*524Opinion by
Mr. Justice Paxson:Tbe first two assignments of error are without merit. It was entirely proper to read the bill of indictment to the jury. It is not pretended that it was not read precisely as it was found by the grand jury.
The third assignment alleges that “the court erred in overruling the motion made by the prisoner, — that the court direct the district attorney to call the name of Mabel Cook as a witness-for the commonwealth; her name being indorsed upon the bill of indictment, she being present in open court under subpcena of the commonwealth.
It is a sufficient answer to this to say that a writ of error will not lie to such refusal of the court.
Nor do we find any error in those portions of the charge referred to in the 4th, 5th, and 6th assignments. It would be a waste of time to discuss them.
The 7 th and last assignment alleges that the court below erred in allowing the bill of indictment with the indorsements thereon to go out with the jury, against the objection of the prisoner.
The bill of indictment is always sent out with the jury when they retire to deliberate upon the verdict. The whole difficulty was that the former conviction of the prisoner was indorsed upon the back of the bill. The first conviction had been of murder in the first degree. This conviction was not satisfactory to the trial judge, who set it aside and granted a new trial, upon the ground that the weight of the evidence was against the degree of murder as found by the jury. ' The record of the former conviction as well as the order granting the new trial was indorsed upon the back of the bill.
We learn from the docket entries in the case that the prisoner objected to the bill of indictment being handed to the jury with indorsements thereon made subsequent to the finding thereof; and that the objection was overruled and the jury instructed to pay no attention to the indorsements upon the indictment The bill of exceptions is silent as to this matter; and as there is no exception the point is not properly before the court. As, however, tire learned district attorney waived this omission, I do not hesitate to say that it has little merit. If there was poison, the antidote went with it.- The order for a new trial showed that the conviction of murder of the first degree was wrong. Upon the second trial a conviction in the first degree was not claimed. *525Aside from this, tbe learned judge below instructed tbe jury that tbey must entirely disregard tbe indorsements. We must assume that jurors bave common sense and pay some regard to tbe instructions of the court.
Tbe greatest effect that could be claimed for tbe indorsement is that it brought borne to tbe knowledge of tbe jurors tbe fact that upon a former trial tbe prisoner bad been convicted of murder of the first degree, and that such conviction bad been set aside by the court. Tbe chances are at least even that tbe jurors had such knowledge when they entered the box. In a case of homicide attracting as much attention as this one did, tbe fact of a former conviction must bave been known almost to every man in tbe county; and those who did not know it probably could not read, and would be illy qualified for jury duty. It is not pretended that this knowledge acquired through tbe newspapers or from other sources would bave been a ground of challenge to a juror; nor do I see any reason why it should invalidate a verdict because acquired from tbe indorsement on tbe bill of indictment.
Judgment affirmed.