COOPER, C. J.,
delivered the opinion of the court.
The application for a continuance was properly refused by the court. The offense for which the appellant has been convicted was committed more than six years before the trial. Immediately thereafter he fled from the State and remained away until a short time before the trial. In the mean time, the witness on account of whose absence the continuance was applied for had removed from the State and is still a non-resident. For anything that appears in the record his attendance might have been procured for years after the indictment was preferred against the appellant, who has [651]*651by his own conduct prevented an earlier investigation of the case. He does not occupy a position which entitles him to especial consideration in an application for a further postponement. But if he was otherwise free from fault the showing was insufficient. It is not shown that there was any reasonable expectation that the nonresident' witness would ever be in attendance upon the court; it is not shown that he has ever returned to the State since his removal from it, or has ever expressed any intention so to do.
The instructions as a whole fairly presented the law to the jury.
It is true that by the first instruction for the State the right of the defendant to resist an attempt to commit a robbery on him was ignored ; but it was not denied, and by instructions given for him the jury was informed, that if he had reasonable ground to believe the deceased was attempting to rob him he was justified in killing him.
The criticisms made upon the instructions for the State announcing the rule that if one inflict a wound upon another not of itself mortal, but which, being neglected or improperly treated, produced death, the party inflicting the wound would be responsible for the consequent death, were incorrect in not expressing the qualification that the wound must be dangerous, cannot be noticed under the facts of this case. It does not require an expert to testify that one shot through the body is dangerously wounded, and the suggestion that by possibility the ball might have been deflected in its course and have passed around and not through the deceased is not supported by any fact in evidence.
It is unnecessary to pass upon the competency of the jurors who were examined on the motion for a new trial as witnesses to support their verdict. That they have been held incompetent in several cases by this court is conceded by the attorney general, who presses upon us the propriety of overruling these decisions. In our opinion the verdict was not sufficiently assailed to necessitate any evidence in its support, and it is therefore immaterial whether it was supported by competent or incompetent evidence.
There are to be found many expressions in our reported cases to the effect that where circumstances were shown which exposed the [652]*652jury to the possibility of being tampered with, the verdict must be set aside unless it is affirmatively made to appear that no improper influences were brought to bear upon it. But this language must be interpreted by the circumstances of the case in which it. was used. In Hare’s Case, 4 How. 187, the jury, after retiring to consider of its verdict, was left by the bailiff in charge of an unsworn officer; so also in McCann’s Case, 9 S. & M. 465. In Nelms v. The State, 13 S. & M. 500, the sworn officers in charge of the jury talked with them upon the question of the guilt of the defendant, one of them saying it was a worse case than Dyson’s, and the other that “public opinion was against the accused.” In Bole’s Case, 13 S. & M., the jury was taken by the officer to a public hotel and there took meals with other guests, but an officer was seated between them and such other persons; a barber was admitted to the jury-room to shave one of the jurors, and the officer left the room, leaving him with the jury. Under these facts a new trial was awarded. In Riggs’ Case, 26 Miss. 51, the jury was taken to a public hotel and took meals with a “crowd of guests.” The landlord and his servants had free access to a room in the hotel in which the jury was kept. An adjoining room was prepared for the jury in which intoxicating liquor was put, and to which the “jurors went separately to drink.” The jury had “ cards, liquor, and a fiddle,” all of which they used during the night. The next morning one of the jurors, without the consent of the officer in charge, separated from his fellows and paid a visit to his family. In Organ’s Case, 26 Miss. 78, one of the jurors “left his fellows as they were retiring to consider of their verdict, and without the permission of the court went out of the court-house, passing, as he went, several persons who were in conversation, and remained out of the house for several minutes.” This was held to vitiate the verdict. In Woods v. The State, 43 Miss. 364, the jury, by the consent of the accused, was. permitted to disperse and its members mingled with the public. It was held that the consent of the prisoner did not preclude him from making the objection and that the separation vitiated the verdict. In Durr v. The State, 53 Miss. 425, one of the jurors was conducted by the bailiff [653]*653to the house of a friend, a quarter of a mile distant from the courthouse, and there took dinner by himself in a room out of the presence of the bailiff. He was in a room in the rear of the building, remote from the observation of the bailiff. The room had four entrances, and there were one or more persons upon the premises with whom it was not shown that he had no communication. In all these cases the verdicts were set aside and new trials awarded. It will be noted that in all of them it was either shown that other persons had been brought in contact with the jury, or that there was a separation of the jury under such circumstances as to afford a reasonable presumption that communication was had with others ; there was in each case something more than a remote possibility that such communication was had, though in many of the cases observations are made by the court indicating that any separation of one juror from his fellows would be sufficient to annul the verdict, unless it was affirmatively shown that no communication was had with others.
We find no fault with the result reached in either of the cases cited, but we do not concur in the language used in some of them, from which the conclusion is sought to be drawn, and reasonably, that the mere withdrawal of a juror from the sight of his fellows and of the officer is under any and all circumstances a separation of the jury. Whether it is or is not must, as it seems to us, be dependent upon the circumstances of each particular case. Judges and jurors are but men, and we know of no reason why, in dealing with the action of jurors, an impracticable and unapproachable standard shall be adopted by courts to measure their conduct — a standard which, if applied to the judges of the courts, would produce frequent miscarriages of justice. If the mei’e possibility of unlawful communication or influence is sufficient to. annul a verdict, when shall one be said to be pure and free from suspicion ? All our court-houses are in public places, and the public have right of access to them. At sessions of court many persons are there congregated, either from curiosity or by reason of business for themselves or others; jury-rooms open into the courtrooms, frequently filled with spectators, or by windows overlook [654]
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COOPER, C. J.,
delivered the opinion of the court.
The application for a continuance was properly refused by the court. The offense for which the appellant has been convicted was committed more than six years before the trial. Immediately thereafter he fled from the State and remained away until a short time before the trial. In the mean time, the witness on account of whose absence the continuance was applied for had removed from the State and is still a non-resident. For anything that appears in the record his attendance might have been procured for years after the indictment was preferred against the appellant, who has [651]*651by his own conduct prevented an earlier investigation of the case. He does not occupy a position which entitles him to especial consideration in an application for a further postponement. But if he was otherwise free from fault the showing was insufficient. It is not shown that there was any reasonable expectation that the nonresident' witness would ever be in attendance upon the court; it is not shown that he has ever returned to the State since his removal from it, or has ever expressed any intention so to do.
The instructions as a whole fairly presented the law to the jury.
It is true that by the first instruction for the State the right of the defendant to resist an attempt to commit a robbery on him was ignored ; but it was not denied, and by instructions given for him the jury was informed, that if he had reasonable ground to believe the deceased was attempting to rob him he was justified in killing him.
The criticisms made upon the instructions for the State announcing the rule that if one inflict a wound upon another not of itself mortal, but which, being neglected or improperly treated, produced death, the party inflicting the wound would be responsible for the consequent death, were incorrect in not expressing the qualification that the wound must be dangerous, cannot be noticed under the facts of this case. It does not require an expert to testify that one shot through the body is dangerously wounded, and the suggestion that by possibility the ball might have been deflected in its course and have passed around and not through the deceased is not supported by any fact in evidence.
It is unnecessary to pass upon the competency of the jurors who were examined on the motion for a new trial as witnesses to support their verdict. That they have been held incompetent in several cases by this court is conceded by the attorney general, who presses upon us the propriety of overruling these decisions. In our opinion the verdict was not sufficiently assailed to necessitate any evidence in its support, and it is therefore immaterial whether it was supported by competent or incompetent evidence.
There are to be found many expressions in our reported cases to the effect that where circumstances were shown which exposed the [652]*652jury to the possibility of being tampered with, the verdict must be set aside unless it is affirmatively made to appear that no improper influences were brought to bear upon it. But this language must be interpreted by the circumstances of the case in which it. was used. In Hare’s Case, 4 How. 187, the jury, after retiring to consider of its verdict, was left by the bailiff in charge of an unsworn officer; so also in McCann’s Case, 9 S. & M. 465. In Nelms v. The State, 13 S. & M. 500, the sworn officers in charge of the jury talked with them upon the question of the guilt of the defendant, one of them saying it was a worse case than Dyson’s, and the other that “public opinion was against the accused.” In Bole’s Case, 13 S. & M., the jury was taken by the officer to a public hotel and there took meals with other guests, but an officer was seated between them and such other persons; a barber was admitted to the jury-room to shave one of the jurors, and the officer left the room, leaving him with the jury. Under these facts a new trial was awarded. In Riggs’ Case, 26 Miss. 51, the jury was taken to a public hotel and took meals with a “crowd of guests.” The landlord and his servants had free access to a room in the hotel in which the jury was kept. An adjoining room was prepared for the jury in which intoxicating liquor was put, and to which the “jurors went separately to drink.” The jury had “ cards, liquor, and a fiddle,” all of which they used during the night. The next morning one of the jurors, without the consent of the officer in charge, separated from his fellows and paid a visit to his family. In Organ’s Case, 26 Miss. 78, one of the jurors “left his fellows as they were retiring to consider of their verdict, and without the permission of the court went out of the court-house, passing, as he went, several persons who were in conversation, and remained out of the house for several minutes.” This was held to vitiate the verdict. In Woods v. The State, 43 Miss. 364, the jury, by the consent of the accused, was. permitted to disperse and its members mingled with the public. It was held that the consent of the prisoner did not preclude him from making the objection and that the separation vitiated the verdict. In Durr v. The State, 53 Miss. 425, one of the jurors was conducted by the bailiff [653]*653to the house of a friend, a quarter of a mile distant from the courthouse, and there took dinner by himself in a room out of the presence of the bailiff. He was in a room in the rear of the building, remote from the observation of the bailiff. The room had four entrances, and there were one or more persons upon the premises with whom it was not shown that he had no communication. In all these cases the verdicts were set aside and new trials awarded. It will be noted that in all of them it was either shown that other persons had been brought in contact with the jury, or that there was a separation of the jury under such circumstances as to afford a reasonable presumption that communication was had with others ; there was in each case something more than a remote possibility that such communication was had, though in many of the cases observations are made by the court indicating that any separation of one juror from his fellows would be sufficient to annul the verdict, unless it was affirmatively shown that no communication was had with others.
We find no fault with the result reached in either of the cases cited, but we do not concur in the language used in some of them, from which the conclusion is sought to be drawn, and reasonably, that the mere withdrawal of a juror from the sight of his fellows and of the officer is under any and all circumstances a separation of the jury. Whether it is or is not must, as it seems to us, be dependent upon the circumstances of each particular case. Judges and jurors are but men, and we know of no reason why, in dealing with the action of jurors, an impracticable and unapproachable standard shall be adopted by courts to measure their conduct — a standard which, if applied to the judges of the courts, would produce frequent miscarriages of justice. If the mei’e possibility of unlawful communication or influence is sufficient to. annul a verdict, when shall one be said to be pure and free from suspicion ? All our court-houses are in public places, and the public have right of access to them. At sessions of court many persons are there congregated, either from curiosity or by reason of business for themselves or others; jury-rooms open into the courtrooms, frequently filled with spectators, or by windows overlook [654]*654the yards; communication by writing, by signs, and by words is always possible, but it would be destructive to the ends of justice to hold that such possibility as this of unlawful influence should avoid verdicts upon which no just suspicion rests. To this all must agree.
But the question is, where lies the line on the one side of which a presumption exists in favor of the purity of the verdict, and on the other a contrary presumption arises? The answer must be that whatever is sufficient to create a well-founded suspicion in the impartial judicial mind that unlawful influences have been exerted will call upon the party in whose favor the decision rests to support the verdict, but until that much is shown in opposition to the verdict it should be upheld. If a juror willfully and without necessity withdraws from his fellows and goes to a place in which communication may be secretly had with another, his willful conduct, unexplained, may be sufficient to impair the faith which would otherwise be reposed in the integrity of his verdict. But can it be said that where, as in this case, several members of the jury separate themselves for a few moments from their fellows and the officer in charge by stepping into a privy to attend to the calls of nature, such conduct is calculated to impress any unbiased mind unfavorably to them ? It is not attempted to be shown that any one other than the jurors and a deputy sheriff (who went into the privy while they were there, but who, it is affirmatively shown by his testimony, held no improper correspondence with them) was in the privy. It is only said that possibly some other person was there, and because of this possibility the verdict must be overturned unless it is clearly made to appear that no one else was or could have been there. In other words, the defendant shows the court the opportunity there was for communication if there was a third party there to communicate with the jurors, and the existence of this third person, it is insisted, is to be supplied by presumption.
We do not think the character of the place, a public privy at a court-house, is at all favorable to the presumption that any one would be there longer than his necessities compelled him to be. It-[655]*655is not as though a juror had gone to a place to which the public-resort and remain for social intercourse.
The deputy sheriff who went in while the jurors were there saw no one; the bailiff in charge of the jury, who stood a short distance off, saw no one ; the witnesses who saw the jurors go into the privy and testified for the defendant saw no one; and yet it is argued that a presumption (which is a reasonable inference from known facts) must be indulged that some one bent on injury to the defendant was there at that particular time for the unlawful purpose of influencing the jury to convict him. "We are free from doubt on this question. If, in the infinite possibilities of error, which may occur in all finite tribunals, no more probable injury shall be shown in the administration of our criminal laws, all innocent men may rest in the abiding confidence of immunity from punishment for crime they have not committed.
The judgment is affirmed.