By the Court
Warxer, Judge.In this case a motion was made in arrest of judgment, and for a new trial. The counsel for the plaintiffin error moved to arrest the judgment on the following grounds : Because the indictment was for murder only, and not for manslaughter. Because the verdict contained no finding by the jury as to murder, but only as to manslaughter. Because the indictment was not found, and filed in court, within four years next after the commission of the offence charged in said bill of indictment. Because the jury found the defendant guilty of manslaughter upon a bill of indictment for murder, which was not found and filed in said court within four years next after the commission of the offence therein charged ; and because the record in the said case is in other particulars informal, insufficient and void, and the legal judgment of the court cannot be pronounced upon it. The first and second grounds taken in the motion to arrest the judgment, will be considered together. By the first section of the fourth division of the penal code, (Prince's Dig. 622,) homicide is declared to be, the killing of a human being, of any age or sex, and is of three kinds — murder, manslaughter, and justifiable homicide. Manslaughter is the unlawful killing of a human creature, without malice, either express or implied, and without any mixture of deliberation whatever ; and is homicide, inferior in degree to that of murder. When the jury found the defendant guilty of manslaughter,it negatives the idea that he was guilty of murder, and in our judgment it w»as clearly competent for the jury to find the defendant guilty of the lesser offence of manslaughter, on an indictment for murder, without any count therein for manslaughter. — 1st Russell on Crimes, 474; 1st Hale, 449; 2d Hale, 302 ; 1st Chitty's Criminal Law, top page, 206. The third and fourth grounds taken in arrest of judgment, will also be considered together. By the thirty-fifth section of the fourteenth division of the penal code (Prince's Dig. 662) it is declared, “ Indictments for murder may be found and prosecuted, at any time after the death of the person killed. In all other cases, except murder, where the punishment is death, or perpetual imprisonment., indictments shall be filed and found in the proper court, within seven years next after the commission of the offence, and at no time thereafter. In all other felonies, the indictments shall be found, and filed in the proper court, within four years next after the commission of the offence, and at no time thereafter.” It is contended, inasmuch as the defendant was found guilty of voluntary manslaughter only, it is such an offence as would be barred by the statute in four years. The indictment was for murder, and we are inclined to the opinion, that the statute does not run against indictments *228found for that offence, although on the traverse the defendant should be found guilty of manslaugnter only ; but it is not necessary for us to place our opinion in this case on that ground. By the record, it appears, the indictment was found at the October adjourned term of the Superior Court, in the month of November, 1844 ; and Lamar, the deceased, did not die until the 15th December, 1840, so that four years had not elapsed from the death of the party alleged to have been killed until the finding the bill of indictment in the proper court. The homicide was not in fact consummated until the death of Lamar, and the defendant could not have been indicted therefor until that time. The record presents nothing which, in our opinion, would authorize an arrest of the judgment upon either of the grounds taken, and that the court below decided correctly, in overruling the same.
The first ground taken for new trial is, that the court permitted the State to challenge and pass divers jurors when called, after the array had been put upon the prisoner, without compelling the State to show any cause for such challenges, or to exhaust any of its peremptory challenges under the penal code, until the whole panel had been gone through. In the case of the State vs. Sealy, decided during the present term of this court, we held, the decision of the court below, permitting the counsel for the State to pass jurors without peremptorily challenging them, as required by the penal code, was erroneous, and do now so rule in this case.
The second ground of error assigned is, that the court below erred, in deciding that the oath required by the act of 1843, testing the competency of jurors, might be propounded to them, notwithstanding the offence for which the defendant was indicted was charged, and proved, to have been committed before the passage of that act. By the code of 1833, which was the law at the time of the commission of the offence charged in the indictment, the oath prescribed to jurors for the trial of all crimes punishable by death, or imprisonment and labor in the penitentiary, was in the words following: “ Have you formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar ?” By the act of 1843 this oath was altered, and the following oath prescribed : “ Have' you, from having seen the crime committed, or having heard any part of the evidence delivered on oath, formed and expressed any opinion in regard to the guilt or innocence of the prisoner at the bar ?” It was contended at the bar, the act of 1843, when made to apply to the defendant for an offence committed prior to its passage, was an ex post facto law. To this it was replied, the act of 1843 did not aggravate the crime, nor the punishment thereof, but only affected the mode of the trial. In Colden vs. Bull, (3d Dallas Rep. 386,) Mr Justice Chase, in stating what he considered to be ex post facto laws, prohibited by the constitution, says : “ Every law that alters the legal rules of evidence, and receives less, or different testimony than the law required at the time of the commission of the offence, in order to convict the offender; all these, and similar laws, are manifestly unjust and oppressive.” By the law, as it existed at the time of the commission of the offence, the defendant was entitled to be tried by those who had neither formed nor expressed any opinion, with regard to his guilt or innocence, either from the information of others, or any other of the many circumstances w’hich enable mankind to form their opinions with regard to the conduct of their fellow-citizens. *229By the act of 1843, the right to select his triers was greatly circumscribed. If the juror put upon him by the State had formed and expressed an opinion in favor of his guilt, yet, if he had not formed and expressed such opinion, from having seen the crime committed, or hearing the evidence delivered on oath, he would be a competent juror. The practical effect of compelling the defendant to select his jurors under the rule prescribed by the act of 1843, would be greatly to impair his chance for acquittal, and enhance the danger of his conviction. If the legal rules of evidence have not been altered, for the purpose of convicting him of the offence with which he stood charged, the legal rules of evidence most certainly have been altered, by which the competency of the jurors is to be ascertained, who are to try the defendant for the offence. By the act of 1843, his chances for escape are greatly diminished, and his conviction rendered much more certain. Although the act of 1843 may not be technically an ex post facto law, yet, when made to apply to the trial of the defendant for an offence committed before its enactment, gives to it a retrospective operation, which, in our judgment, ought not to bo sanctioned in the administration of criminal law. The defendant, in our opinion, was entitled to have had his triers selected according to the rules of evidence, prescribed by the law, as it existed at the time the of-fence was committed. The next ground of error assigned for new trial is, that the court below decided, that a juror who answered he had formed and expressed an opinion, in relation to the guilt or innocence of the prisoner at the bar, from report or hearsay, was a competent juror. The Constitution declares : “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” Can he be said to be an impartial juror, who has both formed and expressed an opinion with regard to the guilt or innocence of the accused ? But it may be replied, that opinion was formed and expressed from the report or hearsay of other persons. Is it not an opinion, however, both formed and expressed ? And he knows but little of the human mind who does not know the difficulty which is to be encountered, in combatting and removing such preconceived opinions. The fact that the opinion was formed and expressed from the report, or hearsay- of others, does not in the least obviate the difficulty. How many men form and express their opinions, both as it regards religion, politics, and the moral conduct of their fellow-citizens, from the statements of their neighbors, in whom they have confidence ? Indeed, there are many men who have more confidence in the expressed opinions of their intelligent neighbors, than they have in their own. We are, therefore, all of the opinion, a juror who states, on oath, he has formed and expressed an opinion, with regard to the guilt or innocence of the prisoner, from hearsay, is not an impartial juror, as contemplated by the Constitution.
The fourth ground assigned for error is, that the court charged the jury they might find the prisoner guilty of manslaughter, either voluntary or involuntary ; whereas, he should have charged the jury that they could not so find. We are of the opinion, the charge of the court, as given, was correct and proper, under the law. The defendant was indicted for the offence of murder ; manslaughter is an inferior grade of homicide, for which the defendant might properly have been found guilty, as has been *230already stated, in disposing of the motion in arrest of judgment in this case.
The fifth ground of error assigned in the motion for new trial, is, that the court refused to permit certain questions to be propounded to JohnS. Randle, a witness for the defendant. The counsel for the defendant, on the trial, introduced Randle as a witness in his behalf, and proposed to examine him as to the following facts : First, whether, when Lamar returned to his house, at about four o’clock in the evening of the day of the alleged shooting of him by the defendant, he (Lamar) was not armed ? Second, whether, when Lamar returned from his house to the public square in Lumpkin, twenty or thirty minutes after having gone to his house, he was not armed with two pistols ?
' Third, whether, when Lamar was so at his house, he did not fire off and reload his two pistols, and put them in his pantaloons pockets, and start off again immediately to the public square aforesaid ; and whether Lamar’s said house was not within two or three hundred yards of the public square in Lumpkin ?
Fourth, whether, when Lamar returned to the public square in Lump-kin aforesaid, he did not have, loaded, upon his person, and in his pockets, a pistol, or pistols, of the same kind and description as that found at his side, on the ground where he fell, after being shot ?
This evidence was rejected by the court, on the ground, it did not appear the defendant had received any notice of the facts proposed to be proved by the witness. We are all clearly of the opinion, the court below committed error in rejecting this testimony. The facts proposed to be proved were immediately connected with the transaction ; indeed, constituted a part thereof. As this case must undergo another investigation, perhaps it would not be proper for us specially to point out the importance of this testimony to the defendant. It is sufficient for us to declare that, in our judgment, the evidence was competent, and ought to have been received ; leaving it to the jury to have given it such consideration as they might have thought it entitled to, as a part of the transaction which they were empaneled to investigate. Nor do we consider that the fact of notice to the defendant, had anything to do with the competency or incompetency of the testimony offered. The evidence is offered to prove distinct facts, which occurred at or about the time the fatal rencounter took place. If the defendant had attempted to prove a threat, on the part of the deceased, to do him some bodily injury, unconnected with any overt act, then, perhaps, it would have been necessary to have shown the defendant had a knowledge of such threat: but nothing of that kind was attempted to be proved by the witness.
The judgment of the court below must therefore be reversed, and a new trial granted, on the following grounds : First, because the court erred in permitting the State to challenge certain jurors in the record mentioned, without showing any cause, until after the whole panel had been gone through ; it being the opinion of this court, the State is only entitled to such challenges as are allowed by the penal code. Second, because the court committed error, in permitting the questions, testing the competency of jurors, provided by the act of 1S43, to be propounded to them, the offence having been committed before that time: Third, *231because the court below committed error in deciding a juror was competent, who answered, he had formed and expressed an opinion, in relation to the guilt or innocence of the defendant, from hearsay or report. And, fourth, because the court erred in refusing to allow the questions propounded to John S. Randle, mentioned in the record, to be answered by the witness for defendant.