[508]*508
By the Court.
Starnes, J.
delivering the opinion.
[1.] It is first alleged that the Court committed érror in directing the Deputy Sheriff to summon certain persons as tales Jurors, who, at the time, were leaving or about to leave the Court room.
The indictment under which this proceeding took place, was subsequently quashed, and a new bill was returned, on which the trial proceeded, which we have now under consideration. The point made, therefore, has nothing to do with this case, and should not have encumbered the record.
[2.] The Court did not err in refusing to quash the fourth panel of Jurors summoned, because the High Sheriff was not in attendance on Court.
Our Judiciary Act, in declaring that “ the Sheriffs of the several counties shall attend the Superior and Inferior Courts in the respective counties,” &c. is simply directory to the Sheriff. It was not intended that his presence should be necessary to the organization and continuance of the Court. Besides, it may be correctly said, that attendance by duly qualified deputy, in legal contemplation, is attendance by the Sheriff.
[3.] The Court below was also right in refusing to dismiss this panel, on the ground that the Jury had not been summoned according to law — a portion of the panel having been summoned by Jesse P. Ayer and others, who were acting as Bailiffs.
It appears by the record, that these persons had been appointed Bailiffs by the under Sheriff, for the purpose of executing this particular duty. This was lawful. An under Sheriff may constitute a Bailiff for the purpose of doing a particular act; though he cannot appoint a deputy to do the general business of the office. (Leak vs. Howell, Cro. Eliz. 533. Parker vs. Kett, 1 Lord R. 658. 12 Mod. 467. 1 Salk. 95. Hunt vs. Burrell et al. 5 John. 138.)
[4.] The several panels put upon the prisoner consisted of forty-eight Jurors; and it was objected, after verdict, that af[509]*509ter the first panel had been summoned, each successive panel should have consisted of a less number.
The regulation of this matter at Common Law, in capital cases, frequently seems to have depended very much upon the exigencies of the trial, and was within the discretion of the Court. (10 Co. 105, a. 8 Bac. Abr. Tit. Juries, C. State vs. Lamon, 1 Hawk. 175.) Our Statute of 1799 declaring, as it does, that “ when, from challenge or otherwise, there shall not be sufficient number of Jurors to determine any civil or criminal case, the Court may order the Sheriff or his Deputy to summon by-standers or others, sufficient to complete the panel,” &c. in effect, places this regulation within the discretion of the Court, if it were not so before. Tho panel which is thus directed to be made complete, is of course the panel of twelve who are to try the case ; for the language employed pre-supposes that the other panel is exhausted “by challenge or otherwise.” The authority, then, which is given for the purpose of making this panel complete, is general, and not restricted, by any Common Law practice, as to the number of which the successive panels should consist. For convenience sake, perhaps, it may be more judicious to pursue the old practice in some cases. But the matter may be safely left where, we think, the law places it, viz: with the sound discretion of the presiding Judge.
[5.] In this case, one E. W. Russell was challenged by the prisoner, (when presented as a Juror,) on the ground that his name was not in the Jury box at the time of its last revision, though he had been six months in the county before the trial, and was otherwise a competent Juror.
Objection was made, too, to Sion Morris, on the ground that he was not of age at the period of the last general election, though of full age at the time of trial.
It is our opinion that the law does not require that the names of tales Jurors should be in the Jury box, or that they should have had the qualifications of Jurors at any time previous to the trial. It is sufficient, if they have the legal qualifications ■of Jurors at that time. There are several reasons for this view [510]*510■of the subject; but we cannot dwell on them, as there is so much of this case, and so many more important points for our •consideration.
[6.] It is insisted that when. Daniel F. Sawyer was challenged as a Juror, and put upon triors, the Court erred in allowing him to be tried by two only of the Jury, several others having been before that time sworn.
The practice pursued by the Court was known to the Common Law, and is pursued generally by the Courts of our State. “ If six” (Jurors) “ be sworn and the rest challenged; the Court may assign any two of the six sworn to try the callenges.” (2 Hal Hist. P. C. 275. 1 Ch. Cr. L. 549. 8 Bac. Abr. Ar. Juries, E. 12.) For obvious reasons, this is a better practice than to require all who are sworn to try each challenge.
[7.] Objection was also made, that one of the panels of tales Jurors was summoned on Sunday. But it appears by the record, that every one of the Jurors thus summoned, was challenged and passed for other cause. It is unnecessary for us to give any opinion upon this objection.
So too, it was objected, that a Grand Juror who was upon the Jury which returned the first bill against the prisoner was summoned upon one of the panels of the Petit Jury. But it appears, that he too was passed for other cause, and no injury resulted to the prisoner.
Fuqua Beasly and William Ellison had been summoned on a previous panel of tales Jurors, and were again returned upon another panel and put upon the prisoner; and this, 'too, was objected to as error. These Jurors were likewise passed for cause ; and it is unnecessary for us to say any thing in relation to the point made.
[8,] Error was also assigned upon the refusal of the Court to arrest the judgment, because the return and endorsement of “true bill” upon the indictment was not signed by any one, as foreman of the Grand Jury.
Upon this point we remark; first, that it has been held, that there is no positive law requiring that the foreman of the Grand [511]*511Jury should sign the finding at all.- This seems not to have been required at Common Law. And so it has been decided in South Carolina. Creighton vs. Bell, (1 Nott & McC. 256.) Our Statutes make no change in this respect. Though, as the Court say, in the case just cited, we think the practice usually adopted is advisable:
In the next place, we observe, that this return seems to have been signed by a Juror but he did not sign as foreman. It could easily have been made certain by the minutes of the Court, however, we suppose, that he was foreman of the Jury; and if so, this might have been done; for in such case, that is certain which may be made certain.
Lastly, this is an exception which goes rather to the form than to the merits of the proceeding, and should have been taken before trial, according to the provisions of our code.
[9.]
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[508]*508
By the Court.
Starnes, J.
delivering the opinion.
[1.] It is first alleged that the Court committed érror in directing the Deputy Sheriff to summon certain persons as tales Jurors, who, at the time, were leaving or about to leave the Court room.
The indictment under which this proceeding took place, was subsequently quashed, and a new bill was returned, on which the trial proceeded, which we have now under consideration. The point made, therefore, has nothing to do with this case, and should not have encumbered the record.
[2.] The Court did not err in refusing to quash the fourth panel of Jurors summoned, because the High Sheriff was not in attendance on Court.
Our Judiciary Act, in declaring that “ the Sheriffs of the several counties shall attend the Superior and Inferior Courts in the respective counties,” &c. is simply directory to the Sheriff. It was not intended that his presence should be necessary to the organization and continuance of the Court. Besides, it may be correctly said, that attendance by duly qualified deputy, in legal contemplation, is attendance by the Sheriff.
[3.] The Court below was also right in refusing to dismiss this panel, on the ground that the Jury had not been summoned according to law — a portion of the panel having been summoned by Jesse P. Ayer and others, who were acting as Bailiffs.
It appears by the record, that these persons had been appointed Bailiffs by the under Sheriff, for the purpose of executing this particular duty. This was lawful. An under Sheriff may constitute a Bailiff for the purpose of doing a particular act; though he cannot appoint a deputy to do the general business of the office. (Leak vs. Howell, Cro. Eliz. 533. Parker vs. Kett, 1 Lord R. 658. 12 Mod. 467. 1 Salk. 95. Hunt vs. Burrell et al. 5 John. 138.)
[4.] The several panels put upon the prisoner consisted of forty-eight Jurors; and it was objected, after verdict, that af[509]*509ter the first panel had been summoned, each successive panel should have consisted of a less number.
The regulation of this matter at Common Law, in capital cases, frequently seems to have depended very much upon the exigencies of the trial, and was within the discretion of the Court. (10 Co. 105, a. 8 Bac. Abr. Tit. Juries, C. State vs. Lamon, 1 Hawk. 175.) Our Statute of 1799 declaring, as it does, that “ when, from challenge or otherwise, there shall not be sufficient number of Jurors to determine any civil or criminal case, the Court may order the Sheriff or his Deputy to summon by-standers or others, sufficient to complete the panel,” &c. in effect, places this regulation within the discretion of the Court, if it were not so before. Tho panel which is thus directed to be made complete, is of course the panel of twelve who are to try the case ; for the language employed pre-supposes that the other panel is exhausted “by challenge or otherwise.” The authority, then, which is given for the purpose of making this panel complete, is general, and not restricted, by any Common Law practice, as to the number of which the successive panels should consist. For convenience sake, perhaps, it may be more judicious to pursue the old practice in some cases. But the matter may be safely left where, we think, the law places it, viz: with the sound discretion of the presiding Judge.
[5.] In this case, one E. W. Russell was challenged by the prisoner, (when presented as a Juror,) on the ground that his name was not in the Jury box at the time of its last revision, though he had been six months in the county before the trial, and was otherwise a competent Juror.
Objection was made, too, to Sion Morris, on the ground that he was not of age at the period of the last general election, though of full age at the time of trial.
It is our opinion that the law does not require that the names of tales Jurors should be in the Jury box, or that they should have had the qualifications of Jurors at any time previous to the trial. It is sufficient, if they have the legal qualifications ■of Jurors at that time. There are several reasons for this view [510]*510■of the subject; but we cannot dwell on them, as there is so much of this case, and so many more important points for our •consideration.
[6.] It is insisted that when. Daniel F. Sawyer was challenged as a Juror, and put upon triors, the Court erred in allowing him to be tried by two only of the Jury, several others having been before that time sworn.
The practice pursued by the Court was known to the Common Law, and is pursued generally by the Courts of our State. “ If six” (Jurors) “ be sworn and the rest challenged; the Court may assign any two of the six sworn to try the callenges.” (2 Hal Hist. P. C. 275. 1 Ch. Cr. L. 549. 8 Bac. Abr. Ar. Juries, E. 12.) For obvious reasons, this is a better practice than to require all who are sworn to try each challenge.
[7.] Objection was also made, that one of the panels of tales Jurors was summoned on Sunday. But it appears by the record, that every one of the Jurors thus summoned, was challenged and passed for other cause. It is unnecessary for us to give any opinion upon this objection.
So too, it was objected, that a Grand Juror who was upon the Jury which returned the first bill against the prisoner was summoned upon one of the panels of the Petit Jury. But it appears, that he too was passed for other cause, and no injury resulted to the prisoner.
Fuqua Beasly and William Ellison had been summoned on a previous panel of tales Jurors, and were again returned upon another panel and put upon the prisoner; and this, 'too, was objected to as error. These Jurors were likewise passed for cause ; and it is unnecessary for us to say any thing in relation to the point made.
[8,] Error was also assigned upon the refusal of the Court to arrest the judgment, because the return and endorsement of “true bill” upon the indictment was not signed by any one, as foreman of the Grand Jury.
Upon this point we remark; first, that it has been held, that there is no positive law requiring that the foreman of the Grand [511]*511Jury should sign the finding at all.- This seems not to have been required at Common Law. And so it has been decided in South Carolina. Creighton vs. Bell, (1 Nott & McC. 256.) Our Statutes make no change in this respect. Though, as the Court say, in the case just cited, we think the practice usually adopted is advisable:
In the next place, we observe, that this return seems to have been signed by a Juror but he did not sign as foreman. It could easily have been made certain by the minutes of the Court, however, we suppose, that he was foreman of the Jury; and if so, this might have been done; for in such case, that is certain which may be made certain.
Lastly, this is an exception which goes rather to the form than to the merits of the proceeding, and should have been taken before trial, according to the provisions of our code.
[9.] A verdict, such as that before us, is not a special verdict. It is, in effect, a general verdict of guilty, A special verdict is rendered when the Jury find certain facts to exist, and leave the Court to determine whether or not, according to the law which controls these facts, the prisoner is guilty. But here, the Jury find the piisoner guilty.
[10.] During the progress of this case, and after Wm. H. Thomas, one of the Jurors sworn in chief had been accepted and qualified, Joseph W. George was challenged by the prisoner, and the Court directed him to be put upon Joseph Walters and John Rogers as triors, they being by-standers and not having been sworn of the Jury, without joining the Juror Thomas with them. This course is not sanctioned by what appears to be a well settled practice, and the Court below erred therein.
If the challenge “ be made to the first Juror, and of course before any one is sworn, then the Court will direct two indifferent persons to try the question; and if they find the party challenged indifferent, he will be swrorn and join with the triors in determining the next challenge. But when two Jurors have been found impartial and have been sworn, then the office [512]*512of the triors will cease, &c. (1 Ch. Cr. L. 549. Co. Litt. 158. 8 Bac. Abr. Juries, E. 12. Williams, J. Juries, V.)
[11.] The Court also erred in refusing to grant a new trial on account of the expression of opinion by Rufus R. Runce, one of the Jurors who had tried the prisoner.
■ This Juror had heard a portion of the testimony as it was delivered at the first trial. He had subsequently expressed the opinion to several persons,' that the prisoner was guilty. And in his statement vindicating himself, he said that he had formed a decided opinion. He was thus disqualified by the express provisions of our law. ¡,
We have never decided that a Juror so disqualified might show himself competent by swearing, that notwithstanding such expression of opinion, &c. he feltr that he was able to render a fair and impartial verdict, dr that he had rendered such verdict. And especially did we not so decide in the case of John Anderson vs. The State, (14 Ga. 709.) That case, and all others should be considered seeundem subjeotam materiam. There the Juror had expressed an opinion from rumor. And we held that the effect of his affidavit was to show, that the opinion formed and expressed by him under these circumstances, was not a fixed opinion; that it may have yielded and did give way, probably, to the force of the testimony when heard by him upon oath, and that he was therefore a Competent Juror, and would so have been pronounced if he had been challenged on this account when first called, up, and had been put upon triors.
[12.] When instructing the Jury in this case his Honor, the Judge, was requested t,o charge, that in criminal cases the Jury “ are judges, both of the law and the facts, and have the legal right, both to construe the law and apply the facts which charge was given, but the Court added, “ the law as given you in charge by the Court.”
n I have carefully considered this subject. I have looked into all the cases that I can find, in which it is discussed, and the result is, that I have been induced, by the reasoning of Mr. Justice Best, in Rex vs. Burdett, (4 Barn. & Ald. 95,) and of [513]*513Judge Kent, in the case of The People vs. Croswell, (3 John. Cas. 337,) to modify the opinion I expressed on this point when the judgment was delivered; and I am now satisfied that in criminal cases, the Jury may be said to be judges of the law as well as of the facts, because the law gives to them the privilege of acquitting the prisoner, although the Judge may tell them, that according to law, if they find certain facts to be proven, he is guilty, and although they may find such facts to be proven; and this, their verdict, is final and conclusive. In this sense, it is legal for them to find a verdict contrary to the charge, and I am constrained to agree with Judge Kent, in admitting that it cannot accurately be said that they would do wrong in exercising a privilege which, by law, is granted to them. I am not prepared to say, consequently, that the Legislature has granted to them a lawful privilege, which is not a rightful power.
1 defer, therefore, to the view of this subject taken by my brethren, and agree that they were right in holding that the Court below erred in restricting the Jury as he did on this point, to the law “ as given them in charge by the Court.” He might have called their attention to the fact, that the Judge, by his education and position, was better skilled in the law than themselves as the general rule, and might be looked to by them as a reliable and proper adviser; still, ho should have added, that though, according to his view of the law, the prisoner might be guilty; yet, if they took a view of that law different from himself and deemed the prisoner innocent, they had the legal right so to find him.
[13.] The charge of the Court, in our opinion, was otherwise defective, and may have been prejudicial to the rights of the prisoner.
The Court instructed the Jury, among other things, that “if the prisoner raised and pointed the loaded gun at deceased, within a distance which the gun would carry, this act was an assault, and the deceased was justified in making resistance. That if the prisoner presented a loaded gun at the deceased, [514]*514•within distance that the gun would carry, deceased was justified in throwing a brick-bat at the prisoner, and the throwing-of said brick-bat cannot be urged as any mitigation of the prisoner’s conduct in continuing the difficulty. If, in such case, the prisoner presented a loaded gun with evil intention, provided it was done with malice aforethought, and the deceased threw a brick-bat at him, and then the prisoner shot him, it is murder. Such a case shows that the prisoner begun the difficulty, and the deceased did no illegal act in throwing the brickbat.”
Taking this part of the charge as a whole, we are satisfied that it was of a character too much to limit the Jury in determining whether or not this crime was murder or voluntary manslaughter.
Mr. Loring, a witness for the State, testified that after the prisoner had presented his gun at the deceased, and had taken it down at the instance of some of the by-standers, the dece- • dent said to him, “ if you raise that gun' again, I will throw a brick-bat at you, tho prisoner raised his gun again, and deceased threw the brick-bat at him, and then deceased jumped over the hack” of bricks, &c. Again he says : “when prisoner first put the gun to his face, deceased was standing in the crowd ; when deceased threw the brick-bat at prisoner he jumped over the hack, and was in the act of picking up another brick, when prisoner walked round the end of the hack, fifteen or twenty feet, and shot him,” &c.
Now let us suppose, that after the prisoner had presented his gun at the decedent, even though he had done so with malicious intent to shoot him, he had desisted at the instance of the bystanders, and would not again have pointed the same at decedent or have fired on him, if the latter had not said what he did, and had not thrown the brick-bat.
We will see from the above statement, that it was possible-the prisoner might not again have presented his gun, but for wliat he may have regarded as tho bantering words of tho decedent, nor have fired at him, but for the throwing of the brickbat. If so, tho crime may have been no more than voluntary-[515]*515manslaughter. This was clearly possible; and yet, the charge of the Court assumed, that if the prisoner had thus, in the outset, presented the gun with malicious intent, notwithstanding what followed, the killing was murder.
We mean to express no opinion upon the evidence. We do not wish to be understood as intimating that this crime did not amount to murder. We only desire to say, that it was the province of the Jury to determine this (they might possibly have found the same verdict, if the charge had been correct in this respect) and that they may have been prevented by the charge of the Coimt from giving due weight and consideration to circumstances, the effect'of which, on their minds, might have been to show that the prisoner would not have fired on the decedent when he did, if he had not been provoked by the language and conduct of the former; and that it was possible they might have regarded the throwing of the brick-bat as such an assault as would have reduced the crime from murder to manslaughter.
Let the judgment he reversed.