ParkeR, J.
The motion of the prisoner for a new trial rests, in the first place, upon the want of evidence that the individual who acted as a magistrate, and before whom the perjury is alleged to have been committed, was a competent magistrate ; and because, if he was so, the pendency of the prisoner’s complaint before him was not proved by competent evidence;
Justices of the peace have a general jurisdiction to receive complaints, administer the proper oaths thereon, and issue warrants for the arrest of offenders, and it is sufficient, in the first instance, to prove the person an acting magistrate, without producing his commission. 2 Chitty’s Cr. L. 165 [313;] 2 Stark. Ev. 273; 1 East. P. C. 315, Gordon's case; 3 Camp. 432, Rex v. Verelst; 4 D. & E. 366, Berryman v. Wise; 2 Carr. & P. 215, Snow v. Peacock; 3 Johns. R. 431, Potter v. Luther; 12 Johns. 296, Reed v. Gillet.
The fact that George had acted as a magistrate was prima facie evidence of his being such, and we see no objection to receiving this evidence from himself. It was certainly as much wi thin his knowledge as in that of any other person, and we discover no good reason why he should be an incompetent witness to the fact ; and as no evidence was offered to control, or invalidate his testimo[357]*357ny upon this point, we think the fact sufficiently proved.
As to the oilier part of this objection — it is well known that where a complaint of this nature is exhibited and sworn to before a justice, no entry is usually made upon his docket. The warrant may be returned before another magistrate, and wherever it is returned it is entered, and an examination had, and the proceedings arc entered up of record by the magistrate who takes the examination. In this ease the original complaint was exhibited in evidence, with the original certificate of George that it was sworn to before him, and he testified, moreover, that Ilaseall swore to that complaint before him, on the day specified in the cei tilicote of the oath entered upon it.
On the supposition that it was the duty of George to have entered upon his docket some record of the oath having been taken before him, that record could not hove been more satisfactory than the record of the oath entered by him on the complaint itself, and the original papers thus produced, and verified, are certainly quite as conclusive evidence of the fact, not to say more so, than a transcript of any entry upon his docket could have been. His evidence was proper, moreover, to show the identity of the party. This exception therefore must be overruled. 3 Stark. Ev. 1138; 2 Camp. 508, Rex v. Benson; 2 Burr. 1189, Rex v. Morris; 1 Leach, 50, S. C. Bull. N. P. 329.
The next objection is, that on the whole evidence the assignment of the perjury was not sustained ; part of the assignment, it is said, having- been disproved by the defendant.
It was proved on the part of the state, that Hascall swore to all which the indictment sets out as having been sworn by him. 2 Camp. 134, Rex v. Leefe; 1 Chitty’s C. L. 454, [557.]
But there is no doubt that it was distinctly proved, on the part of the prisoner, that Fitts had threatened him, so that one part of what he swore was true ; and if the [358]*358assignment of the perjury had been set out in one entire averment litis exception must have been sustained.
Such however is not the fact. The averment that Fitts had not threatened the prisoner, is, of itself, entire, and distinct from the averment that Hascall was not ai'raid, and one might well be disproved, and the other sustained. It is settled that if any one distinct assignment of perjury be proved the respondent ought to be convicted. 3 Stark. Ev. 1145; 2 Lord Raym. 886, Regina v. Rhodes; 2 Chitty’s C. L. 164, [312.] This exception therefore cannot avail the prisoner.
Another objection is, that evidence relative to the complaint against Hiram Fitts was improperly admitted. But the answer to this is that it was introduced, in con-nexion with the other complaint and the writ, to show the motive with which the prisoner swore to the complaint in question — to show that in this proceeding he had another object in view than the lawful one of procuring sureties of the peace, and thus to disprove the allegation in his complaint that he was afraid of Fitts.
That he at the same time procured another warrant to be issued against the brother of Cyrus Fitts — that both were placed together in the hands of an officer, who was directed not to proceed with them in case the civil suit was settled — and that, such suit being settled, both were abandoned, is a strong corroboration of the evidence of the witnesses, who swore to the declarations of the prisoner that he was not afraid of Fitts, by showing another purpose which he was attempting to effect. All the means he took to accomplish this purpose are directly connected, and those means, and the abandonment of them when the purpose was accomplished, were admissible in evidence, to show that his motives in taking the path in question were corrupt, and to disprove the fears set forth in his complaint. 3 Stark. Ev. 1145; 3 Carr. & P. 498, Rex v. Munton.
He connected these warrants by their delivery togetli[359]*359er, and the directions he gave respecting them, and it is not for him to complain that they are introduced in evidence, in the connexion which he himself framed. This exception therefore is overruled.
The next objection, that the court left the evidence to the jury without any instruction as to the degree of evidence necessary to convict of the crime of perjury, must share the same fate. The course of the trial was not such as to call for such an instruction. Six witnesses testified to the declarations of the prisoner that he was not afraid, and they stood unimpeached. The degree of evidence, necessary to convict of this particular crime, did not therefore come in controversy. If the respondent’s counsel had contended that these witnesses were severally not worthy of credit, and that the evidence of one was not sufficient, and had requested the court to instruct upon this point, or had otherwise raised the question, an instruction upon it should have been given, although an omission, even after a request, to give an opinion upon a point of law relevant to the issue, has been held, under certain circumstances, to furnish no ground for reversing the judgment. 3 Cranch, 298, Douglas v. McAllaster; 4 Cranch, 61, Smith v. Carrington.
But in this case no such request appears to have been made, nor any point respecting the degree of evidence suggested, until after the verdict, and it is not a ground for setting aside a verdict, that the court omitted an express direction upona point not raised at the trial. 11 Wheat. 277, Armstrong v. Toler; 5 Pick. 220, Wait v. Maxwell.
No instruction that the degree of evick ice was insufficient could have been given, if it had been requested. 1 Chilly’s C. L. 458, [563]; 1 Phil. Ev. 108, [113;] 6 Cowen, 118 Woodbeck v. Keller.
The jury were directed, generally, that if they had a reasonable doubt they must acquit, which was all that the present case required.
[360]
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ParkeR, J.
The motion of the prisoner for a new trial rests, in the first place, upon the want of evidence that the individual who acted as a magistrate, and before whom the perjury is alleged to have been committed, was a competent magistrate ; and because, if he was so, the pendency of the prisoner’s complaint before him was not proved by competent evidence;
Justices of the peace have a general jurisdiction to receive complaints, administer the proper oaths thereon, and issue warrants for the arrest of offenders, and it is sufficient, in the first instance, to prove the person an acting magistrate, without producing his commission. 2 Chitty’s Cr. L. 165 [313;] 2 Stark. Ev. 273; 1 East. P. C. 315, Gordon's case; 3 Camp. 432, Rex v. Verelst; 4 D. & E. 366, Berryman v. Wise; 2 Carr. & P. 215, Snow v. Peacock; 3 Johns. R. 431, Potter v. Luther; 12 Johns. 296, Reed v. Gillet.
The fact that George had acted as a magistrate was prima facie evidence of his being such, and we see no objection to receiving this evidence from himself. It was certainly as much wi thin his knowledge as in that of any other person, and we discover no good reason why he should be an incompetent witness to the fact ; and as no evidence was offered to control, or invalidate his testimo[357]*357ny upon this point, we think the fact sufficiently proved.
As to the oilier part of this objection — it is well known that where a complaint of this nature is exhibited and sworn to before a justice, no entry is usually made upon his docket. The warrant may be returned before another magistrate, and wherever it is returned it is entered, and an examination had, and the proceedings arc entered up of record by the magistrate who takes the examination. In this ease the original complaint was exhibited in evidence, with the original certificate of George that it was sworn to before him, and he testified, moreover, that Ilaseall swore to that complaint before him, on the day specified in the cei tilicote of the oath entered upon it.
On the supposition that it was the duty of George to have entered upon his docket some record of the oath having been taken before him, that record could not hove been more satisfactory than the record of the oath entered by him on the complaint itself, and the original papers thus produced, and verified, are certainly quite as conclusive evidence of the fact, not to say more so, than a transcript of any entry upon his docket could have been. His evidence was proper, moreover, to show the identity of the party. This exception therefore must be overruled. 3 Stark. Ev. 1138; 2 Camp. 508, Rex v. Benson; 2 Burr. 1189, Rex v. Morris; 1 Leach, 50, S. C. Bull. N. P. 329.
The next objection is, that on the whole evidence the assignment of the perjury was not sustained ; part of the assignment, it is said, having- been disproved by the defendant.
It was proved on the part of the state, that Hascall swore to all which the indictment sets out as having been sworn by him. 2 Camp. 134, Rex v. Leefe; 1 Chitty’s C. L. 454, [557.]
But there is no doubt that it was distinctly proved, on the part of the prisoner, that Fitts had threatened him, so that one part of what he swore was true ; and if the [358]*358assignment of the perjury had been set out in one entire averment litis exception must have been sustained.
Such however is not the fact. The averment that Fitts had not threatened the prisoner, is, of itself, entire, and distinct from the averment that Hascall was not ai'raid, and one might well be disproved, and the other sustained. It is settled that if any one distinct assignment of perjury be proved the respondent ought to be convicted. 3 Stark. Ev. 1145; 2 Lord Raym. 886, Regina v. Rhodes; 2 Chitty’s C. L. 164, [312.] This exception therefore cannot avail the prisoner.
Another objection is, that evidence relative to the complaint against Hiram Fitts was improperly admitted. But the answer to this is that it was introduced, in con-nexion with the other complaint and the writ, to show the motive with which the prisoner swore to the complaint in question — to show that in this proceeding he had another object in view than the lawful one of procuring sureties of the peace, and thus to disprove the allegation in his complaint that he was afraid of Fitts.
That he at the same time procured another warrant to be issued against the brother of Cyrus Fitts — that both were placed together in the hands of an officer, who was directed not to proceed with them in case the civil suit was settled — and that, such suit being settled, both were abandoned, is a strong corroboration of the evidence of the witnesses, who swore to the declarations of the prisoner that he was not afraid of Fitts, by showing another purpose which he was attempting to effect. All the means he took to accomplish this purpose are directly connected, and those means, and the abandonment of them when the purpose was accomplished, were admissible in evidence, to show that his motives in taking the path in question were corrupt, and to disprove the fears set forth in his complaint. 3 Stark. Ev. 1145; 3 Carr. & P. 498, Rex v. Munton.
He connected these warrants by their delivery togetli[359]*359er, and the directions he gave respecting them, and it is not for him to complain that they are introduced in evidence, in the connexion which he himself framed. This exception therefore is overruled.
The next objection, that the court left the evidence to the jury without any instruction as to the degree of evidence necessary to convict of the crime of perjury, must share the same fate. The course of the trial was not such as to call for such an instruction. Six witnesses testified to the declarations of the prisoner that he was not afraid, and they stood unimpeached. The degree of evidence, necessary to convict of this particular crime, did not therefore come in controversy. If the respondent’s counsel had contended that these witnesses were severally not worthy of credit, and that the evidence of one was not sufficient, and had requested the court to instruct upon this point, or had otherwise raised the question, an instruction upon it should have been given, although an omission, even after a request, to give an opinion upon a point of law relevant to the issue, has been held, under certain circumstances, to furnish no ground for reversing the judgment. 3 Cranch, 298, Douglas v. McAllaster; 4 Cranch, 61, Smith v. Carrington.
But in this case no such request appears to have been made, nor any point respecting the degree of evidence suggested, until after the verdict, and it is not a ground for setting aside a verdict, that the court omitted an express direction upona point not raised at the trial. 11 Wheat. 277, Armstrong v. Toler; 5 Pick. 220, Wait v. Maxwell.
No instruction that the degree of evick ice was insufficient could have been given, if it had been requested. 1 Chilly’s C. L. 458, [563]; 1 Phil. Ev. 108, [113;] 6 Cowen, 118 Woodbeck v. Keller.
The jury were directed, generally, that if they had a reasonable doubt they must acquit, which was all that the present case required.
[360]*360Another exception is, that one of the jurors who tried the case was drawn more than twenty days before the term when the venire was made returnable, and this appears to be the fact.
This would have been a sufficient exception against that particular juror, if it had been taken before the trial. But it is now too late. The venires are uniformly returned into court, and any party can have access to them and examine the returns, before his case comes on for trial. If he omits to do this he must be considered as waiving an exception of this character.
If the exception was of a nature that he could not have availed himself of it at an earlier stage, by the exercise of due diligence, it might be otherwise, but that is not the case here, and the party cannot be suffered to lie by, take the chance of the verdict, and then avail himself of an objection to a juror, the evidence of which was on file with the clerk prior to the trial. 1 Pick. Rep. 38, Amherst v. Hadley; 8 Barn. & C. 417, King v. Sutton.
The only remaining objection is, that certain papers, calculated to make an unfavorable impression upon the jury, were exhibited by Pitts, the prosecutor, at several public places, and read in the hearing of jurors, during the term, and before the trial.
There can be no doubt that the papers have a tendency to produce an impression unfavourable to the prisoner. Several witnesses swear to the exhibition of these papers, and two say, that in their belief they were read in the hearing of two of the jurors, but they do not give the names of the jurors who, as they believe, heard them read.
To rebut this evidence, the counsel for the State has offered the affidavits of each member of the jury, that they did not hear any such papers read at any time before the trial, nor did they read, or hear read, out of court, any paper whatever, in any way relating to the prisoner, or his character, or the character of the prosecutor, before [361]*361the return of the verdict ; and that ihej were induced to agree to the verdict, from a eonsidt,atmii of the la,v and evidence given in at the trial, and from diet u,j1_>
The prisoner’s counsel have objected w i .e rocej turn of these affidavits in evidence, and tí-: (;• r ooeriion is whether they can he considered.
Coster v. Merest, 3 Bro. & Bing. 272, cited by the counsel, is in point for them, if it can be considered as sound law. But among the numerous, and somewhat conflicting cases, respecting receiving the testimony of jurors, no single case can he considered as settling a question of this nature. Vide 2 Green. 41, cases collected in note; 1 Wendell, 297, People v. Columbia Common Pleas; 6 Cowen, 53, Ex parte Caykendoll; 5 Cowen, 106, Sargent v. — -; 2 Green. 37, Little v. Larrabee; 8 Pick. 359, Ferrill v. Simpson; 5 Conn. Rep. 348, State v. Freeman, and auth. post.
The case Coster v. Merest was cited 4 N. H. R. 116. Tyler v. Stevens; but it was merely by way of illustrating the decision in the latter case, the point to which it groes not having arisen there.
It is evident that eases may occur, where an attempt is made to impeach a verdict, upon evidence founded in mistake, misapprehension, or perhaps in fraud. To exclude the testimony of jurors, therefore, in all questions affecting their verdict, would neither be just to the parties, or the jury ; and, upon a full consideration of this point, we hold that the affidavits of the jurors are admissible, in this case, to prove that they did not read, or hear any such papers read, before their verdict. 5 Pick. 296, Hix v. Drury; 3 Johns. Rep. 252, Hackley v. Hastie; 3 Green. 204, Taylor v. Greeley; ditto, 92, Haskell v. Bechet. And that they are not admissible to show, in general terms, that they agreed to the verdict solely from the law and evidence given at the trial. 5 N. H. Rep, 93 [362]*362Page v. Wheeler; 5 Mass. Rep. 405, Whitney v. Whitman; 14 Mass. 245, Bridge v. Eggleston.
These affidavits, then, to that extent, are to be weighed against those produced on the part of the prisoner.
Had the affidavits on the part of the prisoner named any particular jurors who were present, and heard the papers read, there might be a question to be considered as to the weight of the testimony, whether they were heard by those jurors or not. But it is observable that no juror is designated as having heard these papers read, although it must probably have been in the power of the witnesses to do so, if they had the knowledge that they were read in the presence of two members of the jury, as they testify to their belief. The individuals are not only not named, but no description of them is attempted, nor any circumstances stated which can lead to any supposition which of the jurors were probably the individuals alluded to ; nor is it stated that they were unknown to the deponents.
All this is certainly suspicious, and we have no hesitation in holding, that under such circumstances, the affidavits of the several jurors, that they neither read, nor heard read any such papers before the verdict, stand wholly unimpeached, and that the prisoner has failed of making out this fact.
But this is not all. There are other -witnesses on the part of the prisoner than those who testify that the papers in their belief were read in the hearing of two jurors, who swear that they were exhibited in several public places in Portsmouth during the term, and before the trial, and that some of the jurors boarded at those places and the places are designated in the affidavits.
This evidence is not disproved by the government, or in any way encountered, and it establishes the fact of conduct of a highly unwarrantable and reprehensible character on the part of one or more individuals connected [363]*363with this prosecution — conduct which was directly calculated to have an improper ic.ihvmeo upon the trial, and of a character, if tolerated, to destroy the confidence of the citizens in judicial tribunals, rod the fdr and hr,partial administration of hi-diee according to the 1-n s of the land.
We are not disposed to give any countenance to such a procedure in ads or any other case. It is of much more impoitance that the community should fee 1 assured of the purity of the trial by jury, without bias, accord imp to law, than it is that John Haecol! be now sentenced, even if he be guilty.
The exhibition of these papéis was very likely to make their contents a subject of conversation, and the jury, or some of them, may have lieaid some of bee fords comaiu-ed in them, though they neither saw, imr heard of the papers themselves. It is not denied in their af,davits that they did so, althutigii it is not impossible that this may have resulted fiom their attention not having been, called to this point. They state, ceneiahy. that they were influenced by nothing except the law and evidence given at the trial, bin this we cannot consider.
It is sufficient lor this case, that the exhibition of those papers was Highly improper, rod that there is a pooibU-iiy that some of the jury may have hwm] something of the statements contained in them, iu consequence of such exhibition, before the trim was, h: a.
We should net hesitad': a numeni b> sel acide a verdict obtained by a party in a civil case, under wick circumstances, 2 N. H. Rep. 474, Perkins v. Knight; 13 Mass. 218, Kinght v. Freeport, cud although it would be partly io rnaush his misconduct, and the stoic is here in no fault, yet we think the respondent in a crimina! cace, where the law humanely ni estimes Innocence, is, within the discretion of the court, under circumstances like the present, entitled to the benefit of the same rule. And [364]*364it is on this ground, and on tins alone, that we set aside the verdict, and order the ease transferred to the common pleas for a
JVexs trial