The counsel tor the plaintiff in error contends that the judgment should be reversed upon two grounds, which I shall proceed to state and consider.
I. On the trial, in the course of impanneling the petit jury, Johnson M. Tower was drawn and called as a juror, and appeared. He was challenged by the prisoner’s counsel for principal cause, on the ground that he had formed and expressed an opinion touching the prisoner’s guilt, and the district attorney traversed the challenge. The juror being sworn and examined as a witness on behalf of the prisoner in support of the challenge, testified as follows: I have read part- of the accounts of the transaction in the newspapers; I think I have an impression as to the defendant’s guilt or innocence; I rather think I have formed an opinion; I presume I have expressed it; I think I retain it. On his cross-examination he testified; *108I formed an opinion if the accounts were true; I rather thought they were true; so far as I read I gave them credence. On his re-direct examination he testified: I rather think I believed the accounts true; it might or might not require evidence to remove my impression of the defendant’s guilt. In answer to a question by the court, the juror testified: I did not arrive at a definite opinion. The court thereupon overruled the challenge, and the prisoner excepted. The juror was then challenged for favor, and after evidence given to the triers, they, on hearing arguments of counsel, and being charged by the court, found the juror indifferent, and he was sworn as a juror, and sat as such during the trial. The decision of the court below, in overruling the challenge to the juror Tower, for principal cause, as above stated, constitutes the first ground of error as now urged by the counsel for the plaintiff in error.
We should not lose sight of the fact that the question is upon the principal challenge for cause, to wit: that the juror had formed and expressed an opinion, &c. That was the cause or matter of fact alleged as the ground of objection to his competency. If the allegation that he had formed and expressed an opinion touching- the prisoner’s guilt, was true, then, as matter of law, the juror was incompetent. But the fact alleged was traversed, and its existence put in issue. It was therefore incumbent upon the prisoner to prove its truth. He held the affirmative in this issue, and was bound to sustain it by evidence. Prima fade the juror was competent, and must now be so regarded, unless by a fair construction of the evidence given in support of the challenge, we can see that the court below committed an error in overruling it. That court did not believe that the alleged fact was proved. Their con elusion of fact upon the evidence, was, that the juror had not formed or expressed an opinion. The question before this court is, whether their conclusion was correct or erroneous.
Challenges to the jury are of two sorts: First, to the array, and second to the polls. The latter is subdivided into, first, challenges for principal cause; second, challenges for favor; and third, in certain cases and to a limited extent, peremptory *109challenges—the last of which requires no cause to he alleged or proved to sustain it.. All others are to be regularly tried by the court, except the challenge for favor, which is to be determined by triers. In all of them, except peremptory challenges, the matter of fact upon which the challenge is founded must be specified when the challenge is interposed, or the court should disregard it. In every case of challenge for cause, whether to the array or to the polls, the other party, and in criminal cases, if the challenge be by the prisoner, the public prosecutor, may traverse the facts alleged as the ground of the challenge, or he may demur, by which he admits the truth of the allegation.
A challenge to the poll for principal cause, to be effectual, must be on account of some matter of fact, which, if admitted or proved, necessarily and conclusively disqualifies the juror. Among the causes for such challenge, is the one assigned against the juror in the present case—that he had formed and expressed an opinion in relation to the prisoner’s guilt. When that is established, the law declares, and it is the duty of the court, to pronounce him incompetent. In such a case the law implies a bias in the mind of the juror which disqualifies him.
In this connection it is important to understand what is meant by an opinion, which operates thus conclusively to disqualify a person as a juror. We say it is an opinion which is absolute, unconditional, definite and settled; in distinction from one which is hypothetical, conditional, indefinite and uncertain. The mind must be, for the time being, settled and at rest upon the question of the prisoner’s guilt, or upon the question to be tried. Nothing short of this will, per se, render the juror incompetent in law upon a challenge for principal cause, founded upon an. allegation that he has formed an opinion. This is the good sense of the rule, and according to the current of authorities. (Freeman v. The People, 4 Denio, 1; The People v. Bodine, 3 Id., 281; The People v. Honeyman, Id., 121; Durrell v. Mosher, 8 Johns. R., 347.)
Upon a challenge for favor to be determined by triers, the rule is different, although the objection rests upon the same *110foundation in both cases—that of bias in the mind of the juror. In the one case the law implies such bias from the fact alleged and admitted or proved, and in the other, the triers,. may be justified in finding its existence from the evidence presented to them, tending to show that the juror does not stand indifferent, although there be no direct evidence proving that he has formed or expressed such an opinion as necessarily constitutes a legal disqualification.
We will now examine whether, in the light of the foregoing rules, the challenge in question was sustained by the evidence given in support of it. Had the juror formed or expressed an opinion touching the guilt of the prisoner which was absolute, unconditional, definite and certain ?
1st. The evidence does not prove that he had formed an opinion. On this question the juror testified that he thought he had an impression ; he rather thought he had formed an opinion; he presumed he had expressed it, and thought he retained it; that he had formed an opinion, if the newspaper accounts of the transaction (of which he had read only a part), were true; that he rather thought they were true, and that, so far as he read, he gave them credence. This does not prove the existence of an opinion in the mind of the juror. An opinion, in this sense, implies a settled judgment or conviction of the mind. If that was' the condition of the juror, he certainly knew it.
2d. Whatever else may have been the juror’s mental state, it cannot be said that he had an absolute and unconditional opinion in relation to the guilt of the prisoner. If he had any opinion on the subject, it was founded upon the hypothesis that the newspaper accounts were true. Of those accounts he had read only a part, and he rather thought they were true. He does not say he believed them true, but Ms expression implies hesitation of mind and doubt on the subject.
3d. The opmion, if such it can be called, of the juror, was indefinite and uncertain. He expressly states, in the conclusion of his evidence, that he did not arrive at a definite opinion. He had previously testified that he thought he had an impression as to the defendant’s gmlt or innocence. It cannot be useful *111to multiply words on a proposition so simple and plain. The substance of the evidence on this point is, that the juror thought he had an impression, which his own account of it shows was uncertain, indefinite and incomplete.
Upon the argument it was urged by the prisoner’s counsel, that the evidence in support of the challenge in question brought the case substantially within the rule of exclusion adopted in the case of Cancemi v. The People, lately decided by the Court of Appeals. (16 N. Y. R., 501.) In my judgment, however, the cases are plainly distinguishable. On the trial of Cancemi, Alexander Kyle was called as a petit juror, and being challenged for principal cause, testified that he had formed an opinion and expressed it. On cross-examination, he said that he had no fixed opinion—none which could not be removed by evidence. The challenge was overruled; and the defendant excepted. The prisoner was convicted of murder, and judgment of death pronounced upon him. The judgment was reversed in the Court of Appeals on this exception.
The fact, as disclosed by the evidence of the juror, was that he had formed an opinion, which was so fixed as to require evidence to remove it, and that he had expressed such opinion. The qualification of the opinion, in his cross-examination— that he had no fixed opinion—is itself qualified by what immediately follows, viz.: that he had no opinion which could not be removed by evidence, o Taking it altogether, the plain and simple construction of his evidence is this: that he had formed and expressed an opinion touching the guilt of the prisoner; but that such opinion was not so firm as to be beyond the power of evidence to remove it. Or, that it was so fixed, that it would remain until displaced or overcome by evidence. The case, as thus presented, was obviously within the rule of exclusion of the juror. There was no doubt of the fact that the juror had formed and expressed an opinion. He had so testified, unequivocally. The opinion he had formed was absolute, unconditional, definite and certain. There was nothing to show it to have been hypothetical or conditional, uncertain, indefinite, or incomplete. In these respects, it forms *112an entire contrast to the case at bar. This will be more apparent by placing the substance of the evidence given in support of the challenges in the two cases, respectively, in juxtaposition. In Cancemi’s case, the evidence was that the juror had formed and expressed an opinion touching the guilt of the prisoner, which would remain until displaced by evidence. In the present case it was, that the juror had read part of the accounts of the transaction in the newspapers; that he thought he had an impression as to the defendant’s guilt or innocence; that he rather thought he had formed an opinion, if the accounts were true; that he rather thought the accounts were true; that, so far as he had read, he gave them credence; that he presumed he had expressed an opinion, and thought he retained it; that it might or might not require evidence to remove his impression of the defendant’s guilt; and finally, that he had not arrived at a definite opinion.
We think the exception to the decision of the court below, in overruling the challenge in question, was not well taken.
II. On the trial the following facts, in substance, were proved: The dead body of Charles W. Littles was found on the morning of the 20th of December, 1857, in the Genesee river, below the falls, in Eochester. Erom the appearance of the body and of the ground at the top of the bank and on the side of the slope, it was evident that the deceased came to his death by violence. He had been last seen the night before, between seven and eight o’clock. Much evidence was given, tending strongly to show that the prisoner and Sarah Littles, who was his sister and the wife of the deceased, were present at the homicide. They were at their mother’s house the night before at tea. Mrs. Littles left the house about half-past six o’clock, and the prisoner about seven, in the evening, and were met near the house of their mother returning together, about ten o’clock, and were found by their mother together in a room in her house about eleven o’clock; each had a broken arm, bruises on their persons, and spots of blood on their garments. In the night a physician was sent for, who set the prisoner’s arm. Attempts were made the same night to remove the blood spots, and *113to conceal other evidences of crime. On the same night they sent their mother and a younger brother to the point below the falls, near where the body of Littles was found the next morning, to get the prisoner’s cap and Mrs. Littles’ breastpin, saying that they had been walking down on the Falls Field, and had fallen over the bank. The cap and pin were found and brought home. A pair of side -combs, a rosette for the ham and the tag of a victorine, were found on the spot the next morning, which appeared to belong to Mrs. Littles.
The theory of the prosecution, as stated to the jury, and as drawn from the evidence, was, that difficulties had existed for a long time between Mrs. Littles and her husband; that she had partially separated from him, and that they had not lived together as husband and wife since the month of June, 1857; that the prisoner, having been absent from home for five or six years, returned in August, 1857, and that being informed of the difficulties between his sister and the deceased, entered into and espoused her cause; that Mrs. Littles had, that fall, intended to leave Eochester and go west, and had left her watch with one Mackie, a jeweler, for sale, in order to raise money; but that the prisoner and she at last adopted a plan by which the deceased was to be decoyed to the Falls Fields by Mrs. Littles, under the pretence of an assignation on her part with another man, and that while there, the prisoner, who was to go with Littles, would commit the homicide.
Evidence was given by the prosecution, showing a state of difficulty between Mrs. Littles and the deceased, that they had quarrelled and partially separated; that since the month of June, 1857, they had not lived together as husband and wife, but-during the fall of that year, and especially in the months of November and December, the deceased spent a large part of his time at the house of his wife’s mother, where she lived, and eat and slept there with his wife frequently; that the deceased was very jealous of his wife; that the prisoner having been absent from home five or six years, returned in August, 1857, and was informed of the difficulties between Mrs. Littles and the deceased; also, that Mrs. Littles, the past fall, had left *114her watch at MacMe’s shop to be sold, and that on the night of the homicide, and before it, she took the watch away from the shop. In June, 1857, Mrs. Littles applied to an attorney to procure a divorce from her husband, but the attorney advised against the application.
At this stage of the proof, evidence was offered by the prosecution having a tendency to show an incestuous connection between the prisoner and his sister, Mrs. Littles, during the fall of 1857. The evidence was objected to by the prisoner’s counsel, and received by the court on the question of motive, and the prisoner’s counsel excepted. ISTo evidence was offered tending to connect this with the homicide, other than as might be inferred from the fact of the homicide occurring subsequent to the assumed incest; and no other evidence was offered on the subject, except that it appeared that the deceased saw at least one of the acts of sleeping together by the parties, and that he exhibited no anger on the occasion, and it did not appear that he made any objection thereto.
The decision of the Oyer and Terminer, in overruling the objection to this evidence, constitutes the remaining ground of error, as now urged in behalf of the prisoner.
It is a general rule of the common law, applicable to the trial of issues, both in civil and criminal cases, that the evidence shall be confined to the question in issue. This rule should be strictly observed in criminal cases. (2 Russ. on Crimes, 772; Rose. Cr. Ev., 81; 1 Phill. Ev., Cow. & Hill's ed., 169, 178.) Hence, on a trial for felony, the prosecution will not generally be permitted to give evidence tending to prove the defendant guilty of another distinct and independent felony. The only effect of such evidence, unless it went to establish some fact essential to make out the crime charged, such as a motive, scienter or identity, and so connected with it as to be a part of the res gesta, would be to prejudice the defendant with the jury, without thereby advancing a particle in the proof of the felony jb;r which the defendant stands indicted. But where the evidence ¡tends to establish any essential ingredient of the crime charged, the ¡fegfc that it proves or tends to prove another *115felony not charged in the indictment, is not a reason why it should be excluded. It is no objection to evidence of a fact, otherwise competent, that it proves or tends to prove a distinct / felony. The evidence in this case, tending to show that the prisoner had been guilty of the crime of incest with his sister, Mrs. Littles, was, in my judgment, entirely competent. It jj went strongly to establish a motive on the part of both of them /; to get the deceased out of the way. While he lived, they í were at his mercy. He was more interested than any one else to prosecute them for the crime. He was and had been for months on bad terms with his wife, and the inference from the evidence is strong that the prisoner sympathized with her, entered into her feelings, and espoused her quarrel with her husband. In case he was effectually disposed of and silenced, their fears of exposure and detection would naturally be lessened, and their sense of safety and impunity increased.
The corpus clelicti had been proved, and the principal question for the jury to determine, was, whether the prisoner was the perpetrator of, or implicated in, the crime. The evidence on that question, though circumstantial, was strong and convincing that he was the murderer. If anything was wanting, it was a motive on his part. That motive was supplied, in connection with other facts proved, by the evidence, the admission of which was the foundation of the exception under consideration. The only objection urged against its admission, is, that its tendency was to prove the prisoner guilty of another and distinct felony. That the objection is not well founded, is to my mind clear, not only from the reason and good sense of the case, but upon authority. The cases óf Rex v. Clewes (4 Car. & Paine, 221; found also in 19 Eng. Com. L. R., 354), and The State v. Watkins (9 Conn. R., 47), as well as others which might be referred to, establish clearly, as I think, that the evidence in question was properly admitted.
I am accordingly of opinion that the judgment of the court below should be affirmed.
*116E. Darwin Smith, J. Two questions are presented upon the writ of error in this case, for our examination and decision. The first relates to the decision of the Oyer and Terminer overruling the challenge of the prisoner to the juror Johnson M. Tower, and the second to the admissibility of the evidence allowed on the trial, showing an incestuous intimacy between the defendant and Mrs. Littles, the wife of the deceased.
First. The question in respect to the competency of the said Johnson M. Tower to serve as a juror, arises upon an exception to the decision of .the court, overruling the challenge of the defendant for principal cause. It appears, from the bill of exceptions, that during the proceeding to impannel a jury for the trial of the prisoner, the said Johnson M. Tower was “ drawn and called as a juror, and was thereupon challenged by the prisoner for principal cause, on the ground that he had formed and expressed an opinion touching the guilt of the prisoner, and the district attorney traversed the challenge.” •
By traversing the challenge, the district attorney admitted its validity as matter of law, but denied its truth. (The People v. Freeman, 4 Denio, 33.) An issue of fact was thereby formed for trial, and which the prisoner was bound to sustain by evidence.
If the district attorney had demurred to the challenge, he would have admitted that this juror had in fact formed and expressed an opinion touching the guilt of the prisoner. The force of the demurrer would have been that such fact did not constitute any objection to, or disqualification of, the proposed juror.
This would have presented a distinct issue of law properly addressed to and necessarily triable by the court. If the court had sustained such demurrer, the decision would have clearly been one of law, and to which an exception would have laid.
But an issue of fact having been joined upon the challenge^ it seems that it was referred to the court for trial. This is the. general practice at the present day, but it rests upon no authority on the part of the court to decide a disputed question of fact,
*117It is generally a matter of consent, express or implied, at the trial, and most convenient for the dispatch of business, that the court should try and dispose of this issue. Without such consent the challenge for principal cause, like the challenge to the favor, when there is dispute about the facts, should strictly be referred to triers. (The People v. Derrick, 6 Cow., 559; 2 Park. Crim. R., 230; State v. Ellington, 7 Iredell, 63; State v. Benton, 2 Dev. and Battle, 207.) Ho objection seems to have been made to the trial of this issue by the court, and no exception is taken on that account, or to that mode of proceeding in disposing of this issue. It was so tried, doubtless, by the tacit consent of the counsel, and in accordance with the customary practice at the Circuit and Oyer and Terminer.
Assuming, then, that the issue of fact presented upon this challenge was properly referred to the court for trial, the burden of proof was upon the prisoner to establish by evidence the truth of the facts alleged as the basis of the challenge. (2 Virginia Cases, 378.) The ground, of the challenge is, that the said Johnson M. Tower “ had formed and expressed an opinion touching the guilt of the prisoner.”
The question then arises, what kind of a formed and expressed opinion it was necessary to prove to sustain the challenge. This, it is well settled in numerous eases, must be a fixed, absolute, positive, definite, settled, decided, unconditional opinion. The rule is uniformly laid down by the use of one of these words, or words of equivalent force. (4 Denio, 9-34; 3 Id., 133-9; 4 Wend., 229, 243; 8 John., 347; 1 Denio, 281; 4 Wend., 243; 2 Virginia Cases, 378.) A conditional, contingent, hypothetical, indeterminate, floating, indefinite, uncertain opinion will not do, nor an impression, idem. (Mann and Glover v. Glover, 2 Green, 195; Exparte Vermilyea, 6 Cow., 565; Durell v. Mosher, 8 John., 445.)
Tested by this rule in regard to what the opinion must be to sustain the challenge, let us see if the prisoner proved the juror to have formed and expressed such an opinion.
The juror was himself called as the witness in support of the challenge. He testified “ that he had read part of the accounts *118of the transaction in the newspapers,” and said, “I think I have an impression as to the defendant’s guilt or innocence; I rather think I have formed an opinion; I presume I have expressed it; I think I retain it.” On cross-examination, he said, “I formed an opinion if the accounts were true.; I rather thought they were true; so far as I read I gave them credence.” On further direct examination, he said: “I rather think I believed the accounts were true; it might or might not require evidence to remove my impression of the defendant’s guilt.” To a question put by one of the court, he answered: “I did not arrive at a definite opinion.”
Upon this evidence the court decided that the challenge was ,not sustained, and overruled the same; or, in other words, the court decided that the prisoner had failed to prove the issue on his part, that the juror had formed and expressed any such opinion, in respect to his guilt or innocence, as disqualified him to act as a juror. The court decided, as matter of fact upon this evidence, that the juror had not expressed or formed any fixed, settled, definite, absolute, unqualified or positive opinion in respect to the guilt of the prisoner.
This was the finding of the judges of the Court of Oyer and Terminer upon the issue of fact submitted to them. This is their interpretation of the force and effect of the evidence made at the time, after hearing the testimony, and seeing the juror, and observing the temper, tone and manner in which he gave his testimony.
With the juror thus before them,. I think they were much better qualified to decide this question of fact than this court can be, or any court of review. And in my opinion, their finding upon this question of fact, is, and ought to be, final and conclusive. They were a mere substitute for the triers in finding this question óf fact, and confessedly there is no review of the decision of the triers when the question is submitted to them. ¡No exception will lie upon a question of fact. The statute declares that: “ On the trial of an indictment, exceptions to any decision of the court may be made by the defendant in the same cases and manner provided by law in civil *119cases.” (2 B, S., §21, 725.) Exceptions never Ee in civil cases, except for decisions upon questions of law. It is the province and duty of the court to decide the law, and of the jury to decide the facts, and triers stand in the place of the jury. To the decisions of the court upon the law, exceptions lie, but never to decisions upon the facts,, or in coEateral proceedings other than upon the main issue. (4 Denio, 21.) The exception therefore taken to the finding of the court upon the evidence upon this challenge, I think not well taken or allowable. It does not bring up that decision for review, and this court has no power of right to review such finding. (7 Iredell, 63; 2 Dev. and Batt, 207.)
But if this be not so, and if this court is authorized to review the finding of the Court of Oyer and Terminer upon the question of fact, whether the prisoner estabhshed the truth of his challenge, it must do so, I think, upon the same principle that it reviews the decision of all inferior courts and officers upon questions of fact. It should not reverse such decision, except the finding of the Court of Oyer and Terminer was clearly against the weight of the evidence.
Upon this principle we could never sustain this exception and hold that the Court of Oyer and Terminer decided the facts erroneously, and so clearly so that it was our duly to reverse its proceedings for that cause.
But if this be not so, and we are at Eberty to review the decision of the Court of Oyer and Terminer upon this question of fact, as an original question, precisely as if we were sitting in the Court of Oyer and Terminer, and occupying the place of its judges there for the trial of this challenge, then I think the challenge ought not to be sustained, and that the Court of Oyer and Terminer decided the question of fact correctly, and rightly held that Tower was a competent juror.
His testimony does not establish- that he had formed any fixed, settled, definite, positive, absolute or unqualified opinion in respect to the guEt or innocence of the prisoner. The juror said he had read part of the accounts in the papers, and said, “I think I have an impression," &c. This amounts to nothing. *120“ I rather think I have formed an opinion.” He is not certain on this point. “ I presume I have expressed it.” He is uncertain still. “ I thinlc I retain it.” This is certainly not positive. It is not an absolute opinion—settled and fixed. Then again: ‘I have formed an opinion if the accounts are true; I rather thought they were true; so far as I read them I gave them credence.” He had read part of the accounts in the newspapers. He knew of no reason to doubt them, and he gave them credence. He knew nothing of the matter personally; was doubtless an entire stranger to the prisoner, and had nothing, at best, more than a mere vague, floating, transient belief in respect to the accounts.
Then again, “I rather think I believe the accounts true.” Why should he not ? What reason had he to doubt on the subject? How could he keep his mind an entire blank, in respect to all impression, from what he read ? How could any man of common sense and sensibility, and of common intelligence, refrain from having some sort of impression or opinion ? “ It might or it might not require evidence to remove my impression of the defendant’s guilt.” What less could he say ? He has nothing but an impression at best. Is this a fixed and positive opinion ? Ear from it; it is nothing of the kind. But then he says next expressly, “I did not arrive at a definite opinion.” Here is an explicit denial of a definite opinion. Judge Woodworth (in 6 Cow., 564), speaking of the case of Durell v. Mosher (8 John., 445), and of a juror whose fitness was questioned in that case, says: “Ho definite opinion was expressed or formed. The declaration was hypothetical.”
It is quite apparent that this juror had nothing but a loose, vague, floating, unfixed, hypothetical opinion. Every expression throughout bis evidence is guarded and careful. He does not testify like a positive man, hasty to judge and prompt to condemn. His language is qualified, considerate. He is obviously doubting and uncertain in regard to his own mental state and mental operations. He refers to his consciousness for his impressions, with hesitation and carefulness, and yet with an obvious purpose to conceal nothing and suppress nothing. It *121is obvious from his examination that he is an upright, conscientious man, who rather shrunk from serving on the jury, and would not seek the place by any concealment of his opinions or suppression of his inmost thoughts or slightest impressions. The fact that he placed credence in the newspaper statements amount to nothing. In The People v. Honeyman (3 Denio, 321) the court say: “If, for example, the juror has heard, or has read in a newspaper, that the prisoner is guilty of the crime laid to his charge, and has given credit to the statement, it would not be a wise or judicious act, on the part of the triers, to set aside the juror, unless they found that he had such a settled opinion concerning the prisoner’s guilt that he could not disregard what he had read or heard out of court, and render a verdict on the evidence alone.”
In Freeman's case (4 Denio, 34), Judge Beardsley, speaking of the challenge for principal cause to the juror Beach (which was quite like this case), says, “ the challenge was correctly overruled.” He had only an impression that the prisoner was guilty, but nothing which deserved to be called an absolute opinion.” So here, Tower had no absolute opinion.
In State v. Potter (18 Conn., 167), the juror was challenged for principal cause, and on his examination said he had read certain newspaper accounts in relation to the supposed murder, and among them was what purported to be the confessions of the prisoner. Upon hearing them read, he was of the opinion that, if these accounts were true, a horrid murder had been committed. The challenge was overruled, and the Supreme Court sustained the decision,-^Williams, Chief Justice, saying in his opinion: “It is perfectly evident that he had no opinion upon the case itself, but he did think, if the facts were as stated in the prisoner’s confession, a horrid murder had been committed. This is a mere hypothetical opinionand referred to Durell v. Mosher (8 John., 347), where the juror challenged, said, “that the defendant was wrong and the plaintiff right;” but also, “ that he had no personal knowledge of the matter in dispute, but that if the reports of the neighbors were correct, the defendant was wrong and the plaintiff right.” The court *122held the juror competent, and that his declaration was merely hypothetical.
In the case ex parte Vermilyea, 6 Cowen, 565, it is stated that Chief Justice Spencer, in a manuscript opinion referring to a case tried before him of murder, held, that “if a person had formed or expressed an opinion for or against the prisoner, on a knowledge of any of the facts attending the murder, or from information of those acquainted with the facts, he considered it a good ground of challenge, but if the opinion of the juror was formed on mere rumor or reports, he decided that such an opinion did not disqualify.”
In 8 Leigh, 785, the Court of Appeals of Virginia say, that ' “ a juror must have formed and expressed a decided opinion to be disqualified.”
In 9 Leigh, 650, in reviewing the evidence in respect to two jurors who had heard the reports of the case, and one of them part of the evidence, the court say: “When atrocious acts are committed, they necessarily become the subject of conversation and remark, leading to impressions and opinions, favorable or unfavorable to the party accused; but when such opinions have not impressed the mind with strong and decided convictions, by which the justice and fairness of the juror’s decision upon the evidence may be influenced, we think that no disqualification is producedand to the same effect is the current of the decisions in the Virginia courts.
But we are referred to the case of Cancemi (16 N. Y. Rep., 504), as controlling this. In that case, the juror stated that he had formed an opinion and expressed it, and when.cross-examined, said that “he had no fixed opinion—none which could not be removed by evidence.”
The Court of Appeals hold, in effect, that this declaration of the juror in respect to the opinion formed, and the state of his mind, imported a fixed opinion, and implied a preconceived bias, which disqualified the juror. This is an authoritative decision, and binding upon the case and facts presented, but I think by no means covers this case. The juror said, “ he had no opinion which might not be removed by evidence.” But *123the juror should not have an opinion that would convict without evidence was given to change it. He should start with no such opinion. The prisoner should not be required to remove any opinion by evidence before the juror could begin to hear the evidence impartially. So long as the evidence upon the principal challenge is directed to see, merely,' whether an opinion has been formed or expressed, and the question is submitted to the court, as upon demurrer to the evidence upon such a bare naked statement of the juror, as was the case in this instance, the court must hold that such a juror is disqualified. The decision of the Court of Appeals upon the facts stated, concurs with the general current of decisions where the principal challenge is thus passed upon by the court, and I think was clearly right. But it is quite apparent that this decision involves a radical mistake and misconception in fact, in regard to this juror. His further examination on the challenge to the favor before the triers, fully discloses such mistake. Before the triers he said that “ his mind was balanced; that he did not know that he had an impression or opinion that had not been removed by the former trial—the jury not being able to agree.” If this evidence had been before the court on the principal challenge, it could not Lave held as matter of fact or law, that this was a fixed or positive opinion.
This juror obviously did not mean to say, on his examination upon the' principal challenge, that he had such a formed opinion that he could convict without evidence, or contrary to evidence; that he had any actual bias, in point of feeling or preconceived opinion, that would interfere with the proper discharge of his duty to render a just and true verdict according to the evidence. What he doubtless really meant, if his mental operations had been analyzed, and their results more carefully stated, was that he had read the accounts of the murder in the newspapers, and from such statements he had formed the opinion that the prisoner was guilty, and that if the testimony on the trial fully sustained such reports, and there was no contradictory testimony to impeach their force, or remove the weight which they had in his mind, then he should probably remain *124of the opinion formed. This would have been mere hypothetical opinion, and imported no actual bias, and involved no legal or moral disqualification of the juror (7 Grattan, 594; Id., 607), and thus shows how unfit it is, that the challenge to a juror, that he had formed and expressed an opinion upon the guilt or innocence of the prisoner, when there is any dispute about the facts, should be half tried by the court, and in such shape as to become a question of law and form the ground for an exception, and the other half of the issue tried by the triers on the challenge to the favor. Human language is so imperfect, at best, as a representative of thought, and written language so much more liable to misrepresentation and misconstruction, when considered and reviewed by itself, remote from the time and occasion when it was used, and there is also such a liability to misunderstand or misquote a witness or juror, that it is altogether more safe and just to the juror and the cause of truth, to trust to the impression made at the time by the testimony upon those who heard it, noticed the manner, tone, appearance, and personal peculiarities of the juror while under examination, and subjected to the watchful scrutiny of the court, counsel and jury, in the court room, than to any written or reported statement of his testimony afterwards. Mr. Tower was subjected to this ordeal.
It appears that after the principal challenge was overruled he was challenged to the favor, and after other evidence offered, the arguments of the counsel, and a charge by the court, the .triers found the juror indifferent. That upon such further trial, the examination of the juror, and the further evidence given, satisfied the court, the triers, and the counsel for the prisoner, that the juror was a fair, impartial and candid man, with a mind free, ingenuous and open to hear the evidence, and to allow it to have its proper weight and influence in the finding of the verdict he was required to give, I think may fairly be inferred from the finding of the triers, and the fact that the prisoner did not use his right to a peremptory challenge, and exclude the juror. I cannot think that objection or exception to the juror in such a case, upon the question of his in differ*125ence, which, is really a single issue, ought to go any further, if there be no exception to the charge to the triers, or that an exception to the disposition made by the court of the principal challenge, if it be allowable, should not be deemed superseded by the fuller examination and decision of the same question of fact by the triers.
In a capital case, the prisoner has twenty peremptory challenges. In the exercise of this right with that of challenges for principal cause and to the favor, a prisoner can, and virtually does, pick the jury for his trial. In a case of any degree of notoriety, a panel of one hundred jurors at least may and ordinarily will be exhausted before a jury can be impanneled.
Trial by jury is one of the noblest inventions of man for the proper administration of criminal justice, and one of the most important of the constitutional rights of every .American citizen. And it is obviously of the essence of this right, that whoever is subjected to a trial upon any criminal charge, should have a fair and impartial jury. To secure and protect this right, to guard it with the utmost care and vigilance, is the clear duty of all courts. But in my opinion it is quite a mistake to suppose that impartial juries are most likely to be secured by rules for testing the fitness and indifference of individual jurors—so strict and artificial as to exclude from the jury box such a juror as Mr. Tower. Such rules will practically proscribe intelligence, and tend to render jury trial a virtual impracticability in the locality where high crime is committed.
I think Mr. Tower was a proper juror, and that no error was committed by the Court of Oyer and Terminer in overruling the challenge to him as such juror, and that the exception to such decision is not well taken.
Secondly. The second exception is for allowing proof of the incestuous connection between the prisoner and Mrs. Littles.
At this stage in the trial, when the evidence objected to was offered, it had been proved that the body of Charles W. Littles had been found dead in the Genesee river, on the morning of the 20th of December, 1857, and that from the appearance *126of the hody, the place where it was found, from the appearance of blood on the bank at a considerable distance from the body, and the condition of the slope of the bank down which the body must have fallen, it was evident that the deceased came to his death by violence committed on the bank above, from whence he had been removed to the place where he was found.
Much evidence had been given tending to show that the prisoner and Sarah Littles,'the wife of the deceased, and who was jointly indicted with him for the murder,, were present at the place where the crime was committed, at the time of its commission, and tending to show that they, or one of them, committed the homicide.
After such proof, the evidence in question was offered. It was objected to, and the objection was overruled, and the evidence received, to which the prisoner’s counsel in due form excepted. It does not appear, from the bill of exceptions, with what view the evidence was offered, nor is it stated whether any discussion of the point took place, or upon what ground the decision to receive the testimony was put at the time by the court.
Whether it was admissible for any legitimate object or purpose, is therefore the question now presented for our consideration.
It is a fundamental rule of evidence, applicable to all trials, and to criminal trials especially, that the evidence must be confined to the point in issue. The sole object and end of evidence is to establish or disprove the disputed facts or points in issue between the parties. Mo evidence ought, obviously, to be received that is not adapted to that end. And it is also essential that the evidence be material and pertinent to the establishment of a material issue, and its materiality must always depend upon the subject matter to which it is directed, and the evidence should be considered and weighed, 'and passed upon according to its relation to such subject matter.
The first and leading point in issue on this trial was, whether the prisoner was guilty of committing the homicide in ques*127tion; and secondly, if so guilty, was the crime committed with premeditation, or without any intent to kill; whether, if the defendant was guilty of the killing, the crime was murder or manslaughter. To give character to the crime, and to show that there was design and premeditation in respect to its commission, was obviously proper. Evidence tending to show premeditation and design, was clearly within the issue, and was, in fact, evidence to prove the body of the crime. This evidence may be, and in most cases is, circumstantial. It con-x sists in proof of such acts, declarations, and conduct on the part of the accused as afford or tend to establish a reasonable presumption of design or guilty intent.
To attempt to prove a prisoner guilty of one crime by proving him guilty of another, would be clearly inadmissible.
Hothing is more palpable than that it would be the height of injustice to infer the guilt of a person of one felony for which he was on trial, by proving him guilty of some other distinct crime.
The prisoner and Mrs. Littles were brother and sister, and sexual intercourse between them would be incest, and this would be a high criminal offence, punishable in the State prison for the term of ten years. (2 B. S., 773, '§ 12.)
Proof of this crime committed by them, has obviously no necessary connection with the crime of murder, for which the prisoner was indicted, and was clearly not admissible upon any such principle.
When several felonies are connected together as parts of one scheme or plot, like the different acts in a drama, and all tend to a common end, then they may be given in evidence to show the process of motive and design in the final crime. In such case, the several crimes are part of a chain of cause and consequence, so linked together as to be necessarily provable as several parts of the .same act or crime. (17 Alaba., 618, 625 2 Id., 229; 4 C. & P., 221; 19 Eng. C. L. R., 354; 1 Leigh, 514; 4 Humph., 27; Roscoe Cr. Ev., 81; Burrill Cr. Ev., 290.) The ground upon which this evidence was offered and received *128and was claimed to have been admissible, is now claimed tobe to prove motive.
The prisoner had committed adultery with the wife of the deceased, and he had committed incest with his sister. The husband might avenge the wrong. He might expose the common crime of the prisoner and his sister, and seek to bring them to punishment for their crime. His knowledge of the crime, and his ability by his own evidence to convict them of its commission, and cause the prisoner to be sent ft the State prison for a long period of his life, it is supposed may have constituted a strong motive with him and Mrs. Littles for the commission of the murder.
I cannot see why this is not so, and why the evidence was not proper for the consideration of the jury. It seems to me that it bears clearly upon the question at issue. Did the prisoner commit the crime? Had he anj motive to do so? The relevancy of evidence depends upon the nature and circumstance of the particular case. 'Whatever fact tends legitimately and fairly, according to the ordinary operation of the human mind, and the ordinary principle of human conduct, to show 'motive, may properly be given in evidence, in proof of any assumed motive for the commission of crime.
If the prisoner and Mrs. Littles had not been brother and sister, so that they could not inter-marry, no doubt, I think, would have existed on the point. In such case, I think it would have been quite apparent that a sufficient motive would have existed in the case, and that it was proper to show a criminal intimacy between them. It would have been apparent in such case that they might have a motive to get rid of the husband, that they might more safely continue their criminal intercourse. But if they were vile enough to be guilty of incestuous connection, and that, as it appears, more or less' openly, grossly and continuously, why Might they not desire to get the husband out of the way for greater security ? The affections of the wife towards her husband were obviously gone. She desired, in June previously, to take measures for a divorce. To get rid of him was evidently an object of desire *129with her, and after her brother, the prisoner, came into close intimacy with her, and certainly after the incestuous intimacy had been discovered, it is very likely that they formed the common purpose to get him out of the way, and had a strong motive for such minds so to do. At least it was, to my mind, a very proper matter for the consideration of the jury on the main issue, both as to the fact of killing, and as to the premeditation with which it was claimed to have been done.
In State v. Watkins (9 Conn., 47), the prisoner was indicted for killing his wife, and on the trial the court allowed the People to prove that he had had an adulterous connection with another woman. This was held to be proper by the Supreme Court of that State, and is a case quite in point.
If in this case it had been supposed that the purpose of the husband was to get rid of his wife, that he might marry the woman with whom he had had criminal intercourse, the proof of their intimacy might obviously have been given as a motive for the murder.
In Rex v. Clewes (4 Car. & P., 221; 19 Eng. Com. Law, 354), proof of a previous murder was allowed to be given in evidence for the purpose of showing motive for the commission of the second murder, for which the prisoner was on trial, it being alleged that the motive to the second murder was, by killing the witness, to destroy all evidence by which the prisoner might be connected with, or convicted of the former offence.
In Dunn v. The State (2 Ark., 229), proof of a previous murder was permitted to be given in evidence to show motive, it appearing that the person killed, and for which murder the prisoner was on trial, had been making inquiries and seeking to detect the person guilty of the former murder.
It is impossible to define by any rule, or put limits upon the facts that may be given in evidence in proof of motive, except that they must relate to the subject matter, and be rationally adapted to establish the fact in issue. It is not necessary that the connection be so intimate as that the proof of one fact un*130avoidably involves or draws after it the other, as a legitimate and necessary consequence from an appropriate cause. It is sufficient if the evidence fairly tends to prove the assumed motive, and the jury may rationally and 'properly imply the motive from the act sought to be given in evidence. (Sate v. Baalam, 1 Starkie Ev., 502; 1 Ala., 451.)
So various are the motives which govern men, and so indefinable that every case must necessarily be governed by its own particular circumstances. As various as are the objects of ambition, passion or desire among men, so various may be the machinations and motives to crime, and so various must necessarily be the kind and species of evidence adapted, and proper to be received, to explain the motives and principles of human conduct, to unravel and reveal the webs and wiles of criminal purpose, and bring the offenders to justice.
I think no error was committed in receiving the evidence in question, and that the exception to its reception is not well taken.
The counsel for the prisoner makes another point: That the court cannot consider or weigh the question whether the prisoner be guilty of the crime charged. If errors have been committed, the judgment must be reversed and a new trial awarded. This is clearly so, and I agree with that point entirely.
If any substantial error has been committed, even though we are fully satisfied of the prisoner’s guilt, and that a new trial would probably result in the same verdict, it would be our duty to grant a new trial. I fully agree with the remark of Judge Selden, in the case of The People v. McMahon (15 N. Y. Reports, 397), that “ however clear the proof of the prisoner’s guilt in this case may be, it is better that the People be put to the trouble of establishing it upon a second trial, than that the force of a salutary rule, upon which life may often depend, should be impaired.”
But while this is true, it is obviously due to the public interest and to the faithful administration of public justice, that courts *131of review should not reverse the proceedings of inferior courts upon slight and trivial grounds.
In this case, upon the whole, I am clearly of the opinion that no material error was committed by the court below, and having no doubt in respect to the justice and propriety of the verdict, it is our duty not to interfere with it, but leave the law to take its course.
The judgment of the Court of Oyer and Terminer should be affirmed.
Judgment affirmed.