Lore, C. J.,
charging the jury :
Gentlemen of the jury:—It is not disputed that the death of William H. Mitchell, on the 29th day of January, 1902, resulted from a wound inflicted by the prisoner Nehemiah Harmon. Your inquiry therefore will be, to determine the grade of homicide.
Inasmuch as under this indictment, if the evidence shall so warrant, you may find the prisoner guilty of any one of three grades of felonious homicide, viz., of murder of the first degree, of murder of the second degree or of manslaughter, it becomes necessary for us to define these three offenses for your information.
Murder of the first degree is where the homicide is committed with express malice aforethought; that is, with sedate deliberate mind and formed design to kill.
If the homicide was committed with such sedate, deliberate [585]*585mind and formed design, even though such deliberate mind and formed design existed only for a moment, it would be sufficient. “Time is not an essential element of deliberation. If the slayer had time for thought, and thinking but for a minute, did intend to kill, and in fact did kill, it is just the same in legal contemplation as if he had intended it for a length of time; and killing under such circumstances is held to be both deliberate and premeditated.
State vs. Pratt, 1 Houst. Crim. Cas., 263.
Murder of the second degree, is where there is no such sedate, deliberate mind and formed design to take life, but where the circumstances surrounding the case show that the homicide was committed under the influence of a wicked and depraved heart and with a cruel and reckless indifference to human life. In such case the law implies malice, and makes the offense murder of the second degree.
In both degrees of murder, you will note that malice is the essential ingredient. Without malice there can be no murder.
Malice is the expression of a wicked and depraved heart and mind and of a cruel disposition.
Manslaughter is where the homicide is wilful and unlawful, but is committed under such circumstances of provocation or alleviation as to rebut the implication of malice; as where one in a mutual altercation in the heat of blood, or in a transport of passion upon sufficient provocation, without malice, inflicts a mortal wound without time for reflection or for the passions to cool. Thus far the law recognizes the infirmity of human temper. In all such cases, however, there must be the absence of a deliberate intent to kill; the killing must result from heat of blood or transport of passion.
Where the killing is admitted and no accompanying circumstances of justification, excuse or mitigation appear, the law presumes that it was done with malice aforethought, and in such case [586]*586it is incumbent on the prisoner to show such provocation or alleviation as will suffice in law to rebut malice : unless such provocation or alleviation appears from the evidence on the part of the State.
State vs. Frazer, 1 Houst. Crim. Cas., 176.
If death is produced by the use of a deadly weapon, great must be the provocation to reduce the homicide from the grade of murder to the grade of manslaughter.
State vs. Hurley, Ibid, 28.
If such killing takes place in a fight between the parties, it should be shown from all the circumstances of the case that it was perpetrated in a transport of passion or in the heat of ‘blood and upon sufficient provocation, without malice and without time for reflection or for the passions to cool.
In determining the guilt or innocence of the prisoner you are to be governed only by the evidence in this case.
Good character when proved is to be taken in connection with all the other evidence in the case, and is to be given just such weight, under all the facts and circumstances of the case,, as in your judgment it is entitled to.
Every person is presumed to be innocent of the crime charged until proven guilty.
It is incumbent on the State to prove every material element of the crime charged.
In murder, malice is a material element, and must be proved beyond a reasonable doubt. It may be. proved, however, by any and all the circumstances surrounding the case which show that the act complained of was intentional, and. the outcome of a cruel and depraved heart, and was wilfully and recklessly done.
If after a careful and conscientious consideration of all the evidence in this case, there remains in your mind a reasonable [587]*587doubt of the proof of any of the material elements of the crime charged, you should give the benefit of such doubt to the prisoner. It must, however, be a reasonable doubt, growing out of all the circumstances of the case as disclosed by the evidence, and such as would prevent reasonable and conscientious men from reaching a conclusion to a moral certainty. It must not be a fanciful doubt, or one growing out of conjecture, speculation or sympathy.
Under these instructions upon the law, you are to determine upon your verdict.
If you believe from the evidence, that the prisoner killed the deceased with sedate, deliberate mind and formed design, then your verdict should be guilty in manner and form as he stands indicted.
If, however, you believe that he did not so kill the deceased, but that the mortal blow was inflicted by him cruelly and recklessly, under the influence of a wicked and depraved heart, with indifference to human life, the law would imply malice; and your verdict should be not guilty in manner and form as he stands indicted, but guilty of murder of the second degree.
If you believe that the mortal blow was not inflicted in self-defense, but was inflicted unlawfully and without malice, then your verdict should be not guilty in manner and form as he stands indicted, but guilty of manslaughter.
If you should believe that the prisoner killed the deceased in self-defense, then your verdict should be not guilty. Such a verdict may be found where one is assaulted upon a sudden affray, and in defense of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills the assailant. But it must be shown that the slayer was closely pressed by the other party and retreated as far as he conveniently could, in good faith, with the honest intent to avoid the violence of the assault; or that he was so situated that he.could not safely retreat.
State vs. Rhodes, 1 Houst. Crim. Cas., 499.
Verdict, guilty.
[588]*588Motion foe New Trial.
Counsel for defendant made a motion for a new trial, basing same upon the following grounds :
“First.—For that said verdict was against the evidence.
“Second.—For that said verdict was against the law.
“Third.—For that the said verdict of guilty was not the voluntary and honest verdict of William T. Green, Frank Hatfield and George Ray, three of the jurors who were sworn and empanelled to try said issue.
“Fourth.-~Fov that William T.
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Lore, C. J.,
charging the jury :
Gentlemen of the jury:—It is not disputed that the death of William H. Mitchell, on the 29th day of January, 1902, resulted from a wound inflicted by the prisoner Nehemiah Harmon. Your inquiry therefore will be, to determine the grade of homicide.
Inasmuch as under this indictment, if the evidence shall so warrant, you may find the prisoner guilty of any one of three grades of felonious homicide, viz., of murder of the first degree, of murder of the second degree or of manslaughter, it becomes necessary for us to define these three offenses for your information.
Murder of the first degree is where the homicide is committed with express malice aforethought; that is, with sedate deliberate mind and formed design to kill.
If the homicide was committed with such sedate, deliberate [585]*585mind and formed design, even though such deliberate mind and formed design existed only for a moment, it would be sufficient. “Time is not an essential element of deliberation. If the slayer had time for thought, and thinking but for a minute, did intend to kill, and in fact did kill, it is just the same in legal contemplation as if he had intended it for a length of time; and killing under such circumstances is held to be both deliberate and premeditated.
State vs. Pratt, 1 Houst. Crim. Cas., 263.
Murder of the second degree, is where there is no such sedate, deliberate mind and formed design to take life, but where the circumstances surrounding the case show that the homicide was committed under the influence of a wicked and depraved heart and with a cruel and reckless indifference to human life. In such case the law implies malice, and makes the offense murder of the second degree.
In both degrees of murder, you will note that malice is the essential ingredient. Without malice there can be no murder.
Malice is the expression of a wicked and depraved heart and mind and of a cruel disposition.
Manslaughter is where the homicide is wilful and unlawful, but is committed under such circumstances of provocation or alleviation as to rebut the implication of malice; as where one in a mutual altercation in the heat of blood, or in a transport of passion upon sufficient provocation, without malice, inflicts a mortal wound without time for reflection or for the passions to cool. Thus far the law recognizes the infirmity of human temper. In all such cases, however, there must be the absence of a deliberate intent to kill; the killing must result from heat of blood or transport of passion.
Where the killing is admitted and no accompanying circumstances of justification, excuse or mitigation appear, the law presumes that it was done with malice aforethought, and in such case [586]*586it is incumbent on the prisoner to show such provocation or alleviation as will suffice in law to rebut malice : unless such provocation or alleviation appears from the evidence on the part of the State.
State vs. Frazer, 1 Houst. Crim. Cas., 176.
If death is produced by the use of a deadly weapon, great must be the provocation to reduce the homicide from the grade of murder to the grade of manslaughter.
State vs. Hurley, Ibid, 28.
If such killing takes place in a fight between the parties, it should be shown from all the circumstances of the case that it was perpetrated in a transport of passion or in the heat of ‘blood and upon sufficient provocation, without malice and without time for reflection or for the passions to cool.
In determining the guilt or innocence of the prisoner you are to be governed only by the evidence in this case.
Good character when proved is to be taken in connection with all the other evidence in the case, and is to be given just such weight, under all the facts and circumstances of the case,, as in your judgment it is entitled to.
Every person is presumed to be innocent of the crime charged until proven guilty.
It is incumbent on the State to prove every material element of the crime charged.
In murder, malice is a material element, and must be proved beyond a reasonable doubt. It may be. proved, however, by any and all the circumstances surrounding the case which show that the act complained of was intentional, and. the outcome of a cruel and depraved heart, and was wilfully and recklessly done.
If after a careful and conscientious consideration of all the evidence in this case, there remains in your mind a reasonable [587]*587doubt of the proof of any of the material elements of the crime charged, you should give the benefit of such doubt to the prisoner. It must, however, be a reasonable doubt, growing out of all the circumstances of the case as disclosed by the evidence, and such as would prevent reasonable and conscientious men from reaching a conclusion to a moral certainty. It must not be a fanciful doubt, or one growing out of conjecture, speculation or sympathy.
Under these instructions upon the law, you are to determine upon your verdict.
If you believe from the evidence, that the prisoner killed the deceased with sedate, deliberate mind and formed design, then your verdict should be guilty in manner and form as he stands indicted.
If, however, you believe that he did not so kill the deceased, but that the mortal blow was inflicted by him cruelly and recklessly, under the influence of a wicked and depraved heart, with indifference to human life, the law would imply malice; and your verdict should be not guilty in manner and form as he stands indicted, but guilty of murder of the second degree.
If you believe that the mortal blow was not inflicted in self-defense, but was inflicted unlawfully and without malice, then your verdict should be not guilty in manner and form as he stands indicted, but guilty of manslaughter.
If you should believe that the prisoner killed the deceased in self-defense, then your verdict should be not guilty. Such a verdict may be found where one is assaulted upon a sudden affray, and in defense of his person, where certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills the assailant. But it must be shown that the slayer was closely pressed by the other party and retreated as far as he conveniently could, in good faith, with the honest intent to avoid the violence of the assault; or that he was so situated that he.could not safely retreat.
State vs. Rhodes, 1 Houst. Crim. Cas., 499.
Verdict, guilty.
[588]*588Motion foe New Trial.
Counsel for defendant made a motion for a new trial, basing same upon the following grounds :
“First.—For that said verdict was against the evidence.
“Second.—For that said verdict was against the law.
“Third.—For that the said verdict of guilty was not the voluntary and honest verdict of William T. Green, Frank Hatfield and George Ray, three of the jurors who were sworn and empanelled to try said issue.
“Fourth.-~Fov that William T. Green, Frank Hatfield and George Ray, three of the jurors who were sworn and empanelled to try said issue were induced to agree to a verdict of “Guilty” upon a promise by other members of the said jury that they would assume all responsibility to Almighty God for the act of the said William T. Green, Frank Hatfield and George Ray in violating their conscientious convictions by agreeing to a verdict of guilty as aforesaid.
“Fifth.—For that Enoch. C. Truitt, a juror who was sworn and empanelled to try said issue, when sworn upon his voir dire deposed and said “that he had not formed and expressed any opinion with reference to the guilt or innocence of the prisoner at the bar, when in fact he had formed and expressed the opinion that the said Nehemiah Harmon was guilty of murder of the first degree and should be hanged.”
The above motion was supported by one or more affidavits.
Mr. White:—I understand this motion will be disposed of entirely upon affidavits filed and that no testimony will be taken.
Lore, C. J.:—The practice has been to hear the witnesses. You base your application upon affidavits where you rely upon matters dehors the record, but the evidence before the Court is the evidence of the witnesses themselves.
[589]*589{Mr. White here called one Robert Short an a witness, stating that he proposed to prove by him that Enoch C. Truitt, one of the jurors in the case, had declared upon his voir dire that he had not expressed and formed any opinion as to the guilt or innocence of the defendant Harmon).
Mr. Ward:—I object to the witness testifying on that point, inasmuch as we have a record made by the official stenographer which is the best evidence.
(The Court Stenographer, at the request of the Court read the testimony of said Truitt on his voir dire to the effect that he had not formed and expressed any opinion regarding the guilt or innocence of the prisoner at the bar).
Joseph 8. Baker was produced and asked the following questions :
Q. Do you know Enoch C. Truitt ? A. Yes, sir.
Q,. How long have you known him ? A. I suppose I have known him 15 years.
Q,. Did you or not see him on the jail premises last week, and, if so, what day of last week ? A. He was in there on Monday of last week, sometime in the day; that is, on the day the Court sat.
Q,. What was he doing there? A. I do not know what took place in there. He most always comes in there to see me most every time he comes to Georgetown.
Q,. Did you have any conversation with him or he with you in relation to the trial of Nehemiah Harmon ? A. Yes, sir; there was something said about it.
Q,. What did he say about it as to his guilt or innocence ? A. The talk he had with me was, that the way the people talked he thought Nehemiah Harmon would be hanged.
Q,. Did he say anything about his verdict ? A. No, sir.
[590]*590Q. But that was the substance of it ? A. Yes, sir; that was just about what was said.
(The Attorney-General moved to strike out all of the above testimony as immaterial, as it showed that the juror had not expressed any opinion).
Lobe, Cl J.:—Let the testimony stand. It will be subject to your cross-examination.
Cboss-Examination.
By Mr. Ward:
XQ,. What did Enoch C. Truitt say to you in jail? A. That was not in the jail but in the jail premises. He said from the way people talked that he thought Nehemiah Harmon would be hanged.
XQ,. What else did he say? A. That was about all there was that passed between me and Mr. Truitt on that subject.
{Mr. White next produced James H. Wright, Clerk of the Peace, and stated that he proposed to prove by the witness, statements which were made by one of the jurors after the verdict was rendered as to how they rendered their verdict.
Lobe, C. J.:—Impeaching his own verdict?
Mr. White:—Statements he made. I know the juror could not be sworn and allowed to impeach his own verdict, but I have authority here upon which I rely.
Vase vs. Deleval, 1 Term, Reports.
Lobe, C. J.:—Can you find a case where the Court have allowed a statement impeaching the verdict of the jury ?
Mr. White:—I cannot, but I have found a case where they have simply refused to take the statements of jurors themselves.
[591]*591Lore, C. J.:—If this were allowed, all a juror would have to do if he wanted to have a verdict set aside would be to say to somebody else that it was found irregularly. It would put the verdict of a jury entirely in the hands of one juror.
Thompson and Mirriam on Juries, See. 445, p. 547.
Statements made to witnesses by jurors are not received in evidence.
We decline to hear this witness upon that point.
James H. Speakman, a witness, was questioned by Mr. White as follows:
Q,. Do you know Enoch C. Truitt ? A. Yes, sir.
Q. Did you see him on the first or eighth of April of this year ? A. Yes, sir.
Q,. Did you have any conversation in his presence in relation to the Nehemiah Harmon matter? A. Yes, sir.
Q. State what he said to you and give the whole conversation. A. Several times persons have asked me what I thought of the murder case—don’t know whether it was Monday or Tuesday of last week—anyhow they asked me abont this murder case. I told them that if the evidence was like it was at the Coroner’s inquest I did not see why they should not find him guilty.
Q. Who was present ? A. A dozen or more.
Q,. Was Enoch C. Truitt present ? A. Yes, sir ; but Enoch C. Truitt said nothing; and I can’t say who was present by name, because then I did not know even the jurors’ names.
By Chief Justice Lore :
Q,. He did not make any statement? A. No, sir; I would not say that he did.
[592]*592By Judge Spruance :
Q. Neither then nor at any other time before this trial? A. No, sir; not to me.
Q. Or in your presence ? A. No, sir.
Mr. White:—That is all of our testimony. We will close
here.
Mr. Ward:—Does the Court desire our affidavits to be filed ?
Lore, C. J.:—No.
(After argument by the respective counsel, the Court rendered the following opinion and decision) :
Lore, C. J.:—The Court have considered this motion for a new trial and the evidence offered in support thereof. Proof as to improper conduct on the part of the jury, or any of them, having entirely failed, the Court were left to the consideration of whether the verdict was clearly and manifestly against the law and the evidence, under the rules and practice of this Court. After carefully considering it, we do not think that that is so deary shown that we could depart from the well established rule governing the Court in this case, and we are therefore compelled to refuse the motion for a new trial.