State v. Knight , 43 Me. 11 ( 1857 )

Tenney, C. J.

The prisoner was put to the bar for his trial, upon the plea of not guilty of the charge of murder, as alleged in the indictment, and the clerk proceeded to empannel the jury. Upon the call of one of the jurors, the counsel of the prisoner challenged him for favor, and demanded the appointment of triors “ according to the course of the common law, to hear and determine the question of his indifference and impartialityThe presiding judge denied the demand for triors, and ruled that in all cases of challenge for cause, the question of indifference and impartiality must be heard and determined by the court.

The counsel of the prisoner having cited English authorities in support of the right to triors, we are to understand that the “ common lqw ” referred to in the demand, was the common law of England. Such is also the intention as disclosed by the whole argument. It becomes necessary, therefore, to ascertain what the common law of England on this subject was, at the time that it is claimed as having been adopted in Massachusetts, as a part of the code of that colony, province, state or commonwealth, or in this state since its separation. We are not, however, aware, that so far as the question now before us is involved, it has undergone in England any essential change.

Under the English law, challenges to the jury are of two sorts; challenges to the array, and challenges to the polls. The former are at once an exception to the whole panel in which the jury are arrayed and set in order by the sheriff in his return; and they may be made on account of partiality or some default of the sheriff or his under officer, who arrayed the panel. 3 Bl. Com., 359.

Challenges to the polls in capita are exceptions to the particular jurors; these are reduced to four heads by Sir Edward Coke; propter honoris respectum; propter defectum; propter affectum; and propter delictum. Ibid, 361. The particular definition of the three heads first named do not become material to our present inquiry.

Jurors may be challenged propter affectum for suspicion of bias or partiality. This may be either a principal challenge, or to the favor.

A principal challenge is such, when the cause assigned carries -with it, prima facie, evident marks of suspicion, either of malice or favor; either that juror is kin to either party within the ninth degree; that he has been arbitrator on either side; that he has an interest in the cause; that there is an action pending between him and the party; that he has taken, money for his verdict; that he has formerly been a juror in the same cause; that ho is the party’s master, servant, counsellor, steward or attorney; or of the same society or corporation with him; all these are principal causes of challenge, which, if true, cannot bo overlooked, for jurors must be omni exceptione majoris. Ibid, 363.

Challenges to the favor are when the party hath no principal challenge, but objects only to some probable circumstances of suspicion, as acquaintance and the like, the validity of which must be left to the determination of triors, whose office it is to decide whether the juror be favorable or unfavorable. The triors, in case the first man called be challenged, are two indifferent persons named by the court, and if they try one man and find him indifferent, he shall be sworn, and then he and the two triors shall try the next; and when another is found indifferent and sworn, the two triors shall be superseded, and the two first sworn on the jury shall try the rest. Ibid, 363.

The right in respect to the challenge of jurors to the favor, and the mode of hearing and determining the question of indifference by triors belonging to parties in civil suits did not essentially differ from the right of the crown, and one accused of crime. In capital cases, a privilege was granted to the accused, in favorem vitae to make peremptory chalienges, which would not involve the necessity of triors, or any hearing whatever. In 4 Bl., Com., p. 352, it is said “ challenges may here be made either on the part of the king or on that of the prisoner, and either to the whole array or to the separate polls, for the very same reasons, that they may be made in civil causes, for it is here at least as necessary as there; that the particular jurors should be omni ex-ceptione majoris, not liable to objection, either propter honoris respectum, propter defectum, propter affectum or propter delictum.” And reference is made to book 3, which treats of private wrongs, and to page 363 from which the foregoing quotation is made touching triors in civil suits. And again on page 363, the same commentator remarks, “ challenges upon any of the foregoing accounts are styled challenges for cause, which may be without stint in criminal and civil trials.”

The subject of challenges of jurors is discussed at some length in Gabbett’s treatise on Criminal Law, cited and relied upon by the prisoner’s counsel. In volume 2 of that treatise it is said, as to challenge to the polls, if it be a principal one, it is sufficient if the ground of it be made out to the satisfaction of the court; but a challenge to the favor must, as already observed, be left to the discretion of triors. If this challenge be made to the first juror who is called, two triors are appointed by the court, and if he be found indifferent and sworn, he will be joined with these triors in determining the next challenge; and when a second juror who has been challenged, has been also found indifferent and sworn, then every subsequent challenge shall be referred to the decision of these jurymen, and the other triors shall be discharged. Lord Hale puts a case where the triors are appointed by the parties, and not by the court; for he lays it down, that if the plaintiff challenges ten and the prisoner one, then he that remains shall have added to him one chosen by each party, and they three shall try the challenge. But if several bo sworn and the rest be challenged, the court may assign any two of those sworn to try the challenge. And when six jurors are sworn and the rest challenged, the court may appoint any two of the six sworn to try the challenges. Co. Lit., 189; 7 Dane Abr., 334. The foregoing are all the modes found in treatises upon the subject, touching the trial of challenges made to the favor.

“A challenge to the array must be in writing; but in the case of challenge to the polls, the intention of challenging is verbally intimated by such words as these: “ I challenge him,” or “challenged;” and when the challenge is peremptory these words will suffice, but when the challenge is for cause the defendant must immediately show the ground of objection.” Ibid 393.

In King v. Edmonds, 4 Barn, and Ald., 471, Abbott C. J. says: “ When a challenge is made, the adverse party may then demur, (which brings into consideration the legal validity of the matter of challenge,) or counter plead, (by setting up some new matter consistent with the matter of challenge to vacate or annul it, as a ground of challenge,) or he may deny what is alleged for matter of challenge, and it is then, and then only, that triors are to be appointed.”

“ The challenges in this case ought to have been put upon record, and the defendants arc not in a condition, in strictness, to ask of the court an opinion upon their sufficiency.”

From the authorities cited, it is obvious that in all challenges for cause, the ground must be distinctly stated, and entered upon the record. The necessity of this is very manifest, when the purpose is that the question of indifference should be submitted to triors instead of the court; for the distinction between a principal challenge and one to the favor is not always clear; and it is only in the latter that the question of indifference of the juror challenged can be submitted to triors.

By the exceptions in this case it does not affirmatively appear that these preliminary steps were taken on the part of the prisoner, when the challenge was made, though it was announced to be for favor. If the grounds of challenge had been made as required by strict rules, it might have been a case where the challenge was principal, and not to the favor; and if so, the prisoner was not aggrieved. But the grounds of challenge may have been for favor, and as the judge expressed his intention to deny his right to triors in challenges for any cause, and to raise the question whether such denial could be erroneous, it is proper, in order to avoid the possibility of doing injustice, to regard this point in the case as open.

Did the right claimed by the prisoner, at the time of the call of the jurors to constitute the panel for his trial, under a challenge for favor, legally exist ?

It is proper that we should look into the history of legislation in Massachusetts, and this state since its separation, and the constitutions of both, so far as they can have any bearing upon this question.

In chapter 98 of “ Charters and general laws of the Colony and Province of Massachusetts Bay,” 199, entitled “Acts respecting trials,” section 1 refers to all causes between. party and party; and section 3 provides that it shall be the liberty of both plaintiff and defendant, and likewise of every delinquent, to be judged by a jury, to challenge any of the jurors, and if the challenge be found just and reasonable by the bench, or the rest of the jurors, as the challengers shall choose, it shall be allowed him. This chapter was manifestly designed to apply to trials in civil and criminal matters.

Chapter 2 of the same, page 214, entitled “An act setting forth general privileges,” secures to persons certain rights and liberties touching the enjoyment of property, freedom from arrest and imprisonment, and trial for alleged offences, and forbids the deprivation of these generally, unless by the law of the province, and by the judgement of his peers, in a jury consisting of twelve of the neighborhood of the accused, in which the offender shall be allowed his reasonable challenges. The rights designed to be secured by this chapter are those referred to in magna charta, and appertain to matters both of a civil and criminal nature.

By chapter 61 of the same, page 230, which is entitled “An act for establishing a superior court of judicature, court of assize and general gaol delivery within the province,” (see sec. 1,) such a court is established, having cognizance of all pleas, personal or mixt, as well as pleas of the crown, and all matters relating to the conservation of the peace, and punishment of offenders, Ac.; and, in section 5, provision is made for the attendance of jurors upon said court, making no distinction between those who shall sit in civil and criminal trials, but providing for other jurors than those originally returned, when the latter are deficient in number by reason of challenges.

By chapter 275 of the same, entitled “an act for the better regulating the choice of jurors,” provision is made for a different mode of selecting jurors for the purpose of serving as such at the superior court of judicature, court of assize and general gaol delivery, to be put into one box in each town, and those to serve at other courts in another box; and as a method of preventing partial juries, the fourth section provides, that the justices of the respective courts aforesaid are hereby directed, upon motion from either party, in any cause that shall be tried after the first day of June then next, and during the continuance of this act, to put any juror retui-ned as aforesaid, or as talesman, to answer upon oath “whether he doth expect to gain or lose, by the issue of the cause then ponding? whether he is any way related to either party, or hath directly or indirectly given his opinion, or is sensible of any prejudice in the cause? And if it shall then appear to said coart, that such juror does not stand indifferent in said cause, he shall be set aside from the trial of that cause and another appointed in his stead.”

No other law upon the subject of challenges or exceptions to jurors appears to have been enacted by the Colony or Province of Massachusetts Bay before the declaration of independence ; or by the State of Massachusetts afterwards, till the adoption of the constitution of the Commonwealth in 1780.

It does not appear from any record, or work of authority, that challenges to jurors for favor were ever submitted to the determination of triors before the declaration of independence, by virtue of the common law principle, which seems to have been well defined and understood in the country of its origin. But as early as 1641, in the colonial act, chapter 98, there was an important modification of that principle, in allowing the party making challenge to submit the question of indifference of the juror to the bench, or the rest of the jury. In this provision there is no restriction in respect to the challenge to a juror for any cause. The choice was with the challenger, whether exception taken was a principal challenge or to the favor; and we have seen that, at common law, when a challenge to the favor was made, tho trial was not by the rest of the jury.

The act of 1760, chapter 275, referred to, so far as it was applicable, was mandatory, and not to be enforced as the court, or either of the parties should elect in the case of objection to a juror, by either party. In all challenges coming within the provision of the act, this was the only mode, by the terms used, and operated so far, a repeal of the former act, as being inconsistent therewith.

But it is insisted for the prisoner, that this provision refers only to trials in civil matters, and is inapplicable to trials for criminal offences. This deserves consideration. Tho impartiality of juries under the English common law being secured by the intervention of triors, in civil and criminal cases precisely in the same manner, and that mode having existed from time immemorial, it may not be unreasonable to suppose that if a distinction in that respect was intended by the authors of the provincial law of 1760, such intention would be expressed or in some way manifested. But nothing in the act itself discloses such a design.

Again, this act provided not only a new, but what was then thought a better mode for regulating the choice of petit jurors, by providing boxes, in which the names of persons deemed qualified to serve as jurors should be placed for the different courts, and the names drawn therefrom from time to time as their services were required. The names of those in one box, supposed to have higher qualifications than the others, were drawn to serve in the superior court of judicature, court of grand assize, and of general gaol delivery, a court having cognizance of pleas of the crown, including capital cases, as well as of civil matters.

No provision is found in any other law of the colony ox-province, in force at the date of this law, requiring or authorizing the jurors for criminal trials to be obtained in any other mode than by being drawn from the box in each town to which venire facias writs were sent. But the provisions made for the attendance of jurors for the superior court, and the services thereat, are general, and apply equally to the exercise of its jurisdiction over civil and criminal suits.

The mode of determining the impartiality of jurors challenged or objected to, and the tribunal which is intrusted with the power of hearing the challenge or objection, are also applicable, by the language used, to all jurors, without distinction between those called for the trial of civil actions and cases in which the party is accused of a crime. The inquiry prescribed will embrace everything necessary to secure impartiality, and if the authors of the law- were willing that the investigation should be confined to the answers of the juror challenged, when a civil suit is to be tried, no good reason is seen for its being regarded insufficient in a criminal trial; especially as by the new mode of preparing the lists, they wore deliberately selected by the selectmen of the several towns in which they resided, and were afterwards submitted to the town in the corporate meeting of its voters.

In the trial of Judge Chase, on impeachment, one article of which was, that the respondent overruled the objection to a juror called to sit in the trial of one James Thompson Callender, indicted for a libel, and who wished to be excused from sitting in that trial, because he had made up his mind as to the publication from which the words charged to he libelous in the indictment were extracted, and the juror was sworn and sat in the trial. It was argued by the respondent and his counsel that it was not a good cause of challenge, that a juror called had formed an opinion, if he had not delivered it. Mr. Dane regards this reasoning as something light and trifling, and refers to the legislation in some states (Massachusetts, &c.,) which is the same as thaj, embraced in the provincial act of 1760, chapter 275, requiring the court to ask the juror himself the question, whether he had formed an opinion, and the author remarks, “ thus a wise provision obliges a juror, if he has formed an opinion to declare it, and he is then set aside.” 7 Dane’s Abr., 380.

This ruling of Judge Chase having occurred in a criminal trial, the remarks of Mr. Dane were entirely inapplicable, on the hypothesis that the statute provision referred to by him was designed for trials of civil actions only.

By the constitution of the commonwealth of Massachusetts, chapter 6, article 6, “ all laws which have heretofore been adopted and approved in the Province, or Colony of Massachusetts Bay, and usually practiced upon in courts of law, shall still remain and be in force, until altered or repealed by the legislature; such part only excepted as are repugnant to the rights and liberties contained in this constitution.”

This provision is intended, probably, to embrace, not only existing enactments of the legislatures of the Colony, Province or State of Massachusetts, but those unwritten rules and maxims of the common law of England, which had been treated practically as applicable to the altered condition of the emigrants therefrom to this land of their adoption, affected perhaps by the simpler forms in applying the great principles of their general laws.

By this provision of the constitution, it was indispensable that a doctrine of the common law of England should have been adopted, and approved, and usually practiced upon in courts in the Colony, Province, or State, in order to be treated as obligatory. The conditions on which they were to become a part of the code of the Commonwealth were in their character affirmative, and no principle of those laws was embraced in this article, unless it be affirmatively proved. The language will not admit of the construction, that by adopting the constitution, the whole common law of England was ipso facto introduced, and only such parts excluded as were shown not to have been previously adopted, approved, and practiced upon in the courts of law. The history of Massachusetts, from the time of the first establishment of a colonial government therein, to the time of the constitution, shows that their laws, being generally of their own enactment or adoption, were satisfactory. The provision to which we refer was not designed to enlarge or change their system or principles of jurisprudence, but to make those in practical operation effectual. The provision in the constitution declaring wdiat laws shall remain in force, excludes all others by a well settled legal maxim, expressio unius exclusio alterius est.

It is well settled that many of the doctrines of the English common law were never adopted here, either by practice or legislation. And if they have not been transplanted in either of those modes, they have been treated by courts and jurists as having no binding authority.

In the introduction of Dane’s Abridgement to the American Law, the author having engaged in professional and political employments in the spring of 1782, (page 3) says, on page 5, that “the object is to make our American charters and constitutions, statutes and adjudged cases the ground-work on each subject; and therewith to incorporate that portion of the English law recognized in the United States, beginning with the magna charta and the first chartors and statutes in our colonies. The groundwork has been thus viewed, because it is obvious that when constitutions and laws made in our country are not consistent with English law adopted here in practice, the former must prevail and the latter yield.

In the case of Commonwealth v. Roby, 12 Pick., 496, which was an indictment against the defendant for murder, when the jury answered at the call of the clerk, that they had agreed upon a verdict, a motion was made in behalf of the prisoner, that the jury should be polled, which motion was overruled. After argument, the court affirmed its decision, saying, if the question depended upon a revision and application of legal authorities, the point would certainly demand a more ample investigation.

“ But it is conceded that this practice has never been used in this commonwealth, and the application is to introduce a practice not before adopted. Such an application is at the judicial discretion of the court, and must be supported by some good and substantial reasons of justice and propriety;” and referring to chapter 6, article 6, of the constitution, the court adds, “ the plain object and purpose of this constitutional provision was to confirm and perpetuate the laws, including the common law, as they had been usually practiced in courts of justice, thereby confirming and sanctioning all such alterations and modifications in the practice as had been sanctioned by actual usage and approbation in the courts of justice.”

It ‘is insisted that the statutory provision requiring the court to examine the juror, on motion of either party, varient from the common law practice, was not intended to apply to challenges, in the technical meaning of the term, nor to abrogate this practice, but was designed to secure impartial juries by additional requirements.

If the statutes referred to were enacted as a substitute for the common law principle, or for the provision of the colonial act of 1641, chapter 9&, the particular terms used to signify an exception taken to a juror is of little importance. It is not believed that an objection to a juror clearly made known, without the use of the word “ challenge,” will fail on that account to secure rights, to which the party making it would otherwise be entitled. The term is used in law, for an exception to jurors, who are returned to pass on a trial.” 1 Chit. C. R., 533. But any other word expressive of the same exception, if the grounds of the exception are properly stated, is not found to have been held insufficient. The form now in general use in this state and others, when the jury is about to be empanneled for the trial of a criminal cause, is, that if the defendant will object to any of the jurors he will do so as they are called, and before they are sworn; and in capital trials the form is the same, touching objections for cause.

If every inquiry, prescribed by the statute to be made by the court, should be answered in the negative, and no more, it is not perceived that anything would be omitted, which could be properly proposed to the juror by triors. If, upon such examination, the court should find that the juror was not indifferent in the cause, he was to be set aside, and a new’ one called in his stead, making the judgment conclusive in that event in favor of the challenger. But under the common law, in a challenge to the favor, it was the right of both parties, that the hearing and determination should be by triors. The statute has, therefore, abridged so far, the right enjoyed under the former mode, by the party adverse to the challenger.

By the common law, witnesses could be examined by triors. 2 Gabbett on Crim. Law., 395. This was not provided for in any of the statutes of the Colony, Province, State or Commonwealth of Massachusetts, before the separation of this state therefrom. If the common law practice was not wholly abrogated, but was in force, only so far as the statutes were absolutely repugnant to it, when a juror, to whom exception was taken for favor was found indifferent by the court, upon his own answers, triors could have been appointed to hear witnesses upon the question of his competency; thus upon the same challenge providing for two distinct tribunals.

To hold that the prisoner’s challenges to the favor are to be determined by triors, under the common law, modified by these statutes, would be incorporating into the practice upon this subject such alterations as would make it an anomaly, highly derogatory to the intelligence of the authors of the statute, inconsistent with their obvious intention, having no precedent, and not insisted upon by the prisoner’s counsel.

Has the common law principle of submitting challenges to the favor to the hearing and determination of triors beeusually practiced upon in courts of Massachusetts before the adoption of its constitution ? It is said in an article in the ■American Jurist, volume 12, page 330, published in 1834, “ It has been lately decided by a respectable- judge, that the competency of a juror upon a challenge to the favor, may be determined under the laws of Massachusetts, by triors appointed by the court for that purpose.” And it is laid down in Howe’s Practice, page 247, that all challenges for favor are tried by triors, in the mode pointed out in the English authorities before cited. We are not informed in what court it was that this mode of determining the competency of jurors was allowed; nor whether it was by the consent of the prosecuting officers, and the party accused. Consequently we cannot know whether it can be regarded as authority, in that commonwealth, on a controverted point. If it were so it is not binding upon courts in another jurisdiction, but must have respect according to the intrinsic merits of the argument in its support, which is not before us.

The authorities referred to by Judge Howe, in support of the text cited, are confined to treatises of English jurists.

So far as any discussion touching the introduction in practice of the principle contended for by the prisoner’s counsel, in Massachusetts, has taken place, the authority is against his position. As early as the year 1809, it was treated in the Supreme Judicial Court, by a jurist of the highest standing, and among those who had been engaged for the longest period and in the most extensive practice, as not having been adopted there. Borden v. Borden, 5 Mass., 71.

In Rollins v. Ames, 2 N. H. 350, the court say a challenge to favor, in England, is determined by triors, but here the court uniformly decide on its validity. In Connecticut all challenges of jurors are decided by the court. 2 Swift’s System of Laws of Conn., 233; Boardman v. Wood, 3 Vermont, R., 570. The subject is ably discussed in the article in the American Jurist referred to, and the authorities bearing upon the question of the adoption of the practice in Massachusetts, of determining the competency of jurors by triors, are cited and commented upon; and the writer concludes that this principle of the common law has not been usually practiced upon in its courts, and is not a part of its law. “ Challenges are often determined by triors south of New England.” 7 Dane’s Abr. 334. This statement of a fact, coming from one of the learning and experience of the author, in the text of a work, having for its object what it is declared in the introduction to be, is certainly evidence entitled to great weight, though of a negative character.

After the adoption of the constitution of Massachusetts, the legislature re-enacted the provision in the provincial law of 1760, chapter 275, section 4, in the statute of June 26, 1784, entitled “an act for regulating the choice and Services of petit jurors,” section 8, and in the statute of 1808, chapter 139, section 9. The same provision was incorporated into the statutes of this state in the revision of the statutes of Massachusetts, after our separati on. This legislation since 1780 was all during the connection of the learned author of the abridgement of American law with the bar, and when, according to his own account, in the introduction, page 3, he early turned his attention to the subject of this great work, and in good earnest engaged in collecting materials upon it. If the competency of jurors challenged to the favor was determined by triors, during this period, to such an extent as to make the practice a part of the law of the commonwealth under the provision of the constitution referred to, he must have known it. The language quoted from his 7th volume, page 34, is little short of conclusive, that in Now England no such practice prevailed. Hence, we may well infer, in the absence of proof to the contrary, that under similar statutory provisions of the provincial legislature, the common law of England, on this subject, had not been recognized.

The mode provided by the provincial statute which has subsisted to the present time in Massachusetts and in this state, for the trial of all exceptions taken to jurors for every cause, by the court, is direct and uniform, and is in harmony with the general character of legal proceedings in this country, distinguished from those in England by their greater simplicity.

No one can doubt that the court are as competent to decide any questions which are determined by triors in other places, as those appointed by the court. The range of inquiry of the juror is as broad in one case as the other.

The positive evidence of the adoption of the English common law right of triors in cases where the principle was applicable, being entirely wanting at the time of the formation of the constitution of 1780, according to uniform authority, and the rule of that constitution, prescribing that laws previously existing shall continue till changed by the legislature, of itself amounts to a failure of a foundation upon which the principle contended for can be sustained.

The constitution in this state is invoked by the prisoner’s counsel, as securing the right contended for, free from any power of the legislature to interfere therewith.

By act 1, section 6, “ no person shall be deprived of life, liberty, property, or privileges, but by the judgment of his peers, or the law of the land.” By this section, in another part, “ The legislature shall provide by law a suitable and impartial mode of selecting juries, and their number and unanimity in indictments and convictions shall be held indispensable.”

The meaning of the words, “ the law of the land,” as used in the constitution, has long had a construction, which is regarded as fully settled. This term, as Lord Coke says, “ is ¡(to speak once,for all,) the due course and process of law.” Coke, 2 Inst., 46. The law, in this sense, as held by Blackstone, 1 Com., 44, is a rule, not a transient, sudden order from a superior, to or concerning a particular person, but something permanent, uniform, and universal. The words “ law of the land,” as used in magna charta, from which they are borrowed in reference to criminal matters, are understood to mean, due process of law; that is, by indictment, or presentment of good and lawful men. 2 Kent’s Com., sec. 24. Judge Story in 3 Com. on Const., sec. 1783, says, “the clause, ‘by the law of the land,' in effect, affirms the right of trial according to the process and proceedings of the common law.”

When the constitution of Massachusetts was formed, “ each individual of the society had a right to be protected by it, in the enjoyment of his life, liberty and property, according to standing laws, part 1, art. 10, and no subject could be arrested, imprisoned, despoiled, or deprived of his property immunities or privileges, put out of the protection of the., law, exiled or deprived of his life, liberty, or estate,, but by the judgment of his peers, or the law of the land. And the legislature were forbidden to make any law that should subject any person to a capital or infamous punishment, excepting for the government of the army or navy, without trial by jury. Part 1, art. 12, and chap. 6, sec. 6, so often herein referred to, gave validity to existing laws, which had been adopted and approved in the Colony, Province, or State of Massachusetts Bay, and usually practiced upon in the courts of law.

“ The law of the land,” in this constitution, did not refer to any country or government which was foreign to the commonwealth, but to that land and to that people therein, which adopted this as their frame of government. But the law referred to was the common law of Massachusetts, and so far as it was the means of security of life, liberty, property, and privileges of the people, it was the great principles of magna eharta, embracing the trial by jury as therein secured, and all the maxims of law which were brought to this country by our ancestors, on its settlement, and continued in practice; or recognized as parts of the common law of England after-wards, and customs of their own, which were permanent, uniform and universal. We have seen that whatever laws might have been an established part of the common law of England, which were never adopted and approved in Massachusetts Bay, and usually practiced upon in courts of law, did not, under the constitution, become a part of the system of jurisprudence.

The trial by jury, according to its meaning in magna charta, and as it was understood in England generally till the emigration of our ancestors, in practice was introduced into our colonial system of jurisprudence at an early period. And the inquiry is not improper, whether it is not to be considered as adopted here, with all its incidents, under the constitution of Massachusetts, in which this great security of private rights was manifestly designed to be carefully preserved and guarded.

The number constituting a jury of trials, and perfect unanimity in a verdict, were essential elements in the jury trials.

It was also indispensable that the individuals composing the jury in a given case, should be impartial, indifferent, and under no bias or prejudice, omni exceptione majores. It is likewise important that the jury, as an array, should be free from objection on account of any irregularity in the manner practiced under the writs by authority of which they are summoned. But if all the essential elements were secured in their integrity, the particular mode in which this was done in England has not been practically treated as' absolutely required. There the jury were summoned in a manner very different from that which has here prevailed for a century. A verdict, as we have seen, was not required necessarily to be secured by polling the jury upon motion of either party; and we are not satisfied it would be a material infringement of this important right, secured by the constitution of Massachusetts that the court should be vested by the legislature with the power to determine conclusively the indifference of jurors, in the place of triors, in certain cases, of the appointment of the court. .

Before the adoption of this constitution, the statutes of the Colony and Province of Massachusetts, touching the. manner of testing the competency of jurors, had been held obligatory. The statute of 1760, chap. 275, was in force at the time when this constitution became the supreme law of the commonwealth. The several parts of this constitution took effect simultaneously. By chap. 6, sec. 6, thereof, those statutes became binding while they continued unrepealed. They underwent no essential change afterwards, so long as this state was a constituent part of Massachusetts; and at the time of the separation and the organization of the new government, they became a part of the law of Maine. Con. of Maine, art. 10, sec. 3.

The common law principle, in relation to triors, not having been shown to have been adopted in Massachusetts, but another mode believed to be quite as effectual to secure impartial juries, provided by legislative authority, was that which had been usually practiced upon in courts, and became the law of that commonwealth, under the constitution.

When the constitution of Maine was adopted, if there had been no other provisions touching jury trials in criminal cases than that contained in art. 1, sec. 6, already quoted, this section could not be construed to refer to the common law of England, as such, but to that common law which was then permanent, uniform and universal in Massachusetts, in the modified form in which it stood at the time that the new government assumed the functions of an independent state. In criminal prosecutions, the accused could be deprived of life, &o„, only by the judgment of his peers, or the law of the land, as the law had been, and was then under the constitution of Massachusetts, and that legislation designed to give efficacy to that constitution.

But the part of the constitution of Maine quoted from, (art. 1, sec. 7,) not only allows, but requires the legislature to enact statutes to secure the selection of juries, which shall, be impartial.

The construction of this provision which would restrict legislative enactments for the selection of names of impartial persons, from whom jurors might be summoned upon writs of venire facias, regardless of the impartiality of those called to sit in a given case, cannot be admitted. It is obvious, that it was designed also to embrace laws in reference to the empanneling of juries for each trial.

Until twelve men are actually empanneled and sworn, it cannot be said that a jury exists, in the- strict sense of the term. The requirement in the same sentence of the established number, and of unanimity, must refer to a jury prepared and qualified in all respects to sit in a trial.

In obedience to this constitutional requirement, the legislature, in 1821, re-enacted former statutes in substance, for the purpose of having in attendance upon courts, under a summons thereof, persons suitable for jurors, and of hearing and determining the indifference and impartiality of each, who should be called upon to sit in a trial, either civil or criminal, in case of objection.

In the Revised Statutes which went into operation in 1841, it was’ the design to l’ange under separate chapters provisions which had often before been under one chapter. The title of chap. 115, is “ Of proceedings of civil actions in court.”' And it is provided in sec. 65 thereof, that the court, on motion of either party in a suit, may examine on oath any person called as a juror therein, whether he is related to either party, or has given or formed an opinion, or is sensible of any bias, prejudice or. particular interest in the cause, or if it shall appear from any competent evidence introduced by the party objecting to the juror, that he does not stand indifferent in the cause, another juror shall be'called and placed in his stead; for the trial of the cause. The inquiries to be made by the court are substantially the same as those required in other and previous statutes, with the addition that other evidence may be introduced, which was allowed before triors under the English common law.

It is insisted that this examination is not imperative upon the court, under the Revised Statutes, but is purely a matter of discretion. Such a construction, when the objection to a juror is for cause, which would amount to a principal challenge, as would authorize the court to permit the juror to sit in the trial when objected to, without any examination or hearing of testimony, is unreasonable, and is certainly at variance with the practical interpretation of the provision. The language of the statute may have been varied under a view taken by this court in the case of Ware v. Ware, 8 Greenl., 42, that a juror objected to might be legally set aside, though it was not made to appear that the objection had a sufficient basis. The court say in that case, “ but as strong objections were still urged against him by the appellee, he was set aside by the judge, who expressed a desire to have the cause decided by an unobjectionable jury, and thereupon another was called,” and this was held not erroneous. The evidence introduced by the party objecting, from witnesses, may show the incompetency of the juror, without inquiry of him, and the latter evidence may with propriety be omitted.

We cannot suppose that the change of the auxiliary verb from shall to may was designed by the legislature to recognize the existence of the English common law practice, which was superseded by a satisfactory provision of the statute, which has existed under the different forms of government in Massachusetts.

Challenges of jurors are allowed in criminal as in civil causes. R. S., chap. 172, sec. 31. They must have been for similar reasons, and the court is the only tribunal which the statute has provided for their trial, whether they be principal challenges, or challenges to the favor. Something more than silence of the statute is necessary to induce the belief that a practice in English courts which had never existed under the colonial, provincial or state government of Massachusetts, was intended to be introduced under the constitution of this state, and the general provisions for determining the competency of jurors just referred to.

It is suggested that the provisions of sec. 31 of chap. 172, was not designed to apply to capital trials, because the right of the prisoner in such, to challenge peremptorily a certain number of jurors has always been recognized, and never denied, but the right exists in no other cases. The privilege of peremptory challenge in capital cases, has been admitted from time immemorial, is believed to have been allowed under our colonial and provincial systems, and in the commonwealth of Massachsetts; and is clearly implied by the statutes of this state of 1821, chap. 59, sec. 42; by R. S., chap. 172, sec. 17, and by statutes of 1849, chap. 100, sec. 1, limiting the number of such challenges. The challenges referred to in sec. 31, chap. 172, have regard to those for cause, as no other are allowable in civil trials. By giving the accused the same right of exception to jurors in criminal as in civil causes does not restrict him so as to take away the right of peremptory challenge.

2. L. D. Rice, a witness for the state, on his direct examination, testified that on the afternoon of the day next succeeding the death of the deceased, he saw something on the sleeve of the shirt of the prisoner, which he thought was blood; and that on cross-examination, that he was a witness before the magistrate and before the coroner’s inquest. In answer to the prisoner’s inquiry whether he had testified before, that he saw blood on the prisoner’s wrist, answered in the affirmative; and then the question was proposed in behalf of the prisoner, if this was the first time he had so testified, excepting before the grand jury. This question being objected to, was excluded. It is not controverted by the prisoner’s counsel that a witness is not permitted to disclose evidence before the grand jury. It follows that a question which may be answered in a manner to make such disclosure cannot be proper. If the witness had testified to the same fact only before the grand jury, an affirmative answer would be tantamount to the statement that he had testified the same before that body.

It has been regarded as an established rule, that a witness cannot be called upon to state his testimony given on a former occasion in a trial where the same evidence is relevant, and the authorities cited for the state sustain the rule. The question was properly excluded.

The same reasons will apply to the exclusion of the question put by the prisoner’s counsel in cross-examination, “ where it was that he testified he saw Prout on the night of October 6th, 1856, put his hand on deceased’s face.”

3. William F. Morrill, for the state, testified that he was present with George F. Thurston and James Dunn, when a knife was found by the side of a fence, between the prisoner’s field and the woods, near a pair of bars. The case finds that the day subsequent to the death of the deceased, Dominicus J. Prout testified that he saw the prisoner coming out of the woods, from a pair of bars leading therefrom to the prisoner’s field. The prisoner was walking fast; when ho saw the witness and another man who was with him, he did not walk quite so last. The prosecuting officer inquired of the witness if he, on the same or the next day informed any person of having seen the prisoner coming from the place, and in the direction above described. The answer was that he informed Thurston, and went with him to the place after the information was given. The question and answer were objected to.

The ground of this objection is, that the state cannot thus corroborate its own witness. It is not perceived how the inquiry and the answer could have this affect, the one informed not having been called to confirm the statement of the witness, but the inquiry was undoubtedly made to connect the discovery of the knife after the death of the deceased, with the prisoner, upon the spot whore the knife was found, when he exhibited conduct which might bo thought suspicious; and also to show that the discovery of the knife was upon search therefor, by the person informed of the prisoner’s previous presence at that place, and not accidental.

If the one who saw the prisoner near the bars, had the day subsequent, himself found the knife, it is very clear that the fact of his having seen the prisoner at that place, and the finding of the knife upon his own search, would all have been unobjectionable in ovidonce. The first named fact being within the knowledge of one, and communicated to another who found the knife, or who was present when it was found,' is not the ground of a legal distinction.

4. A surgical expert examined the wounds upon the deceased, and against the objection of the prisoner’s counsel, was allowed to state that in his opinion, the instrument by which they were caused, was a pointed, cutting and sharp instrument. To determine the general character of the instrument from a wound produced, must necessarily depend upon the experience and skill of one accustomed to examine wounds, and it has been properly regarded by courts as an important step in the proceedings in criminal trials where no direct evidence is found.

The form and appearance of the wounds upon the deceased having been ascertained by an expert, it was a proper inquiry to the same, when a witness, whether the razor before him, independent of the place where it was found, and the dust upon it, in his opinion could have produced the wound, and proper to be answered. The most obvious object was to ascertain if the wound examined corresponded in form with that which could be caused by that particular instrument. If his intention was to base his opinion upon other circumstances than the form and properties of the razor, such iniention could have been ascertained on further examination, and if the opinion was founded upon facts of which the jury could judge as well as an expert, it could have been excluded.

5. Dr. A. G-arcelon, called by the government, and shown to be an expert as a physician and surgeon, was at the examination of the body of the deceased, and was permitted, subject to objection, to exhibit to the jury certain engraved plates of the humnn neck, and of the bones of the neck, and also a skeleton of the human neck, in order to illustrate his testimony in describing the wounds, and especially that upon the vertebrae of the spinal column. The object of the exhibition of these plates and bones was to render the testimony of the witness intelligible, and not to make them evidence of themselves. Maps and diagrams not claimed to be strictly accurate are permitted to be used as chalk for purposes of illustration, and to make more clear a verbal description. The authorities cited for the prisoner are not in point.

6. The admission of the answer to the question put to Dr. Garcelon by the counsel of the government, that in his opinion as a physician and a surgeon, the wound described in the neck of the deceased could not have been inflicted by her own right hand, was not legally erroneous. The question could be properly answered only by one who had the knowledge of an expert in anatomy and surgery. The answer given is a fact, which, like other facts, may be controverted by proof. It is to be received as testimony in reference to the party injured, and is a denial by the witness that the wound could have been inflicted by the deceased under any state of the mind of a human being, known to him, and having the power to use her right hand in the ordinary manner. If the presiding judge had excluded the answer, it must have been upon the ground that he could better determine what facts claimed to be within the range of surgical science were incredible than one experienced therein.

7. The papers purporting to be deeds from George Knight and Mary Knight to Moses S. Jordan, and from the grantee therein to George Knight alone, and the testimony of Dennis L. Bragdon, John H. Otis, and Moses S. Jordan, in reference to these papers and others which were left for record, were admissible. The rule of this court, No. 14, does not apply to this question. These deeds are not treated by the counsel of the government as certainly genuine, but as documents in the hands of the prisoner which, by his acts, he must have regarded as of value to him, he being a party to them. If the deeds were genuine, his conduct in reference thereto may be supposed to have had some relation, as a circumstance, to the issue before the jury, as indicating a motive for the crime charged. If not genuine, and he treated them as valid, the forgery might be exposed in some mode, if the deceased was in life. If the subscribing witness had been called, and had denied their genuineness, it is not perceived that they and other evidence could have been excluded.

8. Dr. A. A. Hayes was called, and examined as an expert touching the properties of human blood, ascertained by chemical tests, and by microscopic observations, and he exhibited a diagram, and desired to use it in order to illustrate his statements, and was allowed to do so for that purpose, subject to the prisoner’s objection. It appeared from the testimony, that one diagram exhibited recent blood as seen through a microscope; another, the coagulating of blood; a third, recent blood, to which water had been added; a fourth, blood to which a saline solution had been added.

It would be very difficult for an expert of the most accurate and extensive observation, to exhibit in language with precision, so as to be understood, those delicate appearances which are appreciable only by the sense of vision. Nothing short of an exact representation to the sight can give with certainty, a perfectly correct idea to the mind. The witness was permitted to present the diagrams, merely to explain his meaning, and not as an infallible test of truth. A diagram approximating in any degree to perfect representation, when exhibited by one qualified from knowledge and experience to give explanations, may do much to make clear his testimony, without danger of misleading.

9. The witness exhibited a shirt, which he remarked was of cotton flannel, and which he testified he had examined. He stated that he first alluded to the peculiarity which the stain presented. And the counsel of the prisoner here objected to the witness’ describing what he called the peculiarities of the stain; as, if any such existed, they were open to the observation of the jury. The court allowed the witness to call the attention of the jury to a spot (pointed out,) as exhibiting on one side of the fabric a much larger proportion of coloring matter of the blood, than was presented upon the other part, or the surface which was worn next to the skin. The witness then stated that he cut a piece from the blood spot on which the experiments were subsequently made.

The opinion of the witness was not introduced, as supposed in argument. The attention of the jury was directed to the shirt in question, that they might notice by inspection, the actual appearance of the blood stain, exhibited to them as the basis of experiments which were made, and which wore described in another part of the testimony of the witness.

The question whether such a spot as that exhibited upon the shirt could, or could not have been occasioned by blood flowing directly upon the outer surface thereof was allowed to be answered by the witness as an expert, when, as it is contended, it was a question which called for an answer not within the province of the witness, and one not within the province of an expert. The witness testified “ that the coloring matter of the blood, which is suspended in the blood, remained on the outer surface of the fabric; the effect being the reverse of that which would have taken place, had the blood flowed from the arm of the person wearing it.” Whether the witness’ theory touching the coloring matter of the blood, and the appearance present ,d when it has flowed upon cotton flannel is correct or otherwise, it is not for the court to determine, it being a matter for the jury upon evidence. It appears that this proposition of the witness was made upon chemical experiment, and observations aided by the microscope. It is not perceived that the answer to the question was not peculiarly the result of scientific knowledge and experience.

Dr. Hayes testified touching the properties of blood of animals, and was allowed to state that such a distinction exists in the appearance of human blood and that of the sheep, that one may not be mistaken from the other, after such experiments as have been made by men of science and skill. Objections were made by the prisoner’s counsel to the questions which elicited these answers. The history of the developement of scientific principles by actual experiments, within a few of the last years, show us that many things which were once regarded generally as incredible, are now admitted universally to be established facts. And so long as the existence of facts, which are the result of experiments, made by those versed in the department of science to which they pertain, are received as evidence, it would be legally erroneous for the court to determine that the absurdity of such facts was so great as to require their exclusion. If the facts so offered in proof are untrue, their fallacy is to be shown by the evidence of other experts, who have made application of their scientific knowledge and experience. The court is required to be learned in the law, and to apply it by instructions to the jury, but to be learned „in all matters of science is not required, and such learning, if possessed by the court, cannot with propriety be given by it to the jury; nor can it withdraw from them the consideration of scientific facts, testified to by experts.

10. The counsel of the government introduced Lydia Knight, the prisoner’s mother, who occupied the same bed with the deceased, the night of her death. The testimony, when taken alone; may not be inconsistent with the prisoner’s innocence of the crime charged. And although the death was occasioned by violent means, as we infer from the testimony of others, either by her own hand, or that of an assassin, yet it was unknown to Lydia Knight, according to her áccount.

The counsel for the state, in his closing remarks to the jury, endeavored to show that the death of the deceased took place after Lydia Knight had left the bed, contrary to her own express statement, and although he disclaimed the intention of impeaching the competency or the credibility of this witness, he insisted upon other facts adduced in evidence that she was mistaken; and to show that this mistake was not unnatural, nor inconsistent with the most honest intentions, he referred to her extreme age, her appearance before the jury, bowed down, deaf and decrepit, generally in a feeble condition, both physical and mental, and having forgotten her own son who addressed her as his mother. This course of argument was objected to by the prisoner’s counsel, but permitted by the court.

That a party calling a witness cannot impeach his competency or credibility, if his testimony turns out unfavorable to him, is well established. But it certainly would not tend to develope truth, to preclude a party from showing that his witness was honestly mistaken, and no such rule is recognized in law. The rule of law is, that if a witness proves a case against the party calling him, the latter may show the truth by other witnesses. In Buller’s N. P., 297, the rule as to the right of a party to contradict his own witness is thus laid down: “A party shall never be permitted to produce general evidence to discredit his own witness,” for the reason, it “ would enable him to destroy the witness, if he spoke against him, and to make him a good witness, if he spoke for him, with the means in his hands of destroying his credit, if he spoke against him. But if a witness proved facts in a cause which make against the party who called him, yet the party may call other witnesses to prove that those facts were otherwise; for such facts are evidence in a cause, and the other witnesses are not called directly to discredit the first witness, but the impeachment of his credit is incidental and consequential only.”

In Ewer v. Ambrose, 3 Barn, and Cres., 229, it is said by Littledale, Justice, “ when a witness is called by a party to prove his case, and he disproves that case, I think the party is still at liberty to prove his case by other witnesses. It would be a great hardship if the rule were otherwise, for if a party had four witnesses upon whom he relied to prove his case, it would be very hard that by calling first the one who happened to disprove it, he should be deprived of the testimony of the other three. If he had called the three before the other who had disproved the case, it would have been a question for the jury upon the evidence, whether they would give credit to the three or to the one. The order in which the witnesses happened to be called ought not, therefore, to make any difference.”

The rule laid down by Bosanquet, J., in Bradley v. Ricardo, 8 Bing., 220, is that a party who calls a witness into the box is not permitted to prove generally that he is unworthy of credit, but may contradict him as to particular facts, and the rule in Buller’s N. P., cited, is held to bo correct. It is laid down in the same case, that by so contradicting the witness, his testimony is not to be altogether repudiated, and Alden-son, J., says, “the rule laid down by Mr. Justice Duller is intelligable and clear; namely, that a party shall not be permitted to throw general discredit upon a witness whom he has put into the box; but it would be monstrous if the whole of his testimony were to be struck out, because a subsequent witness sets him right as to a single fact which he may have stated incorrectly.”

The rule invoked by the prisoner’s counsel from Russel on Crimes is that in Buller’s N. P., before cited, with the exception of the last sentence, which is as follows: “ Still a party is not at liberty to set up so much of his witness’ testimony as makes for him, rejecting and disproving so much as makes against him.” The language just quoted is that of Lord Ellenborough, in Alexander v. Gibson, 2 Camp., 556, to which he adds “ that a witness giving evidence against the party calling him, may be contradicted by witnesses on the same side, and that in this manner his evidence may be entirely repudiated.” In the case of Bradley v. Ricardo, before cited, Gaselee, J., says in reference to the remarks of Lord Ellen-borough, “With defference to Lord Ellenborough, it seems to me it is for the jury to say, whether his evidence is to be entirely repudiated or not. It is going too far to determine that the party shall suffer because a witness is not consistent in his testimony.” These remarks of Gaselee, J., are founded in reason. There is no inflexible rule of law that the jury are bound to disregard important testimony of a witness, which testimony they fully believe, because it is inconsistent with the evidence of another, called by the same party. Such is the frailty of human memory that a witness may state a fact which is untrue, but with the fullest belief that he actually knows it; the jury may be satisfied of the error, and of the uprightness of the witness, and are they legally compelled to reject other parts of the evidence of the same witness, which they fully believe?

Lydia Knight having an opportunity of knowing facts, not within the knowledge of any other person, excepting the deceased, and the one who may have caused her death, she was called in behalf of the prosecution, with great propriety. In Regina v. Holden, 8 Car. and Payne, 606, which was a case of murder, Patterson, J., inquired why the daughter of the deceased, a child nine years old, was not called. It appeared that she was present when the fatal injury was produced, and that she was present in court. The counsel for the prosecution stated that her name was not on the back of the indictment, and that she was brought by the other side, and that he did not intend to call her. The judge then said “ she ought to be called. She was present at the transaction. Every witness who was present at a transaction of this sort ought to be called, even if they give different accounts, it is fit that the jury should hear their evidence, so as to draw their own conclusion as to the real truth of the matter.” The daughter of the deceased was examined.

The mother of the prisoner had made the statement of her knowledge of the transaction, which the counsel for the state insisted was founded in mistake, in some particulars, as shown by other facts and circumstances in the case. The evidence tending to show the mistake of the witness being’ properly before the jury is the subject of legitimate argument.

11. The jury were instructed that “where the killing is unlawful, and neither express or implied malice exists, the crime is reduced from murder to manslaughter. But in all cases where the unlawful killing is proved, and there is nothing in the circumstances of the case as proved, to explain, qualify or palliate the act, the law presumes it to have been done maliciously; and if the accused would reduce the crime below the degree of murder, the burden is upon him to rebut the inference of malice, which the law raises from the act of killing, by evidence in defence.”

The doctrine enunciated in these instructions has been much examined by courts of the highest standing, and jurists of great respectability, within a few of-the last years. Uncommon learning, research, and power of ratiocination have been exhibited in support of the principle; and those who have denied its soundness have maintained the denial in arguments of distinguished ability and force. An attempt to discuss the question again cannot be expected to throw much additional light upon it. The instruction is a doctrine of the English common law, of Massachusetts, as recognized in the case of Com. v. Knapp, 9 Pick., 496; Com. v. Knapp, 10 Pick., 484; Com. v. York, 9 Met., 93; Com. v. Webster, 5 Cush., 82. It is not known to have been denied by courts of this state, but it has been expressly admitted, and the jury instructed accordingly by this court, sitting as a full court in State v. Sager, in the county of Kennebec, in the year 1834; in State v. Varney, in the county of Penobscot, in 1845, and in State v. Cripps, in the county of Sagadahoc, in 1855, none of which are reported in the Maine Reports, but distinctly recollected. The instruction given, having the weight of authority in its support, and not having been satisfactorily shown to be erroneous, is sustained.

12. Exceptions are taken to the remark of the presiding judge, that “ where men are found to keep silence when they are surrounded by circumstances of suspicion, which require explanation, or give false explanation, or attempt to induce others to relieve them by falsehood and perjury, inferences necessarily arise prejudicial to them.” Whatever conduct of a person creates suspicion against him in the minds of those knowing his conduct, or informed thereof, must be to his prejudice. The two propositions are substantially identical. If explanation will overcome the unfavorable suspicions, it will at the same time subdue the prejudice.

The remark was rather a maxim in morals than any rule in law, which could operate injuriously to the prisoner. It was general, and in it no legal error is perceived.

13. No particular ground for the exception to the general remark of the presiding judge, touching circumstantial evidence is pointed out in the argument by the prisoner’s councel, though it is said that “ it seems to the counsel, that the rules for ascertaining truth from circumstantial evidence are colored, and their efficacy as a guide to right results, is greatly overstated, and that, too, in a manner calculated to mislead the jury.” The opinions of the judge thus expressed, and thought objectionable in law, are not subject to exception.

14. The case finds, that the counsel for the prisoner relied upon the want of proof of his foot-prints over the ground, between the heater piece and his house, a space of one mile and ninety-two rods. The jury were instructed that they must try the cause by the evidence in the case, and not by that which is out of it. And they were further instructed, that they must determine whether the evidence before them gave them reasonable satisfaction. If sufficient, they were not to say “ we will not find a verdict because other evidence had not been produced.” No error is perceived in this. When evidence is introduced which produces full conviction in the mind, of the truth of the proposition attempted to be established, it is difficult to perceive that the omission to introduce further proof of facts, which may or may not exist, and which, if adduced, might be corroborative of that already before the jury, can cause doubt.

The subsequent remark connected with the same subject, that “ if the absence of such proof throws an insurmountable barrier in your way, then the hypothesis of the government fails,” is not deemed erroneous, when viewed with the evidence, and all that was said in the instructions upon this point. The prisoner’s counsel gives to the language of the judge an erroneous interpretation, when he holds it to mean, that it does not allow the jury to acquit the prisoner unless the absence of proof of the foot-prints throws an insurmountable barrier in the way “ of the conclusion of his guilt.” The government attempted to sustain the charge in the indictment by a connected train of circumstances. If the train was absolutely broken, so that the separate parts were insufficient to produce satisfaction in the minds of the jury, the hypothesis was not sustained. The prisoner relied upon the want of evidence of his passage over the ground indicated by his footprints between his house and the heater piece. The hypothesis of the government was, that the prisoner did pass over this ground, and relied upon other evidence than his footprints for proof of that fact. The judge suggested for the consideration of the jury circumstances which might or might not account for the want of this proof, after the prisoner was suspected of an agency in the death of his wife, consistently with the fact, that he did pass over this ground, and adds in the language quoted. It is quite manifest that he designed to say, that if the effect of the evidence of the government on this point was so weakened, from the want of proof of the foot-prints, that they were not satisfied that he passed over the ground between the heater piece and his house, or in other words, caused a reasonable doubt of this fact, this position of the government was left without support by the evidence.

15. The instruction that “it does not necessarily follow, that because Lydia Knight was present, but did not observe the manner or time of death, that it did not occur; there is a distinction between positive testimony and negative testimony,” is held not to be erroneous. It was not disputed that Mary Knight was dead, or that she came to her death at the time assumed by the government. Lydia Knight’s testimony shows that she must have been present when the death occurred. But she did not know that the deceased died at a time when she was so present, and she could not have known by what agency death took place. This is purely negative, and does not necessarily overthrow positive evidence, which tends to show that the death took place at a certain time, during which Lydia Knight was present. We perceive no legal ground for the exception to this instruction.

16. The judge remarked to the jury, “ if you come to the conclusion that Mrs. Knight did not commit suicide, but was. killed by the hand of another, that other hand must in some way have come in contact with her. What person had the most favorable opportunity to perform this act,” &c. This is regarded by the prisoner’s counsel as an absolute denial o the rule of law, that all the facts should be consistent with. the hypothesis set up by the government. The judge herein stated no rule of law, nor denied any legal proposition whatever. The attention of the jury was called to certain matters of fact for their consideration, without any reference to the law, which had been stated or which was stated afterwards. The government had attempted to satisfy the jury by circumstances, that if the death was caused by an assassin, that the prisoner had the most favorable opportunity to inflict the fatal wounds; that he had a motive to do it; that he had the means and facilities with -which to accomplish it, &c., and the judge asks in view of the circumstances adverted to, whether they all point in one direction, and whether they are of such a character as to exclude to a moral certainty, and beyond all reasonable doubt, every other hypothesis, except that of the guilt of the prisoner? These remarks were not legally objectionable.

17. The judge was requested to instruct the jury, “ that to convict the prisoner upon evidence of circumstances, it is necessary, not only that the circumstances all concur to show that he committed the crime, but that they all be inconsistent with any other rational conclusion. The instruction was not given upon the request. A judge, when called upon, is bound to give instructions in law which are applicable to the evidence in the case; but ho is not bound to give them in the language used by the counsel making the request, nor to repeat them when requested, if once given.

In his general instructions to the jury, the judge had said to them, that the prisoner was “ entitled to the presumption of innocence until it is overcome by legal testimony. That testimony, in all its material facts, must be consistent with his guilt. If there is any substantial circumstance proved, which cannot exist consistently with his guilt, it acquits him. If, on the other hand, the circumstances are all consistent with his guilt, if they conclusively tend to prove his guilt, and are of a character to exclude all reasonable doubt that the crime could have been committed by any other person, and if you are satisfied beyond all reasonable doubt, that the fatal wound was not inflicted by the deceased herself, but was inflicted by the prisoner; if the government have proved all this, they have done all that they were required to do, and are entitled to a verdict at your hands. If they fail to do this, the prisoner is entitled to a verdict of acquittal.” These instructions, and others of similar import to that requested, were as full as that requested upon the point we are considering', and were as favorable to the prisoner as he could legally claim.

18. The court declined to instruct the jury as requested, that no conviction in a criminal case ought ever to take place on circumstantial evidence, when the government has introduced direct evidence, tending to show .that the prisoner could not have committed the crime charged. No authority is cited, and none has been found in support of this doctrine. If the whole circumstantial evidence should satisfy the jury beyond all doubt, of the guilt of the accused in a case wherein a witness called for the prosecution had made a direct statement of a fact, tending in a slight degree to show his-innocence, and the jury were satisfied that the witness was mistaken in that statement, to give it the effect contended for would overthrow the established rule that a party is not concluded by testimony against him of his own witness, and would allow this statement while believed by the jury to be founded in mistake to have absolute control, so that the most convincing proof of guilt would be arbitrai’ily nullified thereby. This cannot be admitted.

The instructions which appear by the bill of exceptions to have been next requested, are similar in principle to those just considered, and the same reason for their refusal will apply.

19. The instruction requested in relation to the distinction which the government attempted to show between human blood, and that of other animals named, involved no question of law, and was properly refused.

20. Another request for instructions, made in behalf of the prisoner, and refused, was, that the distinction between positive and negative testimony, is applicable to direct testimony, and cannot be applied to circumstantial evidence when placed in direct conflict with positive testimony. Circumstantial evidence is composed of facts equally with that which is denominated direct. It consists of proof, which applies immediately to collateral facts supposed to have a connection near or remote with the fact in controversy, while the latter consists of proof applicable immediately to the fact in issue, to be shown without any intervening process. Satisfactory proof is required for the establishment of the facts relied upon in both species of evidence. The distinction invoked lias no legal foundation.

Upon the fullest consideration we have been able to give to the numerous questions involved, and which have been relied upon in argument, some of which are of great importance in themselves, and all are of momentous interest to the prisoner, wo have come to the conclusion that the exceptions must be overruled; judgment on the verdict.

Rice, Appleton, Cutting, May, and Davis, JJ., concurred.

Note. — For the convenience of counsel for the defendant, and by consent of the attorneys for the government, this case was heard in the middle district, and determined by the judges who there presided.