The record shows that several exceptions were taken to the rulings of his Honor during the progress of the trial, but only two of them were insisted upon in this Court. Treating the others as abandoned, and a casual glance will suffice to show that they were properly abandoned, we will only notice those which were pressed upon the argument here.
2. The jurors were not properly sworn. The facts, as we find them in the record, are as follows: When the jurors were called and challenged, the Clerk caused them to place their hand on the Bible, and said: "You swear that you will true answers make to such questions as may be asked you touching your competency as a juror." The jurors were required to retain the Bible in their hand, and when they were accepted by the prisoner, the Clerk continued in these words, as to several of the jurors: "You will well and truly try and true deliverance make between the State and the prisoners at the bar, whom you shall have in charge, and a true verdict give according to your evidence. So help you God." And the juror would then kiss the Bible and take his seat in the box.
The word "swear" or "affirm" was omitted in several instances between the words you and will well and truly, c., in the oath. No exception was made to this manner of administering the oath, although the attention of the prisoner's counsel was called to it at the time. The Court was not aware of the omission until after the trial was over. After the twelve jurors had been seated, the Court asked them if they had all been sworn, and they responded in the affirmative, and were regularly empanelled without exception from the prisoner.
After the frequent admonitions from the Courts, not to depart from established forms and precedents, it would seem useless to say more on the subject, for it is all evidently lost *Page 612 upon many of those who do not hesitate to assume the responsibility of office.
Why the Clerk, with the oath prescribed for jurors in capital cases before him, should have presumed to have experimented in changing it, is only to be accounted for upon the supposition that he does not appreciate the importance of such matters. He doubtless thought that the words "you swear," at the commencement of the oath of jurors, to answer questions touching their competency to serve as jurors, might be referred to the second oath, which they took after their acceptance as jurors, they retaining the Bible in their hand all the time, and this perhaps may be so. But independently of that, the essential requirements of the law are that the party sworn "shall lay his hand upon the holy Evangelist of Almighty God," and after the oath is administered he shall invoke the blessing or the curse of God by repeating the words "So help me God," and shall kiss the holy gospel as a seal of confirmation to his engagements. Bat. Rev. ch. 77, sec. 1.
In the case at bar, all of this was done. Although the omission of the words "you swear" at the commencement of the oath, looks awkward and mars the comeliness of judicial proceedings, we do not think that it vitiates the oath.
2. The prisoner excepts to the charge of his Honor in reference to the testimony of Dr. Richardson. He contends that it amounted to an expression of opinion to his prejudice by his Honor.
After reciting the whole testimony in the case, his Honor summed up the arguments of counsel, both for the prisoner and the State. In stating the argument for the prosecution, he said: "The State's counsel has introduced Dr. Richardson, an intelligent physician, who gives it as his decided opinion, after hearing all the testimony, that the deceased came to his death by strangulation, and not by poison, and that this ought to have great weight with the jury." But his Honor immediately added: "It is true the opinion of experts ought to have weight with the jury as they are familiar with *Page 613 these questions, but the jury are not concluded by their opinion; if the evidence justifies, they may find against such opinion; they must find the fact upon the whole evidence."
This was more of a reply to the position assumed by the State's counsel, than an unqualified endorsement of the same, and was calculated to give the jury a fair view of the question involved in Dr. Richardson's testimony, to-wit, the manner in which the deceased came to his death; and to explain to them their duty in reference to the decision of that question. The charge is not open to the criticism which has been made upon it.
Another question, which arises upon the record, in consequence of the removal of the case from one county to another, has been decided at this term, in the case of the State v. Cunningham. On this point we content ourselves with a reference to that case.
The judgment of the Superior Court is affirmed.
PER CURIAM. Judgment affirmed.