Keener v. State , 18 Ga. 194 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] "We propose to consider the grounds of error complained of in this case, in the order in which they are presented in the assignment; and the first is, that the Court did not set aside Samuel A. Verdery, but allowed the Attorney General to put him upon the prisoner as a competent' Juror.

When the name of Samuel A. Verdery was called, he was put upon his voire clire; and in answer to the question— “ Have you, from having seen the crime committed, or having heard any portion of the evidence delivered on oath, formed and expressed any opinion as to the guilt or innocence of the prisoner at the bar?” Said Juror announced that he had not, but that he had formed and expressed an opinion from what he had heard of the case. He answered the other questions propounded by the Statute negatively. The Attorney General pronounced the Juror competent, and he was accepted and sworn in chief to try the cause.

Whether Mr. Yerdery was a competent Juror, we are not called upon to decide. True, he was pronounced qualified by the State’s Attorney, but not by the presiding Judge. His opinion, as to whether or not the Juror stood indifferent, was not invoked; and yet, it was the only judgment which this Court is authorized to review. There has been no decision by the Court below upon this point. Not only was no attempt made by the prisoner to get -rid of the Juror, by making the question to the Judge, but he failed to put him upon triers, to test his competency, as he was entitled to do under the Act of 1843. He accepted the Juror as he was — and consented, without objection, that he should be sworn in chief, to try the traversysY And it is a maxim of the English Law, as well as of common sense, that no one can take advantage of a wrong which he, himself, agreed to.

This doctrine underwent a thorough investigation by the Judges in Convention in Glover vs. Woolsey, Co. (Dudley's 22. 85.) It is true, that was an action of assumpsit; but the reasoning of the Convention, as well as the authorities cited, uppty to criminal as well as civil causes. It is there laid down as a well settled rule, that an omission to challenge .a Juror before trial, is a waiver of the objection to him; and that it would be most unreasonable to allow a party the benefit of a verdict, if favorable to him, and the benefit of a new trial on-account of the objection, if the verdict should be adverse. In-one of the cases referred to, Jeffries et al. vs. Randall, (14 Mass. R. 206,) the Court say, “ Had the demandants made the requisite Statutory inquiry, and failed of discovering the fact which would have disqualified the Juror, it would have been equitable to have granted relief at this stage of the proceeding ; but having omitted to avail themselves of their rights when the Jury was empannelled, the motion cannot now obtain.”

And so we. say in this case.

[2.] In the progress of the cause, the Attorney General offered as an original witness, on the part of the State, one Wm. A. Archer, whose name was not on the list of witnesses sworn before the Grand Jury, nor among those of whom the defendant had notice. Counsel for prisoner objected to said Archer’s being sworn as an original witness on the part of the State, for those reasons. The Court over-ruled 'the objection, and Counsel for the prisoner excepted.

It is insisted that Archer was incompetent to testify, and the 7th section of the 14th division of the Penal Code is relied upon for his exclusion. It is in these words: “ Every person charged with a crime or offence which may subject him or her, on conviction, to death or imprisonment in the Penitentiary for the term of three years or more, shall be furnished, previous to his or her arraignment, with a copy of the-indictment, and a list of the witnesses who gave testimony before the Grand Jury.” (Cobb’s Digest, 834.)

In the case of Stokes against The State, recently determined at Milledgevillo, this Court held, that the defendant was entitled only to a list of the witnesses who gave testmony before the Grand Jury. Such is the definite language of the Code; and if ever the maxim, that the express mention of one thing implies the exclusion of another, is to have a practical application, no ease can occur more palpable than this.

True, a different construction was put upon this clause by the late Thomas N. P. Charlton, Judge of the Eastern Ciruit, in The State vs. Calvin and others, (R. M. Charlton’s R. 142.) And the reason assigned was, that as one of the authors of the Penal Code, he was solicitous to placo persons accused under our law, upon as high a scale of. dignity as was dictated by the wide difference between a citizen of a Republic - and the subject of a Monarchy. -Hence, every person committing a felony in this State, should be placed upon the same footing as a subject of England charged with treason. And that as by the Statute of Ann, a prisoner charged with treason, was entitled to a list of all the witnesses to be produced', with their professions and places of abode, the like provision was incorporated with our Code, the better to enable defendants, by inquiry into the characters of the witnesses, to make their defence.

However much we may admire the humanity of the motive which prompted-this interpretation, we most respectfully submit, that both the distinguished Jurists who framed the Code, as wejl as the Legislature which adopted it, were most importunate in the use of the terms employed, if the exposition of Judge Charlton be correct. And we coincide with His Honor, Judge Holt, that it is not safe to inquire what the -framer of the law thought when he drafted it, but what the Legislature intended when they passed it; and that this intention is to be gathered from the words used, taken in "'their plain and obvious sense; and that it is very .clear, that all that was designed was, to let the accused distinctly lenow, before arraignment, the charge brought against him — the prosecutor who preferred it, and the witnesses who gave. testimony before the Grand Jury. This is all that is expressed. Had it been designed to limit the State, on the trial, 'to .any particular sot of witnesses, some words of restriction would have-been used. Here there are no such words. The Statute of Ann' contains the words, a list of witnesses to b e produced. ’ ’ Ours, “ a list of the witnesses who gave testimony before the Grand Jury.” How widely different the phraseology! And yet, they are treated, in the decision to which wo have referred, as not only the same in reason and principle, but one is considcred hut the re-enactment of the other.

We affirm the judgment of the Circuit Court upon this point also.

[3.] As to to third ground: A witness, Goodwyn, introduced by the State, on cross-examination, was asked "whether the tone of voice, with the language and manner of the deceased at the time he walked through the piazza to the room in which the defendant was, was not such as to cause him to-expect or look for a difficulty?” This question was not allowed to be put, but the witness was permitted to testify what the tone of voice, language and manner of Reese, at the time, were, which he did.

We regret that this question was not suffered to be propounded, because of its entire immateriality. Every body, at the house where this homicide was committed, that night,, expected a difficulty, as a matter of course. There could have been but one answer to the interrogatory, and that would not have weighed a feather with the Jury; and yet, hours, perhaps, have been consumed, first and last, in discussing the rule of evidence applicable to the facts contained in the record. We subjoin the reasons given by the Judge for rejecting this testimony, in his own language :

"This question Was not allowed to be asked, because the answer would not bo as to a fact, but the expectation of a witness, arising out of a series of facts, either then in evidence or capable of being put in evidence. Now the expectation of' the witness was nothing more than the deduction or conclusion of the mind of the witness, as to the effect which these facts produced on his mind, and inferentially, would be likely to produce on the mind of Keener.”

It is not for a witness to draw such conclusions; that belongs to the Jury. This is the general rule of law — to which, however, there are exceptions: as in questions of sanity or Insanity, art or science, and others of a like nature, in which ’the opinion of a witness, founded upon facts too multitudinous and minute to be presented to the mind of Jurors, or of -a skill, the witness’ own, is admitted. There is another class of exceptions, founded chiefly on defect of memory, in which the witness may give his belief: such as questions of personal identity, handwriting, &c. and others, in which he may state his impressions or understanding. Such were the cases of Moody and Wife vs. Davis, (10 Geo. R.) and Fielder and others against Collier, (13 Ga. R.) But the Court does not find the ease before it to be within any of the exceptions. The question asked the witness was, as to what he expected from the conduct of Reese — which conduct was intended to be proved by the impression it made on his mind; or, as expressed by one of the Counsel, a daguerreotype likeness of his conduct, as reflected from the mind of the witness, was wanted. It was certainly important to ascertain what was the conduct of Reese on that occasion, even to the minutest action. But the mirror from which it was sought to have it reflected, may not have been true. There may have been the seams of .credulousness, timorousness, passion or prejudice' to disturb the likeness; and which may have been very different from that which would have been made on the mind of the Jury by a simple statement of facts.”

Our brother, we believe, has stated, with accuracy, the rule as laid down in the books. (1 Greenlf. Ev. §440.) And jet, the writer from which it is taken, cites with approbation the case of McKee vs. Nelson, (4 Cowen, 355,) in which it was held, that in an action for breach of a promise to marry, a person accustomed to observe the mutual deportment of the parties may give in evidence his opinion upon the question, whether they wore attached to each other; and' that, too, without it being made to appear that the witness was an expert in the affairs of the heart.

The Court admit the general rule as stated by Judge Holt, namely: that witnesses are not allowed to give their opinions to a Jury, but suggest, that there are a thousand nameless things, indicating the existence and degree of the tender passion, which language cannot specify, and which cannot be detailed to a Jury. Why, we would ask, may not the various facts which manifest the existence of attachment, be as capable of specification as any other matter whatever? Why may not the existence of love, as well as revenge, being both of them elementary principles of human nature, be proven by external signs and the multiplied exhibitions of its energy ? There is no radical difference; and the rules of evidence should be the same, as applicable to both of these master passions. If it be allowable to ask, as in the case of McKee and Nelson, whether, in the opinion of the witness, the parties were not attached to each other, it would seem to justify the inquiry, whether the circumstances which surrounded the accused, were notvsufficient to excite the fears óf a reasonable man ? The defendant, however, is required to act upon his own judgment, and not that of another■, and is responsible to the law for the soundness of his conclusion. And foreseeing, .as we do, the indefinite multiplication of collateral issues to which any other doctrine would lead, we affirm the judgment •of the Court below upon this ground.

[4.] The place where Reese was killed, was a brothel of notoriety in the. city, and Counsel for prisoner proposed asking the witness, Prater, “ whether he was acquainted with the general character of deceased for violence in the place where the difficulty occurred?” And, “what was the character of deceased for violence in that particular place?” Objection was made to each of these questions by Counsel for the State, :and the Court refused to allow them to be asked. To which ruling the prisoner, by his Counsel, excepted. And this constitutes the fourth error assigned.

No authority was read, for or against this point, except the case of Boswell and Blackwell, (12 Ga. R.) and that establishes this principle only: that where a witness is sought to be impeached, and is shown to have a general reputation fox' truth and veracity in the county of his residence, that that may be considered, the neighborhood in which he lives, for the ' purpose of satisfying the demands of the law.

I took occasion, when delivering the opinion in this case, to vstate, that for myself, I was inclined to hold that the rejection of the questions, in the form in which they were put, was error ; but that in deference to the opinion of my brother Starnes, as yell as to that of the learned Judge who presided at the trial, I was content to affirm the judgment, with this distinct explanation: that it was competent to give proof as to the general conduct of the deceased for violence at this place— especially toward Keener — the testimony showing that they had long beeix rivals for the favor of the keeper of the brothel.

Upon examination, I am satisfied that the questions propounded to Prater, were in the proper form.

Mr. Greenleaf, in treating of the rule as to the admissibility of evidence of general character, concludes thus: “ But it seems that the character of the party, in regard to any particular trait, is not in issue, unless ib be the trait charged against him; and of this, it is only evidence of general reputation which is to be admitted, and not positive evidence of general bad conduct. . And the -author quotes Swift’s Evidence, and numerous cases, English and American, to sustain this proposition. (1 Greenleaf’s Evidence, §55 — note.) The particular trait involved in the issue here, was the character of Mr. Reese for violence i'n this place ; - a circumstance relied on by Keener, in part, for hi-s justification' in committing the-homicide. And it would seem that the character of the deceased for violence, was to be established by general reputation, rather than positive evidence of general bad conduct.

Either mode of proof will be satisfactory to the defendant’s Uounsel, in the present case,' provided we repudiate the doctrine, as we distinctly do, that a -man may not have different .general characters, adapted to different circumstances and .localities.; that is, a character-for rail cars and a character for the brothel; a character-for-the-church and- one for the street; a character when drunk, and a character when sober. Instead of a doctrine like this being too loose for judicial investigation, we hold that it is in accordance with the soundest elementary principles. In all eases whore evidence is admitted, touching the general character of the party, it ought, manifestly, say the authorities, to bear reference to the nature of the charge against him.

A schoolmaster is indicted for an assault and battery upon one of his pupils; he defends himself under his acknowledged right to inflict moderate correction. The charge puts in issue the character of the teacher for violence ; and whore, pray, would you go, to ascertain that character ? among his fellow-men, or in the schoolroom ? There can be but one response to this question: an officer in the army or navy is-tried for cruelty to a soldier or sailor; what has his reputation in the community, generally, to do with the trait of character, involved in the issue ? It is in the barracks, and on board the Man. of War, that we look for what we wish to ¡learn. There are thousands of men in this country, mild as .a May-morning when sober, but demoniacs when drunk; have not such two distinct characters ? Their moral identity is completely lost — their individuality metamorphosed under the maddening effects of alcohol. Philip drunk and Philip .sober, were altogether different persons. As a conductor, Mr. Reese was uniformly gentlemanly; at the brothel, he was menacing, turbulent, rash, reckless and raging.

The case of Quesenbury vs. The State, (3 Stewart & Porter, 308,) although not strictly applicable to the precise point which we have been considering is, nevertheless, so pertinent to the case, that I am induced to make the following quotation from the opening of the Court, as delivered of Chief Justice Lipscombe: “ that the good or bad character of the deceased, as an abstract proposition, can have no influence on the guilt of the accused, is too clear to admit of controversy. To murder the vilest and most -profligate of the human race, is as much a crime as if he had been the best, most virtuous, and the greatest benefactor of mankind) but there can be no doubt but that when the hilling has been, under such circumstances as to create a doubt as to the character of the offence committed, that the general character of the accused, may, sometimes, afford a clue by which the devious ways by which human action is influenced, may be threaded and the truth obtained. It is an acknowledged principle, that if, at the time the deadly blow was inflicted, the person who so inflicts has well-founded reasons to believe himself in imminent peril, without having, by his fault, produced the exigency, that such killing will not be murder.”

“ If the deceased was known to be quick and deadly in his revenge of imagined insults ; that he was ready to raise-a deadly weapon on every slight provocation; or in the language of the Counsel, his “ garments were stained with many murders,” token the slayer had been menaced by such an one, he would find some excuse in one of the strongest impulses of our nature, in anticipating the purposes of his antagonist; the language of the law in such a case would be, obey that impulse to self-preservation, even at the hazard of the life of your adversary.”

“ If the killing took place finder circumstances that could afford the slayer no reasonable grounds to believe himself in peril, he could derive no advantage from the general character of the deceased for turbulence and revenge ; but if the circumstances of the killing were such as to 'leave any doubt, whether he had not been more actuated by the principle of self-preservation than that of malice, it would be proper to admit any testimony calculated to illustrate to the Jury the motive of which he had been actuated.”

“ To this cause, we can see no good objection ; and it seems pretty certain, that it would often shelter the innocent from the influence of that sound, but not unfrequently severe maxim of law, that when the killing has been proven, malice will be presumed, unless explained and rebutted. There can be but little danger of the guilty escaping, under the influence of a prejudice created by such testimony against the deceased. The discretion of the Judge will be. able to control and prevent such a result. And Jurors will he able to comprehend the reason and object of such proof.’*

[5.] The next error complained of is, that the Court withdrew and excluded from the Jury all the testimony of James Cosby. This witness testified, that on Friday night before the death of Reese, which was on the Sunday evening he met Reese at the United States Hotel, who remarked to witness, that he had not seen him on McIntosh street for a good while.. Cosby replied, that he had not been there for about ten months. Reese then said, that he, himself, did not go there as frequently as he used to do; that Keener had taken his woman from him; and ho said that Keener was a damned coward, and that he had made him leave there two or three-times; and that if Keener crossed his path he would kill him.. He added, he was going out there before long, and would-' kick up hell. Nothing more was said.

The testimony of Cosby was rejected, mainly upon the ground, that the threats which it proves, were made in a private conversation between Reese and witness, which was never communicated to Keener.

Without stopping to inquire whether the facts related by the witness, apart from the threats, were not admissible, we prefer to confront the question directly; and to consider whether or not the evidence of Cosby, taken as a whole, should not have been received ? Keener is indicted for killing Reese; his defence is, that Reese manifestly intended, by surprise violence, to take his life, or do him some bodily hurt; that the circumstances were such as to excite the fears of a reasonable man; 'and that he acted under the influence of those fears, and not in the spirit of revenge. The proof is, that two nights before the tragedy occurred, Reese entertained the most deadly hostility toward Keener. Jealousy, another name for insanity, of the most malignant character, had taken possession of his bosom, and was shaking the throne of his reason to -its very foundation. Keener had talcen his woman .from him; and if the damned coward ever crossed his path, he would kill him; he was going out on McIntosh street before long, and would kick up licll there.. Prophetic words! He sowed to the wind, and reaped the whirlwind. What a terrible lesson ! Well might tho wise man say of the hous.e of the strange woman — “ the dead are there!” .

Ought not this conversation, whether communicated to Keener or not, to have been admitted as a substantive fact,, to show' the malus animus, or evil intent toward Keener, with which Reese went to that house that night ? Laying aside all technical rules and reasoning, we ask, with the knowledge of the mind an'd feelings of the deceased disclosed by this witness, would we not, and ought not tho Jury, to listen more indulgently to the alleged apprehension of injury on the part of Keener ? as well as to the facts and circumstances upon which lip relies, to justify his conduct ? Do not these previous threats throw light upon Reese’s conduct,.up to tho time of the killing ? Do they not serve to illustrate the transaction ?

It is stated by Mr. Starkie, (1 Treatise on Ev. p. 39,) Mr. Roscoe, (Ev. p. 74, Seq.) and all the writers on evidence, that tho general rule is, that all the circumstances of a transaction may be submitted to the Jury, provided they afford any fair presumption or inference as to the matter in issue. This proposition is exceedingly broad, and if carried out in good-faith, would produce the most beneficial results. Accordingly, in Richardson vs. Royalton § Woodstock Turnpike Co. (6 Vermt. 496,) and Davis vs. Calvert, (5 Gill. & Johnston, 269,) it was held, that all facts upon which any reasonable presumption or inference can be founded, as to the truth or falsity of the issue, arc admissible in evidence.

In addition to the precedents quoted by Mr. Roscoe, to sustain the general rule of evidence above stated, we beg leave. to refer to a few cases in illustration of tho rule.

The case from Vermont was this : An action was brought by the plaintiff for damages occasioned on account of the insufficiency of defendant’s bridge — so that in passing with a drove of cattle, some eighteen or twenty were precipitated into the river, and seven of these were so much bruised and wounded as to make it necessary to kill them. It was shown that the reach of the bridge which fell in had been erected^ about three years before the accident happened. The plaintiffs further offered to prove, that in 1831, the defendants built the two northern reaches of the said bridge anew, as the old ones had stood about nine years ; and that the new reaches thus erected, -were stronger than the reach which fell in with the cattle. To the admission of this evidence, the Counsel of defendants objected. But the objection was over-ruled’ and the evidence admitted, as having a tendency to show that the defendants considered that the augmentation of business,- and the necessities of the community, required a stronger bridge than the one first erected. The Court admit that the testimony is not very important, but that in modern practice, the evidence that is admitted to go to the Jury is more natural, and not governed by rules so artificial as formerly.. “Under the rule, then,” says the Judge, referring to that taken from Starkie, “ did the evidence afford any reasonable-inference, that the southern reach of the bridge, which broke, was insufficient, because in 1831 the defendants built the two-northern reaches stronger than the reach that did break ? Does it tend to confirm the plaintiff’s testimony, or weaken; or contradict the defendants?”

In Caldwell against The State of Connecticut, (17 Conn. R. 467,) it was decided, that where an information for keeping a house of ill-fame, charged the offence as having been committed after the Statute prohibiting it, went into operation, and evidence was offered to prove that the house was reputed to be of ill-fame previous to that time, that such evidence was admissible as conducing to prove that it sustained the same reputation afterwards.

The State vs. Goodrich, (19 Vermt. R. (4 Washburn,) 116,) is almost identical with the case under discussion. Goodrich was indicted for discharging a gun at one Green and wounding him; and the person injured was a witness on the trial; and it appeared that the affray took place on the premises off "the defendant. Goodrich insisted that the assault and battery, if committed by him, was in defence of his person or property, and offered evidence to prove that there had, at previous times, been fights between Green and himself; and that his house had been attacked, and his property, by a company, of which Green was one; and that Green had frequently threatened violence upon his person. The Court dccided that it was not competent, as a defence to this prosccution, to inquire into the previous affrays and contentions between the parties; or to prove a previous threat by Green, 'that he wanted to get some powder for the purpose of blowing up the house of the defendant.

Redfield, Justice, in delivering the opinion of the Supreme Court, stated the question to be, whether Green made the first assault, or whether Goodrich acted in self-defence. And after stating that it is not always easy to determine what is collateral to the main issue, the Judge proceeds — “ In the .present case, if it was material to know with what intent Green went to defendant’s house, that could only be shown by his acts and his deciar ations, in connection with those acts. As part of that intent, it might have been shown that he declared his intention to see if the hay remained; and we apprehend what is stated in the bill of exceptions, in regard to the tendency of the testimony on the part of the State, to show that he went there with that intent, must have been derived, partly at least, from his declarations on the way and while there. That is the only way it could be shown, aside from his own testimony. And we think that all his declarations, from the time of setting out on his expedition, in connection with his •acts, are competent to show with what intent he went there. And if an innocent intent may be shown in this wuy, then the contrary may also be shown in the same manner. And in this view, the evidence was in no sense collateral.”

“ If Green, then, denied making such a declaration, it might be shown that he, in fact, did both as tending to impeach the witness by contradicting him; and as going to establish the fact that he went therefor the purpose of beginning an affray, and as tending to justify, perhaps, more vigorous defence of any supposed offensive movement on the part of Green."

[6.] The true distinction, we apprehend, as to the admissibility of evidence of throats, and one apparently overlooked in many of the cases, is this: when sought to bo introduced by the defendant as a justification for the homicide, and without any overt act, he must show that they have been communicated ; otherwise they can furnish no excuse for his conduct ; but when offered to prove a substantive fact, namely: the state of feeling entertained by deceased toward the accused, it is competent testimony, whether a knowledge of the threats be brought home to the defendant or not.

[7.] I will merely add, that the remoteness or nearness of time, as to threats and declarations, pointing to the act subsequently committed, makes no difference as to the competency of the testimony. (3 Strobhart’s L. R. 517, note.)

Upon the authority of the note, then, as laid down by Mr. Starkie and others, and as illustrated by numerous adjudicated cases, wo are clear that the testimony of Cosby should have-been admitted, as it conduced to prove, in connection with other evidence, the quo animo with which Reese resorted to the brothel on McIntosh street that night; and that his manner and conduct corresponded with that purpose, so as to warrant Keener in believing that the same scenes were toberepeated there that night, which had been re-enacted several times before; and that no alternative would be left, but to retreat again as he had done before, twice or three times, or take the consequences.

In view then, of the frequent failure of justice, from the failure of evidence — and thoroughly convinced, as wo are, that no competent means of ascertaining the truth ought to be neglected, wo think the testimony of James Cosby was improperly ruled out. It was pertinent to the issue, and ought to have been submitted to the Jury. It showed the intent with which Reese resorted to this brothel; and, also, his feelings toward the defendant.

[8.] We propose to consider and dispose of the 6th, 7th, 8th and 9th assignments of error together. They present, for our review, the main questions in this case; all the rest are comparatively of minor importance. .

In his charge to the Jury, the Court, in the language of the hill of exceptions: “failed, omitted and declined, although requested by the Counsel for the prisoner so to do, to read to the Jury or comment upon the 12th and 13th sections of the 4th division of the Penal Code, upon which Counsel for prisoner had mainly relied for his defence. The Court having read the 1st, 2d, 3d, 4th, 6th and 7th sections, then charged the Jury that the section of the Penal Code, applicable to the grounds on which the defence had been placed, was as follows : reading the 15th section ; to which failure, omission and refusal to charge, and charge as given,. Counsel for prisoner excepted.”

“ The Court was also requested, by Counsel for prisoner, to charge the Jury as follows :

1st. That if they believed, from the evidence, that the prisoner, at the time of the commission of the act, -was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him — amounting to felony, the killing was justifiable homicide.

2dly. That if they believed, from the - evidence, that the prisoner was under similar fears of some act of violence and injury, less than a felony, his offence was manslaughter,-and not murder.”

“Which charge, so requested, the Court failed and refused to give; to which failure and refusal, Counsel for the prisoner excepted.” It is also assigned as error, that the Court failed and omitted to read to the Jury and comment upon the 9th, 10th and 11th, as well as the 12th and 13th sections of the 4th division of the Penal Code, although requested by Counsel so to do.

I would remark, that by reference to the. bill of exceptions, I -do not find that any request was made of the Court to give in charge and expound to the Jury the 9th, 10th and 11th sections of tho 4th division of the Code. These three sections relate exclusively to involuntary manslaughter; and there is not a particle of proof to make this killing that of-fence. It was murder, voluntary manslaughter or justifiable homicide. The Court was right, therefore, in pretermitting that portion of the Code which defines, with its sub-division, involuntary manslaughter, and annexes a penalty to each grade of the offence. Counsel for prisoner do not pretend that this law is applicable to his case. To give it in charge to the Jury, then, would bo to distract and burden their minds, unnecessarily and improperly. Whether or not there Ayas error in the remainder of these assignments, depends upon the fact of Ayhether there Avas any evidence upon Avliich the Jury might have mitigated the offence from murder to a lowcr grade of homicide. We go one step further: If the cirstanccs of the killing Ayere such as to leave any doubt Avhether Keener had not been actuated by the principle of self-preservation, rather than that of malice, Ave shall be constrained to remand this cause for a neAV trial. For the question, Ayhether Keener killed Reese to prevent Reese from killing or doing him some great bodily harm, has not, in the opinion of this Court, been fully submitted to the Jury. A part of the laAV only, applicable to the defence, Avas given; and where a man’s life is at stake, it is fit and proper to allow him the benefit of every provision of the Code.

[9.] In every charge of crime, there must be a question of laAV, and a question of fact. Is there any such rule oflavv as that on which tho indictment is founded ? Has the defendant violated that rule ? The decision of both of these is necessarily involved in the general verdict of “ guilty’.’ or “ not guilty” — tho only form of verdict alloAved by our Code. Tho former finding affirms both the existence of the laAV and its violation by the accused ; the latter, either that there is no such law, or that it has not been transgressed. It is the duty of the Judge to declare to the Jury Avhat the laAV is, Avith its exceptions and qualifications; and their to state hypothetically, that if certain facts, Ayhich constitute the offence, are proved to their satisfaction, they will find the defendant guilty ; otherwise, they will acquit him.

In this State — in all free governments — in tenderness to the accused, great latitude has been allowed to Counsel in stating and enforcing their views of the law in criminal cases. And a liberal confidence has been reposed in those who are called to defend the liberty and life of the citizen in the hour of trial. And where Counsel, in their place, under their professional obligations to the Court and the country, insist that certain portions of the law apply to the facts of -their client’s case; especially where it is capital, it would be better to read the law to the Jury, with such comments and explanations as the Court, possessing the superintending power, might feel it to be its duty to give.

The theory of our system is, that the Jury have not only the power, but the right, to pass upon the’law, as well as the facts, in rendering their verdict; and yet, this anomaly stares us in the face, that they are not permitted even to take the Code to their consultation room. They know nothing of the law, except so much and such parts of it as are given them in charge by the Court. This fact alone, is strongly suggestive of the propriety of withholding no law from them, which they are entitled to consider. Suppose, as in the present case, it were doubtful whether this offence, as proven by the witnesses, came under the 12th and 13th sections of the 4th division of the Penal Code, as contended for by the defendant’s Counsel, or under the 15th section, according to the opinion of the presiding Judge, should not both have been submitted ?

In Case’s English Liberties; or, The Freeborn Subject’s Inheritance, 201—’2, it is said, “ the office and power of Juxies in criminal cases, is judicial; from their verdict there lies no appeal; by finding guilty or not guilty, they do complicately resolve both law and fact.” And that in a criminal trial, the Jury may determine the law and the fact of the case, has been supported by every English Judge, except Chief Justice Jeffries, in the case of Col. Sidney, (3 Hargrave’s State Trials, 805.) And to their credit be it spoken,, that the Juries have always been right on fundamental questions of liberty and popular right. (1 Chandler’s Crim. Trials, 143, 149, 153, 269, 288. Yenger’s Case, 17 Howell’s State-Trials, 675, 724.)

Rut how can they judge of law which is not before them T There is no alternative — either the Courts must refer to the-Jury the whole law of the case, or the supposed distinction between the power of Juries in civil and criminal cases, should, be abolished.

[10.] With these preliminary remarks, we proceed to examine the 12th, 13th and 15th sections of the 4th division of the Penal Code.

Ry the 12th section, it is enacted, that “ there being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law, in execution of public justice; by permission of the law, in advancement of public justice; in self-defence, or in defence of habitation, property or person, against one who manifestly intends or endeavors, by violence or surprise, to commit a felony on either; or against any persons who manifestly intend and endeavor, in a riotous or tumultuous manner, to enter habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling or being therein.” (Cobb’s Digest, 784.)

Section 13th, declares that a bare fear of any of those of-fences, to prevent which the homicide is alleged to have been. committed, shall not be sufficient to justify the killing; must appear that the circumstances were sufficient to excite the fears of a reasonable man; and that the party killing really acted under the influence of those fears, and not in the spirit of revenge.” (Ib.)

Section 15th, provides that, “ if a person kill another in his defence, it must appear that the danger was so urgent and pressing, at the time of the killing, that, -in order to save his own life, the killing of the other was absolutely necessary and it must appear, also, that the person killed was the assailant, or that the slayer had really and in good faith, endeavored to decline any further struggle before the mortal blow was given.” (Ib. p. 785.)

It is clear that there is no conflict between these different sections. The last two sections may bo construed, perhaps,, to be qualifications of the first. The right of self-defence is given by the 12th section, against one who manifestly intends-to commit a felony, by violence or surprise, on the person or property of another. Section 13th limits this right, by requiring that the circumstances, to justify the killing, must be sufficient to excite the fears of a reasonable man; and that the party killing, really acted under the influence of these fears, and not in the spirit of revenge ; and the 15th section still further restricts the right, by providing that the danger should be so urgent and pressing, at the timo of the killing, that in order to save his own life the killing of the other was absolutely necessary.

Either this is the true exposition of the three sections taken together, and they should not, therefore, be separated; or else the 15th section applies to a different class of cases than the one contemplated in the 12th; and we are not prepared to say that the latter would not be the sounder interpretation.

Was there'any evidence, then, which entitled the defendant to have the 12th and 13th sections given in charge by the Court to the Jury ?

It is in proof, that Eeese went to the house of Yarborough, the night on which he was killed, with his bosom boiling with hate toward Keener, and breathing forth threats of revenge, should he encounter him. He finds him in the bod-room the miserable mistress of the brothel; ho kicked furiously at the door ; he jobbed at the window with his knife, the blade of which was six inches long ; he called out to Jane Yarborough : “ show up your Keener, I want to cut his damned-throat.” Keener dresseFand comes out upon the piazza, armed with a cane and pistol; Reese walked out on the pi&Eza and asked for a pistol; he thou seated himself on the bench with folded arms. Reese called Keener “ a damned, cowardly, pusillanimous son of a bitch;” Keener asked him to repeat it; he did so; daring Keener to point his pistol at him, making, at the same time, a motion with his arm; Keener fired and Reese fell; he was shot in the abdomen ; and from: the direction of the balls, Reese must have been in a rising-attitude or sitting and bending over, when the wound was received.

We ask not whether this proof is sufficient to justify Keener in killing Reese, or even to reduce the homicide to manslaughter. That is not the question. Is there no evidence which tends to show that Reese intended, by surprise or violence, to commit a felony upon the person of Keener ? or, at any rate, that the circumstances wore sufficient to excite the fears of a reasonable man, that such was the intention, of Reese?

Without expressing or intimating the slightest opinion as to the sufficiency of the testimony, we are unanimously of the opinion that the facts which have been detailed, in connection with others in the record, were such as to have entitled the accused to the consideration, by the Jury, of the law upon, which he rested his defence; and consequently, that it was-error in the Court to refuse to give this law in charge to the-Jury, when requested to do so by prisoner’s Counsel.

The presiding Judge instructed the Jury, very properly,, to inquire whether the homicide was murder, voluntary manslaughter, or done in self-defence; and read to the Jury the law defining each; and assigned, as a reason, the facts disclosed by Emma Burns and Dr. Felder. Why was not all the law respecting voluntary manslaughter and justifiable homicide given in charge ? How could it be said that there was evidence to authorize the reading of the 15th section, but none which was applicable to the 12th and 13th sections; and that, too, when it is admitted that stronger proof is ne~ cessary to acquit under the 15th, áían under the 12th and 13th sections ? If the evidence referred to by the Court tended to establish the defence of the prisoner, under the 15th section — (and if it did not, why was it read ?) — why did it not likewise tend to the same purpose, under the 12th and 13th sections ? The Jury who were sworn to try this traverse, had. a right to find their verdict upon their own convictions and consciences: for as was very pertinently said by Chief Justice Vaughn in Bushell’s case, (Vaughn’s R. 148,) “ A man cannot see by another’s eye, nor hear by another’s oar. No more can a man conclude or infer the thing to be resolved by another’s understanding or reasoning.” He continues— “Upon all general issues, as upon not culpable pleaded, the Jury find upon the issue to be tried, wherein they resolve both law and fact eomplicately, and not the fact itself; so as though they answer not simply to the question — what is the law ? Yet, they determine the law in all matters whore issue is joined and tried.” (Ib. 150.)

Said Chief Justice Parsons, in Coffin vs. Coffin, (4 Mass. R. 25,) “the issue involves both law and fact; and the Jury must decide the law and fact. To enable them to settle the fact, they must weigh the testimony; that they may truly decide the law, they are entitled to the assistance of the Judge.” How to the “assistance?” By withholding from them the law upon, which the prisoner professedly grounds his defence? No — nor by having it read, and then taking the law, implicitly and without questioning, from the Court ; otherwise, the verdict is not theirs, but in part only; and general verdicts should be abrogated, and special verdicts revived. They should find the naked fact instead of the criminal fact. It follows, demonstrably, then, under our Code, that to make a whole verdict — a legal verdict, the Jury must find the conclusion of law upon the facts ; and notwithstanding it is their privilege, as well as their duty, to receive “ assistance” from the Court, still, the conclusion of law upon the facts, must be the result of their own conviction and understanding.

If the power thus committed to the Jury be exercised against the opinion of the Court -to convict, the remedy is with the Go art to sot aside the verdict and award a now trial. If used to acquit, it must be an extremo case; and although contrary to law, is rarely tainted with corruption. It is produced, generally, by a liberal interpretation of the law, in favor of liberty and life.

In connection with the topics already discussed, the Court was requested, by Counsel for the prisoner, to charge the Jury—

1st. That if they believed, from the evidence, that prisoner, at the time of the commission of the act, was under the fears of a reasonable man, that the deceased was manifestly intending to commit a personal injury upon him, amounting to felony, the killing was justifiable homicide.

This charge the Court refused to give. And wherefore ? Is it not in exact accordance with the terms of the Code ?

2dly. That if they believed, from the evidence, that prisoner was under similar fears of some act of violence and injury, less than a felony, his offence was manslaughter.

This request was likewise refused; and although not in the Code, in so many words, it woiild seem to be a necessary corollary from the sections we have been considering. Indeed, it is a familiar principle, and one scattered everywhere in works on criminal pleading. “Neither can a man,” says Hawkins, “justify the killing another in defence of his house or goods, or even of his person, from a bare private trespass; and therefore, he that kills another who, claiming a title to his house, attempts to enter it by force or shoots at it, or that breaks open his windows in order to arrest him, or persists in breaking his hedges after he is forbidden, is guilty of manslaughter.” (1 Hawkins’ Pleas of the Crown, 372.)

, The requests being legal and refused, the judgment complained of upon these points, must be reversed.

The 7th ground taken in the motion for a now trial, was because James Sikes, one of the Jurors sworn in chief, did not stand indifferent between the State and the prisoner, said .Juror having, previously to being sworn,, expressed decided opinions in relation to the guilt of the accused, and such strong prejudice against the accused, as rendered him an incompetent -Juror, in law, and which were unknown to the accused or his Counsel, until after the verdict was rendered, said Sikes having previously answered, negatively, the usual questions on the voire dire.

As this question cannot recur on the re-hearing of this -cause, and no principle is involved in its adjudication, we forbear to consider it; our decision upon the whole case being, that the judgment of the Superior Court ought to be set aside and a new trial granted, which is ordered accordingly.