By the Court.
Lumpkin, J.delivering the opinion.
The defendant being convicted of murder moved for anew trial on twenty-seven grounds. Iiis application being refused he prosecutes his writ of error to this Court, to reverse the judgment.
[1.] There was a motion made to continue the cause, and we infer, for the record is somewhat obscure upon this point, that it embraced two grounds, to wit: 1st. The popular excitement preventing the prisoner from having a fair trial; and 2d. The absence of witnesses. Pending the motion the witnesses came in ; and there seems to have been no formal decision by the Court upon the other ground. As the trial was directed to proceed, we "will assume in favor of the prisoner, that it was overruled.
This Court has never in any case held, that public excite- , ment alone, was sufficient of itself to entitle the accused to a postponement of his cause. There might possibly be a case which would authorize and require if. The presiding Judge thought that this was not such a case, and we are not disposed to control his discretion.
[2. and 3.] As to the next two objections, as to the empanneling of the jury, we think they came too late. The defendant was furnished with a list of the jurors, and if the panel was not full, he should • have challenged the array on that account. He was himself in laches. Besides, this was *295not the first, but the second panel, and it is not clear under the Act, that any subsequent panel after the first, might not suffice, although less than forty eight.
[4.] We see no error as to the mode of testing the impartiality of the juror, John E. Ward. And we are clear, that he showed himself qualified by answers, to serve as a juror.
[5.] Can a juror be disqualified from non-age or being over age, after the statutory questions have been asked him ? The Act of 1856, would indicate that objections of this sort should be previously |made, and had any injury in this case resulted to the State, from not following the directions of the Act, we might hold that the challenge came too late. Otherwise, we are not prepared to sa}/, that should the defect be discovered after thestatutory questions have been propounded, as that a juror is not a free white citizen, that he is a minor, idiot, &c., that advantage might not be taken of it at any time. It being conceded, then, that the juror, Elbert Nichols, was over sixty, we think the objection was good when made, and that the Court erred in not allowing it. Pamphlet 1856, p. 230.
[6.] By the Act of 1856, it is not necessary that the juror should have been a citizen of the county, where the offence is tried, for any specified time. It is enough, that he is a resident citizen at the time of the trial. Ib. We consequently hold that Ennis was a competent juror.
[7.] The Court being satisfied from inspection, that Jeremiah Bentley was drunk; and counsel for the prisoner, (Judge Lott Warren,) not disputing the fact, he was properly set aside by the Court for cause.
[8.] The eighth assignment is, “ because on Monday morning last, the jury having been empanneled to try the said cause, was present in the Court room, and heard the Court charge the grand jury on the penal laws of the State, in. which charge the Court elaborated strongly against crime? saying, amongst other things, that almost all the homicides committed in the county could be traced to carrying conceal*296ed weapons; and that it was high time that a stop should be put to the perpetration of such offences.” Well, what of that? The crowd that press into the Court House at the opening of the session, and the two petty jury panels, hear the regular charge on Monday morning; and it is from these by-standers, and the two petty juries, that traverse juries are selected to try offences. And whoever supposed that this constituted a ground of exception ?
[9.] “ Because, after witnesses for the State wore sworn, prisoner asked and required of the Court to have them separated. Then prisoner’s witnesses were sworn, and counsel for the State asked to have them separated. All of which the Court directed tobo done. Counsel for the Slate then requested that W. G. Cross and Samuel Lindsey, witnesses for the State, and John G. Brown, a witness for the defendant, might be permitted to remain in Court to aid State’s counsel in the prosecution. And this was allowed; and defendant by his counsel excepted.” The Court adds, that “two of prisoner’s witnesses were suffered to remain to assist in the defence.”
We see no error in this assignment. For notwithstanding the practice of separating witnesses, may be very old, certainly as ancient as the trial of Susanna by Daniel, (,Apocrypha, History of Susanna,, 52 verse?) and very good, as it proved itself to be on that occasion ; confounding her guilty accusers and vindicating her innocence. Still, it is bat a rule of (he Court, and must in its enforcement be left very much to judicial discretion. We see no abuse of that discretion in this case. The part that the witnesses, W. G. Cross and Lindsey bore in this examination, will fully sustain our opinion.
[10.] We think the Court erred in not allowing the witness, Samuel Lindsey, to testify to the sayings of prisoner, a minute ora minute and ahalf after the shooting. If the declarations were not a part of the res gestae, then nothing is ; *297and all that Courts and text writers have said upon this vexed subject, is meaningless, 11, Ga. Rep., 621; 22 ib. 228.
[11.] This assignment is abandoned. As it stands, the Court unquestionably ruled right. Counsel state that it is miscopied, and that the decision was exactly contrary to what is written.
[12.] We think the declarations of the defendant, as testified tp by James W. Wilkerson, made from one to three minutes after the shooting, to the effect, that he shot at Wm. G. Cross, the son, and not Joseph Cross, the father, should have been admitted. The father was nearer the prisoner than the son. Some of the witnesses depose, that the deceased was not more than a foot and a half from a direct line from Thomas to the son. Thomas was agitated, and fired hastily. Perhaps his fire was drawn by the bursting of the cap of young Cross.
Learned counsel eloquently argue, that the by-standers máyhave been mistaken, but the pistol was its own best interpreter, and yet we know that it will not do to hold that every man aims at what he hits, or always hits what he aimed at.
[13.] We see nothing wrong or censurable in the reproof administered by the Court to the witness Wilkerson. The dignity and decorum of judicial proceedings roust be preserved.
[14.] In looking carefully into the record, we cannot find what Morgan said to deceased in reply to the statement of deceased, that it was Jim Spence and Tom Thomas he was after, and not Charley Spence. We are unable to decide, therefore, whether il: should have been admitted or not.
[15.] We think the Court should have allowed the witness, Gill, to slate the facts or reasons which induced him to believe, that the Crosses were advnuoiug upon the prisoner, when he shot. They might have demonstrated the correctness of his conclusion.
[16 and 17.] We hold the Court was right in permitting the witness, Lindsey, to be re-examined, notwithstanding he-*298had remained in the Court-room subsequent to his first examination. And also, in allowing the diagram made by this witness, as to the relative position of the combatants, to be submitted to the jury. It was strictly rebutting proof.
[18.] We are quite clear that the Court erred in refusing to let the defendant bring in Wilkerson, Gill, Morgan, Vernoy, and McLin, to contradict Lindsey’s testimony, by making out and exhibiting to the jury another diagram as to the respective attitudes of the parties in this affray. We know of no law which excludes surrebuting testimony, and such was the character of this. If counsel prefer to have their judgments affirmed, let them be cautious how they insist on the rejection of testimony.
[19.] The misconduct of the witness, Martin Williams, in telling Robert A. Rouse, another witness for the State, before Rouse was examined, what he, Williams, had sworn, might justly have subjected him to the punishment of the Court, but is no ground for a new trial. Besides, the Judge certifies that this irregularity was unknown to him.
[20.] The next complaint is, that “ while the trial was progressing, and the jury were in the box, on Wednesday evening, while discharging the grand jury, and in the presence and hearing of the traverse jury, trying said cause, the Court stated amongst other things, that the criminal docket was very heavy and on the increase, and that it was attributable to their vigilance for bringing offenders before the Court, the only way in which crime can be suppressed.”
There is nothing in this exception. The Court must dis charge all its duties. Besides, what American Judge would hold the office, if he were not allowed to talk ? To have his say ? And some indulgence especially is to be granted to the habit of a Circuit rather praiseworthily noted for lecturing jurors, in order to stimulate them to a proper execution of the criminal law.
[21.] We see nothing in the charge of the Court which can be considered a qualification of the legal proposition *299asked for in the request. He merely gives the converse also, of the principle, provided the proof preponderates that way, asked for. Both are correct.
[22.] The next assignment is subject to the same comment.
[24 and 25.] We express no opinion as to the evidence, assuming that the prisoner will have the magnanimity of course, to return and submit himself to a new trial. Ji privilege to which no outlaw should ever be entitled. Did this case rest on this ground alone, we might not feel at liberty to withdraw it from the province of the jury. Although forewarned and dissuaded, he thrust himself into this quarrel. It is not pretended that his relative, old Charley Spence, was in very imminent peril.
[26.] There is nothing in this ground.
[27.] Nor the last. The Court violated no rule of evidence in the instructions given to the jury. And even taken in connection with the reproof administered to the witness, Wilkerson, we do not see that his Honor transcended his duty.
Judgment reversed.
McDonald, X absent.