By the Court, Beardsley, J.
The prisoner was indicted in the county of Richmond for the alleged murder of one Emeline Houseman, and was tried on that indictment at a late circuit court held in the city and county of New-York, and found guilty. On the trial various exceptions were taken by the prisoner’s counsel, upon points of law which arose and were decided by the circuit judge. These exceptions have been fully and ably argued and have been examined and considered with that care and attention which such a case must ever demand, and with that solicitude and anxiety to arrive at a correct result which the situation of the prisoner and the cause of public justice cannot fail to inspire. I have thus been brought to a conclusion-upon the motion for a new trial, satisfactory tó my own mind, and which is believed to be in accordance with well settled legal principles; and I will proceed to state the views which seem to me appropriate to the questions raised, and the result at which I have arrived.
The only points made arise on a bill of exceptions, and consequently are mere questions of law. Some of these questions grew out of challenges to persons drawn as jurors.; others are founded on the supposed illegal admission or rejection of evidence, and others upon the instructions of the judge to the jury, and his refusal to give such instructions as were asked. I will examine these questions separately."
1. The law upon the general subject of the challenge of jurors, presents an extensive field for research, hut which it is quite unnecessary, in this case, fully to explore. Here was no challenge to the array by either party, nor did the prisoner interpose a single challenge to a juror for principal cause. All the challenges, on her part, were to the polls for favor, and it is the law applicable to such challenges which is here particularly in question.
A principal cause of challenge to a juror “ carries with it, prima facie, evident marks of suspicion, either of malice or favor,” and is sufficient of itself to exclude the juror, without leaving any thing to the conscience or discretion of triers or of the court. Where therefore the fact alleged as ground for a [305]*305principal challenge, is found to be true, and is such as to raise the legal presumption of bias, the court has no discretion to admit or reject the juror, but is bound ex debito justifies to set him aside. (3 Bl. Com. 363; 1 Inst. 156 b, 157 a; 1 Trials per Pais, 178.) Challenges to the polls for principal cause, should be entered on the record, so that questions of law arising thereupon; may be reviewed by writ of error or otherwise as the case may require. (Ex parte Vermilyea, 6 Cowen, 555; The People v. Vermilyea, 7 id. 108; Same v. Mather, 4 Wend. 239; Same v. Rathbun, 21 id. 545, 546.) But the challenges in this case were for favor, and not for principal cause. “ The challenge to the polls for favor, is of the same nature with the principal challenge propter affectum, but of an inferior degree. The general rule of law is that the juror should be indifferent; and if it appear probable that he is not so, this may be made the subject of challenge either principal or to the favor, according to the degree of probability of his being biassed.” (1 Cowen, 439, note.) Now the causes of favor, as is said by Lord Coke, “ are infiniteand where that which is alleged does not, in judgment of law, imply a disqualifying bias, it must be left to the conscience and discretion of the triers, upon hearing the evidence, to find the juror favorable or not favorable. The question for the triers is whether the juror is, as he assuredly should be, altogether indifferent, and if they fina he is not, it is their duty to reject him. (1 Inst. 157, b. 1 Chit. Cr. Law, 544,549, 4th Am. ed.; 1 Trials per Pais, 195.)
If the prosecutor of an indictment has been lately entertained at the house of the juror, this is cause of challenge to the favor. (1 Vent. 309 ; 3 Salk. 81; Trials per Pais 194, 204.)
• That the juror is a fellow servant with a party to the suit, goes to the favor. (1 Chit. Cr. Law, 544; 1 Inst. 157, b.; 1 Trials per Pais, 195.)
Actions pending between the juror and the party challenging, which imply malice, ill-will, or revenge, as slander, assault and battery or the like, are causes of principal challenge, otherwise they are but to the favor. (1 Inst. 157, b ; 1 Trials per Pais, [306]*306188, 194. The Earl of Shrewsbury’s case, Bulst. R. pt. 1, p. 10)
That a party is tenant to the juror goes to the favor; and so does the fact that the juror is indebted to the party. (Jenk Cent. 141; Vin. Ab. Trial G. d. 17; Odell v. Tyrrell, Bulst. R. pt. 1, p. 20.) On this principle a person who had endorsed a note to a bank, was held by triers not to be an indifferent juror, in an action to which the bank was a party. In reviewing and deciding that case, this court said, “ The general rule is that jurors must be omni exceftione majares. The application of this rule to each particular case, where the partiality is not apparent, must be left to the sound discretion of the triers. (3 Bac. Ab. 765.) The opinion of the court was on the admissibility not on the sufficiency of the evidence. They expressed no opinion to the triers. Although I am not prepared to say that the single circumstance of being an endorser of a note in a bank, would of itself support a challenge to the favor, yet it is easy to imagine that an endorser may have a strong bias on his mind. The paper may have been discounted for his benefit, he may have received particular favor from the bank, or the maker may have failed, and the endorser, without indulgence, may be injured, if not mined. May not circumstances like these make an impression on the mind of a juror and justify his exclusion ?” (Mechanics’ & Farmers’ Bank v. Smith, 19 John. 115,119.) “Challenges to the favor,” as was observed by the late Judge Gaston, of North Carolina, “ are where the matters shown do not, per se, demonstrate unindif ference, and therefore warrant it as a judgment of the law, but only excite a suspicion thereof, and leave it as a matter of fact to be found or not found, by the triers, upon the evidence.” “ And,” he adds, .“it seemeth to us that an' opinion, fully made up and expressed, against either of the parties, on the subject matter of the cause to be tried, whether in civil or criminal cases, is a good cause of frincifal challenge; but that an opinion imperfectly formed, or an opinion merely hypothetical, that is to say, founded on the supposition that facts are as they have been represented or assumed to be, do not constitute a [307]*307cause of principal challenge, although they may he urged by way of challenge to the favor, which is to be allowed or disallowed, as the triers may find the fact of favor or indifferency.” (The State v. Benton, 2 Dev. & B. 212, 213.)
The instances which have been stated, and the authorities referred to, are deemed sufficient to exemplify the saying of Lord Coke, that “ the causes of favour are infinite,” (1 Inst. 157, b.) and to mark and illustrate the principles applicable to .this branch of the case. It must of course be understood that no opinion is intended to be expressed or even intimated, as to the sufficiency of any of the various grounds of challenge to the favor, which have been mentioned. That is for the triers alone to pass upon. These instances show what slight and indecisive evidence of bias is admissible; but after all, the influence and effect of what is proved, and how far it may have affected the mind of the juror, the good sense of the triers must determine.
The circuit judge, in this case, seems to have held that nothing short of a fixed and decided opinion as to the guilt or innocence of the prisoner, furnished ground on which the triers could set aside a juror. Evidence of the formation of hypothetical opinions was objected to by the public prosecutor, and excluded by the judge. One of the jurors was asked if he had “ ever thought Mrs. Bodine was guilty of the crime for which she” was then on trial. This was objected to on behalf of the people, and “ the objection was allowed and sustained by the court on the ground that the question should be, 'had you an opinion] instead of 'have you ever thought?" Following out this view of the law, the judge refused to allow an inquiry of a juror, whether what he had read or heard, made any impression on his mind, as to the guilt or innocence of the prisoner. Upon these, as well as other points on the same subject, formal exceptions were taken by the counsel for the prisoner. Some of the jurors in regard to whom questions were made, were found to be indifferent by the trier's, and were allowed to serve on the jury: others were excluded by the peremptory challenge of the prisoner.
[308]*308I think the learned circuit judge erred in his view of the law applicable to challenges for favor. A fixed and absolute opinion may be necessary to sustain a challenge for principal cause; but not so where the challenge is for favor. In the first species of challenge the result is a conclusion of law upon ascertained facts, but in the latter, the conclusion is a matter of fact to be found by the triers. No certain rule can be laid down- for their guidance. They are sworn to try whether the juror challenged stands indifferent, (Gra. Pr. 307; 1 Trials per Pais, 205; 1 Salk. 152, pl. 1; Bac. Ab. Juries, E. 12, notes ;) and this must be determined upon their conscience and discretion, in view of the facts and circumstances in evidence before them. It is competent to prove that the juror challenged and the opposite party are in habits of great intimacy; that they are members of the same society, partners in business or the like. The feelings of the juror may also be shown, and that whether they amount to positive partiality or ill-will, or not, as his views and opinions also may be, whether mature, absolute or hypothetical. Indeed, any and every fact or circumstance from which bias, partiality or prejudice may justly be inferred, although very weak in degree, is admissible on this issue; and the inquiry should by no means be restricted to the isolated question of a fixed and absolute opinion as to the guilt or innocence of the prisoner. Upon this ground, it seems to me the judge erred, and a new trial should be granted, unless the prisoner is precluded from taking this objection on a bill of exceptions, or by some fact therein contained which must be deemed a bar or waiver to the objection.
But it is said a bill of exceptions will not reach questions of law which are made and decided on challenges to the polls for favor.
Such challenges are taken and made ore tenus, and are not entered on the record as challenges for principal cause are or should be. The latter, forming part of the record, are subject to review, as was done in the case of Vermilyea and others, (6 Cowen, 555; 7 id. 108.) A challenge to the polls for favor, when controverted, is to be submitted to the determination of [309]*309triers, whose decision is conclusive. But, should the court, overrule the challenge when properly made, or refuse to appoint triers to pass upon it, the party, I apprehend, would not be remediless, but the error might be corrected on a bill of exceptions. His course would be the same if the court should refuse to allow competent evidence to be given to the triers, or should misdirect them in matter of law. An exception of this description was reviewed by this court in the case of The Mechanics’ and Farmers’ Bank v. Smith, already' referred to. That was a civil case, between party and party, but a bill of exceptions is an equally comprehensive remedy for the defendant, in a criminal prosecution, and may be resorted to “ in the same cases and manner provided by law in civil cases.” (2 R. S. 736, § 21. See also, upon this subject, The People v. Rathbun, 21 Wend. 545 ; Bac. Abr. Juries, E. 12; 2 Tidd’s Pr. (Phil. ed. 1840,) p. 862; 4 Chitty’s Gen. Pr. 3; Mina Queen v. Hepburn, 7 Cranch, 297; Heath V. The Commonwealth, 1 Rob. Virg. R. 135; Stephen’s N. P. 1794.) These authorities show that a bill of exceptions will lie to correct such errors as we have been considering.
The prisoner challenged but thirteen jurors peremptorily, although she might have challenged twenty. (2 R. S. 734, § 9.) As she might thus have excluded all who were challenged for favor, and not set aside by the .triers, it is argued that the omission to do so, precludes all exception on the part of the prisoner, to what was done by the judge, however erroneous it may have been. The law, it is said, gives the right to make peremptory challenges in order to correct errors of this description, and the prisoner, having refused or neglected to avail herself of this remedy, is thereby estopped from resorting to any other mode, of redress.
This argument is specious, but I think not sound. Every person, on trial, is entitled to a fair and impartial jury, and to secure this object, challenges/or cause are allowed, and are unlimited. If adequate cause is shown, the juror, in every instance, should be set aside. This is the right of the party challenging, and is in no case to be granted as a favor. Such is plainly the [310]*310law where peremptory challenges do not exist, and where they do the rule is the same. The statute provides that every person who has a right to challenge peremptorily, is also “ entitled to the same challenges as are allowed in civil cases, either to the array of jurors, or to individual jurors.” (2 R. S. 734, § 10.) Those who may challenge peremptorily may, therefore, also challenge for cause. Nor is this an idle ceremony which the judge may, in any case, overlook or disregard. He is hound, ex debito justifico, to receive the challenge and dispose of it as the law requires. He certainly would not be allowed to disregard a challenge for cause, and turn the party making it over to his peremptory challenges; nor, in my opinion, can the fact, that the party still has peremptory challenges at his command, deprive him of any redress which the law would otherwise give, for a violation of his right.
Peremptory challenges are allowed to a prisoner on trial, to be made or omitted according to his judgment, or his pleasure, will or caprice. No reason is ever given or required for the manner in which the right is exercised by the party. Blackstone says, they are allowed “ ón two reasons: 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is, that a prisoner, (when put to defend his life,) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by-any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike; 2. Because upon challenges for cause shown, if the reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.” (4 Bl. Com. 353. See also 1 Chit. Cr. Law, 534; 1 Inst. 156, b.)
In no case is the prisoner hound to resort to his right to make peremptory challenges. It is armor which he may wear or decline at his pleasure. It is for his own exclusive considera[311]*311tion and decision, and the court has no right to interfere with his determination. Nor should the prisoner’s refusal to make use of her peremptory challenges, as she might have done, preclude her from raising objections to what was done by the judge: and if, in truth, errors were committed, I do not see that it is less our duty to correct them, than it would have been if the prisoner had fully exhausted her peremptory challenges. The use, or disuse, of that right, I regard as a fact wholly immaterial to the question now before the court, and one which cannot, rightfully, exert the slightest influence upon the decision to be made.
2. The question put to one of the physicians on his cross-examination, by the prisoner’s counsel, was, in my opinion, correctly overruled. This witness and other physicians, had made a post mortem examination of the body of the person alleged to have been murdered, and they gave it as their opinion that death had preceded the action of fire on the body. This opinion, as is stated in the bill of exceptions, was founded on the reason, amongst others not specified, that portions of the body which had been protected by covering upon them, “ had not suffered at all from the action of the fire, and which could not have happened unless the body had lain perfectly still during the continuance of the action of the fire.”
These physicians reasoned, as other men would, that the body of a living person could hardly remain quiet under the action of fire, and that its convulsed and violent movements would be apt to displace any covering which might be upon different parts of it; and that to suppose life, in this instance, had been destroyed by the fire, was wholly inconsistent with the condition of the body when found; certain parts of it, protected by covering, not having been at all affected by the fire. Hence the opinion which was expressed, that death must have preceded the fire, and was not caused by it.
But this was, in no proper sense, a question of professional skill or science. An unlearned man of sense would have reasoned as the physicians did. Having ascertained that certain parts of the body, which were protected by what had casually fallen upon them, were not affected by the fire, although most [312]*312of the body was consumed by it, he would have inferred, as they did, that death preceded the fire. Nor was the particular question put to the witness, and which the court excluded, one of skill or science, or which should have been allowed to be answered on that principle. It was, besides, merely speculative and hypothetical, based on successive suppositions, which, it is not too much to say, were in the highest degree improbable. Counsel were, of course, at liberty to argue in ■ this manner to the jury, and they would judge how far the explanation thus attempted to be given, was satisfactory to their minds; but it was not a subject which science or the skill of a physician could better solve than the good sense of an unlearned jury.
An objection was made by the counsel for the prisoner, to any evidence by George W. Houseman, the husband of the deceased, of what is called “ the independent conduct of the witness ” after the discovery of the fire, when the prisoner was not present. The court overruled the objection, to which the counsel for the defendant excepted. It is stated in the bill of exceptions that this witness, in the course of his testimony, said he took no medicine before he went to bed, but did take a cup of tea; that he had not been to the burnt house up to a certain time; that he was taken sick on Friday; had a rash and then took some pills, and that he conversed about the accident, as it is called, with persons named by him.
The bill of exceptions does not profess to set out all the évi-' dence given on the trial, nor all given by this witness. How these statements, apparently altogether unimportant, came to be made, or whether they were or were not circumstances casually mentioned in the course of an extended narrative, can hardly be collected from what appears. I certainly do not perceive their relevancy, nor any ground on which they could have been desired by the district attorney. They seem to be fragments of a narrative, which taken as a whole, may have been not only material but competent, although these disjointed parts are, apparently, as little relevant to the case as they are coherent amongst themselves. These particular statements are not shown to have been called out by the direct examination of the witness, [313]*313or to have been insisted upon by the public prosecutor. According to the bill of exceptions, the question was made, if indeed what occurred can be said to have made any question on the subject; but taking the bill as it is, after some of the statements, which are now objected to, had been made by the witness, the counsel for the prisoner inquired if it was “ intended to give evidence of the acts of the witness in the absence of the prisoner,” to which it was answered that such was the intention; and then “ the counsel for the prisoner, referring to several answers of the witness already given, objected to all evidence of the independent conduct of the witness after the discovery of the fire, when the prisoner was not present. The court overruled the objection, stating that in one aspect such evidence might be proper, and that the court and jury could afterwards discriminate. To the decision of the court overruling the objection, the prisoner, by her counsel, did then and there except; and it was understood that this objection and exception should apply to all the evidence of the nature contemplated in the objection, without the necessity of renewing the said objection and exception, in form, to each question.”
The objection taken was to all evidence of the acts of the witness, when the prisoner was not present. This was too broad. Many things done by the witness might be competent evidence, although done when the prisoner was absent. Under this objection, if allowed, the witness could not have stated where he was, at any time, or any thing done by him, unless the prisoner was present. In the form in which the objection was taken it "was properly overruled, and before we can say that there was error in receiving these fragments of the testimony of the witness which are inserted in the bill of exceptions, it must be shown that they were particularly objected to, or insisted upon as competent evidence, and received as such; or the whole of the testimony given by the witness must be stated, that the court may see that these particular parts were objectionable. Looking to the form of the objection, as made, and to what was decided by the court, I think this exception was not well taken.
[314]*314Sarah Wampole, a witness for the prosecution, testified on her direct examination, that the prisoner stated to her that she, the prisoner, asked the deceased to eat dinner with her on Sunday. On cross-examination the witness stated that she swore on the former trial as she did now. She was then asked by the counsel for the prisoner, if she did not, on the former trial, swear to the reverse of what she now stated, that is,' “ that Mrs. Bodine was to dine with Emeline on Sunday,” and not Emeline with her, as the witness now stated.
It does not appear that the witness objected to answering the question, but “ the court decided that the question was improper and inadmissible.” I am unable to see in what respect this question was improper. It was material, as the answer might show that the former and the present statements of the witness were contradictory, and thus affect her credibility. The witness, certainly, was not bound to answer, as she might thereby criminate herself. (1 Phil. Ev. 276.) But she made no objection, and neither the counsel for the people nor the court had a right to object. (The People v. Abbot, 19 Wend. 195, and authorities referred to.) The exception to this decision of the judge was well taken.
3. The remarks of the judge upon the subject of general character were, in the main, correct, although, I think, he erred in the stress laid on the absence of evidence of good character. He seems, in effect, to have advised the jury that, as the prisoner, who alone could make the question, gave no evidence that her general character was good, this authorized an inference that it was positively bad.
This presented a question for the jury which, I think, was - not properly before them. Where no proof of general character ' is given, the law assumes that it is of ordinary fairnéss and respectability. A prisoner on trial may show what his reputation is, and then the question is open to the prosecution, and for ' the jury to determine like other controverted facts. But if the prisoner chooses to give no evidence on the subject, the jury are not at liberty to indulge in conjecture that his character is bad, in order to infer that he is guilty of the particular crime charged. [315]*315Good character is a shield which the prisoner may use if he has it, but if he is content to leave his character entirely out of the case, the jury are not thence to infer that it is bad. Under such circumstances the general character of the accused is hardly a subject to be considered by the jury; and they should determine the guilt or innocence of the accused upon the evidence before them, and wholly irrespective of the question of general character.
The jury not having agreed upon a verdict, came into court, and one of them made this inquiry of the judge: “ Must not the prosecution prove Mrs. Bodine to have been in the immediate neighborhood of George Houseman’s on the night of the fire, or must the prisoner prove her whereabouts on that night?” In answer to this question the learned judge “ charged that if the testimony on the part of the prosecution had shown that the prisoner might have been at the scene of the fire on Monday night, the onus was cast upon her to get rid of the suspicion which thus attached to her, or show where she was on” that night; “ that in this respect the burden did not rest upon the prosecution, but there was evidence enough to throw a suspicion upon the prisoner, and entitle them to call upon the prisoner to show her whereabouts on that night.”
As the murder was supposed to have been perpetrated a day or two before the fire of Monday evening, it could hardly have been made a turning point in the case that the prisoner was or was not at the place of the fire when it occurred, although the fact of her presence might have been a very decided piece of evidence against her. Had the prisoner, however, proved, past all contradiction, that she was not in the neighborhood of the fire when it occurred, that might have fallen far short of establishing her innocence. She might have perpetrated the murder and still have been guiltless of the arson. It was only material to prove the latter crime upon her, as it would authorize the inference that it had been committed to conceal the previous murder. But it certainly was not indispensable that the prosecution should prove by direct evidence that the prisoner was in the neighborhood of the fire when it took place; her presence, and her guilt, could be established by circumstantial as well as by direct testi[316]*316mony. The judge was therefore correct in saying that if the testimony showed that the prisoner might have been at the scene of the fire when it occurred, it was not indispensable for the prosecution to prove her actual presence on that occasion. But the judge goes further, and instructs the jury that if the prisoner might have been so present—not if she in fact was so present—“ the onus was cast upon her to get rid of the suspicion which thus attached to her.” To this I cannot accede. The mere fact that the prisoner might have been at the scene of the fire, was not, of itself, a cause for any suspicion. It is not improbable that hundreds of persons on the island were in the region of the fire, and might have been at the place where and when it occurred; but so slight a circumstance could not justly cast suspicion upon any one. It may well have been that other evidence given on the trial,- and which does not appear in the bill of exceptions, connected with the fact that the prisoner was in such a situation at the time of the fire, that she might have been actually present, furnished very cogent grounds for suspicion against her. But the charge puts it in a more restricted form, and instructs the jury that if the prisoner might have been at the scene of the fire when it occurred, “ the onus was cast upon her to get rid of the suspicion which thus attached to her.” This position was too narrow.
For the reasons stated, I think there should be a new trial.
New trial ordered.