IIandy, J.:
The plaintiff in error was indicted and convicted, in the court below, of the murder of John Frieze.
Exceptions were taken upon the trial to various rulings of the court against the accused; and after the verdict of conviction, a motion was made by him for a new trial, upon many grounds; which motion having been overruled, a bill of exceptions thereto was taken, and the case is brought here by writ of error.
Numerous errors were assigned, founded both upon the rulings in the court below, and upon other objections taken to the record. The questions thus raised we will proceed to consider.
The first error assigned is, that the indictment is insufficient in substance to support the conviction.
The indictment charges “ that Tyra G. Newcomb, late of said county, laborer, on the 16th day of July, in the year of our Lord one thousand eight hundred and fifty-eight, in the county of Tishomingo aforesaid, did feloniously, wilfully, and of his malice aforethought, kill and murder John Frieze, against the form of the statute in such case made and provided, and against the peace and dignity of the state,” &o. It is framed upon the [1316] provisions of article 265 of the Revised Code, 616, that “ in an indictment for homicide, it shall not be necessary to set forth the manner in which, or the means by which, the death of the deceased was caused, but that it shall be sufficient to charge, in an indictment’ for murder, that the defendant did feloniously, wilfully, and of malice aforethought, kill and murder the deceased.
It is not denied that the indictment is in conformity to these provisions, but it is insisted that the provisions are inconsistent with the 10th section of article 1 of the constitution of this state, which secures to a party accused by criminal prosecution the right “ to demand the nature and cause of the accusation.” It is, however, objected, in behalf of the state, that the alleged error cannot be considered here, inasmuch as no objection to the indictment was taken in the court below, and that the party is precluded from raising it here by the provisions of art. 1 of the Code, 513. If the error here assigned were upon matter of form, or even upon such matter of substance as the accused might waive, either expressly, or by failure to take advantage of it at the proper time and in the proper mode, in the court below, the objection to entertaining it here would prevail under the rule declared by the statute. But the error insisted upon goes to the very essence of the offense. It is that the indictment is invalid, because, in law, it charges no offense against the accused. If this position be correct, it is manifest that he could not waive the insufficiency of the indictment, by neglecting to raise any objection to it in the court below, so as to render a conviction rendered upon it valid; for that would be, by mere silence, to give legal validity to a criminal charge against him, when the indictment contained no such legal charge. On the contrary, the concluding clause of the article of the statute referred to plainly shows that it was deemed necessary that “ the offense should be substantially described ” in the indictment, and that a defect in that respect was not intended to be embraced in the provisions of the statute.
: Is the statute, then, authorizing this indictment, in violation of the right of the accused to be informed of “ the nature and cause ” of the accusation against him ? We think not. He is [1317] charged in the indictment with murder,-wilfully, feloniously, and of malice aforethought. This shows the “ nature ” of the accusation. The means'by which the act was committed do not pertain to the “ nature ” of the accusation, nor are they properly the “ cause ” of the charge. "When he is charged with mxirdering John Frieze, both the nature and cause of the accusation brought against him are made known to him sufficiently to enable him to know the particular offense with which he is charged, and to prepare to show his innocence, his excuse, or justification. The offense is particularized, so that if he should be acquitted, he will be enabled to plead the acquittal in bar of a subsequent indictment for the same offense: for, from the nature of the charge, the offense could be committed but the once; and if he was once acquitted upon the general charge of murdering John Frieze, upon settled principles, that would be an ample defense to any subsequent charge for the murder of him, however made, or upon whatever evidence it might be attempted to be sustained.
"We do not, therefore, think that the means, mode, or circumstances of the commission of the crime of murder are necessarily embraced in “ the nature and cause of the accusation,” in the sense of the constitution, and of which the accused has the right to demand information in the indictment. They are rather matters of evidence to establish the charge. The forms of proceeding in which these particulars were observed have been established by long usage; but, for the most part, they are but modes of proceeding which the legislature has the undoubted power to change or modify. That power they have thought fit to exercise in the enactment of the statute under consideration, and we are satisfied that it does not infringe any substantial right intended to be secured to the accused by the constitution. This ground of error is, therefore, not tenable.
The second error assigned is the exclusion of certain declarations of the accused, brought out upon cross-examination of the state’s witness, Brown, which were, in substance, that shortly before the killing took place, and while the witness and the accused were sitting at the place where it occurred, and before the deceased came to the place, the accused said to Brown, that he [1318] had been told by others that if they were in his place, and had been treated by the deceased as the accused had been, they Avonld kill Frieze; but that he had no harm against him, and would not hurt a hair of his head; and this was just before the deceased came up to the place where he was shortly afterwards shot by the accused.
These declarations, it is contended, were part of the res gestos, and should, therefore, have been admitted in evidence in behalf of the accused.
It appears that they were made in the absence of the deceased, and when, according to the positions taken in the defense, the accused did not suspect that the scene which shortly afterwards occurred would take place. They were, • therefore, neither part of, or directly connected with, the killing, hut were mere independent statements of the party in regard to his then state of mind towards the deceased. In order to render declarations evidence in behalf of the party making them, they must he made contemporaneously with the main fact which they are offered to illustrate, and while the transaction which is proposed to he explained or characterized.1 Holman v. Murdock, 34 Miss., 286; Meek et al. v. Perry, at October Term, 1858, not yet reported. When so made, they become facts, which are identified with the transaction, and are proper to he considered in determining its true character. But when made before the transaction between the parties is entered upon, they are the mere declarations of the party making them, and are not admissible in evidence in his behalf. To admit such declarations in evidence in his behalf would he to allow a party to make evi[1319] dence for himself, and, if believed, to disprove the imputation of malice, clearly apparent from the circumstances. This would be against all principle, and productive of great evil. Such is the character of the declarations in question, and the court properly excluded them.
The third assignment of error 'relates to the exclusion of the testimony offered in behalf of the accused, and set forth in the second bill of exceptions. This testimony was, in substance, that about six weeks or two months before- the killing, the deceased had commenced a quarrel with the accused, during which the deceased assaulted the accused, and struck him one or two severe blows on the head with a loaded cane, which felled him to the ground, inflicting a severe wound on his forehead. That the witness and others helpéd the accused up, and took him to water in a branch which was near, to wash off the blood; and the accused stepped into the water, and the witness pulled him back, and told him to stop and wash off the blood; and he asked how the blood came on him, and when told that deceased had struck him, he inquired what he had struck him for, as he had nothing against the déeeased. And in order to show the relevancy of this testimony, other witnesses were offered, to prove that the deceased said on that day, that he expected he had killed the accused, and would have • to leave the country; that if he had not, he would kill him. That he afterwards said that he had not killed the accused, but would do so if he ever crossed his path. It was admitted by the accused that these threats of the deceased were not communicated to him before the killing. This evidence was excluded, except that part of it which related to the assault and beating with the cane, and the conduct and conversation of the accused when taken to the water, and while the witness was washing off the blood; and this part of the testimony was allowed to go to the jury, in order to show the condition of the mind of the accused, and upon the point of his sanity.
It is insisted that the testimony thus rejected was competent to show the intent with which the killing was done, by presenting to the consideration of the jury the cruelty and ferocity of the conduct of the deceased in assaulting and beating the ac[1320] cused, showing the character of the deceased, and the just apprehension of the accused at the time of the killing, that he was then in danger of his life, or of great bodily harm from the deceased. But this view is wholly untenable. It does not appear from the evidence that the deceased made any hostile demonstration against the accused at the time of the killing, nor even that the threats, which he had previously made against the accused, were known to the accused. The latter had no reason to believe that the feelings of hostility, which caused the deceased to assault and beat him on a previous occasion, still continued in his mind, much less that there was danger of a deadly assault upon him by the deceased at the time of the killing. The conduct of the deceased on the previous occasion was, therefore, not a sufficient ground to justify the accused in acting on the belief that his life was in danger, at the hands of the deceased, at the time of the killing. It is well said by Chief Justice Buffin: “ The belief that a person designs to kill me -will not prevent my killing him from being murder, unless he is making some attempt to execute his design, or, at least, is in an appaz’ent situatiozz to do so, azzd thereby induces zne reasozzably to think that he intends to do it imzzzediately.” State v. Scott, 4 Iredell’s Law, 415. In this case the accused could not reasonably have acted on such a belief at the tizne; for the deceased was unarmed, and does not appear to have been in possession of any instrument with which to make a deadly assault, azzd the accused was armed with a gun and pistol, aizd was so located towards the deceased that he could readily have used his arms in case of any hostile demonstration on the part of the deceased.
The effect of this evidence, had it gone to the jury, might have been, thezz, to operate in justification of the killing by the mez’e fact that the deceased had severely beaten the accused some six weeks or two znonths previously, which would have been clearly incompetent. The testimony zvas, therefore, propez’ly excluded.
The fourth error assigned is the action of the court in permitting the question to be propounded to the witness of the accused, lira. Newcomb, upon cross-examination, whether she did not say to the accused, at the wheat harvest of 1858, at the din[1321] ner-table at her house, and in the presence of J. Lambert, that if the accused “ did not Mil John Frieze she would not own him as her son.” This question was propounded with the avowed purpose of producing Lambert to testify that she had made such statement, if she denied it. It was not objected to by the witness, but by the accused, on the grounds — 1st. Of irrelevancy ; and, 2d. Of incompetency, as a foundation to impeach the witness’ credit; and, 3d. Because it might tend to criminate the witness. The court overruled the objection, and «directed the witness to answer, unless she claimed her privilege not to answer it on the ground of its tending to criminate her. To this ruling exception was taken, and the witness then answered that she did not make the statement.
IJpon the first ground of exception, it is insisted that it was irrelevant to the issue on trial, whether the witness made the statement alluded to br not. But the question was put for the avowed purpose of introducing another witness to testify that she had made the statement, if she denied it. The purpose was to discredit her testimony, or to destroy or impair its weight before the jury. It was certainly material in determining the issue on trial to ascertain whether the witness, on whose testimony the defense of the accused mainly rested, was entitled to credit, or was under such a state of feeling and bias in relation to the matter involved in the trial, and which gave rise to it, as to impair or destroy the weight to be given to her testimony. Such an inquiry, therefore, is not irrelevant to the issue. If the witness answer in the affirmative a question whether he has not made statements or done acts in relation to the matter involved in the issue, going to show a strong feeling or bias on his part, touching the main fact, which gave rise to the trial, and in justification or condemnation of the party on trial, that fact would certainly be proper to be weighed by the jury, in considering the weight to be given to his testimony. But if the witness, on examination, deny the statements about which he is questioned, if it be plainly connected with the matter in issue, it appears to be just that it should be proved by other witnesses that he has made the statements or done the acts attributed to him, and this for the double purpose of showing his bias and undue feel[1322] ing in the matter, and of contradicting and discrediting Mm. If the matter inquired of be disconnected with tbe fact involved in the issue, and collateral to it, it is well settled that tbe answer of tbe witness cannot be contradicted by other testimony, because that would lead to multiplicity of issues to be determined on tbe trial. But it is equally well settled, that it is competent to contradict tbe testimony of a witness who, upon bis examination, bas denied that be bad used expressions or done acts in relation to tbe matter involved in tbe issue, showing that be is under a bias or undue feeling against tbe opposite party involved in tbe transaction which forms tbe subject-matter of tbe issue; as that be bas expressed feelings of revenge towards him, or stated that be would give evidence against him.1 1 Stark. Ev., 190 (7th Amer edit.); Rex v. Yervin, 2 Camp., 638; Att’y General v. Hitchcock, 1 Wels. Hurl. & Gordon, Exchequer Rep., 90; Atwood v. Welton, 2 Com. Rep. (N. S.), 66. Such an inquiry is important to show tbe state of mind and feelings of tbe witness towards tbe opposite party involved in tbe issue, and hence it is relevant to tbe issue, not as having a direct effect upon tbe issue, but in order that tbe jury may determine bow far be is to be believed in bis testimony as to tbe facts directly connected with tbe issue. Attorney General v. Hitchcock, and Atwood v. Welton. It is a general rule, that anytMng legitimately tending to show that a witness is under undue feeling or bias for or against a party to an issue in which be testifies, may be shown to the jury, to enable them to graduate tbe true weight of bis testimony; and no just reason is perceived why this rule is not applicable to statements made, or acts done by him, in relation to tbe subject-matter of tbe issue. If be denies such statements or acts, and they are shown to be true as alleged,' it appears manifestly to be proper, in tbe ascertainment of tbe truth of the issue, both that bis bias and undue [1323] feeling should be proved, and that his credit should be impeached by' proving the falsehood of his denial. And this is especially true where, as in this case, the witness bears a near relationship to the party for whom she testifies, and her testimony in his behalf is in conflict with that of other witnesses in the case.1
As to the propriety of first interrogating the witness whether he made the statements, thereby giving him an opportunity to meet the inquiry with a full knowledge of its object and extent, the rule appears to be well settled in favor of that practice, upon principles of justice to the witness who is proposed to be contradicted. 2 Phill. Ev. (Cowen and Hill’s notes) 959, 4th Am. ed.; 1 Greenl. Ev., § 462.
This disposes of the first and second grounds of exception taken to the question.
The third ground of exception is that the question might tend to criminate the witness, by implicating her in the charge of killing the deceased.
If this objection had been made by the witness, it might have exempted her from answering the question. But this is the privilege of the witness, given him by the law, and secured to him by the constitution, for his own protection. It was the duty of the court to apprise him of his privilege — and that was done here — but not to prevent her from answering if she thought fit to answer, after being informed that she had the right to decline an answer.2 1 Greenl. Ev., § 451. And counsel will not be permitted to make the objection. Ib.
It is said that the refusal to answer, because of the tendency of the question to criminate the witness, would cast disparagement upon her, and have the same prejudicial effect upon her credit as if she admitted the charge involved in the question; and hence, that the question ought not to be permitted. But the courts are always careful to prevent this effect, by telling the jury that no such inference can be drawn from the witness’ declining to answer. 2 Phill. Ev., 950, and cases there cited. [1324] The objection under consideration has sometimes been sanctioned in England; but the contrary rule, holding that the question may be asked, is well settled there, and is considered as established law in the courts of this country. 1 Green. Ev., § 451, and cases there cited; Southard v. Rexford, 6 Cow., 254; United States v. Craig, 4 Wash. C. C. R., 729; Torre v. Summers, 2 Nott & McCord, 267; Treat v. Browning, 4 Conn., 408.
This rule does not appear’ to be affected by the provisions of the constitutions of the United States and of this state, that no party shall be compelled to give evidence against himself in a criminal prosecution. For he is not “compelled” to testify, under the rule as above stated, but may always protect himself by claiming his privilege; and this is the rule held by the courts in this country, notwithstanding the immunity secured to such persons by the Constitution of the United States, and of the states in which this rule has been held.
We, therefore, think that this question, as put to the witness, was properly allowed by the court; and upon the same reasons, we think that the court acted correctly in admitting the testimony of the witness Lambert, to prove that Mrs. Newcomb had made the statement mentioned in the question put to her, and which she denied having made. And this disposes of the fourth and sixth assignments of error.
The fifth error assigned, relates to the exclusion of threats alleged to have been made by the deceased against the accused at some time before the killing, not specified, but which were not communicated to the accused. This ruling was clearly right, as is above shown upon the third assignment.
The seventh assignment is taken to alleged errors in the several instructions granted at the instance of the state.
We have carefully considered these instructions, and the objections which have been urged against them by the learned counsel of the plaintiff in error; but we are unable to perceive in them any error which would justify a reversal of the judgment. For the most part, they state rules of law which have repeatedly received the sanction of this court, so that they are [1325] not now subjects for discussion. It is, therefore, needless to state reasons to show their correctness.
But it is proper to notice the objection taken to the eighth instruction. In the two instructions preceding that, the court instructed the jury, that mere weakness of mind would not excuse a party in the commission of a criminal act, if he had capacity and reason sufficient to enable him to distinguish between right and wrong in that act; and that the law presumes every person of the age of discretion to be of sufficient mental capacity; and to defeat that presumption, the mental imbecility of the party must be affirmatively established by positive or circumstantial evidence. The eighth instruction then states, that “ it is not sufficient to show that such a state of mind was possible; nor is it sufficient if the proof merely showed it to have been probable.”
The objection taken to this instruction is, that it is sufficient to warrant the acquittal of a party indicted for a criminal act, that the evidence renders it probable that he is innocent; and upon the same principle, when the evidence leaves it merely ■probable that a party is deficient in mental capacity, that he should be held as mentally incapable of committing a crime, and, therefore, be acquitted. But this is founded on a misapprehension of the rules of presumption, which are quite different in the two cases. In the former, the law presumes every man innocent until his guilt is established by proof; and hence, if the evidence renders it probable that he is innocent, it cannot be said that his guilt is proved, and therefore the presumption of innocence stands, and he must be acquitted. But in the latter, the presumption is that aman is of sane mind; and unless that presumption be removed by proof, it must likewise stand. Hence, if it be established by legal evidence, that he has committed an act criminal in law, the presumption of law being that he was of sane mind, that presumption is not overcome by the mere probability that he was insane, but will stand until overthrown by evidence; and, therefore, mere probability of insanity cannot prevail over the presumption of sanity, so as to work the acquittal of the party on the ground of insanity. Accordingly, it is laid down, that in order to [1326] establish a defense on the ground of insanity, it must be clearly proved.1 2 Green-1. Ev., § 373.
The instruction, therefore, though somewhat objectionable in its phraseology, contains a correct. rule of law, . and is. not obnoxious to the objection urged against it.
The eighth error assigned is, that the motion for a new trial was improperly overruled.
The first ground here taken is; that the verdict was not supported by the evidence. If the jury gave full credit to the two witnesses on the part of the state, who witnessed- the killing, over the testimony of Mrs. Newcomb, the principal witness for the accused, it is clear that the evidence warrants the verdict. Several objections are urged against the credit and weight due .to those witnesses, by reason of improbabilities, and certain discrepancies in minor things, stated by them. But these were ■matters proper to be considered and determined by the jury; and we cannot say that they erred in giving weight and credit .to the testimony of those witnesses over that of the principal witness for the accused.
The second ground is the affidavits of one physician and of the jailor, in relation to the state of mind of-the accused at the time of the trial, and tending to show that he was in-a condition of mental imbecility at the trial, and immediately afterwards. These affidavits appear to have been made shortly after the .verdict • was rendered. They relate to a ground of defense which was set up on the trial, and are at least but cumulative evidence upon the question of sanity; and it does not appear that the evidence was discovered after the trial, or that it was not withifi the power- of the party at the time of the trial. TJpon well-settled rules, therefore, these affidavits were insufficient to support the motion for -a new trial.2 But, in addition to this, [1327] the facts stated in the affidavits, which are of course ex pcvrte, appear to be in the highest degree improbable, and inconsistent ■with the condition hi which the accused must have appeared, pending the trial. For if the condition of his mind had been, at the time of the trial, such as is stated in the affidavit of the jailor, it is unaccountable tbat no effort was made on the trial to prove it, and make it a special ground of defense.
Thejast error assigned is founded upon the special venire faeias. But this cannot be noticed, because the venire faeias is not properly a part of the record; and no objection upon tbe ground here stated was taken in the court below.
After a careful examination of tbe record, and due consideration of the able and ingenious argument of the counsel in behalf of the plaintiff in error, we are satisfied that there is no error in the record which would justify a reversal of the judgment; and it must be affirmed.