By the Court,
Lott, J.
The plaintiff m error was tried at a Court of Oyer and Terminer, held in and for the city and county of New York, on an indictment charging him with the murder of his wife.
His trial commenced on the 7th day of March, 1859, and was continued by adjournment from day to day until the twenty-sixth day of that month.
The jury found him guilty, and judgment has been rendered on their verdiet.
That judgment, with a bill of exceptions, containing various exceptions taken to decisions of the court on the trial, was removed on a writ of error to this court for review, and subsequently, on an allegation that there was a diminution in the record, and the matters returned with said writ, a further return was made in obedience to a writ of certiorari, which was [496]*496allowed and issued for that purpose, without prejudice to any questions that might arise thereon.
By that return, it appears that the court, during the progress of the trial, usually adjourned between three and four o’clock in the afternoon of each day, till ten o’clock the next morning, except on Saturday, the 12th and 19th of March, when the adjournment was made till the Monday following, at ten o’clock A. M., and that the jurors during each adjournment, except that on the 25th day of March (when they retired to deliberate on their verdict, under the charge of four sworn officers), were permitted to separate.
It thereby further appears that motions for a new trial and in arrest of judgment were made before judgment was rendered, and that affidavits which are returned were read in support of and in opposition to such motions.
It is insisted by the counsel for the People that the matters brought up by the certiorari formed no part of the record, and cannot be considered by this court.
Without expressing any opinion on that point, we will, in view of the importance, particularly of one of the questions presented, here assume that these matters are properly brought up for review, and proceed to consider the case on that assumption.
The principal question to be examined is, whether the separation of the jury during the progress of the trial was illegal and vitiated the verdict.
That is a question of great practical importance, and its decision will affect not only the verdict and judgment in this case, but if the objection against the proceeding is valid, will, to a great extent, change the course of trial in all cases of felony. It is believed to be the general practice in trials of indictments for felonies of any grade, except that punishable by death, to permit a separation of the jury, and judges of extensive experience have extended that practice to capital cases. The question is presented as one of power, and will be considered in that aspect.
[497]*497It is said by Lord Coke (Co. Litt., 227, b.), that “ a jury sworn and charged, in case of life and murder, cannot be discharged by the court or any other, but they ought to give a verdict." (See also 3 Inst., 110.) The universality of that rule was questioned at an early day, and after a fall deliberation in the case of the two Kinlocks (Foster, 22), it was held by nine out of ten judges, giving their opinions seriatim, not to be universally binding.
Sir M. Foster, in giving his opinion, states several exceptions to the rule, and showed that the only authority cited by Lord Coke in support of the position, did not in the least warrant it; and that the authority itself was subsequently overruled, and he comes to the conclusion that the power of the court in discharging juries is not capable of being determined by any general rule, but must be governed by the particular circumstances of the case presented.
That principle was afterwards recognized by Mr. Justice Blackstone in his Commentaries, who, in treating of trials in criminal cases, says that “ when the evidence on both sides is closed, and, .indeed, when any evidence has been given, the jury cannot be discharged (unless in cases of evident necessity), till they have given in their verdict.” (4 Com., 360.)
Exceptions are thus engrafted on the general rule as laid down by Lord Coke, and cases of necessity being admitted to form exceptions, it is necessarily left to the discretion of the court to judge of that necessity.
It appears from what is stated in Rex v. Stone (6 Durn. & East, 527), tried at bar, that it was formerly deemed necessary, in order to carry out that rule, that a trial in a criminal case should be continued without interruption from its commencement to its close. In that case, the inconvenience, if not impossibility, of a strict adherence to that requirement became apparent. The prisoner was tried on an indictment for high treason, and it is stated in the report of the case that the court having sat, on the first day of the trial, from nine o’clock in the morning till ten o’clock at night, without any interruption or refreshment, the Attorney-General stating that his evidence [498]*498would occupy four hours more, and some of the jury being very much exhausted, and incapable, as they declared, of keeping up their attention much longer, the court adjourned till nine o’clock the next morning; Lord Kenyon observing that necessity justified what was compelled, and that though it was left to modern times to bring forward cases of such extraordinary length, yet no rule could compel the court to continue longer sitting than their material powers would enable them to do the business of it.
The jury retired to an adjoining tavern, where accommodations were prepared for them, and the bailiffs were sworn “ well and truly to keep the jury, and neither to speak to them themselves, nor suffer any other person to speak to them touching any matter relative to the trial.” It is stated in a note to that case, that at the Old Bailey, in the latter end of 1794, the trials of various persons for high treason lasted, Hardy’s, nine days; Horne Tooke’s, six days; and Thelwall’s, four days. On the first of these trials, the adjournment was stated to be made by the consent of the prisoner, but on the second, the judges who sat, having in the meantime conferred with the rest of their brethren, said they were clearly of opinion it might and ought to be done by the authority of the court, without calling on the prisoner for any consent.
The rule was subsequently further relaxed in cases of misdemeanors, so far as to permit a separation of the jury without the custody of any officers during the progress of the trial, and the practice was sustained, after full consideration, in Rex v. Woolf and others, decided in 1819. (1 Chitty R., 401; also reported in 2 Barn. & Ald., 462.) The defendants in that case were tried on an indictment for a conspiracy, before Abbott, Ch. J., and found guilty. Their trial lasted two days. The court, at about eleven o’clock p. m. of the first day (the case being then unfinished), adjourned until the following morning, and the jury were permitted to separate and retire to their respective homes without the knowledge of the defendants or their attorneys, and on that ground an application was subsesequently made to set aside the verdict.
[499]*499The judges, Abbott, Ch. J., Bayley, Holroyd and Best, justices, delivered their opinions seriatim against the motion.
Chief Justice Abbott said his opinion was founded on the admitted fact that there were many instances of late years in which jurors in trials for misdemeanors had dispersed and gone to their abodes during the night for which the adjournment took place, and he considered every instance in which that had been done, to be proof that it may be lawfully done; and Justice Best, after referring to the cases cited in support of the motion, concludes that the only, one which touched the question under consideration, was that of Lord Delamere, in the 4th State Trials, 232, where, as he remarks, the judges appeared to have said that a jury once charged cannot be discharged.
In reference to which he says that such might have been the law at one time, but that the constant and uniform practice which had existed for a considerable length of time in discharging juries, would show that which was said in Lord Delamere’s case was not to govern their decision.
The other cases were those where there had either been improper conduct on the part of the jurors after they were sent out to deliberate on their verdict, or where improper practices had been used by the parties to influence the decision of the jury in their favor. (See also 1 Chitty's Cr. L., 628.)
It thus appears that in England the rule as laid down in Blackstone is so construed as to concede that the court have the power to permit a separation of the jury in cases of misdemeanor, and that its exercise is left entirely to the discretion of the court. It is true that no decisions have been produced establishing that authority there in capital cases, nor, on the other hand, have we been referred to any denying it. The important consequences dependent on the results of such trials, are calculated to secure and enforce all precautionary measures necessary to guard against improper influences, and may have restrained the judges from exercising the discretion vested in them.
[500]*500The rule itself excepts no class of offences from its operation, but all are alike comprehended within its inhibitions.
When, therefore, it is established that the power to authorize a separation exists in one class of cases, it is difficult to see why it does not exist in all. The power itself may be general, while its exercise, in a sound discretion, may be limited.
In this country there has not been a uniformity of practice on the question under consideration. While it is conceded (I believe without exception) to be discretionary with the court, whether the jurors shall be kept together or be permitted to separate on trials of misdemeanor, that right, in cases of felony, is denied in some of the States, in others it is not only admitted and fully recognized, but the rules applicable to the exercise of that power in civil cases, are extended to criminal cases, so far even as to authorize a sealed verdict to be rendered. Thus it was held in a case in Missouri, decided in 1843, and in cases in Pennsylvania and Tennessee, decided in 1851 (all capital cases), that the separation of jurors by the permission of the court (and in the last two cases by the consent of the prisoner) was a ground for setting aside a verdict. (See McLean v. State, 8 Miss., 153; Pfeifer v. Com., 3 Harris, 468; and Wesley v. State, 11 Humph., 502. )
It is stated in the case of Berry v. State, decidéd in Georgia in 1851 (10 Geo., 511), in which the prisoner was convicted of larceny, after a separation of the jury by consent during the trial, that it was the duty of the court to keep the jury together in criminal cases, from the time the case is submitted to them until they are finally discharged from its consideration; but they nevertheless refused to grant a new trial. ■
In Ohio, the court, after full deliberation, have decided that it was not only competent to permit a separation of the jurors during the progress of the trial, but they have permitted them, on the submission of the case, to disperse after they had agreed, and return a sealed verdict. (Sargent v. State, 11 Ohio, 474; State v. Engle, 13 Ib., 490; Davis v. Same, 15 Ib., 72.)
The first of these cases was for passing counterfeit money ; the second for manslaughter, and the last for arson.
[501]*501Several cases were cited on the argument, the principal of which are referred to by Justice Selden in Eastwood v. The People (3 Park. Cr. R., 25), showing the consequences of a separation of a jury after the case was finally submitted to them for deliberation and decision. Some of these assert the doctrine that the' fact of separation alone vitiates the verdict, while in others it is held that abuse, or at least reasonable suspicion of abuse, to the injury of the prisoner, must be shown. The principal, and generally considered as the leading case in support of the first position, is that of The Commonwealth v. McCaul (1 Virginia Cases, 271).
In that case (which was one of felony for taking bank notes and coin from the State treasury), it appeared that the court, on the second, third and fourth days of the trial, made a temporary adjournment of a short duration, about two p. M., and that a general order was given by the court to the jury and the officers on the first evening of the trial, that the jury, on their being adjourned, should be kept together and not separated. Notwithstanding this direction, one of the jurors, against the remonstrance of the officer, went home for his dinner, and another, attended by an officer, visited his family, assigning the sickness of one of his children as his excuse. They remained from fifteen to twenty minutes. The first was asked by several persons whether the case of McCaul was determined. He said no, and no further conversation was had on the subject, and he excused his conduct on the ground of being unexpectedly sworn on the jury, leaving his business in such a state of derangement as to require his presence. The verdict was set aside, and Judge Nelson, in giving his decision, says: “ The majority of the court were of opinion that proof of actual tampering or conversation on the subject with a juryman, was not necessary to set aside the verdict. The old rule was, that the jury was on no occasion to separate. I understand (though it was with difficulty the rule had at all been relaxed), that it relaxed only in cases of imperious or perhaps unavoidable necessity; such a proceeding would be productive of evils incalculable, and too great for the court by its de[502]*502cisions to allow a door to be opened for them. Every danger, and particularly in such a case as this, should be watched and opposed in the beginning. The court will presume with fear and jealousy, and will not expose the trial by jury in criminal cases, to such risk of contamination as arises from the affidavits in this case. If the court had without necessity suffered a juryman to go home without an officer (which it would never do), it would vitiate the verdict. There is as much danger in suffering a juryman to separate without "the consent of the court, as if it had been done by such consent.”
I have made these liberal extracts for the purpose of showing, first, on what slight facts and circumstances so strong an opinion was based, and next, that in view of the fact hereafter mentioned, the authority of the case (at least to the extent expressed in that opinion), is questionable. It was decided in 1812, and was reviewed in 1825, in a subsequent case in the same court (Thomas v. Commonwealth, 2 Virginia Cases, 479), which, so far as I have discovered, has been overlooked, or, at all events, does not appear to have been noticed in the subsequent consideration of the question.
That was a case of manslaughter. The prisoner was found guilty, and a motion was subsequently made to set the verdict aside, on the ground of misconduct in the jury while in charge of a deputy sheriff, which was denied. After judgment, an application for a writ of error was made and refused. It appeared on that application that the examination of the witnesses having been protracted to a late hour of the first day of the trial, and the attorney of the commonwealth being unable, from defect of sight, to proceed further, the jury were, with the consent of the prisoner, committed to two deputy sheriffs' attending court, who were sworn to keep them together without separation, and without communication with any other person, or with the officers themselves, except on occasion of indispensable necessity ; and a charge to the like effect was given to the jury. The court then adjourned to the following day, and the jury were confined in the court house. Some time thereafter, one juror, attended by an officer, went to the stable ad[503]*503joining the court house to have his horse fed. The next morning he did the same thing, then went to a store in the vicinity, and bought a small article. He also sent a message to his wife, explaining the cause of his detention. Two other jurors were permitted, at night, to go to the bar of the tavern in the neighborhood. One of them drank a glass of brandy and water, and the other a glass of wine. On the next morning the same jurors were again permitted to go to the tavern, and one of them, while there, drank a small glass of julep. Another juror was allowed to separate from the rest to take care of his own horse and that of a fellow juror, and was gone about ten minutes. These different transactions were done in the sight of and near the sheriff.
The case of McCaul above referred to, was relied on in support of the motion, and Dade, J., in delivering the opinion of the court on its denial, said: “ The court could not consider that the rule established in that case, that a separation of the jury without imperious necessity will vitiate the verdict, is to be taken in a sense as exclusive as the words import, but should be understood in reference to the case in hand, according to a sound remark of Lord Ellenborough, in Doe v. Guy (3 East's R., 21), “ that general language used by the court in giving its opinions in any case, must always be understood with reference to the subject matter before them,” and concludes with the following remark: “In McOaul’s case there was the utmost facility of corrupting the jury, and in the latter (the case then under consideration), a bare possibility; and on account of a remote possibility, we do not feel ourselves justified to obstruct the justice of the country, where we cannot doubt that the prisoner has received no injury.”
In this State, the general opinion, since the decisions in The People v. Douglas (4 Cow., 26), and The People v. Ransom (7 Wend., 417), until questioned by Justice Selden, in Eastwood v. The People, supra, has been, that the mere separation of a jury, although in a capital case, would not of itself be sufficient cause for setting aside the verdict.
[504]*504After an expression of dissent by that eminent jurist (although not necessarily affecting the result in the case at bar), the question is considered of sufficient importance to justify a short review of the different cases, and, with an unfeigned respect for Ms opinion, it does not appear to me to be justified by the authority of the case relied on by Mm.
His conclusion is based on what is stated by him to be a direct decision of the Supreme Court, confirmed, as he claims, by a reference to it by Chief Justice Spencer,'hr his opinion in The People v. McKay (18 Johns., 212), decided in 1820. The only evidence of such decision is contained in that opinion where, arguendo, the judge makes the following remarks: “A case analogous in principle occurred in Ontario county, in 1814. A woman of color was indicted and tried for murder, and found guilty. The jury had separated after agreeing on their verdict, and before they came into court, and on that ground a new trial was granted, and she was tried again.”
There is nothing to show what causes led to the separation, or under what circumstances it took place. It may have been an act of great abuse, produced by improper means and with corrupt practice. It was certainly, from the naked facts stated, a gross violation of duty. The case had been submitted for their consideration, and the life of the prisoner was dependent on the result of their deliberation. According to the well . established rules, they were to be kept together until they had agreed on and returned their verdict. Their separation after such directions, evinced a disregard of their obligation of duty, and was an act so unprecedented-—as well to have justified a conclusion by the court, independent of any other circumstances —that their action was not only inconsistent with a proper administration of justice, and contrary to their duty to the court, but was of itself evidence of such improper conduct as at least to justify a reasonable suspicion of abuse. The question under consideration by the learned justice, when making the remark above quoted, was whether a new trial could be awarded for a capital felony, where the judgment had been arrested, and the case referred to was cited as an authority in support of that [505]*505position, and cannot with, propriety be extended beyond the principle for which it was cited.
The cases of The People v. Douglas (4 Cow., 26), The People v. Ransom (7 Wend., 417), must therefore be considered as unaffected by the decision in Eastwood v. The People.
The effect of a separation of jurors, in a capital case, was one of the questions involved in The People v. Douglas, although it is true that the judges, in granting a new trial, placed their decision on the ground that they had been guilty of improper conduct in drinking ardent spirits.
An opinion deliberately expressed on the main question is not to be considered an obiter dictum merely, but is entitled to consideration as authority. So considered, the case of The People v. Douglas sustains the doctrine clearly and distinctly in the opinion delivered by Judge Woodworth, that a mere separation of a jury, without further abuse, although in a capital case, would not of itself be sufficient cause for setting aside a verdict, and is fully and expressly recognized as an authority for that position in The People v. Ransom, by Justice Sutherland, although it is suggested by Justice Selden, in his opinion above referred to, that he could only “be considered as having given a quasi assent ” to it, while concurring in the result of the opinion expressed by Judge Woodworth.
It is also to be remarked, that in the great majority of cases (and indeed there are very few exceptions) where the question has been presented, the courts have placed their decisions in setting aside verdicts and granting new trials, on the grounti of abuse, and not in the mere fact of separation, a circumstance of itself an authority against the sufficiency of the latter ground. If that was sufficient, it would have been unnecessary to have considered the question of abuse at all. The result therefore is, that the weight of authority is decidedly in favor of the power of the court to permit a separation in all felonies without any exceptions. If, however, there could have been doubt on the question, considered as one to be governed by the authority of judicial decisions, it appears to be entirely removed in this State by a positive statute, which declares that [506]*506“ the proceedings prescribed by law in civil cases, in respect to the impanneling of jurors, the Iceeping them together, and the manner of rendering their verdict, shall be had upon the trial of indictments.” (2 B. iS., 735, § 14.) The provision is general, and without any qualification or restriction whatever. That statute was passed several years after the case of The People v. Douglas was decided, and, it is to be assumed, with full knowledge of it, and the authorities cited in that case, including that of The Commonwealth v. McCaul.
The power of the court to permit a separation in civil cases, is undoubted, and it is constantly exercised, and had been long previous to the passage of that statute.
It is also conceded to be the rule, that the party who seeks to avoid a verdict in a civil case, on the ground that a jury have separated, whether such separation was with or without the authority of' the court, must show, affirmatively, that the separation has, or may probably have had, some effect on the verdict (Eastwood v. The People, supra), and that the rule is the same in cases of misdemeanor, is abundantly settled in this country and in England. (Ib.)
As the same rule prescribed by law in civil cases, in respect to keeping jurors together, apply to the trials of indictments, and as the trial of indictments for all offences, without reference to their grade, is placed on the same footing and subject to the same regulations, there can be no foundation for the distinction sought to be made in capital cases, even if there were formerly a ground for such a distinction. Nor is there any reason in principle for it. The object of trials by a jury in all cases is the same. It is to ascertain the truth. That is always the same. “ The principles of justice are immutable and'eternal.” If a fair and impartial verdict can be obtained in one case after the jurors have separated and gone to their homes, or mixed with their fellow citizens, what foundation is there for the assumption that it cannot be in another ? and what reason can be assigned for sustaining a verdict in a case of a misdemeanor, when it could, upon the same state of facts, be set aside in a case of felony ? The ground on which the dis[507]*507tinction has been based is erroneous. It assumes that the tribunal, which is chosen to determine between the public and the citizen on questions affecting the life and liberty of the citizen, is corrupt, or, at all events, is in danger of being influenced by fraud and corrupt practices. Such a doctrine is repugnant to all ideas of a fair and just administration of the laws of the land, and strikes at the very existence of all our civil rights.
Sentiments were expressed in Thomas v. The Commonwealth (supra), in reference to officers having the custody of jurors, which may, with the same justice in the present day, without disrespect to such officers, be extended to jurors. He says; “ Towards the officers of the law we are not warranted in extending a suspicion of corruption, for if we were to do so, he having many opportunities of corruption, there would be an end to all confidence in many of the most important proceedings in a court of justiceand Justice Eead, in Davis v. The State, in maintaining the right of the court in its exercise of a sound discretion to permit a jury to disperse during the progress of the trial, remarks, that “jurors are now considered as honest men, disposed to discharge the obligations of their oaths and justice, and it is not going very far to presume that they would resist all efforts to corrupt them, as much as a sworn constable.”
The jurors, according to the usual practice in this State, are summoned several days previous to- the time designated for holding the courts at which they are required to attend, from a select class of men, specially chosen by public officers designated for that purpose, and are required to be men of known competency, character and integrity, and possessed of property to a prescribed amount. This practice, while it is calculated on the one hand to secure the attendance of honest, fair and competent jurors, on the other hand affords the time and opportunity, both in civil and criminal cases, for tampering with them, and for corrupt appliances to a much greater extent, and with better prospects of success than during the short time usually allowed for obtaining refreshments, or during the ad[508]*508journment from day to day. I may add that in a business community, the continuance of a jury together for the time the case in question occupied, would materially tend to a derangement of business and actual loss, and that a separation under such circumstances, as well as in counties where the means of accommodating jurors are limited, if attainable at at all, would be justified as a case of “ evident necessity ” fairly within the exceptions to the rule laid down by Blackstone. It might be urged, and in my opinion shown, that the danger growing out of the practice in keeping a jury together, with the inhibitions against talking on the subject of the trial only, while free conversation on other subjects, as well as a transmission of letters, and free access to the newspapers and various publications of the day are tolerated, is far greater than by allowing them to go at large during the adjournment, and attending to their business and domestic avocations; but I deem it unnecessary to discuss this branch of the case further, and conclude with the remark, in the language of the court in State v. Engel (supra), that 'in our day there is no necessity for adhering with tenacity to the doctrines of ancient times. Many of the notions in vogue centuries ago, have yielded to better reason, founded on more enlightened views and greater experience.
Having come to the conclusion that it was in the power of the court, on its own authority, to permit the jury to separate on the different adjournments during the progress of the trial, it is not material to express our opinion at length on the effect of the consent given by the prisoner to such separations. If it was ineffectual, it cannot vitiate or impair the order of the court authorizing it. I will merely say that I have not seen any reason to doubt the justice of the rule as laid down by Gowen, J., in the case of The People v. Rathbun (21 Wend., 542, &c.), that a prisoner “ may waive any matter of form or substance, excepting only what relates to the jurisdiction of the court,” and that “ any agreement deliberately made, any plain assent, express or implied, in respect to the orderly conduct of a suit, or even an agreement to admit a material fact, [509]*509upon, the trial, cannot be revoked at the pleasure of the party,” “ that, even in respect to a trial for felony, the principle is the same as that which binds in civil cases, and that a prisoner on trial in the Courts of Oyer and Terminer,” 11 who defends by counsel and silently acquiesces in what they agree to, is bound the same as any other principal by the acts of his agent.” The obligation of this rule was subsequently enforced in Beebee v. The People (5 Hill, 32), where the court refused to allow the withdrawal of a consent given with the approbation of the court, and remarked, that “in respect to the delay of the trial (caused by such consent), and the separation of the jury in the meantime, it is not for the prisoner to take advantage of the irregularity, if it be such, as the indulgence was granted on his application and for his benefit,” although if improper conduct by any of the jurors' had been shown, they would have felt it their duty to interfere and quash the proceedings.
Some other questions were raised, although not discussed at length on the argument, which I will proceed to consider, One was that two of the jurors had been guilty of misbehavior in holding a conversation with Dr. Doremus, a material witness, who had been examined on the part of the prosecution, in the court room, in relation to his testimony. This charge is founded on the affidavit of one witness only, and that under circumstances not entitling it to -much credit. While he undertakes to state so much of the remarks of the Doctor as tend to show an impropriety of conduct on his part, he says that he did not hear the remainder of the conversation.
The remark stated to have been made by the juror was in relation to a fact which, I think, from the case, it is apparent, admitted of no difference of opinion, and therefore could not prejudice the prisoner. The charge is, however, fully denied by both of the jurors implicated, as well as by the Doctor. There was, therefore, no ground for setting aside the verdict on that account. The refusal of the court to issue an attachment against the witness Stephens, on the application of the prisoner’s counsel, does not affect the verdict or judgment, and is not available as a ground of reversal here, for the following, [510]*510among other reasons: First, The testimony on both sides had been closed, and the court had so announced, and had directed the summing up to proceed. Second, Arrangements had been made by all parties for summing up, which was inconsistent with the introduction of additional testimony. Third, There is nothing in the affidavit, nor in the case, to show that the attachment was applied for with the object of having the witness examined, and no application was made for a delay or postponement of the trial till the return of the attachment. Fourth, If there had been, the examination of the witness at that stage of the case, rested in the discretion of the court.
It was also objected that the record does not show that the prisoner was present in court during the whole of the trial, nor at the rendition of the verdict. In reference to which, it is to be remarked that it is distinctly stated in the record itself that he was personally present on the impanneling of the jury, and when judgment was rendered; it is also shown by the return to the certiorari, that the jurors were polled on giving their verdict, and that the prisoner was present on every day of the trial previous to that time. There is, therefore, no valid ground for that objection.
Several exceptions to the rejection and admission of evidence were taken, which will now briefly be considered.
Assuming that those taken to the decisions made as to the exclusion of the papers before Justice Welsh, and as to the questions put to the witness, John Pullman, were well taken at the time they were taken, the objections were obviated by the subsequent introduction of those papers, and by the offer of the District Attorney, made while the witness Pullman was still in court, and before the defence closed their case, that every question that had been propounded by the defence to him, but which had been excluded by the court, might be put to the witness, and answered by him.
The testimony of Fanny Bell, in relation to the liquids taken by the deceased, and as to thé effects of the rice on the witness, was pertinent to the main issue. The question as to the nature of the conversation between that witness and the deceased, [511]*511might have elicited an answer, which, in connection with other testimony, might have been pertinent when put; but if it were otherwise, the answer given to it was immaterial and harmless.
Doctor Finnell, a witness examined on the part of the defence, was asked whether certaiii symptoms, particularly specified, were symptoms of arsenical poisoning, and he was permitted to answer the question. This was admissible; he had nreviouslv given testimony in relation to the same subject matter, and the question put referred to symptoms of which evidence by other witnesses had been previously given, his opinion as a physician was therefore properly asked and admitted. (See 1 Park. Cr. R., 495; 2 Kern., 358, &c.)
The testimony of Jane Harvey was admissible to rebut that of Susan Hannah, Isabella Bennett and Maria Hannah, given on behalf of the prisoner, on their direct examination; and that of Michael Thornton and John Biscoe was also properly received for the same object.
The motion to strike out the testimony of" Henry Maxwell and Charles Mulholland was properly overruled. The evidence related to the conduct of the witness Bell, which had been attacked by the defendant, and was therefore admissible; but conceding it to have been immaterial, as is claimed, the refusal to strike it out cannot avail the prisoner here. It had been taken without objection, and it was too late afterward to object to its effect.
The objection taken to the examination of William Knox, was not well founded. The avowed object of the prosecution in calling him, was to rebut the evidence introduced on the defence, which had then been closed. There can be no doubt as to the propriety of admitting him to be examined for that purpose; but if it were otherwise, it was discretionary in the court to permit the examination, and the exercise of that discretion is no valid ground of exception.
The admission of the anonymous letter is no ground of reversal; it was sufficiently proved to have come from the prisoner, and it tended to show a motive for the commission of the crime imputed to him; if, however, it were not strictly [512]*512admissible, no exception was taken to its introduction when produced; and if there had been, all objection to it was removed by the subsequent production of the papers used before Justice Welsh, including the letter in question, by the prisoner himself.
Exceptions taken to the charge, and refusals to charge on certain propositions submitted by the prisoner’s counsel, remain to be noticed.
The general exception taken to the charge is clearly unavailable on well-settled rules, and the specific exceptions related to a reference by the judge to certain portions of the evidence, and his comments thereon. The remark, “ What will a man give in exchange for his life?” was made a special ground of complaint on the argument; its truth was not denied, but the fact of its being entitled to credit as founded on “ the highest authority,” was questioned. That is of very little importance, as the truth of the remark itself is conceded. It is suggested, however, by the judge who made it, that it may be satisfactory, and perhaps useful to the counsel by whom the exception was taken, to refer to Matthew 16: 26, in connection with the context in the further examination of the question by him. It is sufficient to say, in answer to all those exceptions, that the comments and remarks of the court on the testimony, are no ground for exceptions; moreover, the jury were expressly instructed that they were the judges of all questions of fact; that if the court had expressed any opinion upon the evidence, or upon any part of it, that they were still to determine for themselves what the evidence was, what weight was to be given to it, and what effect it should have in the case, giving the prisoner the benefit of every reasonable doubt.
The court was requested by the prisoner’s counsel to charge on six distinct propositions, and he charged as requested on all except the second, which was slightly modified, and that was charged as modified. The original proposition went so far as to exclude the chemical analysis as evidence, if access to the body of Mrs. Stephens, after it was exhumed, could have been [513]*513had by other persons than those who made the post-mortem examination, especially if Robert Bell, one of the witnesses examined on the part of the prosecution, actually had access to and touched it merely, without any further agency or circumstances connected with such access, and that without qualification as to the time.
This is clearly too broad, and a modification of it by saying that if access could have been had by other persons under such circumstances that they could have applied arsenic, and that if Robert Bell actually had such access and tampered with the body then, that so much of the analysis as was made after the body was so exposed and tampered with, was not competent evidence, was unobjectionable.
The motions for a new trial and in arrest of judgment, were founded on matters which have already been considered, and need no further consideration. Our conclusion upon the whole case, after a full examination and deliberate consideration, is, that no ground for a new trial is shown. The judgment of the Oyer and Terminer must, therefore, be affirmed.
Judgment affirmed.