The opinion of a majority of the court was pronounced by
King, J.
The defendant Kennedy, was indicted before the Criminal Court of the First District for the murder of Benjamin Wood Wait, alleged to have been committed in the parish of New Orleans. Upon trial he was convicted, and having in the court below made ineffectual motions fora new trial and in arrest of judgment, he has sought relief by an appeal to this court.
The conclusion at which we have arrived, would warrant us in passing in silence over most of the grounds relied upon by the appellant in support of his motions. Pursuing, however, the practice which we hitherto observed, of disposing of all the questions submitted to our consideration in each case, we will proceed to examine those presented upon this appeal.
The first ground upon which the defendant asks for a new trial is, that after the jurors were empannelled and sworn to try the cause, they were permitted to have free communication with other persons than the sheriff’s officer.
The facts in relation to this alleged irregularity are, that at nine o’clock in the evening of the first day of the trial, it was found that the investigation could not be concluded at that sitting, and the court was adjourned until the following morning. The jury were delivered to an officer, with instructions not to speak to them himself, nor to permit others to speak to them concerning the matter then under examination. The judge also advised the jury to abstain from conversations among themselves about the case, as the evidence had been only partially heard, and their opinions should be held suspended until the whole testimony came before them. The jury spent the night in the court room, and clerk’s office, adjoining apartment in the same building, where refreshments were provided for them. The clerk and his deputy were compelled to remain in these rooms after the adjournment, in order to make up the record of the day’s proceedings, there being no other apartment to which they could repair for that purpose, and obtained a special permission from the judge to that effect. The clerk, when about to depart, said to one of the jurors “ There take my cloak,” and left the room saying nothing more.
Mr. Clement Blaney, the deputy clerk, left his office, and passed through the court room at the moment that the jury were supping, and, was invited by several of them to join in their meal. He declined the invitation, but took a glass of wine, spoke a few moments with the sheriff, and withdrew without saying a word about the matter then pending before the jury. Fabre, the officer of the court into whose charge the jury were delivered, and Labutut a deputy, who was present to assist him in the discharge of his duties, supped with the jury but neither spoke to them themselves, nor permitted others to speak to them in relation to the [593]*593trial. These are the facts which constitute the alleged fatal irregularity.
We said in the case of The State v. Hornsby, decided at a former term of this court, ante, 554, that, in capital cases, when the jury were permitted to separate during the progress of the trial, misconduct would be presumed ; and this upon the ground, that in promiscuous intercourse with their fellow citizens, their minds were necessarily exposed to be influenced, and to receive impressions of which they themselves might peihaps not at the time be conscious ; and that it would be impossible to establish the fact by evidence. But this presumption does not arise where the jurors have been kept together. The reason of the rule then ceases. Measures are thus taken to prevent misconduct, and the means provided for ascertaining, and for establishing by proof, the precise nature and character of their irregularities, from which courts may determine whether the tendency of the acts has been to influence the verdict.
Every irregularity will not vitiate a verdict, but those only which are calculated to produce an impression upon the minds of jurors, and influence the verdict which they are to render, (2 Summer, 83 ;) and courts will satisfy themselves that such has been the tendency of the acts complained of, before new trials will be granted on the ground of misconduct on the part of the jury.
In the present instance, the few words exchanged by the jurors with persons not of their body have been detailed. The conversations were held with some officers of the court, brought unavoidably in contact with them, did not relate to the trial, and were not of a character to produce the slightest effect upon the decision of the jury.
The next ground urged is, that the bailiff into whose charge the jury was delivered was not sworn, “ to keep them together and to permit none to speak to them, nor to speak to them himself, but only to ask them, whether they are agreed.”
Hale says, that when the jurors depart from the bar, a bailiff ought to be sworn to keep them together, and not to suffer any to speak with them. 2 Hale, 396. This formality appears to be observed at all common law trials, and the books which treat of those proceedings generally concur in stating, that the oath ought to be administered, but do not assert that it is essential to the validity of a verdict; nor have we been referred to any adjudicated case where the omission was held to be fatal.
The sheriff and his deputies, before entering upon the duties of their offices, are required, by our constitution and laws, to take an oath, faithfully and impartially to perform the duties incumbent [594]*594upon them. The duties of keeping the jury together, in such cases, and of not permitting them to speak with any one, is one of those imposed by law upon these officers, when juries are delivered into their charge, and of course are of those which they have already been sworn to perform. No additional oath would, therefore, seem to be necessary for the execution of this specific service, unless it might be to remind the officer of his duty. This was done by the judge, who gave special instructions to the deputy sheriff, into whose charge the jury was delivered, as to the nature of his duties ; and the latter appears to have executed them as strictly as though the oath contended for had been administered. The object in view was to prevent misconduct on the part of the jury, and this was attained.
By our laws, this form has been dispensed with in civil proceedings, and the practice in criminal prosecutions appears generally to have fallen into disuse in this State. It may be doubted whether our courts have the right to exact such an oath from a bailiff. The act of 1815, after prescribing the form of the oath to be administered to all officers in this State, in the sixth section provides: “that from and after the ¡passing of this act, all other oaths of office shall be, and they are hereby, repealed.” Bullard & Curry’s Dig. 611. We do not think that the oath is necessary here.
The next cause assigned for a new trial is, that the judge erred in permitting two jurors to be challenged by the Attorney Gene-eral for cause, because they were conscientiously opposed to capital punishment.
Two persons being called as jurors, and sworn upon their voir dire, were asked by the attorney general, “ whether they had any conscientious and religious scruples against finding a verdict of guilty, in any case involving the life of the accused 1” The question was answered affirmatively, and the jurors set aside for cause.
It is contended, that no such ground of recusation is known to the common law, or to the statutes of this State, and that the decisions of courts in other States recognizing the validity of this objection to jurors have been based upon special legislative enactments.
Our statute merely declares the qualifications of condition, age, sanity, residence and property, which the citizen must possess before he can be drawn and summoned as a juror, leaving the court or triors, as the case may be, subsequently to determine, upon inquiry, when he is presented to the prisoner, whether his mind is free from anger, influence’or prejudice.
“ The rule of the common law is, that the juror must stand indifferent as he stands unsworn.” Co. Litt. 155, a. He cannot [595]*595be said to stand indifferent between the State and the accused, upon a trial for a capital crime, when, from his religious belief and conscientious scruples hecannotconvict, and is therefore previously-determined to acquit. No adjudicated ease upon this point is found in the common law reports, probably because opinions opposed to capital punishments do not prevail in England. But an English judge would not hesitate, in a capital case, to reject jurors professing such opinions, upon the common law principle, that they did not stand indifferent, that they were not above all exception, and those by whom the truth of the matter in controversy could be best ascertained. 1 Chitty, C. L. 544. Bacon’s Abridgment, Juries, G. 5.
■ A similar question arose in New York, growing out of a statute relating to persons who belonged to religious denominations opposed to the infliction of capital punishment. Mr. Chief Justice Savage, speaking of a juror who entertained the same opinion, but was not a member of a religious denomination, said, “ such a person is unfit; he has prejudged the question ; he has made up his verdict without hearing the evidence, and ought to be excluded upon common law principles. It would be a solemn mockery to go through the forms of a trial with such a jury, or even with one such juror. The prisoner is sure to be acquitted independent of the question of guilt or innocence. It would be a misnomer to call such a proceeding a trial.” 13 Wendell, 354, 355.
In the case of The United States v. Cornell, Mr. Justice Story in sustaining an objection made , to a juror upon very similar grounds, says; “ To compel a quaker to sit as a juror in such cases, is to compel him to decide against his conscience, or to commit a solemn perjury. Each of these alternatives is equally repugnant to common sense. To insist on a juror’s sitting in a cause where he acknowledges himself to be under influences, no matter whether they arise from prejudices or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt the proceedings of courts of justice. We do not sit hereto procure the verdicts of partial and prejudiced men, but of men honest and indifferent in causes.” 2 Mason’s Rep. 105.
In Pennsylvania the question ivas similarly decided, exclusively upon common law principles ; (17 Serjeant & Rawle, 155 ;) and upon those principles we think this objection to a juror a good one in this State.
The next position taken is, that one of the jurors had not resided in the State for twelve months previous to the formation of the venire. This person came to the city of New Orleans, on the 4th [596]*596of November, 1843. He was at that time a partner in a commercial house here, and remained here, engaged in business as a member of the firm, until the 17th June, 1844, when he returned to New York upon business, and to see his family, and was absent until the 23d September, 1844. When he first came, it was with the intention of establishing himself in mercantile business. Some three or four months after his arrival, he for the first time, made up his mind to bring his family to this city, and reside here permanently. His intention of fixing his residence in this State was, therefore, not formed until about the 4th March, 1844. The venire upon which he was summoned was formed about ’the end of February, 1845.
Our act requires a residence of twelve months previous to the formation of a venire as one of the qualifications of a juror. The juror had not acquired this residence, and therefore could not have been legally drawn or presented to the accused. 2 Robinson, 266. The want of residence is not an exception which the juror alone can plead, but a defect of which the accused may, at the proper time, avail himself. The law requires this term of residence in order that the juror may acquaint himself with the laws and institutions of the State, and incorporate and identify himself with its people, before he shall be permitted to sit in judgment upon their lives and property. The objection however comes too late. It should have been made when the juror was offered to the accused. 1 Chitty, 545, 546.
An opportunity is then afforded to the prisoner of inquiring into the qualifications of the juror upon the voir dire examination. If, upon that inquiry, he be found to want the legal qualification, he may be set aside for that cause. It would have been different if the juror, when interrogated, had stated that he had acquired the requisite residence, was free from bias, or that he possessed any other legal qualification, and it had subsequently been discovered that the statement was false. This would have been a fraud practiced upon the accused, from which he could have been relieved. Having waived the right accorded to him by law, he waived with it every objection which he might have urged to the juror. Lord Ellenborough said, that a different rule might vitiate one-half of the verdicts rendered at every assizes in England. The same remark is applicable here. 2 Bay’s Rep. 155. Graham on New Trials. 1 Chitty, 545, 546, and the authorities there quoted.
The next ground relied upon is, that new and material evidence has been discovered since the trial. In applications for new trials upon this ground, it should not only be made to appear, that there has been reasonable diligence, that the evidence has been discovered since the trial, and is material, but that it is [597]*597not cumulative, and would probably produce a different verdict if a new trial were granted. This principle seems to be well settled.
In the cases of The Stater. Clark,and of The State v. Hornsby, decided at former terms of this court, ante, pp. 533, 554, it was held, that “ it is not sufficient to warrant the granting of a new trial, that the newly discovered evidence might have the effect of throwing a shade of doubt over some of the incidental circumstances of the trial. It should appear to be of so decided a character that, if admitted, it would give to it an acquitting complexion.”
From such of the facts as can be gathered from the record, we are not prepared to say, that the new discovered evidence is such as ought to have produced a different result, if it had been submitted to the jury, even if the credibility of the new witnesses were entirely free from suspicion. The record discloses the additional fact, that the newly discovered witness has, on a former occasion, been convicted of forgery in this city, and that, at the time of making this application, he was confined in one of the prisons of this parish under a similar accusation preferred against him. We think the court properly refused the new trial.
We will now proceed to examine the several grounds upon which an arrest of judgment has been claimed.
The first of these is, that “ the indictment does not correctly express the name of the court where the indictment was found, but erroneously styles it the Criminal Court of the First Judicial District, when the act of 1821 declares the court shall be known and called the Criminal Court of the First District; that a court is only known and properly designated by the name and style prescribed by law ; that the name of the court where the presentment is made must be expressed ; and that an erroneous statement or description of the court, of its name, style, or title to authority is fatal.”
The better to understand-the nature of the alleged error it will be necessary to transcribe that part of the indictment in which it is supposed to occur. It is as follows ;—
“ The State of Louisiana, Criminal Court of the First Judicial ¡District, parish of New Orleans :
“ The grand jurors of the State of Louisiana duly empannelled and sworn for the parishes of Jefferson, Orleans and Plaquemines, upon their oath present, that one Samuel Kennedy, late of the city of New Orleans, on the 29th day of December, in the year of our Lord one thousand eight hundred and forty-four, at the said city of New Orleans, in the parish of Orleans, and within the jurisdiction of the Criminal Court ofthe First Judicial District, did” <fcc.
[598]*598It will be perceived that the alleged vices occur ill the commencement and statement of the indictment.
It is manifest that the name of the court differs in the indictment from that given to it in the legislative act, which is “ Criminal Court for the First District.” Bul. & Curry’s Dig. 193.
Admitting for present purposes, that the variance is material, and would be fatal in a caption, we will proceed to inquire if it be necessary in this State, to describe in any part of an indictment the court in which it was found.
At common law, the only source to which we can refer for the principles upon which the decision of the question depends, the commencement of every indictment is thus : “ Middlesex, to wit: The jurors of ourLord the King, upon their oath present, that” &c. and this is what is technically termed the commencement, after which follows the statement of the offence.
ludictments in England neither describe the court before which they are found, nor the jurors by whom they are found, nor do they aver that the court has jurisdiction of the offence. The numerous authorities to which we have been referred in support of the position that the court is to be set forth in the indictment, all concur in stating, that it is to be described in the caption and with great precision, but none, that the description is ever given in the indictment itself.
Now the caption is not to be confounded with the commencement, nor with any other part of an indictment. It forms no part of that instrument, but is a wholly separate and independent act, which is not submitted to, nor acted upon by the grand jury, prefers no charge against the accused, and never figures upon the record until after the bill has been found, and, in general, not until the indictment is removed for trial to a ■ higher tribunal, by a writ of error or of certiorari.
In England, when in obedience to one of these writs, an indictment is removed from an inferior to a superior court, it is accompanied by a history of the previous proceedings, describing the court before which it was found, the time and place where it was found, and the jurors by whom it was found. This is properly the return to the writ, from which is extracted the caption which is prefixed to the indictment in the record. Its principal object is to show, that the inferior tribunal had jurisdiction of the offence, and thence arises the necessity for the great precision required in that respect. 2 Hale, 165, 166. Chitty’s C. P. 326, 327, 328. Starkie, C. P. 258. Archbold, C. P. 24.
Captions owe their origin to the peculiar organization of the English courts, some of which, with limited jurisdiction, and not unfrequently acting under special commissions, may take indictments. These indictments may be removed to the Court [599]*599of King’s Bench for trial. That court will require, before examining the charge, a history of the previous proceedings, and to be specially informed of the authority of the inferior court to take the indictment; for, if the inferior court transcend its authority, the whole proceedings will be null, and the indictment quashed.
There is nothing analogous to this in our judicial system. We have but one class of courts for the trial of criminal accusations preferred against free persons, viz. the Criminal Court of the First District, and the District Courts; upon these, exclusive and unlimited original jurisdiction has been conferred. Indictments can be found and tried only before them, and cannot be removed from one to another of them. When an indictment sets forth the parish or venue where the offence has been committed, the law fixes the only court which has jurisdiction of it. The same court before which the indictment was found must try it. Hence there is, in this changed condition of things, no necessity for a caption to the indictment in this State. The court which has itself taken the indictment cannot desire to be informed by what authority it was acting, nor can it desire a formal statement of proceedings, all of which have passed under its own eye, and form a part of its own records.
The error in the position assumed by the defendant has been, in insisting upon a correct averment in the indictment of a fact, which the strictness of common law proceedings only required to be stated in the caption, when a caption became necessary. We find that, at common law, the designation in an indictment of the court before which it was found, is not required. Under our system, the necessity for a caption can never arise; and it has, therefore, been in practice discarded. It follows as a consequence, that it is not necessary to make the averment in any part of our criminal proceedings. Those parts of the indictment under consideration, which are in the following words; “ The Criminal Court of the First Judicial District,” are surplusage, and, as such, may be rejected without injuring the remainder of the instrument.
It is necessary to state the venue, that is, the parish in which the offence was committed, that the court may know that it has jurisdiction. In the present instance, the venue has been distinctly expressed in the commencement; and, in the statement, the crime is alleged to have been committed in the parish of Orleans.
The next objection made to the indictment is, that “ It is defective in its statement. The allegations of the time and place of the death of the person murdered are material, and must be distinctly set forth in the indictment. It must appear that the party [600]*600died within a year and a day. This indictment states neither time nor place of the death of the party killed, and is, therefore, fatal.”
The indictment, after stating the mortal blow, with the usual averments of time and place, proceeds: “ Of which mortal wound, so given by the said Samuel Kennedy, with the deadly weapon aforesaid, to the said Benjamin Wood Wait, the said Benjamin Wood Wait did then and there suffer and languish, and languishing did live, and a few hours after did die of the said mortal wound.”
No principle appears to be better settled than that, in indictments for high offences, those termed felonies at common law, the averment of time and place is to be repeated to every issuable and triable fact. When these have been once set forth with certainty, they may, in every subsequent averment, be referred to by the words then and there, which are deemed equivalent to a repetition of the time and place. The time should be stated with such certainty, that no doubt can be entertained of the period really intended ; and such is the precision required in this respect, that any uncertainty in the averment of time and place will vitiate the indictment.
The material facts in murder are the mortal stroke, and the consequent death, and the death must appear upon the record to have occurred within a year and day from the time when the mortal stroke was given. The averment, then, of each of these material facts must, under the well established rules of criminal pleading, be accompanied by an allegation of a certain time and place. Thus, to aver that the assault was made on two days, as on the first and second of May, or on an impossible day, is such an uncertainty as will vitiate the indictment.
If an indictment for murder state that A , at a given time and place, having a sword in his right hand, did strike B,, it is bad, for the time and place relate to the having the sword, and it is not stated when or where the stroke was given.
A., at a certain time and place, made an assault upon B., et eum cum gladio percussit, was held to be bad, because it was not said adtunc et ibidem percussit. The copulative conjunction “ and,” without the repetition of the time and place to this material ingredient of the offence, being deemed insufficient. In misdemeanors the same strictness is not required. 1 Chitty, 218, 219. Starkie, Cr. Pl. 58, 62, 65. 2 Hale, 178. Archbold, Cr. Pl. 34. 2 Hawk. cap. 23, sec. 88.
We will not further multiply instances of this precision, required in the averment of timo and place to every material fact in capital crimes. The books are full of them, and no principle is better settled. The decision of the question depends altogether [601]*601upon authority, and the language of the authors cited, upon this as upon other points, has been used as nearly as possible.
Testing the indictment under consideration by these well established rules we find, that although there is a sufficient certainty in setting forth the time and place of the mortal stroke, yet there is no averment of the time and place of the death. The then and there immediately precede and refer to the “ languished, and languishing did live,” and not to the allegation, “ and a few hours after did. die.” The copulative and, it has been seen, is insufficient to connect the time and place with the death. Nor wilt the grammatical construction of the sentence support the position assumed in argument, that the then and there refer to the death. The facts of the time and place of death cannot be inferred or ascertained by intendment; they must be precisely and distinctly stated. Nor will the averment in the conclusion of a correct time and place of death, cure this defect, but, on the contrary, will render it repugnant to the statement. At the close of the indictment the legal conclusions are to be drawn from the facts previously set forth in the statement. The facts of the time and place of the death not having been set forth in the statement, the legal conclusion cannot be drawn, that the deceased was murdered in the parish of Orleans, on the 29th day of December, 1844.
The attorney general has called our attention to the statute of 1805, which directs that indictments, divested of all unnecessary prolixity, changing what ought to be changed, shall be according to the common law, and contends, that the frequent repetitions of time and place constitute some of the prolixities contemplated by the act, of which courts are authorized to divest indictments. We are not prepared to give this construction to the statute. We do not believe that the Legislature intended to confer upon courts authority to legislate upon the subject of criminal proceedings, or the framing of indictments, but merely to direet prosecuting officers to omit those prolixities which were acknowledged to be such at common law, and, consequently, unnecessary, although habitually inserted in indictments; such as the averment that the defendant “not having the fear of God before his eyes,” &c., with many others needless to be enumerated, which are found in old precedents, and even in those of more modern date. The changes directed by the act, we think, are those which are necessary to make our proceedings conform to our own laws and form of government; as, for instance, instead of an indictment com-menciug; “Middlesex, to wit: The jurors of our Lord the King,” it should begin; “ The State of Louisiana, Parish of Orleans: The grand jurors of the State of Louisiana;” with many others of a like nature. If, however, this legislative authority [602]*602was ever conferred upon courts, it has long since been withdrawn by the constitution.
Whatever has been determined to be an essential averment in an indictment at common law, will be deemed necessary here, unless a statute of the State has removed the reason, and with it the necessity for the allegation. At common law, we have seen, that the averment, with certainty, of time and place of the death have been held to be indispensable in indictments for murder, and for sufficient reasons. These reasons have not been removed by our statutes, but exist here in full force; for it is equally true here, as in England, that the death must have occurred within a year and a day from the time when the blow was given, to constitute murder, and that the right to a trial by a jury of the vici-nage is secured to every citizen.
We find, then, that the indictment wants one of the averments essential to its validity at common law, and that the averment is equally necessary under our laws. The defect is not cured by the verdict, and the judgment must be arrested.
The attorney general has commented forcibly upon the regrets expressed by learned and able English judges, that the great niceties required in framing indictments offered too frequent opportunities for the escape of culprits, the tendency of which was rather the encouragement, than the suppression of crime. Lord Hale said, that the strictness required had grown to be a blemish and an inconvenience in the law. Similar opinions have since been expressed by Lord Kenyon and Lord Ellenborough. L Chitty, 170. But we are not informed that these learned judges ever felt themselves authorized to disregard the law, such as it was, or to dispense with the observance of those niceties, of whose existence they complained. Their remarks apply with full force to the criminal laws of this State; that the power to remedy the evil resides in the legislative branch of the government, and it is to be regretted that it has not already been exercised.
The English parliament attentive to the suggestions of its courts, has provided remedies for many of the inconveniences of the common law. The act, however, has been passed since 1806, and has no force,, in this State. Archbold. Stat. Geo. IT.
It is therefore ordered, that the judgment of the inferior court be reversed; that the verdict in the case be set aside, and the judgment thereon arrested.