394, counsel for a defendant, handed a juror a newspaper to read after he was sworn, but before the panel was filled, and afterwards, on the trial, his attention was called to the fact that another juror was reading a newspaper in which was an article purporting to contain a report of the trial, and commenting upon the case unfavorably to the defendant, and made no objection thereto, but stated privately to the court that it was best to say nothing about the matter, as it might give -the article undue prominence and do the defendant more harm than good, it not appearing that the prosecution was responsible for the act. It was held that the irregularity was waived, and could not be urged by the defendant in [1006]*1006error to reverse a judgment of conviction, and that a prisoner on trial has no right to stand by and suffer irregular proceedings to take place, and then seek a reversal for the same. Like any other defendant, if he neglects in proper time to insist upon his rights, he waives them.
In McKinney v. People (Ill.), 2 Gilm. 556, 43 Am. Dec. 65, it is said: “A prisoner on trial, under our laws, has no right to stand by and suffer irregular proceedings to take place, and then ask to have the proceedings reversed on error on account of such irregularities. The law, by furnishing him with counsel to defend him, has placed him on the same platform with all other defendants, and if he neglects in proper time to insist upon his rights, he waives them.”
So it is uniformly held in civil as Avell as in criminal cases, for, as Ave have already remarked, the mode of procedure is substantially the same in both. A party who stands by without objection and sees proper evidence excluded, or improper evidence admitted, without objecting, will not be heard to make the objection after verdict. And so with instructions. In other words, litigants are not permitted to play fast and loose with the court. If they are silent when it is their duty to speak, they are not permitted to speak when it is their duty to be silent.
The case under consideration is far stronger than those cited. The court, in the presence of the prisoner and of his counsel, at the instance of the jury, permitted them to have access to newspapers under rules which it pi’escribed. It does not appear that the limits imposed by the court were exceeded, or that the prisoner was prejudiced by what occurred. But, however that may be, he had no right to sit mute, prepared to abide by the results if they were favorable, or to make objection if they were adverse.
We think it is the safer and better practice to exclude neAvs[1007]*1007papéis from the jury. They are called upon to exercise the most sacred duty which can devolve upon a citizen, and in its discharge they must make such personal sacrifice as is necessary to its due performance; but under the circumstances of this case no reversible error is disclosed in this respect.
hi o one can read the petitions for a writ of error in this case without being satisfied that the accused has had every advantage that could accrue to him from the efforts of able and astute counsel. But no one can read the facts presented in evidence without being convinced that no advocacy, however skilled to make the worse appear the better reason, could have brought about any other result than that which has been reached. The evidence precludes every reasonable hypothesis of innocence, and points with unerring certainty to the guilty man. The record discloses a homicide, remarkable only for its atrocity, and the fact that it was committed by a member of the profession of the law who had been entrusted by his fellow-citizens with a responsible office, and that the victim was his wife.
We have gone through the record and discussed what seemed to us to be its more important features. There are exceptions to which we have not adverted. Some of them we deemed unimportant, others as controlled by principles well established, or covered by what we have said with reference to kindred exceptions, and there is but one other view which we are called upon to present.
Bunning through the petitions, and more particularly the supplemental petition, there is a subtle suggestion that this •court has introduced a practice which tends to undermine the rights and abridge the privileges of those who stand accused of crime.
The theory propounded seems to be that a writ of error to the judgment of a trial court is one of the rights' of a person [1008]*1008convicted of crime; while the truth is that a review by an appellate tribunal, whether upon an appeal or writ of error, is no-part of due process of law.
The inalienable rights of a person accused of crime are thus-stated in the bill of rights: That in all criminal prosecutions a man hath a right to demand the cause and nature of his accusation, to be confronted with the accusers and witnesses, to call for evidence in his favor, and to a speedy trial by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty; nor can he be compelled to give evidence^ against himself; that no man be deprived of his life or liberty,, except by the law of the land or the judgment of his peers.— Va. Constitution, sec. 8.
Our statute prescribes the rule which controls the action of' this court. With reference to appeals and writs of error, section 3466 of the Code says: “In a case wherein the court shall deem the judgment, decree, or order, complained of plainly right, and reject it on that ground, and the order of rejection so states,, no other petition therein shall afterwards be entertained.”
We have no such practice as an absolute right of appeal, in civil or criminal cases. But the law requires a petition, accompanied by a transcript of the record, to be presented to the court, or one of its judges, whose duty it is to examine the errors assigned and to grant or refuse a writ, as may seem, proper. It is as much the duty of the court, or judge, to deny the petition when of opinion that the decision complained of is-plainly right as it is to grant it when any doubt exists as to the propriety of the decision. The statute in its present form is-found in the Code of 1849. Just when it took its place in the statute law we are not informed, but the uniform practice of this court, and of the General Court, its predecessor, as an appellate tribunal in criminal cases has been in accordance with the letter and spirit of that statute.
[1009]*1009In Vance v. Com'th, 2 Va. Cases 162, a case of homicide which ended in a conviction of murder in the first degree, the report of the case shows that it was highly litigated, and that many errors were assigned; but an application for a writ of error was unanimously refused by tbe judges of tbe General-Court.
Running through the “Virginia Cases,” and other reports im which the judgments of the General Court appear, numerous-instances mil be found of writs of error refused in every description of felony. In some cases opinions are delivered; some are heard upon the petition only, while in others the attorney-general is permitted to reply.
By the Constitution of 1851 the General Court was abolished and appellate criminal jurisdiction was given to the Court of Appeals. Beginning with 1854, our records disclose cases involving every form of felony, and every degree of punishment applicable to that crime, in which the order entered upon the petition is that “the court, deeming the judgment complained of plainly right, doth reject the petition” upon that ground.
[1010]*1010We think that it has been made sufficiently to appear that our practice is not an innovation upon that of our predecessors; that we are not perverting or diverting the administration of justice from its ancient and accustomed course; but that we [1011]*1011walk in the beaten path prescribed to us from the earliest period in this Commonwealth, by judges whose names will always be remembered and revered.
While those accused of crime have rights which should be held inviolable, society has rights which are no less sacred. While the accused is entitled to a fair and impartial trial, the safety of the law-abiding citizen demands that the accused, having had a fair and impartial trial, and been adjudged guilty according to the law of the land, should suffer with certainty and without delay the penalty imposed by the law upon his offense. Therefore, in obedience to the mandate of the statute, and in strict accordance with established precedent, having given careful consideration to the petitions and record, and being of opinion that no error is shown to the prejudice of the accused, we abide by the order entered at a former day of the term and deny a writ of error.
Writ of error denied.
Writs of error were refused in tbe following cases:
Order Book No. 19.
Archer v. Commonwealth, p. 559; Baxter v. Commonwealth, p. 344; Cronin v. Commonwealth, murder, p. 679; Gebhart v. Commonwealth, p. 479; May 25, 1854, Helms v. Commonwealth, burglary, p. 514; May 15, 1854, Keith v. Commonwealth, felony, p. 633; February 28, 1855, Murphy v. Commonwealth, arson, p. 587; January 24, 1855, Snyder v. Commonwealth, p. 501; January 12, 1854, Whalen v. Commonwealth, murder, p. 429.
Order Book No. 20.
October 25, 1859, Argentine v. Commonwealth, forgery, p. 512; November 19, 1859, Brown v. Commonwealth, treason, p. 529; January 9.1860, Bayliss v. Commonwealth, murder, p. 537; November 8, 1860, Bragg v. Commonwealth, p. 656; November 1, 1856, Cornwell v. Commonwealth, murder, p. 105; November 4, 1857, Crowley v. Commonwealth, murder, p. 220; November 9, 1860, Craddock v. Commonwealth, felony, p. 657; October 15, 1859, Grubb v. Commonwealth, rape, p. 509; November 23, 1859, Gray v. Commonwealth, felony, p.499; April 21, 1858, Hopkins v. Commonwealth, p. 306; May 24, 1856, Jones v. Commonwealth, felony, p. 93; January 9, 1857, Keene v. Commonwealth, murder, p. 126; October 18, 1860, Lacy v. Commonwealth, felony, p. 644; May 13, 1856, Moore v. Commonwealth, p. 71; October 30, 1857, Nichols v. Commonwealth, felony, p. 218; January 17, 1856, Parsons v. Commonwealth, felony, p. 6; February 25, 1858, Poff v. Commonwealth, felony, p. 282; January 12, 1859, Powell v. Commonwealth, murder, p. 893; November 20, 1857, Shiflett v. Com[1010]*1010monwealth, felony, p. 231; January 12, 1858, Smither v. Commonwealth, murder, p. 240; November 19, 1858, Sunderland v. Commonwealth, murder, p. 369; January 8, 1858, Saunders v. Commonwealth, murder, p. 390; April 23, 1858, Tyler v. Commonwealth, murder, p. 307; April 26, 1860, Taylor v. Commonwealth, felony, p. 615; October 31, 1860, Totty v. Commonwealth, murder, p. 652,
Obdeb Book No. 21.
January 24, 1862, Austin v. Commonwealth, felony, p. 110; February 2, 1861, Crump v. Commonwealth, murder, p. 15; January 12, 1867, Foster v. Commonwealth, felony, p. 410; February 22, 1861, Jefford v. Commonwealth, felony, p. 27; January 28, 1861, Nesco v. Commonwealth, felony, p. 12; October 12, 1866, Paul v. Commonwealth, p. 378.
Obdeb Book No. 22.
March 25, 1872, Dougherty v. Commonwealth, felony, p. 518; November 16, 1871, Brock v. Commonwealth, to be hung, p. 371.
Obdeb Book No. 23.
April 25, 1873, Hardwick v. Commonwealth, felony, p. 110.
Obdeb Book No. 24.
April 21, 1877, Agree v. Commonwealth, felony, p. 501; March 14, 1876, Chambers v. Commonwealth, felony, p. 189.
Obdeb Book No. 25.
May 2, 1879, Bell v. Commonwealth, felony, p. 377; March 12, 1878, Gregory v. Commonwealth, felony, p. 7; February 19, 1880, Kenney v. Commonwealth, felony, p. 515; March 23, 1879, Russell v. Commonwealth, felony, p. 227.
Obdeb Book No. 26.
April 28, 1881, Cook v. Commonwealth, felony, p. 137; April 27, 1882, Jones v. Commonwealth, felony, p. 366; February 18, 1881, Mitchell v. Commonwealth, felony, p. 59.
Obdeb Book No. 27.
November 9, 1885, Banks v. Commonwealth, felony, p. 458; March 30, 1886, Gresham v. Commonwealth, assault, p. 629; April 2, 1885, Hamilton v. Commonwealth, felony, p. 369.
Obdeb Book No. 28.
December 7, 1888, Abrams v. Commonwealth, felony, p. 639; February 25, 1887, Newton v. Commonwealth, felony, p. 186; November 11, 1886, Smith v. Commonwealth, felony, p. 15.
Order Book No. 29.
November 13, 1890, Hughes v. Commonwealth, felony, p. 368; November 13, 1890, Walden v. Commonwealth, felony, p. 368; May 1, 1890, Davis v. Commonwealth, felony, p. 326.
Obdeb Book No. 30.
December 12, 1893, Justus v. Commonwealth, felony, p. 377; January 15, 1894, Mason v. Commonwealth, felony, p. 392.