By the Court.
Lumpkin, J.delivering the opinion.
This cause came on for trial, May, 1848, before his Honor Lott Warren, and the prisoner being arraigned and pleaded not guilty, a jury was regularly empannelled according to law to try said cause. The indictment was read to the jury, from which it appeared that the defendant stood charged with killing one James A. H. Macon, in said county, on the twelfth day of May 1848. The following testimony was introduced on the part of the Slate,to wit:
John S. Johnson sworn, testified and said, he witnessed the shooting on Friday the 12th, at Tilman’s store, in this county. Dr. Monroe came in that evening after dinner — he and Tilmari together — Monroe with a doubled barrelled gun, took his stand and stood near the counter in Tilman’s store. In a short time prisoner cocked his gun and looked out of end door up the road. Witness looked out and saw deceased coming — in a few minutes afterwards prisoner cocked second barrel, and observed the springs were very strong. As deceased advanced nearer, prisoner walked near the end door and peeped out; prisoner then turned and walked to front door and peeped out — prisoner then retreated and walked out again — means by retreating, that he *107stepped back into the house. Thinks prisoner walked out before going back. Prisoner halted near a row of boxes to the left, between prisoner and deceased. Prisoner then prepared to shoot, and stepped out levelled his gun, and observed to some one, “if he wanted to shoot, to shoot,” but reserved his fire some four or five seconds and possibly longer. He, prisoner, did fire. Witness in a minute stepped out and found James H. Macon nearly dead. Mr. Tilman and prisoner came to the store about- one o’clock — prisoner was in store fifteen or twenty minutes before he went to door to look out. The position prisoner took instore enabled him to see deceased’s house. When witness first saw deceased, he, deceased-, was one hundred and fifty yards from store. Deceased was coming from direction of his residence. Prisoner then stepped to front door and cocked second barrel. The position of row of boxes was such as to conceal prisoner from the observation of any one coming from residence of deceased. The boxes were of such height and size, as to have concealed any one coming the way deceased was, from observation, the last time witness saw him. Deceased had to come to the store before the concealment could have been removed. The second time prisoner went out, witness could not say positively, whether he, prisoner, took a position that would have concealed him from observation of deceased. Both barrels of prisoner’s gun were cocked when he went out second time. Prisoner’s gun was level at the time he remarked, “ if you want to shoot, shoot.” The remark and levelling of the gun were at the same time. Af_ ter firing, prisoner walked off in a short time. Prisoner’s shop is forty or fifty steps from Tilman’s store, and opposite side of street. Prisoner’s residence was at his mother’s. Deceased had not been removed from the place where he fell, when witness first saw him, and thinks it likely he was coming into store when shot. Witness heard no reply when prisoner said, “.if you want to shoot, shoot.” The last time-witness sawdecoased, deceased was forty or fifty feet from store, and coming as if he intended to come into store. Deceased was not in direct route to Post Office when he fell. Deceased frequently came by store when going to Post Office. The other route to Post Office was by Philip Monroe’s residence — the latter was nearest route. Most usually deceased went this route, but frequently the other way, and frequently came into the store going and coming, and especially when he had business.
*108Cross Examined. — Deceased was thirty or forty steps nearer the store when he fell, than he would have been had he been on a direct route. Deceased had a gun when he fell, (yauger gun.) 'Witness has seen gun — fine gun — thinks it would kill a man two hundred yards, but it would have been good shooting. When witness first saw gun after deceased fell, the gun was cocked— there was no game there for deceased to shoot. Deceased was on hostile terms with prisoner. Deceased had a couple of pistols when he foil. Prisoner tras in his office in the morning and deceased was in town with his gun — walked all over rtown — appeared out of humor, or something to be the matter with him. Witness saw deceased at this timo walk down by prisoner’s office with his gun, and back again. Deceased appeared to be reckless. Witness could not say whether deceased was bent on mischief or not. Witness heard during the morning, deceased ask George Monroe what lie had brought up that gun for 1 George stated that be brought it up for prisoner, that he understood deceased had his gun for him, prisoner, and that he, prisoner, wanted, his gun to defend himself. Deceased observed that he, deceased was not after prisoner — that he did not bring bis gun up for that purpose, but if he, prisoner, wanted to play at that game, lie deceased was with him, prisoner. That he, George, could say to bis btothor, if he would take his gun back, or send it back, he would not interrupt him; but if lie came out with that gun, be, deceased, would take him between the eyes. Deceased was excited and appeared to be reckless. The position of deceased’s house was such, that if deceased had been standing in piazza, he, deceased, could have seen prisoner standing in Tilman’s store. Deceased could not have seen down the counter in the house, and could not liavo seen unless he had been at end store door or at piazza. Deceased could have seen prisoner at either door of the house, from his, deceased’s house. In the morning prisoner had been in his office three or four hours. Witness saw deceased pointing his gun in the morning at a cow. Did not see him point towards office from behind a China tree. Prisoner spent a good deal of his idle timo at Tilmau’s store. The cow was down the street, not in direction of prisoner’s office. Heard deceased say nothing about killing beef. Tilmau’s store was not the usual placo of resort for deceased. Deceased called in frequently on *109business. Knows of no business deceased had there in the morning or evening. Deceased called in not very often unless he had business. Deceased was shot in left shoulder and breast— supposed his, deceased’s, left hand must have been raising up. Supposes from where deceased was shot, must have turned towards Tilman’s store, where prisoner was. If deceased had been tnrned towards Post Office, he would have been shot in right shoulder. When prisoner shot he stepped out two feet' from boxes, and was in fine view of deceased, when he shot. Deceased had his gun on his shoulder when witness last saw him, with his hand on each end. Thinks there was time for deceased to have cocked his gun and spring triggers, but does not know. Witness expected to hear the report of-two guns. Witness was often interrupted when conversation with George was had — did not hear the whole conversation, but has detailed what he did hear. One of the pistols in deceased’s possession was a duelling pistol — the other a common one. Deceased carried them in his bosom — can’t tell whether they were concealed or not. Saw him frequently carrying them. Witness walked off when prisoner shot, but saw all that could have been seen in the house where he was. Ten o’clock when witness saw George with his gun. Saw prisoner at his office about 8 or 9 o’clock, and saw him no more until he came to the store with his gun. Corrects this expression, and sawprisoner at his office twice, some or one two hours before he came to the store. Prisoner has to go the street by the store to his office when coming from home. Witness means by prisoner’s peeping, that he put his eye out, his body was not out, and that he put his head where he could see without being seen. Knows nothing of a man’s passing by at the time of peeping with a plank on his shoulder. Prisoner is a peaceable citizen. Deceased was a man of violent feelings, rash man — apt to have difficulties and fufeses — supposes that prisoner knew deceased was a man of this character. Never knew of deceased shooting any body.
By State, resumed. — Deceased was a brave mán — deceased was never known by witness to take advantage of a foe in combat. When witness saw deceased with his arms over his gun, he was walking with his head down. The gun was over the back of the neck of the deceased, with both arms hanging over it. This was the position when prisoner looked out of the door. There *110was a wound high up on the arm, going through tho arm. Deceased could have received this wound with his arms above the gun, but he would have to have turned. The wounds in the arm and breast went direct and plumb. Deceased frequently brought a gun down town, but not liis yauger, occasionally he carried his yauger. Witness had a little son at his residence near the store, 9 or 10 o’clock in the morning. George Monroe brought the gun down town, carried it to the prisoner’s office. Conversation with George was immediately after gun was placed in office. Tilman and prisoner came into store together. Tilman soon after went off. Prisoner was in the habit frequently of coming up at this hour of the day, and stopping at the store, but was not in the habit of bringing gun with him. Deceased appeared to be disturbed all morning, but did not seem enraged till after prisoner’s gun was brought. Deceased went to his dinner later than usual —about a quarter or half hour later than usual. Does not know whether prisoner went to dinner at all or not. Came in with Tilman about the time Tilman came from dinner. Deceased was a feeble man — never looked like he was well; witness would not suppose he was a sound man. Mr. Applewhite was in the house with witness at the timer-of the difficulty, and no one else that the witness recollects.
Cross-examination resumed. — Deceased walked down street by prisoner’s office before gun was brought down. Deceased had a shot gun, deceased usually hunted rabbits &c. with shot gun. Saw deceased going to Post Office frequently on day-Prisoner’s gun was a shot gun, and could not have killed so far, witness thinks, as the yauger of deceased. Never saw deceased in the Court House on the day peeping out of the window.
Dr. Elijah H. Warren, sworn, deposed as follows: Witness saw deceased ou day he was killed. Witness is a practising physician, and examined superficially, the wound op deceased. ’Twas a shot gun wound. Thinks . wound killed him. There were four wounds in breast, to left of nipple, or a little below — three in shoulder and one in his arm, one shot was at the connection of arm and shoulder, and'eame out through the thin flesh part where it entered. This shot was at the lower part of said connexion. One broke bone of arm — one of them was at the joint of shoul-' der, passed out soon after entrance. Deceased was dead when examination was made.
*111Cross-examination. — Two shot passed through. They passed a little down from where they struck tie joint of shoulder, as if they ranged towards the bosom. The face of deceased, from the wounds, must have been in the last direction — if the face had been turned the other way, the wounds would have been in the right side.
Testimony for Defence.— Willis A. Hawkins, sworn. — Says defendant and himself went up to Monroe’s office, solving some algebraical problems, and between seven and eight o’clock in the morning Monroe attracted attention of witness, and witness saw deceased walking indirection from store to jail, with a gun in his hand — thinks it was a yauger. Deceased made no hostile demonstrations, except from his looks. He looked angrily and looked constantly at prisoner’s office. Prisoner saw deceased at this time. When witness saw deceased he was walking with gun in hand, and sometimes with butt on his foot. Witness and deceased were on friendly terms. Deceased walked from store to jail, and stood there some time — a minute or two — and did not change his position only to look towards the prisoner’s office, and back the other way. Witness then walked into office and took a position by window and looked at deceased. Deceased then came up, making about the same demonstrations as when he went down. Witness came out from office and left prisoner there; prisoner then remained there till 3.0 or 11 o’clock. Prisoner was in a position to see deceased when deceased went into court house, and prisoner was looking in direction of the court house. Deceased was standing in court house at window with gun in hand, looking towards prisoner’s office ; window partially open and deceased stood at window five minutes. Witness and prisoner were both looking the same way towards courthouse. The most violent demonstration witness saw on part of deceased, was at store in the morning. Witness was standing in piazza of store with Hall, with faces towards court house. Deceased came from court house, and took position in front of piazza with face turned towards prisoner’s office. Deceased was gritting his teeth — witness made some remark, but deceased did not appear to hear; made no response but walked round piazza, with eyes still towards prisoner’s office. Deceased remained standing but a few moments and then walked round to end door and took a seat on steps — would not be positive about taking a seat.- Gun in hand *112all the time, as long as witness saw him, near to prisoner’s office. Witness and prisoner were in the habit each day of studying together. Witness and Smith went to deceased when he fell. The yauger was by deceased’s side — was cocked and triggers sprung. Two pistols were found on deceased’s person, one was a duelling pistol, and loaded with a ball. The other, a common one. Gun and larger pistol were loaded; they were fired off and ball entered a block. Witness saw small pistol shot at same block, but saw no sign of a bullet. The smaller pistol was in deceased’s Coat pocket, the other in his bosom. Several vials of laudanum were in pockets of deceased, one a large one, holds about a gill. Can’t say whether or not deceased was an expert shot. Can’t say whether gun was a good one. Deceased when he fell, was nearer the store than he would have been in a direct route to Post Office. From where he fell, witness would suppose he was going into end door of store. Witness saw two men take out deceased to talk with him — two men were Majors Clark and Perry. Don’t know whether or not these men were friends of deceased. When Major Clark took deceased off prisoner could not see deceased; they conversed 15 minutes at time with Major Perry. Can’tsay whether prisoner could see deceased. When witness next saw deceased, deceased went to his office and got his gun. Deceased then walked towards P. Monroe’s. Thinks prisoner could have seen deceased at this place. Deceased then held his gun in hand with butt on foot, taking position with china tree between him and prisoner’s office, tiren walked to store. Prisoner could have seen deceased. Deceased beckoned towards prisoner’s office as if he wanted some one. George Monroe, who was at prisoner’s office, went out to him, deceased. After dinner saw prisoner in piazza of Tilman’s store. There was no back door to Tilman’s store, and prisoner could not get out that way without going out the window. From the china tree, deceased could have killed prisoner if the gun had been as good as represented. Deceased looked from china tree as if looking towards prisoner’s office ; remained there but a few minutes, and walked over towards Tilman’s store, and back again towards prisoner’s office, and George Monroe came to him. The post office was so situated that deceased could have seen George with gun going to prisoner’s office. Deceased walked in haste after getting his gun, to china tree. China, tree was in route of prisoner from office home, Deceased could have *113killed prisoner, if the gun was as good as represented, and deceased was as good shot a.s represented, from court house, in route from prisoner’s office home, the distance 70 or 100 yards. Witness did not tell prisoner things that had occurred in the morning on part of the deceased.
Gross Examination. — When deceased passed the office of the prisoner, prisoner was sitting near the fire place, in one corner of the room, as deceased passed. Prisoner went both to the door, and window of the office and looked out. Can’t say that he took his chair and sat in the door after the interview between George Monroe and deceased. The interview took place near 11 o’clock, A. M. Prisoner called by Smith’s when he, prisoner, went to dinner; had the gun with him, it was about 12 o’clock. Prisoner was not in the habit of carrying his gun about town. Can’t say that prisoner once came into the piazza, or just came to the door of the store at time of shooting. Thinks deceased was leaning against a china tree with butt of gun resting upon the ground. At the time deceased passed the office door of the prisoner, witness was between the door and the prisoner. Prisoner did not expose his person in the door when deceased was near by, or below Tilman’s store. Sometimes prisoner would look out of the door without exposing his person.
C. W. Applewhite, sworn. — Says he was present at the time of killing — saw the gun in the hand of the prisoner — it was cocked. Put his hand upon it, and was told by prisoner he could take care of her. Saw deceased between 75 and 100 yards of store, coming in direction of Tilman’s store; about this time stopped and put his left hand up to his gun, as if to cock it, and it stayed up long enough to have cocked it. Was not sure if prisoner had seen deceased or not. Prisoner was in a position that he could have seen deceased if he had looked. Saw prisoner look out a time or two before he moved from there. Just before he moved, he, prisoner, cocited his second barrel, and remarked, “ that this gun has got good springs,” the prisoner then stepped to the front door. Can’t say he stepped out, prisoner then retreated back. Stepped out again and said,now if you want to shoot, shoot.” As the words came out of his mouth, witness turned around, and prisoner fired. Saw the back of prisoner as he heard the fire, witness then walked to the door, saw deceased and remarked to Johnson, that deceased was a dead man. Johnson and witness went out to the body of deceased. Mr. Hawkins *114picked up the gun of deceased, the gun was cocked. Witness and Johnson were standing near the end door when the gun fired, whispering to each other. Deceased was coming to the store of Tilman, with a gun; thinks prisoner went out in open view when he fired. Is a quiet and peaceable man. When deceased went into the court house, he went into the south door passing out at the north door, going over to east side of the square and passed down to Tilman’s again. Prisoner could not have seen deceased all the time, on the east side of the street. Could have seen him from his, prisoner’s office, occasionally through the fence. Did not know what time deceased left the corner. Witness was at the store, when George Monroe carried prisoner the gun. Deceased came over to his, deceased’s office, in haste, and brought his gun out. The gun of deceased, was at the office of deceased, on thewayfrom the residence, to the office of prisoner. Deceased came out with his gun and went up the street, after George Monroe; made a halt at Philip Monroe’s — after a little, passing over to Tilman’s corner. All this was in full view of office of prisoner.
Cross-examined. — Witness and deceased were partially unfriendly. The presence of witness did not make deceased look mad. Witness went to his house once, during the morning. When deceased put his gun in his office, and went to post office, the affair was stopped ten or fifteen minutes. When deceased came over from the post office, he went up after George Monroe; staying a short time at Philip Monroe’s. Deceased passed on to Tilman’s corner and beckoned to George Monroe. Witness was at Philip Monroe’s corner, when deceased and George Monroe had the interview, and occasionally looked towards the office of prisoner. Does not recollect to have seen the deceased and George Monroe separate, after the interview, which was near the corner of Tilman’s store. Can’t say what was the position of George Monroe, hut the deceased facedjthe office of prisoner. Deceased and George Monroe went past the house of witness, in company, about 12 M. — the deceased soon passing back to Tilman’s corner. Thinks he has told sketches of what he would swear, to some person — has talked with Major Clark and Short — does not, recollect to have talked with any of the Counsel in this case, but Mr. Hawkins. t Witness thinks he told Mr. Hains, first, that deceased put his left hand up to the gun, the gun was on the right, shoulder. Could not tell if it was a gun or a hand-spike, could *115not see the cock or triggers then, from the distance that deceased was from witness. Does not recollect that he told Short or Hains about the killing. Kersoy may have been present, Ca.n’t say he ever had any conversation with Kersey about it. Can’t recollect if he ever told any person about cocking the gun — will not say in the positive, that he told Gr. Smith about the cocking. Does not recollect whether Hains was the first person he talked with or not. Cannot think that he told Tilman, that he, witness, did not see deceased when he was shot, until he was killed; if he did it has escaped his recollection.
Griffin Smith, sworn for defence. — He went up to Tilman’s store, on the day of the difficulty — deceased was at Tilman’s— prisoner was in his office. Saw deceased at the corner, and stood about the corner some time, and had a yauger a portion of the time; held the yauger in his right hand, lying across his left arm, and appeared to be mad. Prisoner was in full view of deceased, and would occasionally appear at the door, and step back. Deceased was looking intently at the office of prisoner. Deceased was in ill humor, looked mad, and had his gun, and occasionally grit his teeth.. Saw deceased come to the court house, thinks he did not see deceased look out of the window. Deceased then went back to Tilman’s corner, looking in the direction of the office of prisoner. Did not see deceased get far beyond the farther corner of Tilman’s store. Prisoner could see deceased from his office to courthouse. Deceased continued about the corner till about 12 o’clock M. Witness was at home at the time of the killing— went immediately to the place", and met prisoner. Prisoner said he gave himself up to the laws of his country. Witness is a member of the Inferior Court. The gun was lying by his, deceased’s, side, cocked and triggers sprung. Saw upon the body of deceased several vials, labelled laudanum.
Daniel Tilman, sworn. — Was in town on the day of the killing, attention of witness was drawn to the difficulty, about 10 o’clock, A. M. first saw deseased in front of witness’ store or about the corner walking about, sometimes in front, sometimes at the corner and sometimes at the end. Vfas armed with a yauger, seemed to be looking toward the office of prisoner. Prisoner was in his office, as he, witness, saw him come to the door occasionally and look out. Did not see deceased point his gun at any thing; prisoner could have seen deceased all the time, except *116when deceased was taken off by his, deceased’s, friends, when he would soon return. Deceased looked in a very illhumor, as much as he ever saw a man, and staid about the corner off and on until about 12 M. deceased left and went to his home. Prisoner did not leave his office till after deceased went home. Witness went to his dinner, and after a little prisoner came in ; prisoner was in the habit of calling at store of witness. There was nothing remarkable in prisoner’s calling at the store of witness that evening. Deceased frequently called at the store of witness to buy small articles, but did not frequent the store of witness. Knows of no other person around the corner, but prisoner, with whom deceased was on bad terms.
Cross-examined — There was a bad state of feeling existing between Smith and deceased; does not know that deceased was about the corner until 10 A. M. Prisoner was not in the habit of calling at the store of witness in the afternoon with a loaded gun cocked; was not in the habit of calling at the store of witness and peeping out first’one door and then the other. Witness and prisoner came from dinner in company; prisoner had his gun, this was not frequent, it was not his habit, although he sometimes did it. Witness has no certain hour to go lo post office, was not in the habit of going away from his store to write letters, went to Ticknor’s and while there wrote the letter ; this was as witness thinks between two and three o’clock. Thinks he remarked Ivhen he came back to the store and found Macon dead, that it was the best act rf Monroe’s life, that the people ought to take him to the creek ; might have said that if he were in prisoner’s place he should feel no more compunction of conscience than if he had killed a dog. Witness and deceased were not on good terms, did not consider that he and deceased were upon terms of friendship at all, did not leave his store to avoid seeing deceased killed. The attention of witness was first attracted to deceased about the time that George Monroe carried the gun to prisoner, but thinks it was before, is more of the ojfinion that it was before —can’t sáy that at the time George Monroe carried the gun deceased had put up his gun, does not recollect to have seen deceased'any more after the interview with George Monroe, which was probably before 12 o’clock ; when witness came out to go to dinner, deceased was gone. Witness then inferred that he bad gone to his, deceased’s, dinner, does not recollect to have seen *117■deceased in conversation with any person on Philip Monroe's steps ; witness thinks he went to dinner between 11 or 12 o’clock, and was not not gone more than an hour, might have remained some minutes before he went to Ticknor’s, thinks it might haves been twenty minutes or less before he left for Ticknor’s, was gone to Ticknor’s an hour and a half or less, can’t say how long, can’t say what prisoner done in store of witness after he got there from dinner, he may have sat down, can’t say what he did. Witness has aided to employ one counsel in defence of the prisoner. Had a conversation with Applewhite yesterday, but none up to yesterday as well as he recollects, does not recollect what time he had the conversation with Applewhite, does not recollect whether it was before or after breakfast, before or after dinner, is certain it was not after supper. Cannot say which spcike of the cocking of the gun, Applewhite or witness.
Re-examined by Defence. — Witness meant to say when he said no person was present with whom deceased was unfriendly, that there was no one present between whom and deceased there was actual bad feeling, or against whom deceased was enraged; when witness said that prisoner went to his store in his usual way he meant that prisoner was in his usual calm and peaceful temper.
George Monroe, sworn, says, took a double-barrel gun to prisoner at his, prisoner’s, office; on his way from residence to prisoner with gun, saw deceased at post office and looked at witness and then started across the square, so as to meet witness about the deceased, and passed over the square in a very quick pace, his attention directed to witness. As witness was in front of deceased’s office, and deceased on the north side of the road opposite, two carriages passed the road, by which time witness had proceeded up the street to the grocery of P. Monroe; passed on and in looking back saw deceased coming after witness with a gun. When witness arrived at the piazza of prisoner’s office,' he saw deceased behind a china tree at P. Monroe’s corner, his body behind the tree, his look fixed upon the office of prisoner, his gun resting upon the ground or on the foot of deceased, the barrel by his, deceased’s, side. The next time witness saw deceased the deceased was at a post of Tilman’s piazza with his gun in nearly the same position before mentioned, and beckoned to witness and put his gun over his, deceased’s, shoulder, and commenced walking the piazza. Witness coming over and passing the usual salutation with de*118ceased, witness stepped close up to the deceased, and remarked, I am very sorry to see you so hostile to brother Edward. Deceased said, I do not know what right any one has to say that I am hostile to your brother. Witness replied that prisoner, brother Edward, said that he, deceased, was carrying that gun for him, and that he deceased, had been trying several times that morning to shoot him, prisoner. Deceased replied that prisoner must have come to that conclusion from the fact that he, deceased, had taken his gun out of his office. Deceased said he had a right to carry his guu, and was in the habit of carrying it to kill birds and other things with it, and no one could prevent him. Deceased •then asked what he, witness, had taken the gun to prisoner’s office for ? Witness told him he had carried it to prisoner to defend himself from an attack of deceased, in case of an attack. The attention of witness was then attracted by the gritting of the teeth of deceased, while he, deceased, in a fierce manner remarking that he would fight prisoner any way but a fist and skull fight, that he would give the prisoner one of his pistols, taking one, the smaller one, from his pocket, and offering it to witness, and he vrould meet him, prisoner, with the other, -or tell him to come out with his double-barrel gun, I will allow him a fair chance, and devil take the hindmost. Witness then told deceased that prisoner would not injure him, deceased, only in case 'of self-defence. Deceased then spoke of Tilman’s having a double-barrel gun in his store for prisoner to shoot him, deceased, with ; witness replied, if it was the fact, it was under an apprehension of an attack from him, deceased. The gun was for the defence .of prisoner. Deceased said, if Dr. Monroe comes out of that office with that gun I intend to pop him — I will pop him right between the eyes. Deceased said something about prisoner’s coming out without the gun, cannot say what. Witness said if prisoner came out with the gun, it would be for defence, in case you,- deceased, attack him. Deceased said he was not sure of that, and if he does come T will pop him between the eyes. Witness admonished deceased not to do it, as it would hang him and disgrace.his family, and to put up his gun. Deceased replied that was his business. Witness then asked the cause of his animosity to prisoner. He replied don’t you know he is my prosecutor in all these cases against me 1 Witness replied that he did not know that ho, prisoner, was his, deceased’s, prosecutor. Deceased then told witness to *119tell prisoner lie was a liar, a rascal, and a coward. Deceased said he could send prisoner to the penitentiary. Witness advised him to do so, and not seek satisfaction in any other way. Deceased said no, he did not believe the law should have any thing to do with such difficulties as that; ho, deceased did not settle his difficulties in that way, existing between him and prisoner, and refused to reveal his intentions towards prisoner, and went on to tell in how many cases he had befriended prisoner, and mentioned the case of prisoner and Dr. Steel. That he had regarded him, prisoner, as his, deceased’s, best friend, and had nothing that he would deny prisoner. Said something about the-prosecution of the cases, and said prisoner must have consented to-become prosecutor,or the Court wouldnot have appointed him, and repeated his charges of cowardice, &c. During this conversation deceased kept his eye fixed upon the office of prisoner, pointing, and grating his teeth. Witness and deceased then separated. At home, or after dinner, witness told prisoner what deceased told witness about popping him between the eyes. Deceased and. witness passed towards the corner of Mr. Smith. Witness saw prisoner in the door of his office. Deceased in alluding to prisoner, would point back to prisoner’s office while prisoner was in the office door. This was about 12 o’clock, and witness and. deceased separated.
James Marchman, sworn, saith, he saw Mr. Macon on the morning of the killing in the corner of Tilman’s piazza, nearest the office of prisoner, pointing his gun in the direction of prisoner’s-•office; the gun was up to his face; rather thinks Macon’s body was concealed from the office of defendant, his head being in-such a position as to enable him to see prisoner’s -office. After-wards, G-eorge Monroe and deceased walked down by Smith’s. Deceased then returned by Philip Monroe’s grocery, and took his-seat on the steps of the grocery, from three quarters to an hour; had his yauger with him., This was in the walk usually from, prisoner’s office to his residence. Macon then walked to Til-man’s, remained there two or three minutes, and then went to-his residence.
Cross-examined. — The steps occupied by Macon at Monroe’s-grocery were those nearest Smith’s. The pointing of the gun. was before Macon and Monroe were together.
Mrs. S. Hawkins, sworn, saith witness was in town the day *120Macon was shot; saw him pointing his gun in the direction of Monroe’s office about 10 o’clock, .A. M. Macon was where he could see Monroe’s office. Witness did not see Dr. Monroe. First saw him, Macon, in th.e Court-PIouse; went direct from Court-House to Tilman’s store; had the gun up to his face. Macon was standing at the corner of Tilman’s piazza, near the boxes, his head was in view of the office, his body behind the boxes, holding the gun up; he looked towards Smith’s and then took the gun down. Don’t recollect seeing any one else on the Court-House square. There was no one in the piazza in which he was standing.
Cross-examined. — Mr. Macon was in the part of the piazza fronting the Court-House near the boxes. The boxes were against the house ; thinks ihey were near the south-west comer of the house. Witness stepped out to see if he was going to shoot.
John S. Johnson, recalled. — Had been in the habit of selling Macon laudanum ; some since he, witness, has been doing business for Tilman since January. Witness sold Macon a bottle of laudanum two or three days before Macon was shot; about a gill or less. Thinks the place he last saw Macon (before shot) was from twenty to forty feet from where he fell. The gun in the position as described in his direct examination. Macon bought nothing from Tilman’s store that day as he recollects ; had no business there as he knows of. Witness had said, thank God, they could not make a witness of him, as he had not seen anything, meaning he had not seen the shooting, and did not consider he had anything which would be material. Dr. Monroe did not come to Tilman’s store till evening; did not buy anything, and had no business that he, witness, knows of.
The testimony here closed.
During the examination of Willis A. Hawkins, one of the witnesses for the defence, the counsel for prisoner proposed to prove by said witness the declarations of prisoner while in the office with witness at the time deceased came by the office in the morning with his gun, going to show that prisoner was alarmed and apprised of the intention of deceased to attack him, particularly to prove the declaration of prisoner at that time, as fallows, to wit: “ Yonder comes Macon now, with his yauger ; he intends to shoot or kill me.” Which testimony the presiding Judge reject*121ed, and. to which decision of the Judge the defendant by his counsel excepted.
Defendant’s counsel also offered to prove by said Hawkins, that when deceased was in the Court-House at the window, defendant said to witness, don’t you see Macon at the window trying to shoot me 1 Which testimony was rejected by the presiding Judge, and to which decision defendant by his counsel excepted.
Defendant’s counsel also proposed to ask said Hawkins why he left the office where he and prisoner wore on that morning, with the view of bringing home the knowledge to the prisoner of the conduct of deceased on that occasion, his violence, anger, threats, &c. Which evidence was íejected by the presiding Judge, and to which decision defendant by his counsel excepted.
Defendant’s counsel proposed to prove by said Hawkins, that defendant told him, Hawkins, that he, prisoner, had seen the conduct of deceased, (as described by witness in his testimony as taken down by the Court,) after it occurred in the morning, and before the shooting took place. Which testimony was rejected by the presiding Judge, and to which decision the defendant by his counsel excepted.
Defendant’s counsel proposed to prove, by Griffin Smith, one of the witnesses for defence, that he, witness, had seen deceased make an attack with deadly weapons, within six months, upon prisoner, that prisoner fled at that time so hastily as to leave his cloak, until he, prisoner, had got beyond the reach of the arms of deceased; which testimony was rejected by the presiding Judge, and to which decision defendant by his counsel excepted.
Defendant’s counsel also proposed to prove by said Smith, a continued series of threats, commencing at the time of the returning of the true bill, at the fall term of the Superior Court, of Lee county, in 1847, followed up by rejieated acts of violence, up to the time of the killing, by the said deceased, against the prisoner, expressing a determination on the part of deceased to take the life of prisoner before the Spring Term of said Court, in 1848. Which testimony was rejected by the presiding Judge, and to which decision defendant, by his counsel, excepted.
Defendant’s counsel proposed to prove, by said Smith and others, that deceased was a rash, violent, bloody-minded man, in the habit of taking secretly the advantage of his adversaries in per*122soual contests, and not willing to give his adversaries a fair and equal chance, and that prisoner was well acquainted with his character as such; which testimony was rejected by the presiding Judge, and to which decision defendant’s counsel excepted.
Defendant’s counsel also proposed to prove by said Smith, that on the morning of the day on which the killing took place, after the violent conduct of deceased on that morning, and before the killing, defendant consulted with said Smith as a peace officer, as to the propriety of binding deceased over to keep the peace, and that said Smith advised him not to do so, as it would only enrage deceased and make him more violent, and would do no good, as deceased could give the bond, and it would not restrain him from violence; which' testimony was rejected by the Court, and to which decision defendant, by his counsel, excepted.
Defendant’s counsel offered to introduce an order of the Inferior Court of Lee county, appointing prisoner prosecutor of deceased for embezzling the poor-school fund of said county, as treasurer of the poor school fund of said county, andalso the bill of indictment against said deceased for embezzlement of said funds, prisoner being prosecutor; which testimony wasrejected by the presid ing Ju dge,and to which decision the defendant’s counselexcepted.
Defendant’s counsel proposed to prove by said Smith, that prisoner was one of the said Inferior Court of said county; which testimony the presiding Judge overruled and rejected, and to whiph the defendant’s counsel excepted.
Defendant’s counsel also proposed to prove by Elijah Warren, one of the witnesses on the part of the State, threats and acts of violence of deceased towards prisoner at various times between the adjournment of the fall term of the Superior Court of Lee county, 1847, and the killing of deceased; which testimony was rejected by the presiding Judge, and to which decision the defendant, by his counsel, excepted.
Defendant’s counsel were also prepared to prove, by Samuel C. Wyche, William Bodiford, Elijah Warren, Clifford Monroe, and L. P. Cock, and others, that at the time the bill of indictment against deceased, for embezzlement, at the previous fall term, was read, the said deceased was heard to declare that the prosecutor of said bill, (who was the defendant,) should not live till this term of said Court, and be at Court to prosecute the same, and that threats of this and the like character, accompanied with acts demonstrative of a fixed determination to carry them into*123-execution, were made by deceased up to the day of the killing. That the acts were such as prowling around the residence of defendant with fire arms, walking by the house with pistols and gun, and watching intently the while, as if for an opportunity to carry his threats into execution. That defendant, alarmed by such demonstrations, had kept close to ayoid exposure, and often visiting his patients by night stealthily, rather than expose himself by day to the danger of a rencounter with deceased. That these demonstrations had been so_ frequent and notorious, until it had become the universal opinion of the neighborhood and citizens, that he, deceased, would kill the defendant. But all ofwhich evidence, by the stringent rule adopted by the presiding Judge, rejecting the testimony already offered, as to the threats and violence of deceased, was excluded; and to which defendant’s counsel believe they have a right to except.
After the testimony for the State and prisoner had been closed, and the cause argued by counsel on both sides, the presiding Judge, his Honor, Lott Warren, charged the jury, among other things, in substance as follows : “ That the Court greatly doubted the propriety of his having admitted for the consideration of the jury, the testimony showing any of the conduct of either deceased or prisoner on the day of the killing, except that which occurred immediately at the time of the killing, but that as the Court, had admitted the testimony of their conduct during the morning, the jury were bound to consider it in making up their verdict. And that it was a source of much gratification to the Court that we have a supreme Court for the correction of errors, often committed for want of time and opportunity to investigate cases on the circuit, and that if this Court has improperly rejected evidence offered for the defendant, and it should be necessary, he can take the case up and have the error corrected.” To which defendant by his counsel excepted.
The jury retired to their room, and after consulting upon the case, about nine o’clock on Saturday night, brought in a verdict of guilty.
Defendant, by his counsel, moved before his Honor Judge Warren, for a new trial, on the following grounds, to wit:
1st. The jury found contrary to law.
2d. The jury found contrary to evidence.
3d. For grossly improper conduct on the part of the jury du*124ring their deliberations on said cause, as shown by the accompanying affidavits.
4th. That the jury disi^ersed afterbeingimpannelled and sworn to try said cause, and even after they had received the charge of the Court, and before they had made up their verdict. The jury who tried said cause, frequently after they had received the charge of the Court, and retired to deliberate upon their verdict, left the jury room through the back door, sometimes one, and sometimes more than one at time, and retired from the jury-room from fifteen to twenty minutes at a time, in the dark, unaccompanied by the Sheriff or his deputy, or any lawful bailiff, and out of their sight and persons were lurking about and around the jury-room from which the jury as aforesaid, retired, as aforesaid, which jury being in a room on the lower floor and of easy access to persons who were without.
5th. The Court erred in refusing to allow the defendant to prove, that as a Justice of the Inferior Court of this county, and at the request of his associate Justices, ho had and did, at the last term of this Superior Court, become the prosecutor of the deceased for embezzling, as treasurer of the poor school fund of said county, the poor school fund of said county, and that in consequence of said prosecution of said deceased, and after the finding of the true bill by the Grand Jury against said deceased, said deceased, at that term of said Court, had said he, meaning defendant, should not be at the next term of said Court to prosecute deceased, for he, deceased, would kill him and put him out of the way before the next term of this Court. And that deceased often threatened to kill him, defendant, between the adjournment of the last term of this Court and the killing, and had, on several occasions, attacked defendant with deadly weapons, and that defendant had always declined a rencontre with deceased, till the fatal rencontre that resulted in the death of deceased, and which threats had come to the knowledge of defendant.
6th. For that the Court erred in refusing to allow witness Hawkins, who testified on the stand, to state what defendant said, and what manifestations of alarm lie showed, when deceased passed by his office in the morning of the rencontre, with his yauger rifle, and which would have gone to show that defendant stood in fear of his life from deceased, he, prisoner, saying, “yonder comes Macon now, and he intends to shoot me.”
*1257th. For that the Court erred, in refusing to admit the testimony of Griffin Smith, and Willis A. Hawkins, by whom defendant’s counsel offered to prove, that defendant, about dinner time of the day of the recontre, told Hawkins and Smith of the conduct of Macon towards him, (defendant,) during that morning, and asked the propriety as to his taking out a peace warrant for deceased, and was told by them that in their opinion, it would only make him more reckless. .
8th. For that the Court erred, in charging the jury that he greatly doubted the propriety of his having let in for their consideration, the testimony showing any of the conduct of the parties on that day, except that which occurred immediately at the time of the killing, because it was calculated to induce the jury to discard it from their minds, although the Court also charged them that they were bound to take it into consideration in their •deliberations — and because if the counsel for defendant had known that the Court would have expressed such doubts, they would have introduced other evidence of the conduct of the parties at the time of the shooting.
9th. For that the Court erred, in charging the jury that if the Court had erred in rejecting testimony that might have been of service to the defendant in his defence, that the defendant could carry that error to the Supreme Court, and have it corrected, because it was calculated to impress upon the mind of the jury, that in consequence of rejection of the testimony the defence was not made out.
10th. For that one of the jurors, who was in favor of conviction as strongly expressed? by him, took out of the juryroom in the dark, out of sight and out of hearing of the other jurors, another juror, who was equally strongly opposed to a verdict of guilty, as expressed by him before he went out of the room, where said two jurors had a pi'ivate conversation, (no one beingpresent but themselves,) of some twenty or thirty minutes duration; after which they returned to the jury-room, and the juror, who was opposed to a verdict of guilty when he went out, immediately on his return to said room consented to a verdict of guilty.
11th. For that one of the jurors who sat on the trial of defendant, to wit: William Stanley, had foi'med and expressed an opinion in relation to the guilt of the defendant, declaring his belief of his guilt before he was sworn as juror, as will appear from ac*126compan ying affidavit; and that this fact ha^ come to the knowledge of the prisoner since the verdict was rendered.
12th. In that the Court erred, in not allowing the prisoner to prove the violent and vindictive character of deceased; and that he always, in personal difficulties with his enemies, sought unfair advantages of them.
13th. For that the Court erred in charging the jury at all, not having been requested by any of the jurors to do so.
And the above grounds of motion for a new trial being argued were overruled, to which decision defendant by his counsel excepted.
Judgment was then entered up, and sentence pronounced upon the prisoner. Whereupon the defendant, by his counsel, excepts to ail the above stated decisions in saidcause, and fora specification of error assigns the following:
1st. The Court erred in refusing to allow defendant’s counsel to prove by Willis A. Hawkins, the declarations of prisoner while in the office with Hawkins, when deceased went by in the morning with his gun, going to show that prisoner was alarmed and apprised of the intention of deceased to attack him, prisoner, and particularly, that prisoner said, “Yonder comes Macon now with his yauger, and he intends to shoot or kill me.”
2d. The Court erred in refusing to allow defendant’s counsel to prove by said Plawkins, that when deceased was in the court house, at the window, prisoner said to witness, “ don’t you see Macon at the window trying to shoot me.”
3d. The Court erred in rejecting the statements of Hawkins as to why he left the office where he and the prisoner were on the morning of the killing, with a view of bringing home to the prisoner the knowledge of the conduct of the deceased on that occasion, his violence, threats, anger, &c.
4th. The Court erred in refusing to allow defendant’s counsel to prove by Hawkins that prisoner told him, Hawkins, after the violent conduct of deceased in the morning, (as described by said Hawkins in his testimony as taken down by the Court,) and before the shooting, that the prisoner had seen the violent conduct of deceased.
5th. The Court erred in rejecting all the sayings of the prisoner made during the morning of the killing and before the killing, and during the violent conduct of deceased, and which would show that prisoner knew of said conduct.
*1276th. The Court erred in refusing to allow prisoner’s counsel to prove by Griffin Smith, that deceased, in 1848, within the last six months, had made an attack with deadly weapons upon prisoner, that prisoner fled at that time so hastily as to leave his cloak, until he, prisoner, got on his horse and out of the reach of the arms of the deceased.
7th. The Court erred in refusing to allow prisoner’s counsel to prove by Griffin Smith, Samuel C. Wyclie, Isaac P. Cock and William Bodiford, a continued series of threats, followed up by acts of violence, from the adjournment of the fall term of the Superior Court of Lee county in 1847, up to the time of the killing, by the said deceased, against the prisoner, showing a determination on the part of deceased to take the life of prisoner before the spring term of said Court in 1848.
8th. The Court erred in refusingto allow prisoner’s counselto prove by Griffin Smith, that deceased was a violent, rash, and bloody-minded man, in the habit of taking advantage of his adversaries in personal contest, and that prisoner was well acquainted with his character as such.
9th. The Court erred in rejecting all evidence of the violent, vindictive, and dangerous character of deceased, and which was known to prisoner.
10th. The Court erred in refusing to allow defendant’s counsel to prove by Griffin Smith, that on the morning of the day on. ■which'the killing took place, after the violent conduct of deceased on that morning, and before the killing, prisoner consulted with said Smith, as a peace officer, as to the propriety of binding .deceased over to keep the peace, and that said Smith advised him not to do so, as it would only enrage deceased, make him snore violent, and would do no good, as deceased would give the bond and it could not restrain him from violence, but make him more reckless.
11th. The Court erred in rejecting as evidence, the order of the Inferior Court of Lee county, appointing prisoner prosecutor of deceased, for embezzling the poor-school fund of said county as treasurer of the poor-school of said county.
12th. The Court erred in rejecting as evidence the bill of indictment against deceased, for embezzling the poor-school funds of Lee county as treasurer of the poor-school of said county.
13th. The Court erred in refusing to admit evidence that pris*128oner was one of the Justices of the Inferior Court of said county.
14th. The Court erred in refusing to allow prisoner’s counsel to prove by Elijah Warren, one of the witnesses on the part of the State, threats and acts of violence on the part of deceased toward prisoner at various times, between the adjournment of the fall term of the Superior Court of Lee county, 1847, and. the killing of deceased.
15th. The Court erred in refusing to allow the counsel for prisoner to prove by Clifford Monroe, that deceased had been prowling around the residence of prisoner at various times since the first threat made to I. P. Cock, on return of the true bill, with his gun, and watching the house intently, and that on one occasion she saw him hide behind an ox-cart, near the house, as if way-laying prisoner.
lGth. The Court erred in overruling the motion made by defendant’s counsel for a new trial, upon each and all the grounds embraced in the rule for a new trial, which were taken by said counsel.
Affidavits filed and submitted, to the Court, with the notice for a new trial. .
Georgia, Lee County. — Personally came before me, William G. Heald, who, being duly sworn, deposes and says that he was one of the bailiffs having charge of the jury who tried the case of The State vs. Edward V. Monroe, on Saturday night last — that the jury retired after the cause had been given them in charge by the Court, to a private room in Starksville which had two doors, one in front and the other opposite behind, no shutter to the front door, the back door could be seen from the front door, by any person standing iu the street in front of the house, that when it was getting to be dark, deponent proposed to go after candles, did it, leaving bailiff Levining in charge of the jury while he would be gone, and remarking in presence of the jury, that they knew that the Judge had strictly forbade them to speak to any body — when deponent returned, some of the body told him that some of the body were out and he had better bring them in —deponent looked out of the window and saw two of the jury out at the end of the house conversing very low, so that deponent could not tell what they were talking about; saw that one of them was captain Blake, and said to him, captain you had *129better come in the house — said he would presently or something to that amount — in a few moments they both came in — this was about the time deponent had lighted a candle. Deponent walked backward, and forwards before the front door, and some of the jury called for water — deponent went in the room and handed out the bucket to the other bailiff to go and get some — the other bailiff said to deponent, “ there must be somebody talking behind the house.” Deponent then went into the back room and saw two of the jurors coming in. Blake was one of these, jurors, and when he came in, another juror remarked, that he wanted to go out and consult with him too. They walked out at the back door and soon returned, but while out they were out of the view of this deponent. Deponent then went out of the back door himself, and took a position behind a china tree, to watch and see if any body was about. No body came about during the minute or two he staid there — walked round the house and went back to the gate, opposite the front door — sent Levining to order somebody off once or twice — that in consequence of deponent’s meeting with delay in being able to procure a candlestick and candle of Philip Monroe, there being such a crowd there, ho must have been absent from the jury-room after the light, some smart length of time, but deponent cannot say how long; and during his absence the jury was under the care of bailiff, Levining, and cannot say what transpired during his absence.
Sworn to and subscribed in open Court, this 29th May, 1848.
[Signed] WILLIAM GRIGG HEALD.
GEORGE C. TICKNOR, Clerk.
Georgia, Lee County. — Before me personally came Joshua Levining, who being duly sworn, says, that he was one of the bailiffs in charge of the jury, who, in the Superior Court of said county, tried the case of the State of Georgia vs. Edward V. Monroe, for murder, and rendered their verdict of guilty, on Saturday night of last week; that the room in which the jury delibera1ted, was a private house, having- no upper stones, and but two rooms, one front and back door, that the back door was leading into a corn field, that frequently, during the deliberations of said jury, after they had received the charge of the Court, in said case, and before they made up their yerdict, the jurors, one, two, and as many as three at a time, left the room through the back door *130of the house or room, there being no shutter to the front door, he thinks, none to the back door, and unaccompanied by any sheriff, deputy sheriff, or bailiff, and in the dark, some of them being absent from the jury-room, so alone, for and during some fifteen or twenty or thirty minutes at a time; that at the commencement of the deliberations of said jury, some of the jury declared they never would agree to find the defendant guilty, others declared they never would agree to find him innocent, which deliberations were heard by this deponent. On one occasion, during said deliberations, one of the jurors, who had expressed himself decidedly in favor of acquitting the defendant, and one who had expressed himself as decidedly the other way, at the solicitation of the juror in favor of a conviction, left the jury-room, and went out, where witness saw them conversing secretly, but did not hear or understand any thing they saic], it was in the dark too —while they were thus holding their private conversation in the dark, by themselves, and which lasted some twenty or thirty minutes, another juror came out to them, where they were talking, when one of them, and he thinks Mr. Blake, who was in favor of convicting the defendant, told the other juror who had approached them, to go back, which he did; the two first jurors that were out continuing their conversation; and when at the expiration of some twenty or thirty minutes after they first went out, the two jurors went back into the jury-room; the juror who was for acquitting the defendant when he went out, agreeing when he came in, to sign a verdict of guilty — at and during a part of the time of the said conference of the two jurors, they were out of sight of this deponent — there being a number of persons about and around the jury-room, who were not jurors — and who, this deponent was exerting himself to keep away. Two of said persons so lurking about said jury-room, to wit: Alfred Kersey and. Wm. Corkadale, cursing this deponent, and sweaiing they were in the public streets, &c. &c. This deponent further says, that during the deliberations of this jury, all the jurors were hardly ever in the room at the same time; they kept going out at the back dopr, out of sight sometimes for twenty or thirty minutes, and returning through it and the front door. There seemed to be less cool deliberation, and more excitement and confusion than I ever saw before in a jury room, and especially among many or several of the jurors — some of them deporting themselves, so *131much so, that it was remarked by one of the bailiffs, that they were more like bees starting to swarm.
Sworn to, and subscribed in open Court, 29th May, 1848.
[Signed] JOSHUA LEVINING.
GEORGE C. TICKNOR, Clerk.
Lee Superior Court, May Term, 1848.
Georgia, Lee County. — In open Court, personally came Jesse Tucker and Calvin King, who being duly sworn, deposeth and saith, that they heard William Stanley, one of the jury, who tried the cause of the State vs. Edward V. Monroe, charged with murder, and tried at this term of the Court, and a verdict of guilty, say on the Sunday evening preceding the first day of this term, that from what he knew, he’d stretch the prisoner, alluding to his character as a juror, he, then, having been summoned to appear at this Court as a petit juror, and then went on to say in substance, that the prisoner was guilty of wilful murder. All this occurred before the said Stanley was taken and sworn in said case.
Sworn to, and subscribed in open Court, 39th May, 1848.
[Signed] JESSE TUCKER.
CALVIN KING.
GEORGE C. TICKNOR, Clerk.
Lee Superior Court, May Term, 1848.-
Georgia, Lee County. — In open Court, personally came Edward V. Monroe, who being duly sworn, says, that he never knew or heard of the fact set forth in the affidavit of Jesse Tucker and Calvin King, as to the formation and expression of an opinion by the juror, William Stanley, previous to his being taken, empannelled and sworn as a juror on the trial of the State vs. Edward V. Monroe-,.this deponent, charged with murder, and not until he had been so taken, empannelled and sworn as a juror.
Sworn to in open Court, this 29th May. 1848.
[Signed] EDWARD V. MONROE.
GEORGE C. TICKNOR, Clerk.
I have deemed it my duty to spread out fully, all the facts connected with this case. It is one that has created much excitement in the section of country where the catastrophe occurred, and which has attracted no ordinary share of attention in every por*132tion of the State. The nature of the transaction is well calculated to produce emotion. And the character, calling, and connexion of the principal parties involved, are such as utterly to preclude the idea of indifference, where so much, too, is at stake. It is excusable for friends on both sides to feel on this melancholly occasion. But calmness and composure become this tribunal; and we will proceed, with all practicable brevity, to express our opinion on the various points presented in the record and argument.
And with a view to condensation, instead of considering each alleged error separately, we will endeavor to group together such as properly fall under the same head, omitting all reference to the assignments which were abandoned in the discussion.
[1,] And the first complaint is the rejection, by the presiding Judge, of the whole of the testimony which went to establish by prisoner’s own acts and declarations, his knowledge of the threats and violent conduct of the deceased, and of his constant alarm and apprehension by reason thereof, of death or some great bodily hurt at the hands of Macon.
This is a nice question, and one which requires to be treated with delicacy and discrimination. If we unconditionally refuse to allow a defendant, under any circumstances, to have his conduct interpreted by his acts and speech, we shall frequently deliver over the accused, a helpless and hopeless sufferer, to the penalty of the law. If, on the other hand, we permit him to manufacture testimony for himself, the most mischievous consequences would often ensue. For how easy is it to feign fears which are not felt, and shape our course in such a way that premeditated revenge, while it gluts itself in the blood of its hapless victim, will refer to the past, as proof, not merely of innocence, but of the harrassing alarm, from the bondage of which the accused. has long groaned to be delivered. When an act is done, to which it is necessary to ascribe a motive, it is always considered that what is said at the time, from whence the motive may be collected, is a part of the res gcsice.
[2.] As, where the question is under the Bankiupt Act, whether a trader ordered himself to be denied when at home, or left his house in order to delay creditors, what he said at the time of the act done, must necessarily be admitted to explain it, though not what lie said at another time. Rep. Temp. Hard. 267. 5 *133T. R. 512. So in an action by husband and wife, for wounding the wife, Lord C. J. Holt allowed what the wife said immediately upon the hurt received, and before she had time to devise any thing for her own advantage to be given, in evidence as a part of the res gestee. Shin. 402. And Lawrence, J. in Aveson vs. Ld. Kinnarid, 6 East, 188, said that “it is every day’s experience in actions of assault, that what a man has said of himself to his surgeon, is evidence to show what he suffered by reason of the assault.” Lord Ellenborough, C. J. in the' same case, stated that he should admit in evidence, in an action against the adulterer, the declaration of the wife upon her elopement, that she fled from immediate terror of personal violence from the husband ; though not if it were a collateral declaration of some matter which happened at another time. And the whole Court unanimously held in the case in East, that in an action by the husband upon a policy of insurance on the life of his wife, declarations by the wife, made by her when lying in her bed, apparently ill, stating the bad slate of her health, at the period of her going to Manchester, (whither she went a few days before, in order to be examined by a surgeon, to get a certificate of him of good health, preparatory to making the insurance,) down to that time, and her apprehension that she could not live ten days longer, by which time the policy had to be returned, are admissible in evidence to show her own opinion, who best knew the fact of the state of her health at the time of effecting the policy, which was on a day intervening between the time of her going to Manchester and-the day on which said declarations were made. In Rex vs. Elisha Smythe and three others, which was an indictment for a forcibly entry, counsel for Ghddard, one of the defendants, wished to ask the witness, whether, at the time the house was searched, Goddard having a warrant in his hand, did not state for whom he searched. Archhold, for the prosecution, objected, that what Goddard said could not be evidence in his own favor. But Lord Tenterden, C. J. overruled the objection, and decided that he would hear what the defendant, Goddard, said at the time, as to who he was searching for. 5 Carr. & Pay. 201. In Rex vs. Crutchley, lb. 133, on an indictment on the Sta. 7 8f 8 Geo. IV. c. 30, s. 4, for breaking a threshing machine, the Court allowed William Davis, a witness, to be asked whether the mob by whom the1 machine was broken, did not compel persons to go with them, and *134then compel each person to give one blow to the machine, and also, whether at the time the prisoner and himself were forced to join the mob, they did not agree together to run away from the mob the first opportunity. In general, what a party says, is not evidence in his favor, unless it he a part of a conversation of which some other part has already been given by the opposite party. But where the declarations of a party accompany the act and are apart of the transaction, it becomes admissible. These declarations are often extremely material in cases of mutiny on board ships, as it frequently happens that when the mutineers have deposed the captain, they find that none of them are able to navigate the ship, and they then force "one of the officers to assume the command of her,; and he is in many cases brought to, trial because he appeared to be acting with and directing the mutineers.
In The State of Maryland vs. Charles Ridgley, 2 Harr. & McH. 120, an indictment for murder, the Court determined that the declarations of the prisoner antecedent to the fact, were admissible, as tending to explain and reconcile his conduct, and to 'discover the quo animo with which the homicide was committed. I would remark, as it respects this case, which is so directly in point, that it seems from the meagre report of it accompanying, a half-page only, that for aught that appears, it was decided without argument and without authority.
Hosmer, Ch. J. in Enos vs. Snykle, 3 Conn. 250, thus laid down the rule : That to be a part of the res gestos, the declarations must have been made at the time of the act done, which they are supposed to characterise, and well calculated to unfold the nature and quality of the facts they were intended to explain, and so harmonize with them as obviously to constitute one transaction. And we apprehend the rule as thus stated, approaches as near to accuracy as is consistent with the nature of the subject. The difficulty will be found in its application. We will endeavor, however, to test the evidence offered and refused by this principle.
And upon this point I am free to acknowledge that I feel some embarrassment. The first inclination of my mind was to reject the whole of the testimony of Hawkins and Smith, as to the acts and declarations of the prisoner. And I still think that the safer course will be to exclude much of this proof. The difficulty consists in sifting and separating that which is legal from that which *135is illegal. The exclamation of Monroe to Hawkins, in the office of the latter on the morning of the day when the killing took place, “ yonder comes Macon with his y auger” is free from valid objection, hut what follows, “ha intends to shoot or kill me” is clearly inadmissible. The transaction as testified to at the window of the Court-House, and the conversation between the witness and the prisoner, relative thereto, is of doubtful competency. Were I presiding in a capital case, I should dislike to reject it. Defendant’s counsel proposed to ask the witness why he left the office where he and prisoner were in the morning, .with a view of bringing home to the knowledge of the prisoner, the conduct of the deceased on this occasion, his violence, anger, threats, &c. which evidence was disallowed. No sufficient reason occurs to us for repelling this proof. We cannot anticipate what it would have disclosed. There is nothing exceptionable in the question propounded. For aught that appears, the answer might have brought home to the prisoner knowledge of the conduct of the deceased, and of his threats, wholly independent of his own sayings. We hold, too, that the statement of prisoner to witness before the shooting took place, that he saw the conduct of the deceased on the morning of the day, as it was described by Hawkins, should have been let in. For whether he saw it or not, and even conceding that this declaration was false, still it establishes the fact conclusively, and a most material fact it is too, that the prisoner was apprised beforehand, from hearsay or observation, of the hostile purpose of the deceased.
As to the testimony of Smith, in reference to the peace warrant — had the witness gone farther, and swore that defendant actually applied for a warrant, and that upon his advice, it was abandoned, I should be strongly disposed to-hear the evidence. But it stops one step short of this. It only proposes to show that the prisoner consulted with, witness, touching the propriety of resorting to the proceeding. We think it useless to examine into this branch of the case more minutely.
[3.] It is contended that the Court erred in refusing to allow the introduction of testimony, to prove a continued series of threats accompanied by acts of violence, from the deceased towards the prisoner — commencing some months previously, and coming down to the time of the killing, and all showing a determination on the part of the deceased to take the life of the defen*136dant before the next ensuing term of the Lee Superior Court; and which threats and conduct were known to the defendant.
My remarks will be short on this point, having already decided during the present term, in the case of John D. Howell vs. The State, that naked threats unaccompanied with personal violence were admissible, to show the reasonableness of the defendant’s fears, provided a knowledge of the threats were brought home to him. This doctrine may be inferred from what fell from the Court in Hudgins vs. The State, 2 Kelly, 173.
On the trial of Meade and Belt for the murder of Law, 1 Lewis C. C. 184, the Court allowed evidence to be given of the threats of the boatmen, the day previous, that they would come at night and pull his house down. And Holroyd, J. in charging the jury, said: “If you are of the opinion that the prisoners were really attacked, and that Law and his party were on the point of breaking, or likely to do so, and to execute the threats of the day before, they were justified perhaps in firing, as they did.”
In The People vs. Rector, 19 Wend. 567, one of the questions raised by the prisoner’s counsel, was, that the Court should have received proof of the violent breaking of the prisoner’s house, the previous Saturday night — that the inmates had been badly abused; and that the rioters threatened to return another night, soon after, and break in if they were not admitted, and this was offered to establish a reasonable ground for the prisoner’s apprehending of asimilar threat, now repeated and attempted. The Court say — They do not understand it to be objected, that real alarms on the part of the prisoner, on apparent though unreal grounds, was not pertinent to the issue; and Meade’s case, already referred to, is cited with approbation.
In Patrick Blake’s case, 1 & 2 City Hall Recorder, 99, the Court held, that the prosecutor had the right to show repeated quarrels between the prisoner and the deceased, to establish the malo animo; but that he could not go back to a remote period, and show a particular quarrel, unless he followed it up with proof of a continued difference, flowing from such quarrel. Such, precisely, was the object of the evidence, which was repelled. What, I ask, really excited the prisoner to the commission of this act % He seems throughout to be wholly free from the dominion of passion. Did he really and bona fide, then, believe that deceased was coming towards him with intent to *137kill, or do him some great personal injury? Did. not all the circumstances justify this apprehension ? In the opinion of this Court, any thing which could have operated upon his mind may be proved. Monroe seems to have lived in habitual fear and alarm, and he probably had good cause.
[4.] It is further argued that the Court erred in rejecting evidence which went to show that the deceased was a violent, rash, and bloody-minded man, reckless of human life, in the habit of taking advantage of his adversaries in personal contests, and not willing to give them a fair and equal chance in fight, and that the prisoner was well acquainted with his character, in this particular. As a general rule, it is true, that the slayer can derive no advantage from the character of the deceased, for violence, provided the killing took place under circumstances that showed he did not believe himself in danger. Yet in cases of doubt, whether the homicide was perpetrated in malice, or from a principle of self-preservation, it is proper to admit any testimony calculated to illustrate to the jury, the motive by which the prisoner was actuated. 3 S. & P. 308. And in this view, we think the evidence was improperly ruled out. Reasonable fear, under our code, repels the conclusion of malice ; and has not the character of the deceased for violence, much to do in determining the reasonableness or unreasonableness of the fear under which the defendant claims to have acted? Does it make no difference whether my adversary be a reckless and overbearing bully, having a heart lost to all social ties and order, and fatally bent on mischief; or is a man of Q,uaker-like mien and deportment ? One who never strikes, except in self-defence, and then evincing the utmost reluctance to shed blood? We apprehend that the imminence of the danger, as well as the chances of escape, will depend greatly upon the temper and disposition of our foe. In these cases, every individual must act upon his own judgment, andin view of his solemn responsibility to the law. If the assailant intend to commit a trespass only, to kill him is manslaughter; but if he design to perpetrate a felony, the killing is self-defence, and justifiable. 1 Hawk. P. C. ch. 28, sec. 23. 1 East, C. L. 272. Who, knowing the character of Kyd, the pirate, or of the infamous John A. Murrell, would not instantly, upon their approach armed with deadly weapons, act upon the presumption,thatrobbery, or murder, or both, were contemplated ? We would not *138be understood as applying these terms, or using this illustration in reference to the actual character of the deceased; but to the hypothetical case, made by the bill of exceptions.
In the opinion of this Court, there was error also, in refusing to allow the defendant to prove that as a Justice of the Inferior Court of Lee county, and at the request, and by the appointment of his associates, he became the prosecutor of the deceased, for embezzlement, as treasurer, of the poor-school fund of said county; and that in consequence thereof, the deceased vowed that the defendant should not be at the trial of said indictment, for that he would kill him. As a general rule, it is expedient to ¡receive all the evidence which goes to show the state of feeling of the parties towards each other, at the time of the act.committed. And for the same purpose, testimony maybe given of lawsuits existing between the parties. The State vs. Zellers, 2 Hals. 220. How strong does this principle apply in the present case. The question to be settled is, wes this homicide the result of malignity, or human infirmity, or manly caution? To answer this enquiry satisfactorily, we must transport ourselves back to the period when this rencounter took place. "We must substitute ourselves in the shoes of the defendant. By becoming the public prosecutor of the deceased, he had kindled the most deadly grudge in his bosom. He proclaimed his purpose to take his life before the prosecution is terminated. His threats and menacing conduct are continued down to the fatal moment when he fell. The prisoner is forced to abandon his practice by day, and to pursue it stealthily by night. To excuse the deadly shot, is he not entitled to have all those facts and circumstances submitted to the jury ?
[5.] The testimony having been closed and the cause argued by counsel; the Court, in its charge to the jury, stated that he greatly doubted the propriety of his having admitted for their consideration, the testimony showing any of the conduct, either of the deceased, orprisoner, on the day of the killing, except that which occurred immediately at the time of the killing; but it having been received, they were bound to consider it in making up their verdict. His Honor, Judge’ Warren, further stated, that it was a source of much gratification, that we had a Supreme Court for the correction of errors, often committed for want of time and opportunity to investigate' cases on .--the circuit, and that if evi*139dence offered in behalf of the defendant had been improperly rejected, and it should, in consequence thereof, become necessary, the defendant could take the case up, and have the error corrected. And to these instructions the accused by his counsel excepted.
It being the opinion of this Court, that the evidence referred to was both legal and proper, we are constrained to say that its force should not have been tveakened by this intimation from the Bench. We think, too, that the remark which fell from the Court, reminding the jury of the existence of an appellate tribur nal, to which the case with which they were then charged might be carried up, if the evidence offered by the prisoner had been wrongfully withheld — however well intentioned, was calculated, nevertheless, to lessen their sense of their own responsibility; and at the same time to convey the idea, that the proof already before them was not sufficient to acquit the defendant.
So much for what occurred during the progress of the trial, and before the verdict was rendered.
[6.] One of the new grounds taken in the motion for a new trial, was that William Stanley, one of the jury who tried the case, bad prejudged the prisoner, having been heard to declare on Sunday, before the trial, as appears by the depositions of Tucker and King, that ‘■‘■from what he knew, he would stretch the prisoner.” It appears also, from the affidavit of Monroe, himself, that the fact of the dqisualification of the juror was unknown to him till after be was sworn and empannelled, when it was too late to except to said juror, for want of qualification. Prince, 429.
We fully subscribe to the doctrine, that motions for new trial, are to be received with caution, and for the reason assigned, because there are few cases tried, especially those involving liie, in which something new may not be hunted up, and because it leads very much to perjury, to admit new evidence after the party who bas lost the verdict has had an opportunity of discovering his adversary’s strength and his own weakness. 5 Serg. & Rawle, 41. Still prisoner’s have rights, and there are certain legal safeguards which must be • preserved immaculate; the purity of the'stream of justice is involved in it. One of these safeguards is, that the jury shall be impartial and unbiassed ; their minds free from pre-judgment. It is desirable, if practicable, that every juror’s mind should be as white as paper. This, howev.er, is *140scarcely to be expected, when they come from the same county where the offence is committed, or, in the language of the Common Law, devicineto. Prejudging the prisoner is one thing, and the expression of loose opinions, founded usually upon rumor, when a revolting crime has been recently committed, is very different. Whenever the juror evinces a predetermination to condemn, an adjudication before trial or verdict, without regard to the evidence, it is a mis-trial per se; and the fact, when disclosed, should entitle the party to a rehearing. And while I would treat this institution, so vital to liberty andfree government, with great tenderness, I must say that he who gets his consent to serve on a jury, when he must know that his mind is utterly disqualified from doing justice between the prisoner and the State, is guilty of gross misconduct. To convict one capitally under such circumstances, is to perpetrate an offence little short of murder itself.
What does the showing disclose in this case ? Was the expression used by Stanley, the juror, the idle and unguarded ebullition of excited feeling? . Was it of such a nature as to render it likely that his prepossession would readily yield to proof? We think not. He declared that “from what he knew,” not what he learned by rumor or idle gossip, “ he would stretch thcprisoner.” Did not this very language indicate a state of feeling not easily to be effaced ? His mind was made up.
[7.] We take the rule to be this : Whenever the objection to the juror would be good cause of challenge for favor, if discovered in time, it will be ground for a new trial, if not found out till after verdict. In this case the record shows no attempt on the part of the State to support the verdict and the competency of the juror, not even by his own affidavit. And the omission seems to be a virtual concession of his prejudice as alleged. And for aught that appears on the other hand, there is no ground for presuming negligence on the part of the defendant in not ascertaining this fact before trial.
If a party have cause of challenge, and know of it time enough before the trial, if he do not challenge, he shall not have a new trial. Contra, if he has riot timely notice. Graham on New Trials, 53.
If the ground of application for a new trial, disclosed by the affidavits on the part of the defendant, had remained unanswered and *141uncontradicted, I should have thought the Court justified in malting this rule absolute ; for it would go to create a prejudice against trial by jury, if verdicts are to be the result of previous determination; and expressions such as those imputed to the juror, Hart, would have been a good ground of challenge, if proved to the extent to which they have been alleged in the affidavit. In Rex vs. Cook, 6 St. Tr. 337, expressions of this nature were deemed so improper, that the juror ought not to be asked whether he had used them, but that they ought to be proved by such as had heard them spoken. If, therefore, the expressions imputed to Hart had remained unanswered, the cause must have been referred to a new jury. Per Tindal, Ch. J. Ramadge vs. Ryan, 9 Bingham, 333.
A new trial was granted upon affidavit in Dent vs. The Hundred of Hertford, 2 Salkeld, 645, because the foreman of the jury declared before the trial, that the plaintiff should never have a verdict, whatever witnesses he produced.
I would observe that the Court, in such cases, will not receive an affidavit of the fact from the jurymen themselves. 2 Blackst. 1299. 1 T. R. 11.
[8.] They will be heard, however, in their own vindication. 3 Greenl. 204. 4 Vemt. 363.
In Cain vs. Cain, et al. 1 B. Monroe, 213, it was decided, that although the affidavit of one of the jurors certifying that another one of them made declarations since their finding, which, if true, evinced his partiality and incompetence, was inadmissible for several reasons, and especially on grounds of policy, for preventing the insecurity which might result from tampering with juries after verdict; yet it does seem to us, continued the Court, that the evidence of Smith, a stranger, and that of the party, John Cain himself, of the fact that one of the jury (Hahn) had frequently declared, before he was summoned as a juror, that he never would find a verdict in favor of a will, which did not make equal distribution among the testator’s children, were admissible and furnished sufficient cause for a new trial. Cain’s affidavit also avowing, as it did, that this fact was unknown to himself and his counsel until after the verdict.
In Cody vs. The State, 3 Haw. Miss. R. 27, this question came under the consideration of the Court. It appears from the report, that Patrick, one of the jurors declared, “ that if he should be *142on the jury, he did not think he could clear the defendant, but should be bound to find him guilty.” This fa.ctwas made to appear by the affidavit of William Snow. Judge Trotter said : “ A due regard to the sanctity of the trial by jury and the constitutional right which has been guarantied to every man, to a trial in all cases of the kind before the Court, by an impartial jury of his county, demanded, as he conceived, a new trial.”
Whatever would be a good cause of challenge to a juror, say the Court in Kentucky, if discovered in time, will be cause for granting a new trial, if not discovered till the jury have retired to consider their verdict. McKinley vs. Smith, Hardin, 167.
In State vs. Hopkins, 1 Bay, 373, an affidavit was produced, that the foreman of the jury had, on the morning of, and before the trial, said that he had come from home to hang every damned counterfeiting rascal, and that he was determined- to hang the prisoner at all events. This, it was contended, was such an improper piece of conduct on the part of the foreman, as was sufficient to vitiate any verdict, much more so where the life of a citizen was concerned. The Court were of the opinion that the objection was a good ground for a new trial; and that it would be difficult to say that it was not so, even if the character of the witness was of a suspicious character. At all events, it is a doubtful point, in which case it was the duty of the Court to .lean on the merciful side, and give the prisoner another chance for a fair trial.
In 2 Morgan, 25, a new trial was granted upon affidavit that theforeman declared that the plaintiff should never have a verdict, whatever witnesses he produced.
[9 ] And these decisions are all right. The law requires that jurors should be omni exceptione mayores, not liable to an objection on account of malice, ill-will, hatred, revenge, pre-judgment, or the like. If they are under any of these influences, they are certainly improper jurors to try a citizen for his life.
If a person, who was on the first trial, is put on the second trial, and the fact is not known to the party until the second verdict is rendered, it is sufficient cause for a new trial. 4 Bibb 45. Where a juror, previously to the trial, declared that if he was on the jury he would give $1000 damages, and the defendant did not know the fact until after the verdict, it is sufficient ground for a new trial. Ib. 191. Where a party after a verdict, proves that *143one of the jurors had said before the trial that his mind was made up against him, and the party also makes affidavit that he knew nothing of the fact before the trial, this is cause for a new trial. 3 Bibb. 37. A juror having declaied before the trial, that he never would give a verdict against the party who afterwards obtained the verdict, is good ground for a new trial, if the objection was not known, to the other party at the time of the trial. 2 Chapman, 45.
The doctrine in Virginia, upon applications of this kind, is, that the Court will weigh all the circumstances of the case, and decide, whether in justice to the State and the prisoner, a new trial ought or ought not tobe granted. 1 Robinson, 575. In David E. Brown vs. the Commonwealth, 2 Va. Cas. 516, a motion was made for a new trial on the ground, that one of the jurymen had made up an opinion of the guilt of the defendant, before the trial, and admitted it afterwards in a conversation with some young gentlemen who were questioning him as to the propriety of the verdict. The motion was overruled for the reason, that the conversation was not of a very serious character, and was had in consequence of the verdict being questioned rather improperly, and was therefore, entitled to little weight. Besides, the juryman himself, who was admitted to be intelligent and highly respectable, expressly swears, that his judgment was not influenced by the reports he had previously heard, but by the testimony only. See also, 2 Va. Cas. 6. 5 Rand. 655. And in Jones’s case, 1 Leigh. 598, the Court refused to set aside a verdict of guilty which it considered just in itself, though the objections perhaps, might have been good ground of challenge, if known and disclosed before the jurors were elected and sworn.
' If this case rested upon this footing alone, we should be strongly inclined to grant a new trial; for we cannot say that we are satisfied with the justice of the verdict.
In Jeffries vs. Randall, 14 Mass. 205, it was held, that where a party objecting had made the requisite inquiry of the juror upon the voir dire, and failed of discovering the fact which would have disqualified him, a new trial might be granted, if it should after-wards be discovered, that he did not stand indifferent in the cause.
. The record before us does not disclose, whether any preliminary inquiry was made of the juror at the time of the trial, accor*144ding to tlie directions of the Statute,- with a view to test his indifference.
Dicta, may be found, I know, which upon slight examination, might seem to conflict with the rule which we maintain. In Booby vs. the State, 4 Yerg. 111, it is said, that a new trial will not be granted, because of the incompetency of a juror ; and Judge White, in delivering the opinion of the Court, remarked, that to render this ground available, for the purpose of setting the verdict aside and granting a new trial, it ought to appear, that the party injured by it, the defendant, could not avail himself of it for challenge. The law will not permit him to lie by, take the chances of a verdict in his favour, and if adverse, bring forward his exception waived at the proper time of making it, and claim a further benefit. It will be plainly seen however, from reading the whole of this case, that the main if not the only difficulty with the Court, was owing to the defect in the evidence by which the application was supported. The juror himself, swore that he believed the defendant did not know that he had bet on the verdict before the trial. But the Court said, they could not rely on this; for if true, there was better evidence in the power of the defendant to show it, that is, himself. . And, since he was silent on the occasion, the testimony of Larkman, the juror, was inferior evidence and ought not to be received.
The inference therefore, manifestly is, that if the party was ignorant of the objection at the time of the trial, and that fact had been satisfactorily established, a new trial would have been awarded, notwithstanding the general observations which fell from the Court.
But for the apprehension of extending this opinion to an unreasonable length, I would notice the few other cases to be found in the books, seemingly adverse to the doctrine which we propose to establish. They will be found to turn on other points, and when rightly understood, to strengthen our position.
[10.] The other ground for granting a new trial in this case, is, the misconduct of the jury, after they had retired to their room. It appears from the affidavits of the bailiffs, Heard and Levining, that after the jury were charged with the case and put in custody of the officers of the Court, .a portion of them withdrew from the room, and were absent in the dark and out of sight of the bailiffs for some fifteen or twenty minutes at a time, and under *145circumstances which shewed, that they might-have been, if they were not, actually tampered with.
Whether the mere separation of the jury in a criminal case, is of itself sufficient to set aside a verdict, is an open question, and one by no means authoritatively settled. In civil suits and small misdemeanors, the prevalent authority in England is, that the separation of the jury, is, not sufficient to set aside the verdict. The King vs. Wool and others, 1 Chitty, 401. In cases of felony, however, many of the Courts, especially in this country, seem inclined to adopt a stricter rule. It is frequently stated in the authorities, that in modem times, the antiquated strictness of the law has been much relaxed in this regard, and that in no case is it necessarily wrong, for a jury to disperse with or without the permission of the Court, during the progress of the trial. 11 Ohio Repts. 474. 13 Ib. 492. 15 Ib. 72. 4 Cowen, 26. 1 Pennsylvania Repts. 278. 1 Halst. 110. 1 Gallison C. C. R. 360. 2 South Ca. Repts. 827. 1 Conn. 232, 238. In note 3 Cowen, 355. 8 Pick. 170. 4 Johns. 487. 1 Ch. Cr. L. 629. 2 B. and A. 426. 2 Wend. 352. 3 Johns. 252.
And yet ,in the oldest case reported, to wit: the Earl of Kent’s case, in the year book, in the reign of Henry VII, it was decided that the dispersion of a jury by reason of a thunder storm, and a conversation held with some of them, in which it was suggested that the matter in controversy was better for the Earl of Kent than the .Bishop, upon gieat consideration, the verdict was sustained and pronounced good, notwithstanding the irregularity.
In a note to Smith & Thompson, 1 Cowen, 221, by the learned Reporter, all the cases, English and American, are collated, and the .conclusion of this review is, that the propriety or impropriety of keeping the jury together in each particular case, is a matter resting pretty much in the sound discretion of the Court.
Thus circumstanced, we are called on to fix the rule, fo.r the first time,in this State ; and of one thing we are clear, viz : that no principle or practice tending to insure the impartial administration of justice and the purity of jurors, should in the slightest degree, be abandoned or impaired.
We will state a few cases, and then deduce the principle, which after mature reflection we consider the true one.
George McLain, was convicted in 1836, in Tennessee, of the crime of murder in the first degree. During the progress of the *146trial, several bills of exceptions were filed for irregularity in conducting the same, and after the verdict had been returned, a motion was made for a new trial, founded on the affidavits of John Clayton, one of the jurors, and Martin B. Brim. The affidavits of Clayton and Brim, show, that after the jury were sworn, and during the continuance of the trial, which lasted several days, a part of the jury did frequently of a night, after they had retired from the Court, absent themselves from the balance of the jury, without being under the charge of an officer, and remain absent for the space of fifteen or twenty minutes.
From this brief statement it will be perceived, how identical are the facts in the two cases.
The principal question, says Judge Turley, in this case is, whether the Court below erred, in refusing to grant a new trial for the causes set forth in these affidavits. We think it did. The right of trial by jury, has always in England, and in this country, been considered of such vital importance to the security of the life, liberty and property of the citizen, that great care has been taken to preserve it unimpaired. That the person accused may have the full benefit of a judgment by his peers, it is absolutely necessary that the minds of the jurors should not have prejudged his case ; that no impression should be made to operate on them, except what is derived from the testimony given in Court, and that they should continue impartial and unbiassed. These objects can only be attained, by selecting those who have no preconceived opinions as to the guilt or innocence of the prisoner, and by not permitting them to-separate from each other after they have been sworn, and mingle with the balance of the community. This was directed to be done in the case now under consideration, but was not complied with. The affidavits, which are uncontradicted, show conclusively, that several of the jury repeatedly separated from the others, without the care of the officer appointed by the Court to attend them, and were absent for the space of fifteen or twenty minutes ; long enough to have been tampered with, if there had been any disposition to do so. It is not necessary for the prisoner to prove that they were, during their absence, subjected to improper influence from others ; it is sufficient, if they might have been. There would be no safety in a different rule- of practice ; for it would be almost im*147possible ever to bring direct proof of the fact, that it was done. 10 Yerg. 241.
The Commonwealth vs. John McCaul, Va. Cas. 271, has always been cited as a controlling precedent upon this question. It was a trial for grand larceny. The trial continued 4 days, on each of which, the Court adjourned for about 2 hours, giving orders that in the meantime, the jury should be kept together in a room by themselves, where they were allowed refreshments. On their way to the jury room at the 2d adjournment, one of the jurors having been unexpectedly sworn on the jury, separated from his fellows for about 20 minutes, to attend to some necessary business. He was unattended by an officer. Several persons asked him during dinner at his boarding house, if the trial of McCaul had ended. To which he answered in the negative ; 'but had as he stated, no further conversation with any one on the subject of the trial; denied that he had been practised with, and no abuse appeared. Another juryman'was absent for a few minutes on a visit to a sick child with an officer from whom he was separated about five minutes, on going into the chamber to see the child.
There being a verdict of guilty, Mr. Wirt moved to set it aside, on account of the misconduct of the jury. A majority of the Court were of the opinion, that actual tampering or conversation on the subject of the trial with a juryman, was not necessary to set aside the verdict; and Judge Nelson, who- delivered tire opinion of the Court, said, “from the mode in which collusion and tampering are generally carried on, such circumstances are generally known to no person, except the one tampering and the person tampered with, or the persons between whom a conversation may be held which might influence the verdict. If you question either of these persons upon the subject, he must criminate or declare himself innocent; and you lay before him an inducement not to give correct testimony. The rule should never be relaxed, which requires the jury to be kept together, except in cases of imperious or perhaps of absolute necessity. By allowing that a jury may separate without such necessity, and that their verdict shall stand, unless the party accused, who in these cases is in the custody of the law, can show, not only that the jury have separated, but that they or a member of it has also been tampered with, or held communication on the subject, this great barrier against oppression may gradually be sapped and undermined, *148and the bulwark cannot long remain. Such a precedent would be productive of evils incalculable, and too great for the Court by its decision to allow a door to be opened, for every danger, and particularly in such a case as this, should be watched and opposed in the In ginning. The Court will preserve with “ fear and jealousy,” and will not expose the trial by jury in criminal cases, from such risk of contamination as arises from the affidavits in this case. Although there might be, and probably was, no tampering with any juryman in this case, yet in a free country, in deciding a particular cause, the decision is to be according to general principles as applied to that case ; and more good will arise from preserving the sacred principle involved in this case, than evil from granting a new trial, although in this individual instance, a verdict has probably been given, by twelve men, in fact, unbiass ed by the separation.”
It is a source of sincere ard honest congratulation, to find on all suitable occasions, the friends, founders and fathers of our civil and judicial system, standing up so staunchly and watching with such lynx-eyed “ fear and jealousy,” an institution on the preservation and purity of which, so much depends. And we flatter ourselves, that since the organization of this Court, short as its existence has been, something has been done to establish trial by jury in criminal prosecutions in this State, on a foundation so broad and deep, that it will not easily be shaken. On this vital subject, there should be no vacillation in the judicial mind.
In the case of the State vs. Prescott, 7 New Hamp. 287, there were many acts of separation by the jury, most of which in the opinion of the Court, were satisfactorily explained. It was in proof however, that the members of the jury with one exception, resorted to a barber’s shop kept in the same building where they boarded, and some of them more than once. They were unaccompanied by any officer, and there was other company in the room at the time they came in, and remained while they were there, which v\ as from ten to fifteen minutes. The owner of the shop further testified, that at one time two of the jurymen were coming through the door of his shop, when an individual remarked, that the jury would bring in Prescott guilty ; that the jurymen were not more than ten feet from him at the time, and approaching towards him, and that some reply was made to it. One *149■of the two jurymen, denied any conversation with any one relative to the prisoner, or his trial, or that he heard any. The other stated, that he heard no conversation that he could recollect, relative to Prescott, or his trial, in passing to or from said shop, or while in the same. A neic trial was granted. The Court say, ■certainly under all these circumstances, we cannot say affirmatively, that wo.are assured beyond reasonable doubt, that the prisoner has had such a trial as the law secures to him, before we can rightfully pass upon him a sentence of death.
Suppose we could say that the jurors might have heard nothing; that they probably did hear nothing — that is not sufficient; we cannot say-that there is no suspicion of abuse. We cannot say that there is no reasonable doubt that none of them heard remarks which would be very likely to be made, when, under such circumstances, three of the jury give a qualified denial. These irregularities may not have affected the prisoner, but that is not enough. Even if it was probable they had not, mere probability would not suffice. We do not intend to impute intentional misconduct to any of the jury,during any part of the trial. We doubt not, they meant to try the case faithfully and impartially. If, from the infrequency of trials of this nature, the people generally are not fully aware of the strictness with which the law guards the rights of the accused, such infrequency so creditable to the community, may well furnish matter of extenuation, for the departure from the ordinary rules during this trial; but it can furnish no reason why the prisoner should not have extended to him that measure of mercy and justice, which the law has wisely provided in cases where the consequences may be so awful, and where the sentence once executed, there can be no opportunity for r'evision or the correction of error.
The doctrine in new York is, that the mere separation of the jury, though empannelled to try a capital offence, and although they separate contrary to the directions of the Court, will not, of itself, be a sufficient cause for setting aside the verdict. But if there be the least suspicion of abuse, the verdict will be set aside. 2 Cowen. 589. 4 Cowen. 26. 5 Cowen. 284. 7 Wend. 423. In this last case, Mr. Justice Sutherland, who delivered the opinion of the Court, said : “ The conclusion, from all the cases decided in this State is, that any mere informality or mistake of an officer, in drawing a jury, or any irregularity or misconduct in the jury *150themselves, will not he a sufficient ground for setting aside the verdict either in a criminal or civil case, where the Court are satisfied that the party complaining has not, and could not hare sustained any injury.”
Mr. Justice Parker,,in commenting on the positions thus laid down, thinks, and so we think, there is another principle which should also be applied in a criminal case, which is, that where there has been an improper separation of the jury during the trial, if the verdict is against the prisoner, he is entitled to the benefit of a presumption that the irregularity has been prejudicial to him; and that it is incumbent upon the government to show, and that beyond a reasonable doubt, that the prisoner has suffered no injury by the departure from the forms ordinarily pursued in the administration of justice. The prisoner is entitled to a compliance with the forms provided by the law, to secure him a fair and impartial trial; and if these grounds are neglected or disregarded, he is at least entitled to require at the hands of the government, satisfactory evidence that he has not received detriment by reason of such neglect, and is not to be put to show affirmatively, that such departure from the customary mode of trial has been the probable cause of conviction.
Let us now apply these principles to the present case.
Heald, one of the bailiffs, afterreminding the jury that they had been forbidden, strictly, by the Judge, to speak to any body— left them in charge of the other bailiff, while he went for candles. On his return, he looked- orit of. the window of the room where they were assembled, and saw two of- the jury out at the end of the house, conversing so low that he could not tell what they were talking about. One of them was captain Blake. He requested him to come in — he replied that he would presently, or something to that effect, and in a few minutes they both came in. The deponent walked backwards and forwards before the front door of the room, there being two open doors to it, one in front, on the street, and the other in the rear, opening on a corn-field; some of the jury called for water; deponent went into the room and handed out the bucket to the other bailiff in attendance, who remarked that there must be somebody talking behind the house. Deponent went to the back room, and saw two of the jury coming; Blake was one of these jurors ; and when he came in, another juror remarked that he wanted to go out and consult with *151him, too. They retired through the back door, out of the view of the office. Deponent then went out himself, and watched from behind a china tree, but saw nobody during the minute or two that he remained. He then walked round the house and went back to the gate opposite the front door, and sent L.evining, the other bailiff, to order somebody off, once or twice. Levining states that'the building in which the jury deliberated, was a private house, having two rooms, and no upper story— one front, and one back door. That during the consultation, and before the verdict was made up, the jurors, one, two, and as many as three at a time, left the room through the back door of the building, there being no shutter to the front door," and the deponent thinks to neither; that they were in the dark, and unattended by any sheriff, deputy sheriff, or bailiff, and that they were absent for some fifteen, twenty, and thirty minutes at a time. That at the commencement of their deliberations, some of the jury declared they never would find the defendant guilty, others said equally positive, they never would acquit. On one occasion during said deliberations, one of the jurors who had expressed himself decL dedly in favor of the innocence of the accused, and one who had expressed himself as strongly the other way, left the jury-room and went out, where witness saw them - cor*,^]3]¡¡fl3L but did not hear or understand any thiiwuie^sgd^ BM^hey were thus holding their private eonsult®?o^in the dark, wiich lasted some twenty or thirty minutes, another .j w^en one of them, and he thinks Mr. BlM§/\v«io WEtSTrn Javójr of convicting the prisoner, told the others juror to.ffQ -ba«k, Ivhich he did ; at the expiration of the timeWbfcv^^®^'X’thej/returned and the juror who went out favorable't^lm^eferrd^m, agreed to sign the verdict of guilty. A part of the time they were out of sight of deponent; there were a number of persons about and around thejury-room, who were not jurors, and whom this deponent was exerting himself to keep aioay. Two of said jwors, so lurking about said jury-room, to wit: Alfred Kersey and William Korkadale, cursing this1 deponent, and swearing they were in the2>ublic street, fyc. fyc. He further states, that during their deliberations, all the jury were hardly ever in the room at the same time. There was less calm deliberation, and more confusion and excitement than he ever saw before in a jury-room, and especially among many or several of the jurors, some of them deporting *152themselves in such a manner, as to elicit the remark from one of the bailiffs, that they resembled bees starting to swarm.
I will not comment on those affidavits which are wholly uncontradicted. The bailiffs to whose custody this jury was committed, appear to have used all diligence to keep them, as was their duty. The probability is, that they have been unable to protect the prisoner from the hostility of his enemies. That malign influences were brought to bear upon the jury, there can be no doubt. It is not certain that any one spoke to them during their deliberations, upon matters pertaining to the’trial It is difficult to resist the conviction, however, that persons “ lurking” about the place, spoke in their hearing upon the subject. And this is equally as bad. But even if this were not so, if wo were satisfied that no improper bias had been received from any extrinsic source, still there is another feature in this statement which claims the gravest consideration. Law, reason, and public justice require that the jury should confer together, touching the guilt or innocence of the prisoner. And it would be establishing a most dangerous precedent to allow these secret consultations, by two or more jurors at a time, in separate groups and out of the presence and hearing of their fellows, to take place. Who can tell what influences of argument, persuasion, or otherwise might not be brought to operate, under these circumstances. One overpowering mind, in this way, would soon master and subdue the timid and doubtful, who, although individually weak and wavering, might muster courage to resist when united and associated with their fellows. , False motives and reasons might be thus urged, which, if submitted to the whole pannel, would be readily answered, and their influence averted. I have good ground for believing that unanimity was obtained in the rendition of a verdict, in one of the most exciting case', that was ever tried in this State, by a juror being threatened, apart from the body, with penitentiary punishment for an act, which, if an offence at all, could only have been resisted with a much slighter penalty. We should feel strongly inclined, therefore, to set aside the verdict for this reason, if it stood alone. Where life and liberty are involved, the jury should be kept together from the commencement of the trial until its final termination.
It being made fully to appear then, that there has been an irregularity in' the trial of this case by the unauthorised separation *153of the jury, and the State having made no attempt to show that this could not have been prejudicial to the prisoner; on the contrary, it being rendered extremely probable that he has sustained injury from the misbehavior of the jury, the verdict must be set aside, and a new trial awarded. In the language of an .eminent and virtuous judge, on a similar occasion, God forbid that the prisoner should be sent to pray of the mercy of the Executive, a reprieve for an offence of which he has not been legally conj victed.
Judgment reversed.