The opinion of the Court was delivered by
Levy, J.
The defendant was indicted for manslaughter, tried; convicted and sentenced to ten years’ imprisonment in the penitentiary. From the sentence and judgment he has appealed.
[1099] The grounds on which he seeks the reversal of the judgment, are :
1st. Because the prisoner was absent from the court during portions of the trial. It is not contended or shown that any injury resulted from such' absence. The prisoner was under bond ; if he absented himself, it was voluntarily done by himself. The record shows that he was present during the arraignment, empaneling of the jury, the charge of the court at the rendition of the verdict, and when sentence was pronounced. At no time during any of the material proceedings was he absent. His short absence occurred during the argument of one of his attorneys, and again during the examination of a witness by his attorney. This was known to his. counsel, who did not bring the fact to the attention of the court, and it is not urged that the prisoner suffered any injury thereby. The defendant chose voluntarily to absent himself from court on these occasions. It might be different if such absence were involuntary on the part of the prisoner; but under the circumstances of this case, we do not think that the temporary voluntary absence of the prisoner during the proceedings which were had during his absence, which did not include his arraignment, empaneling of jury, charge of the judge, rendition of verdict, sentence of court, or even motion for new trial, a motion in arrest of judgment, afford sufficient grounds for setting aside the verdict. Wharton’s Crim. Law, $ 3365.
In his assignment of errors, the defendant urges that the court a qua erred in its written charge to the jury, in giving the following instructions : “ In cases where threats and hostile acts are proven, the jury may also consider the general character of the deceased. The fact however, that the deceased was a man of dangerous character, does not justify the killing, but only enables the jury to pass on the danger of the attack.” •
We think the charge above quoted, and which the defendant has assigned as error on the face of the record, is too restrictive as to the effect to be given to testimony as to the dangerous character of the •deceased. The fact that the deceased was a violent, quarrelsome, vindictive, desperate or dangerous person, does not of itself justify one in killing him ; such a doctrine finds no countenance in law and reason ; but where threats and hostile acts or demonstrations are proven, the fact of the dangerous character of the deceased should not be confined in its consideration by the jury to the danger of the attack or hostile demonstrations by the deceased, but the accused is entitled to have the jury consider whether or not it afforded reasonable grounds of fear or apprehension in his mind at the time of the killing that the life of the accused was in imminent danger from such attack or demonstrations, or that he was in imminent danger of serious bodily harm. (Wharton’s Am. Crim. Law, g 641 and authorities there cited). This charge was cal[1100] culated to restrict the jury to a consideration only of the danger of the attack, while they should have considered not only whether the attack in itself was dangerous, but whether from the character of tne deceased the accused had reasonable grounds to believe or to fear and apprehend that he was in danger. This charge was well calculated to mislead the jury on the point stated and to deprive the defendant of the consideration by the jury of the question whether accused had reasonable grounds for fear and apprehension, etc. This charge was given in writing, and is embodied in the record; it involves a question of law, and although no bill of exceptions appears to this portion of the charge, we think it must be considered by this Court under the assignment of error on the face of the record. In 20 A. 389 this Court held, that an appellate jurisdiction in criminal cases is limited to questions of law alone. These questions must be presented by bill of exceptions or assignment of errors; or the errors must be apparent on the. face of the record.” Wharton, in his treatise on Criminal Law, § 3162, says : “ The law is to come from the court, and the court is bound to give the aw, and it has been repeatedly declared that the defendant has a right to a full statement of the law from the court; and that a neglect to give such full statement, when the jury fall into error, is sufficient reason for reversal.” See authorities quoted in note, (c.) We think the error of law complained of in the charge appears on the face of the record, and therefore, is properly before us on the assignment of errors.
The objection as to the illegality of the jury, as set forth in the bill of exceptions, is in our opinion met by the decision of the court a qua on the motion to set aside the jury ordered -to be and actually drawn on the 5th of April, 1880, and summoned to appear on the eighth of same month. The challenge to the array, for the reasons given by the judge a quo, came too late.
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The opinion of the Court was delivered by
Levy, J.
The defendant was indicted for manslaughter, tried; convicted and sentenced to ten years’ imprisonment in the penitentiary. From the sentence and judgment he has appealed.
[1099] The grounds on which he seeks the reversal of the judgment, are :
1st. Because the prisoner was absent from the court during portions of the trial. It is not contended or shown that any injury resulted from such' absence. The prisoner was under bond ; if he absented himself, it was voluntarily done by himself. The record shows that he was present during the arraignment, empaneling of the jury, the charge of the court at the rendition of the verdict, and when sentence was pronounced. At no time during any of the material proceedings was he absent. His short absence occurred during the argument of one of his attorneys, and again during the examination of a witness by his attorney. This was known to his. counsel, who did not bring the fact to the attention of the court, and it is not urged that the prisoner suffered any injury thereby. The defendant chose voluntarily to absent himself from court on these occasions. It might be different if such absence were involuntary on the part of the prisoner; but under the circumstances of this case, we do not think that the temporary voluntary absence of the prisoner during the proceedings which were had during his absence, which did not include his arraignment, empaneling of jury, charge of the judge, rendition of verdict, sentence of court, or even motion for new trial, a motion in arrest of judgment, afford sufficient grounds for setting aside the verdict. Wharton’s Crim. Law, $ 3365.
In his assignment of errors, the defendant urges that the court a qua erred in its written charge to the jury, in giving the following instructions : “ In cases where threats and hostile acts are proven, the jury may also consider the general character of the deceased. The fact however, that the deceased was a man of dangerous character, does not justify the killing, but only enables the jury to pass on the danger of the attack.” •
We think the charge above quoted, and which the defendant has assigned as error on the face of the record, is too restrictive as to the effect to be given to testimony as to the dangerous character of the •deceased. The fact that the deceased was a violent, quarrelsome, vindictive, desperate or dangerous person, does not of itself justify one in killing him ; such a doctrine finds no countenance in law and reason ; but where threats and hostile acts or demonstrations are proven, the fact of the dangerous character of the deceased should not be confined in its consideration by the jury to the danger of the attack or hostile demonstrations by the deceased, but the accused is entitled to have the jury consider whether or not it afforded reasonable grounds of fear or apprehension in his mind at the time of the killing that the life of the accused was in imminent danger from such attack or demonstrations, or that he was in imminent danger of serious bodily harm. (Wharton’s Am. Crim. Law, g 641 and authorities there cited). This charge was cal[1100] culated to restrict the jury to a consideration only of the danger of the attack, while they should have considered not only whether the attack in itself was dangerous, but whether from the character of tne deceased the accused had reasonable grounds to believe or to fear and apprehend that he was in danger. This charge was well calculated to mislead the jury on the point stated and to deprive the defendant of the consideration by the jury of the question whether accused had reasonable grounds for fear and apprehension, etc. This charge was given in writing, and is embodied in the record; it involves a question of law, and although no bill of exceptions appears to this portion of the charge, we think it must be considered by this Court under the assignment of error on the face of the record. In 20 A. 389 this Court held, that an appellate jurisdiction in criminal cases is limited to questions of law alone. These questions must be presented by bill of exceptions or assignment of errors; or the errors must be apparent on the. face of the record.” Wharton, in his treatise on Criminal Law, § 3162, says : “ The law is to come from the court, and the court is bound to give the aw, and it has been repeatedly declared that the defendant has a right to a full statement of the law from the court; and that a neglect to give such full statement, when the jury fall into error, is sufficient reason for reversal.” See authorities quoted in note, (c.) We think the error of law complained of in the charge appears on the face of the record, and therefore, is properly before us on the assignment of errors.
The objection as to the illegality of the jury, as set forth in the bill of exceptions, is in our opinion met by the decision of the court a qua on the motion to set aside the jury ordered -to be and actually drawn on the 5th of April, 1880, and summoned to appear on the eighth of same month. The challenge to the array, for the reasons given by the judge a quo, came too late.
The defendant excepted to the ruling of the court a qua, that R. C. Lanier was a competent juror. On his examination upon his voir dire, this juror testified that, “he had formed a fixed opinion in regard to the guilt or innocence of the accused; that said opinion was formed from conversation with different persons, but he did not know whether said persons are witnesses in the case or .not; and further declares that said opinion would yield to testimony showing the facts to be different from those that he had heard;” and, in response to counsel for the accused, said Lanier declared that, from what he had heard of the case from said persons, he had formed a fixed and deliberate opinion in regard to the guilt or innocence of the accused ; and being interrogated by the court, he reiterated his declaration that he had formed a fixed and deliberate opinion in regard to the guilt or innocence of said accused, but that it would yield to con[1101] trary evidence, whereupon the court decided that said Lanier was a competent juror (the question of competency having been previously raised by defendant’s counsel). We think the exception was well taken, and the court a qua erred in this ruling. While the decisions on this point are in conflict in many of the States of this Union, the weight of authority and reasons adduced preponderate in the opinion that it being the intention of the law that the accused should be tried by an impartial jury, unbiased and unprejudiced, and while mere vague impressions, based upon newspaper reports or general rumor, do not render a juror incompetent in the case in which such impressions or opinions have been formed, yet the formation of a “ fixed ” or “ deliberate ” opinion destroys his competency. Fixed and deliberate opinions must, of necessity, create bias in the minds of those who entertain them. An opinion fixed, after deliberation on the subject-matter to be tried, necessarily, from the very constitution of the human mind, prevents an impartial and unbiased state of mind on the part of the jury, which the spirit and policy of the law require. Our own Supreme Oourt held, in State vs. George, 8 Rob. 537, these views, and in that ease said: “ But where a deliberate opinion has been formed the jurors have, in most cases, been excluded.” This is, substantially, the rule laid down by G. J. Marshall, in Burr’s trial, and was adopted in the case just cited. We think that Chief Justice Merrick, in his dissenting opinion in the case of State vs. Bunger, 14 A. 472, also laid down the correct doctrine when he held : " The law gives the accused a right to twelve peremptory challenges, and he is not bound to use one of them, so long as he has a valid challenge for cause. Any other rule would embarrass the accused, and his peremptory challenges might thus be exhausted upon jurors against whom he had sufficient challenges for cause.”
The fact that Lanier did not serve upon the jury, and the argument that it is shown that the accused did not exhaust his peremptory challenges, cannot contest the doctrine nor refute the reasons supporting it.
It is, therefore, ordered and adjudged and decreed that the verdict and sentence of the lower court be set aside, and its judgment reversed, and that this ease be remanded to the said lower court to be proceeded with in a new trial according to law.