Speer, Justice.
Plaintiff in error was indicted for the offence of murder, of which he was convicted by the jury. He made a motion for a new trial, which was overruled, and he excepted.
(1.), (2.) The first and second grounds of the motion were, the verdict was contrary to evidence and to law and the charge of the court.
(3.) Because there were not 48 jurors empanelled and put upon prisoner. It appearing there were 24 jurors of the regular panel and 24 tales jurors. The name of M. D. Reid appearing as number three of the regular panel, the solicitor general announced there was no such man on the jury; the man on the jury was named Newton D. Reid ; when his name was called in its order, the court asked counsel for defendant if they would consent that the court might decide the question ; they consented and the court set him aside. The jury was selected out of the balance of the panel.
[693]*693(4.) Because the court admitted a diagram of the scene of the homicide, as proved to be correct, in evidence before the jury.
(5.) Because the court admitted in evidence the bullets identified as those taken from the body of the deceased.
(6.) Because the court sustained the objection to the following question propounded by defendant’s counsel to William Allen, a witness: “What were your opportunities, and whether your opportunities would have been as good as any other person’s to have heard any threat made by Moon ?”
(7.) Because one of the jurors, D. P. Power, was at the inquest and witnessed the post-mortem examination, and saw the physician take out the bullets; that he expressed his opinion on the evidence and misled counsel for defendant, and because of his partiality and bias.
(8.) Because the court charged the jury as follows: “ If a deadly weapon is used to accomplish the killing, which is likely to produce death in the manner the proof shows it was used, the law presumes the person using it intended to kill.”
(9.) Because the court charged the jury as follows: “ Express malice is that deliberate intention unlawfully to take away the life of a fellow-creature which is manifested by external circumstances capable o.f proof, such as lying in wait to do the act, threats, previous grudges, preparation for committing the act on the part of the slayer and acts of similar nature.”
(10.) Because the court charged : “Voluntary drunkenness is no excuse for crime, and will not of itself reduce a killing from murder to voluntary manslaughter or any grade of homicide. Yet, it is a fact, that may be proved and looked to, to ascertain and determine the state and condition of the defendant’s mind at the time, and to throw light on the inquiry as to whether there was malice or not on part of defendant, in determining as to whether or not [694]*694the homicide should be reduced from murder to a lower grade of homicide.”
(n.) Refusal to charge (request not in writing).
(12.) Abandoned on argument.
(13.) Because the court charged as follows: “ It is the rule that positive testimony is to be believed rather than negative testimony, even when the witnesses are equally credible, that is to say, where a witness says he saw a transaction take place, it is to be believed that the transaction took place, rather than to disbelieve that the transaction took place, because the witnesses say that the}' did not see it, though they had the same opportunity of seeing it.”
(14.) Because, on motion for a new trial, state’s counsel offered and read in evidence the affidavit of G. W. Merrell, which was not sworn to, and defendant’s counsel objected to the same; the court admitted the same in evidence on the ground that the affidavit following was sworn to.
1. The record shows that the panel of jurors put upon the prisoner consisted of twenty-four jurors of the regular panel and twenty-four tales jurors. So that the error assigned in the third ground of the motion is not sustained by the record. It is true, that one of the jurors upon the regular panel was entered by the name M. D. Reid, instead of his real name, Newton D. Reid. It was the duty of the prisoner, when the panel of jurors was put upon him, to challenge the array for any cáuse going to show that it was not fairly or properly impanelled, or ought not tó be put upon him. So that the court could then determíne the sufficiency of the challenge at once. Code, §4680.
But he having failed to do this, if it should appear that there was a full panel answering to their names put upon the prisoner, it is too late to object for this cause to the array, because one of the juror’s names has been incorrectly entered on the list, and which is discovered thereafter.
[695]*695It has been held by this court that it is no ground for new trial that .the panel put upon the prisoner does not number fo.rty-eight, if he does not object at the time the panel is put upon him. 22 Ga., 546. If there be not a full panel the challenge should be made to the array. 27 Ga., 287.
The prisoner having consented that the court might decide the question of the competency of the juror appearing under a misnomer, hís decision as trior in a crim.inal case, upon the question of fact submitted to him as such, is final and conclusive; and cannot be ground of motion for new trial. 27 Ga., 287, 289, 294; 47 Ib., 598.
2. There was no error in admitting the diagram drawn to illustrate the scene of the homicide. Witnesses familiar with the locality testified as to its correctness, and If the witnesses for the defence did not agree as to its accuracy with the witnesses for the-state, it was the privilege of the counsel for the prisoner to have one prepared in accordance with their testimony, and submit the same to the jury in rebuttal. Neither do we see any objection to the diagram, “ because the part of it was drawn in red ink as suggestive of the bloody deed, and as .calculated to inflame the minds of the jury.” The scene and circumstances attending this terrible tragedy in the simple recital of the eye-witnesses is presented in colors of deeper stain than the mere sketches of red lines or other figures upon the diagram exhibited.
3. The bullets taken from the body of the deceased on a post-mortem examination, identified as they were, were also admissible. They were the voiceless, yet nevertheless significant, evidences of the intent that pfompted the slayer when he fired 'the fatal shot.
4. The question objected to and ruled out by the court as set forth in the sixth ground of the motion, propounded to the witness, Allen, was incompetent, since it sought from the witness-his opinion and conclusions of facts about which he had not testified. Code, .§3867. Hopkins’Penal Laws, 633.
[696]*6965. As to the competency of the juror, Power, on the ground that he was at the inquest and witnessed a part of the post-mortem examination, and also that he had expressed himself soon thereafter “that he would hang the prisoner if on the jury;” — while it may be true he was at the inquest, there is no proof in any of the affidavits submitted to impeach his competency as a juror that he heard one word of the testimony taken on said inquest.
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Speer, Justice.
Plaintiff in error was indicted for the offence of murder, of which he was convicted by the jury. He made a motion for a new trial, which was overruled, and he excepted.
(1.), (2.) The first and second grounds of the motion were, the verdict was contrary to evidence and to law and the charge of the court.
(3.) Because there were not 48 jurors empanelled and put upon prisoner. It appearing there were 24 jurors of the regular panel and 24 tales jurors. The name of M. D. Reid appearing as number three of the regular panel, the solicitor general announced there was no such man on the jury; the man on the jury was named Newton D. Reid ; when his name was called in its order, the court asked counsel for defendant if they would consent that the court might decide the question ; they consented and the court set him aside. The jury was selected out of the balance of the panel.
[693]*693(4.) Because the court admitted a diagram of the scene of the homicide, as proved to be correct, in evidence before the jury.
(5.) Because the court admitted in evidence the bullets identified as those taken from the body of the deceased.
(6.) Because the court sustained the objection to the following question propounded by defendant’s counsel to William Allen, a witness: “What were your opportunities, and whether your opportunities would have been as good as any other person’s to have heard any threat made by Moon ?”
(7.) Because one of the jurors, D. P. Power, was at the inquest and witnessed the post-mortem examination, and saw the physician take out the bullets; that he expressed his opinion on the evidence and misled counsel for defendant, and because of his partiality and bias.
(8.) Because the court charged the jury as follows: “ If a deadly weapon is used to accomplish the killing, which is likely to produce death in the manner the proof shows it was used, the law presumes the person using it intended to kill.”
(9.) Because the court charged the jury as follows: “ Express malice is that deliberate intention unlawfully to take away the life of a fellow-creature which is manifested by external circumstances capable o.f proof, such as lying in wait to do the act, threats, previous grudges, preparation for committing the act on the part of the slayer and acts of similar nature.”
(10.) Because the court charged : “Voluntary drunkenness is no excuse for crime, and will not of itself reduce a killing from murder to voluntary manslaughter or any grade of homicide. Yet, it is a fact, that may be proved and looked to, to ascertain and determine the state and condition of the defendant’s mind at the time, and to throw light on the inquiry as to whether there was malice or not on part of defendant, in determining as to whether or not [694]*694the homicide should be reduced from murder to a lower grade of homicide.”
(n.) Refusal to charge (request not in writing).
(12.) Abandoned on argument.
(13.) Because the court charged as follows: “ It is the rule that positive testimony is to be believed rather than negative testimony, even when the witnesses are equally credible, that is to say, where a witness says he saw a transaction take place, it is to be believed that the transaction took place, rather than to disbelieve that the transaction took place, because the witnesses say that the}' did not see it, though they had the same opportunity of seeing it.”
(14.) Because, on motion for a new trial, state’s counsel offered and read in evidence the affidavit of G. W. Merrell, which was not sworn to, and defendant’s counsel objected to the same; the court admitted the same in evidence on the ground that the affidavit following was sworn to.
1. The record shows that the panel of jurors put upon the prisoner consisted of twenty-four jurors of the regular panel and twenty-four tales jurors. So that the error assigned in the third ground of the motion is not sustained by the record. It is true, that one of the jurors upon the regular panel was entered by the name M. D. Reid, instead of his real name, Newton D. Reid. It was the duty of the prisoner, when the panel of jurors was put upon him, to challenge the array for any cáuse going to show that it was not fairly or properly impanelled, or ought not tó be put upon him. So that the court could then determíne the sufficiency of the challenge at once. Code, §4680.
But he having failed to do this, if it should appear that there was a full panel answering to their names put upon the prisoner, it is too late to object for this cause to the array, because one of the juror’s names has been incorrectly entered on the list, and which is discovered thereafter.
[695]*695It has been held by this court that it is no ground for new trial that .the panel put upon the prisoner does not number fo.rty-eight, if he does not object at the time the panel is put upon him. 22 Ga., 546. If there be not a full panel the challenge should be made to the array. 27 Ga., 287.
The prisoner having consented that the court might decide the question of the competency of the juror appearing under a misnomer, hís decision as trior in a crim.inal case, upon the question of fact submitted to him as such, is final and conclusive; and cannot be ground of motion for new trial. 27 Ga., 287, 289, 294; 47 Ib., 598.
2. There was no error in admitting the diagram drawn to illustrate the scene of the homicide. Witnesses familiar with the locality testified as to its correctness, and If the witnesses for the defence did not agree as to its accuracy with the witnesses for the-state, it was the privilege of the counsel for the prisoner to have one prepared in accordance with their testimony, and submit the same to the jury in rebuttal. Neither do we see any objection to the diagram, “ because the part of it was drawn in red ink as suggestive of the bloody deed, and as .calculated to inflame the minds of the jury.” The scene and circumstances attending this terrible tragedy in the simple recital of the eye-witnesses is presented in colors of deeper stain than the mere sketches of red lines or other figures upon the diagram exhibited.
3. The bullets taken from the body of the deceased on a post-mortem examination, identified as they were, were also admissible. They were the voiceless, yet nevertheless significant, evidences of the intent that pfompted the slayer when he fired 'the fatal shot.
4. The question objected to and ruled out by the court as set forth in the sixth ground of the motion, propounded to the witness, Allen, was incompetent, since it sought from the witness-his opinion and conclusions of facts about which he had not testified. Code, .§3867. Hopkins’Penal Laws, 633.
[696]*6965. As to the competency of the juror, Power, on the ground that he was at the inquest and witnessed a part of the post-mortem examination, and also that he had expressed himself soon thereafter “that he would hang the prisoner if on the jury;” — while it may be true he was at the inquest, there is no proof in any of the affidavits submitted to impeach his competency as a juror that he heard one word of the testimony taken on said inquest. The juror himself most positively denies by his affidavit that he saw the crime committed, or heard any part of the evidence delivered on oath,, or had from either of these causes formed and expressed any opinion as to the guilt or innocence of the accused ; but states that his mind was brought to a conclusion of prisoner’s guilt after he was sworn and heard all the evidence. That he had no bias or prejudice resting on his mind. That he had spoken freely in the presence of the prisoner’s counsel before he was taken on the jury, and warned them that he was in favor of capital punishment; that he told them if he was taken on the jury his mind was impartial — if innocent he would acquit defendant, if guilty convict him, and that he never expressed himself to any one as to the guilt of the prisoner except in that qualified way. It is a well settled rule that a juror whose integrity and competency is thus assailed after verdict may vindicate himself by affidavit. 7 Ga., 143. And when the assault is thus made, it is but just that the juror may be heard in his own vindication, and when so heard the court will stand in the position of a trior, and if he should pronounce him, from all the proofs submitted, a competent juror, it will be no sufficient ground for new trial, unless there was decided error in the judgment so pronounced. 7 Ga., 143; 15 Ib., 223. Even loose remarks made by a juror before he is sworn work no disqualification if they are explained after trial by affidavits and he is shown to be impartial. 60 Ga., 258. Moreover, when the competency of a juror for partiality is assailed after verdict, the burthen is upon the one who attacks him ; all [697]*697the presumptions of law are in favor of his competency. 18 Ga., 343; 19 Ib., 123.
After carefully examining the affidavit submitted to the court below on this issue, and when the record shows that the juror freely communicated his views to the counsel for prisoner several days before the trial, in full accord and harmony with those set forth in his affidavit, which is not denied by the counsel, but sustained by the affidavits of other witnesses who were present, we are not prepared to hold that the court below erred in overruling this ground of the motion. On such an issue of competency of a juror, great deference is properly due from a reviewing court to a judge before whom such a trial is had, and who sees or hears the witnesses and looks upon the surroundings of such an investigation.
6. The charge of the court upon the subject of the drunkenness of the prisoner, as complained of in the eleventh ground of the motion,, was fully as favorable to defendant as he could expect. The rule laid down : “That drunkenness could be looked to, to ascertain and determine the condition and state of the defendant’s mind, and thus throw light upon the inquiry whether there was malice on .the part of the defendant in the perpetration of the act charged,” was fully as far as any decision on this point has extended in behalf of a party on trial. Malone vs. State, 49 Ga., 211; and even this has been since questioned by more recent decisions. 59 Ga., 174.
7. As to that portion of the charge of the court complained of in the eighth ground of the motion, to-wit: “ If a deadly weapon is used to' accomplish the killing which is likely to produce death, in the manner the proof shows that it was used, the law presumes the person using it intended to kill.” The objection made to this portion of the charge is that the court therein expressed an opinion on the proof submitted.
Wrested from the context of the charge, it would at first blush seemingly bear such a construction. But these same [698]*698Words, used just as here set forth in the case of Hanvey vs. State, at the present term, were held by this court not to be error in a charge as there given. The court was instructing the jury generally as to legal presumptions arising or flowing from certain acts. The judge said: “If a deadly weapon is used to accomplish the killing which is likely to produce death, in the manner the proof shows it was used, then the law presumes,” etc. By this he instructed the jury that the mere use of the deadly weapon .to accomplish the killing would not raise the presumption the accused intended to kill; but one further fact must appear, he must use it in a manner also likely to produce death. The proposition was a two-fold one: first, the deadly weapon must be used with intent to kill, and secondly, in a mannef- to kill. To strike one a blow with a knife (a deadly weapon) closed, would not raise a legal presumption of intention to kill, and yet one might sO sfrike wishing to hill. Yet If he struck with a knife open, then it would be used in a manner to kill, and being with a deadly weapon, the legal presumption would be, he intended to kill. Up to this part of the charge no application of the general principles he was submitting had been made to the case at bar, and therefore no reference to the proof in the case could have been intended aá complained of in this ground of the motion.
8. We see no error in the charge on the effect of positive and negative testimony, as it is set forth and assigned as error in the thirteenth ground of the motion, but the same was correct as given. 14 Ga., 55, 62; 27 Ib., 649; 42 Ib., 474; 12 Ib., 213.
9. The charge complained of in the ninth ground is irt the language of the Code, ahd was not error.
10. There was no error in refusing the charge asked for in the eleventh groünd; the charge on the subject of drunkenness was given as fairly and liberally as the law warranted.
11. The twelfth ground is abandoned.
[699]*69912. There was no error in considering the affidavit of Merrell on the motion, it was practically verified by the superadded affidavit attached, and which was sworn to by him.
13. Having thus disposed of all the grounds except those statutory grounds of the verdict being contrary to law and evidence, etc., we do not deem it necessary to enlarge upon these. The picture of this bloody drama,, as presented by this record, reveals no ground of palliation for the enormity of this offence. If the testimony is reliable, this murder was committed with a premeditation and preparation that makes it wilful murder. The gun is purchased ; deadly loads of bullets procured, threats-made, and purposes disclosed, until the tragedy is consummated by deliberately shooting'his victim as he was-retiring from him unconscious of his peril and unaware of’ offence given. If this is not murder, ,the crime is unknown, to the criminal jurisprudence of our state.
Judgment affirmed.