By the Court.
Wilson, Ch. J.
This case comes here on writ of error. The exceptions taken in the Court below were very numerous, but many of them were not insisted on in the argument by the plaintiff in error in this Court. Those abandoned are clearly untenable, and therefore are passed without notice; those insisted on we will not take up seriatim, as sometimes many of them are disposed of by the decision of a single question; and of the questions passed upon, we will discuss few at any length, as a reference to the language of the statute, or to a well settled legal principle, is frequently all that is necessary.
The judge below, in settling the bill of exceptions, says : “I allow aiid affirm the foregoing bill of exceptions as corrected by me, except that part which purports to give copies of indictment, venires, list of jurors drawn, list of names from which [541]*541same were drawn and certificates. I hare no means of knowing whether they are correct or not. The rest I affirm. No copy of evidence made part of the case.” As we cannot assume the correctness of these copies, and as they are the only evidence we have of the form or contents of the papers of which they purport to be copies, we do not discuss exceptions based on alleged errors not otherwise shown to exist. It is not required by our statute that triers should be re-sworn on the submission to them of each challenge in a case, and the objection because they were not re-sworn was properly overruled. Comp. Stat., 775, Sec. 80.
The defendant objected to “ swearing jurors until panel is full.” It does not appear from the record or bill of exceptions, that when the objection was made a full panel of jurors was not present. We suppose the objection was to swearing the jurors separately as called, and before the full jury was present in the box. The course pursued by the court in swearing each juror separately was correct, being sanctioned by both practice and the statute. See Comp. Stat., 773 Sec. 14-16.
The clerk having informed the court, that “ the names •of jurors on the regular panel are exhausted,” the court ordered “ the names of jurors on the special venire, (which had before been ordered,) to be placed in the jury box”; objected to, 1, because, the original panel of petit jurors served with process was not exhausted, (one juror of the regular panel did not appear,) and 2, because the name of a juror who did not appear, was not placed in the box. This objection was also properly overruled. The court is not required to secure the attendance of every juror on the regular panel before summoning talesmen, or calling those summoned on a special venire. The defendant might have required an attachment to be issued for absent jurors, but even then the court would not [542]*542have been bound to wait for the return of the writ. Comp. Stat., 770, Sec. 7. The omission to place in the box, or call the name of a juror not in attendance at the court, could not possibly have prejudiced the defendant, and is therefore not an error fatal to the judgment. See People vs. Ransom, 7 Wend., 417.
The clerk having called the names of all the jurors summoned by the special venire, without completing a jury, was ordered by the court to replace in the box and re-call the names of those who failed to answer, to which order or ruling the defendant excepted. This was perhaps not in accordance with the ordinary practice, but not being contrary to the statute, or in any view prejudicial to the defendant, cannot be considered a ground for reversing the judgment. 2 G. & W. on New Trials, chap. 4; People v. Ransom, supra.
An informality, or error in practice merely, which cannot prejudice either party, is not the subject of an exception, or ground' for reversing a judgment on writ of error. Tidd's Practice, (4th Am. Ed.) 863, notes.
The court having failed to complete the jury from those summoned on the general and special venires, was clearly authorized to summon talesmen. Comp. Stat., 770, sec. 12. A remark of counsel, which does not appear to have been sanctioned by the court, is not a ground of exception. We must presume, the bill of exceptions showing nothing to the contrary, that the court disapproved of any improper remark, and properly instructed the jury to disregard it. It is claimed by the defendant that it was error in the court to refuse to charge that “ the mere act of killing is no evidence of a premeditated design.” If it was admitted that the instruction asked is abstractly correct, its refusal did not prejudice the defendant. Our statute declares the killing of a human being without^the authority of law, murder, and “such killing when [543]*543perpetrated with, a premeditated design to effect the death of the person killed; or any human being, ” murder in the first degree ; “when perpetrated by any act eminently dangerous to one or more persons, and evincing a depraved mind, regardless of the life of such person or persons, although without any design to effect death, ” murder in the second degree; “ when perpetrated without any design to effect death by a person engaged in the commision of any felony, ” murder in .the third degree. Laws of 1862, Chap. 14. Defendant was charged with murder in the first degree, and found guilty of murder in the second. Every homicide is presumed unlawful, and when the mere act of killing is proven, and nothing more, the presumption is that it was intentional and malicious. People vs. McLeod, 1 Hill, 436; Com. vs. York, 9 Mer. 95. “Intentionally,” and “with premeditated design, ” do not seem to be used in our statute as synonymous expressions; the latter involving a greater degree of deliberation and forethought, than the former. If the defendant intentionally did the acts declared by the statute murder in the second degree, he is guilty of that crime, whether the acts were done with a premeditated design or not. The charge therefore, even if erroneous, (which we only admit for the purpose of this argument,) was harmless, and is not a ground for reversing the judgment.
In Bonfanti vs. the State, it is settled that when the plea of insanity is interposed by a defendant, the burden is on him to prove it. This disposes of the many exceptions to the charge, or refusals to charge, on the question of insanity.
It does not appear that there was any evidence in the case tending to show the defendant insane, and therefore it is immaterial whether “the act of killing is no evidence of insanity,” or whether “threats of bodily harm to any human being, if such threats were made by the accused, are not evi[544]*544dence of the sanity of the accused,” or whether “insanity, distraction, or mental aberration, may be occasioned by concussion of the brain, ” or whether “mental aberration in medical jurisprudence is consequent upon concussion of the brain. ” So far as the bill of exceptions shows, those were all questions of abstract speculation inapplicable to this case, and concerning which the Court properly refused to charge. The Court charged the jury that under the circumstances of this case they could not find the prisoner guilty of murder in the third degree, which is alleged as error; but there is nothing to show it erroneous.
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By the Court.
Wilson, Ch. J.
This case comes here on writ of error. The exceptions taken in the Court below were very numerous, but many of them were not insisted on in the argument by the plaintiff in error in this Court. Those abandoned are clearly untenable, and therefore are passed without notice; those insisted on we will not take up seriatim, as sometimes many of them are disposed of by the decision of a single question; and of the questions passed upon, we will discuss few at any length, as a reference to the language of the statute, or to a well settled legal principle, is frequently all that is necessary.
The judge below, in settling the bill of exceptions, says : “I allow aiid affirm the foregoing bill of exceptions as corrected by me, except that part which purports to give copies of indictment, venires, list of jurors drawn, list of names from which [541]*541same were drawn and certificates. I hare no means of knowing whether they are correct or not. The rest I affirm. No copy of evidence made part of the case.” As we cannot assume the correctness of these copies, and as they are the only evidence we have of the form or contents of the papers of which they purport to be copies, we do not discuss exceptions based on alleged errors not otherwise shown to exist. It is not required by our statute that triers should be re-sworn on the submission to them of each challenge in a case, and the objection because they were not re-sworn was properly overruled. Comp. Stat., 775, Sec. 80.
The defendant objected to “ swearing jurors until panel is full.” It does not appear from the record or bill of exceptions, that when the objection was made a full panel of jurors was not present. We suppose the objection was to swearing the jurors separately as called, and before the full jury was present in the box. The course pursued by the court in swearing each juror separately was correct, being sanctioned by both practice and the statute. See Comp. Stat., 773 Sec. 14-16.
The clerk having informed the court, that “ the names •of jurors on the regular panel are exhausted,” the court ordered “ the names of jurors on the special venire, (which had before been ordered,) to be placed in the jury box”; objected to, 1, because, the original panel of petit jurors served with process was not exhausted, (one juror of the regular panel did not appear,) and 2, because the name of a juror who did not appear, was not placed in the box. This objection was also properly overruled. The court is not required to secure the attendance of every juror on the regular panel before summoning talesmen, or calling those summoned on a special venire. The defendant might have required an attachment to be issued for absent jurors, but even then the court would not [542]*542have been bound to wait for the return of the writ. Comp. Stat., 770, Sec. 7. The omission to place in the box, or call the name of a juror not in attendance at the court, could not possibly have prejudiced the defendant, and is therefore not an error fatal to the judgment. See People vs. Ransom, 7 Wend., 417.
The clerk having called the names of all the jurors summoned by the special venire, without completing a jury, was ordered by the court to replace in the box and re-call the names of those who failed to answer, to which order or ruling the defendant excepted. This was perhaps not in accordance with the ordinary practice, but not being contrary to the statute, or in any view prejudicial to the defendant, cannot be considered a ground for reversing the judgment. 2 G. & W. on New Trials, chap. 4; People v. Ransom, supra.
An informality, or error in practice merely, which cannot prejudice either party, is not the subject of an exception, or ground' for reversing a judgment on writ of error. Tidd's Practice, (4th Am. Ed.) 863, notes.
The court having failed to complete the jury from those summoned on the general and special venires, was clearly authorized to summon talesmen. Comp. Stat., 770, sec. 12. A remark of counsel, which does not appear to have been sanctioned by the court, is not a ground of exception. We must presume, the bill of exceptions showing nothing to the contrary, that the court disapproved of any improper remark, and properly instructed the jury to disregard it. It is claimed by the defendant that it was error in the court to refuse to charge that “ the mere act of killing is no evidence of a premeditated design.” If it was admitted that the instruction asked is abstractly correct, its refusal did not prejudice the defendant. Our statute declares the killing of a human being without^the authority of law, murder, and “such killing when [543]*543perpetrated with, a premeditated design to effect the death of the person killed; or any human being, ” murder in the first degree ; “when perpetrated by any act eminently dangerous to one or more persons, and evincing a depraved mind, regardless of the life of such person or persons, although without any design to effect death, ” murder in the second degree; “ when perpetrated without any design to effect death by a person engaged in the commision of any felony, ” murder in .the third degree. Laws of 1862, Chap. 14. Defendant was charged with murder in the first degree, and found guilty of murder in the second. Every homicide is presumed unlawful, and when the mere act of killing is proven, and nothing more, the presumption is that it was intentional and malicious. People vs. McLeod, 1 Hill, 436; Com. vs. York, 9 Mer. 95. “Intentionally,” and “with premeditated design, ” do not seem to be used in our statute as synonymous expressions; the latter involving a greater degree of deliberation and forethought, than the former. If the defendant intentionally did the acts declared by the statute murder in the second degree, he is guilty of that crime, whether the acts were done with a premeditated design or not. The charge therefore, even if erroneous, (which we only admit for the purpose of this argument,) was harmless, and is not a ground for reversing the judgment.
In Bonfanti vs. the State, it is settled that when the plea of insanity is interposed by a defendant, the burden is on him to prove it. This disposes of the many exceptions to the charge, or refusals to charge, on the question of insanity.
It does not appear that there was any evidence in the case tending to show the defendant insane, and therefore it is immaterial whether “the act of killing is no evidence of insanity,” or whether “threats of bodily harm to any human being, if such threats were made by the accused, are not evi[544]*544dence of the sanity of the accused,” or whether “insanity, distraction, or mental aberration, may be occasioned by concussion of the brain, ” or whether “mental aberration in medical jurisprudence is consequent upon concussion of the brain. ” So far as the bill of exceptions shows, those were all questions of abstract speculation inapplicable to this case, and concerning which the Court properly refused to charge. The Court charged the jury that under the circumstances of this case they could not find the prisoner guilty of murder in the third degree, which is alleged as error; but there is nothing to show it erroneous. Whether it was correct or not depends on the evidence in the case; and when the question of the correctness of a charge or ruling depends on the facts proven, or evidence given, it is incumbent on the party alleging exceptions, to show affirmatively the giving of such evidence, or existence of such facts as would make the charge erroneous. Unless a bill of .exceptions shows error none will be presumed. Tidd’s Practice, 862, and Notes.
After the cause had been submitted to the jury, and before the return of a verdict, at the request of the jury, the Court gave them further instructions as to the law of the case. This was done publicly in open Court, and under such circumstances we are not aware of any objection either in law or reason to the practice. It is not pretended that the defendant or Ms counsel were not present.
After verdict a motion was made in arrest of judgment and for a new trial. Numerous errors were alleged as ground for arresting the judgment, but two of which are urged or relied on in this Court.
1. That “the judge had no authority or jurisdiction to sit in the case, because his term of office had expired.” 2. “The court excused Wm. Phelps from serving as a grand juror, for over age, without defendant’s consent.” Whether the judge’s [545]*545term of office liad legally expired, is a question that cannot be decided in this action. He was at least an officer de faeto, and until his right to the office is settled by a direct proceeding for that purpose, it cannot legally be questioned in a collateral proceeding. People vs. White, 24 Wend., 520, by Bronson, J. Fowler vs. Beebe, 9 Mass., 231; Commonwealth vs. Fowler, 10 Mass., 291; State vs. Brennon, 25 Conn., 278; State vs. Miller, 5 Wis., 308; Brown vs. Lunt, 37 Maine, 423; Carlton vs. People, 10 Mich., 250; Plymouth vs. Painter, 17 Conn., 588.
The second objection is also without any foundation. We must presume that the grand juror excused was in fact over age, for the record does not show the contrary; and if so, neither the defendant, nor the Court, had the right to require him to serve. Comp. Stat. 636, Sec. 1. Whether there was a sufficient case made in the Court below for a new trial, we are not called upon here to determine, for the bill of exceptions presented to us does not show the ground upon which the motion was made, or that it has been denied. Appended to the bill of exceptions, but not a part of it, or attested or certified to by the judge, is a copy of an affidavit of C. N. Dane, with the following words added:
“Motion for new trial overruled and defendant sued out writ of error. ”
There is no evidence that this Court can act upon, that any such affidavit was presented to the Court below.
The plaintiff in error, we think, shows no ground for reversing the judgment, and it is therefore affirmed.