By the Court.
Benning, J.delivering the opinion.
[1*3 Was the charge of the Court to the triors, wrong?
It is argued for the plaintiff in error, that this charge amounts to telling the triors, that they might find the Juror competent, even if he had formed, hut not expressed, a decided opinion, as to the guilt or innocence of the accused; and that amounting to as much as that, the charge is wrong, according to the decision of this Court, in K. P. Boon vs. The State, (1 Kelly, 619.)
The decision in that case was, “that the law is not. chargea *478ble with the injustice of admitting a Juror to sit on the trial, who has formed and expressed a decided or substantial opinion on the merits of the case”. “Formed and expressed”, are the words. To tell the triors that a person might be competent for a Juror who had formed, but not expressed, a decided opinion, does not contravene this decision.
No reason was offered to justify the extending of this decision to the ease of the bare forma tion, without the expression of a decided opinion. And wo know of none which invites an extension of the decision in that direction.
[2.] When a Juror has been challenged for cause—been put up.on his voir dire oath on that challenge, and has so answered the questions prescribed by the Act of 1843, on the subject, as to render himself, competent, and one party still wishing to have .the challenge further tried ; that is, wishing to have it go before triors, demands such triors, and moves to have the Juror examined by such triors, is it necessary, before the Juror can bo so examined by the triors, that the oath shall be re-administered to him ?
It is not.
What is the oath as first administered? “You shall true answers make to such questions as shall be asked you by the Court, or its authority. You shall answer any questions asked you by the Court, or by authority of the Court”.
In what proceeding is this oath administered ? In a proceeding of challenge for cause, to a person presented as a Juror—a proceeding which may terminate, while it remains wholly with the Court, or which may not terminate there, but may have to go on to triors before it can terminate. In any case, however, it is all one proceeding.
Now, the person's oath is to answer any question that may be asked him on this proceeding—any that may be asked him, not only by the Court, but by authority of the Court.
The triors act under authority of the Court.
The oath, therefore, as thus first administered, is broad enough in its terms, to govern the person in his answers to questions put to him by the triors ; why, then, should it bo re-administered to *479Mm, before he can be interrogated by the triors ? There does not seem to be any reason why it should. The Act does not require it. (Cobb’s Dig. 843.) Practice is against it.
[3. j “ Take the evidence as it has been read to you, apply the law to it as I shall give it to you in charge, and find your verdict accordingly”. Was this charge to the Jury right ? It was not.
The evidence as read to the Jury, supposing it to be the very words of the witnesses, was not the best evidence. The words, as they went from the lip directly to the Jury, with their accompaniments of tone, emphasis, gesture—with their signs of bias, or indifference, -intelligence or ignorance, attentiveness or inattentiveness, conscientiousness or non-conscientiousness, with all their circumstances of whatever kind, was better than the same words taken clean out of all their surroundings, and in a new voice, merely read to the Jury.
Better for another reason. -What was read! to the Jury, was no more than hearsay—the hearsay of the Court, not of the Jury. What the Judge, who took down, or caused to bo taken down, what was read, heard) or thought he hoard, the witnesses say. True, the witnesses wore present to correct mistakes, if made. But the corrections, when made, wore themselves only hearsay; the same sort of hearsay of the Judge.
2. Again, if the Court can tell the Jury, take what I now read to you as evidence, and go by it, the Court can make the evidence, out and out, in any caso; and if it can do that, it can render nugatory, trial by Jury, as established by law, viz:: that sort of trial in which the right of the Jury to judge of the fact, is the most valued characteristic. The Court can say to the Jury, “this that I read to you—this is the fact”. Now, there is no law which gives the Court so much power as this, over the fact in trials.
It is true, that the Penal Code of 1883, and also an Act of 1819, require the testimony to be taken down, “ in cases where the party, if found guilty, would be subjected to bonfinenacnf in the penitentiary, or to any greater punishment”. (Cobb’s Dig. 841, 859.) But this they require to be done for another *480purpose, viz : to serve as a basis for the action of the reprieving and pardoning power. The Act of 1819 says: “ In all-cases of application for pardon or reprieve, a certified copy of such evidence-sliall accompany such application”.
[4.] There is no law, as far as we know, which makes it the duty of the Solicitor General, when ho has attorneys associated with him, to take the conclusion, or any other particular place, in the argument, before the Jury. lie may take whatever place ho prefers. -
[5.] Tho motion for a now trial, as far as it rested on the matters with respect to tho expression of an opinion, by one of the Jurors who sat on tho trial, rested, even before those matters were rebutted, on very slight grounds.
Fouvillc, instead, of swearing to his statement, “ evaded” the counsel for tho accused, “and left tho place”. The Bailiff returned without McGee, and without any affidavit, or even unsworn message from him, reporting him sick. This is all.
If there is any thing in it, whatever, it vanishes before the affidavit of tho Juror himself.
Upon the whole, it appears that the Court erred in none of the decisions excepted to, but one, 'viz : the charge to the Jury to take the evidence as read to them. For that en;or, how-over, a new trial ought to be had.