1. Whether the judgment ought to be arrested, is the first enquiry in the case.
The ground of the motion in arrest, is, misbehaviour in the juror; and as a consequence, that the judgment ought to be arrested.
First, as to the supposed misbehaviour. If it delerve this appellation, it, at most, was small and little reprehensible. It is a fair presumption, that unacquainted with courts, and the precise demeanor there to be observed, the juror was unconscious of any impropriety in making his request of the public prosecutor. This is clearly apparent, from the public application made by him to the court, in the name of the jury collectively. That it was not considered as a misbehaviour, in the time of it, is a fair presumption, not only from the silence of the court, but of the counsel for the prisoner. It was no violation of the juror’s oath ; and if it can be termed misconduct, it must be in a very mitigated sense. If it was not prejudicial to one of the parties, or indicative of some partiality or prejudice, creating a disqualification for the performance of the juror’s duty, it ought not to annul the verdict. Ex-parte Hill, 3 Cowen, 355. The People v. Douglass, 4 Cowen 26. 33. Smith v. Thompson, 1 Cowen 221. No application was made, by the counsel for the prisoner, to censure or remove the ju-*60r°r ’ anc* ^ had been, it must have been to quash the panne!, as the request was made in the hearing of the jury, in their collective name.
No prejudice arose to the prisoner, unless from the partiality of the juror against him ; and of this, there is neither evidence nor presumption. His precise motive for the request made, is not known. It is remotely possible, that he was desirous of testimony to convict the prisoner; but in the exercise of common candour, it cannot be presumed. On the contrary, it is a reasonable and probable presumption, that Howard, and the jury generally, in whose hands was the fate of the prisoner, intensely feeling the unpleasantness of their situation, were anxious, that the cause should be sifted to the bottom, in order the more satisfactorily to their own minds, to do public justice
From the conduct of the juror no inference arises, that he was unfavourable to the prisoner, or was influenced by any other motive, than the honest purpose of discharging his duty impartially.
I have no doubt, that there is not any cause existing, for the arrest of the judgment.
2. Ought there to be a new trial ? This is the remaining subject of consideration.
It appears, that no direct evidence of the alleged murder was offered, but that on this head, the testimony was presumptive only. In the progress of the trial, the court admitted evidence, tending to prove, that for some months previous to the alledged murder, down to the time of its perpetration, an adulterous intercourse had subsisted between the prisoner and a Mrs. Burgess. The evidence was received, not to prove the corpus delicti, but to repel the presumption arising in favour of the prisoner, from the marital relation, and to show a motive for the commission of the supposed offence.
The cause on trial involved three inquiries, to wit, whether the deceased was killed by some person ; whether that person was the prisoner; and if he was, whether the act was done of malice aforethought.
It was a prominent fact in the case, that the deceased was the wife of the prisoner. The presumption thence arising, that she was not killed by her husband, or that it was not of malice aforethought, was powerful. The relation of husband and wife, clearly implies a strong partiality, on the part of the husband, towards his wife, and the most ardent desire to pro-*61tent her, and to render her happy. As a man will consult his own preservation and pursue his own interest; so, as a general truth, he will equally regard the protection and interest of his wife. The motive, for the most part, is both powerful and unintermitting; and that man must be truly unfortunate, whose experience and feelings do not attest this unquestionable truth. Ought not, then, the strong presumption arising from the prisoner’s relation to the deceased, and the probable motives from this source, influencing his conduct, to be refuted, if capable of refutation 1 Of this, I think, there can be no question. For it is a universal rule of evidence, that all facts and circumstances, upon which reasonable presumption or inference can be founded, as to the truth of the issue or disputed fact, are admissible in evidence. And if the fact consist of parts, or is proveable by many circumstances, each of which conduces something to the establishment of it, then each part, and each circumstance, is admissible, although the point will not bé established, until the whole fact is proved. The weight of the testimony is within the province of the jury ; but if it have any weight, the court must receive it. Gibson v. Hunter, in err. 2 H. Bla. 288.
The testimony received, was in proof of an adulterous intercourse between the prisoner and Mrs. Burgess. That such evidence effectually repelled the presumption arising from the marital relation, and ought to deprive the prisoner of the benefit of it, is unquestionably clear. It was the proof of habitual adultery; and adultery thus committed, affords most powerful presumptive evidence, to show a complete alienation of affection, and a heart hardened against the calls of every connubial duly. It indicates a state of mind, from which no desire of protecting the wife is presumable ; and no restraint of the passions. Love extinguished by adultery, a common, if not infallible result, not unfrequently, it is presumable, gives way to hatred, and a desire to be free from the burden of a wife, who no longer is the object of regard. If a. person were to declare, that he hated his wife ; should he be protected by the presumption, that he loves her ? So if he threaten to MU her ; shall this be excluded, by a presumption arising out of the marital relation that has ceased to exist ? Certainly not. The proof alluded to would not establish the position, if the wife were killed, that her husband perpetrated the act, or that it was of malice aforethought; but the presumption created by *62the marital relation would be repelled, and a weight be giver to the other proof in the case, which it would not otherwise possess.
As to the interminability of such enquiries, there is nothing in the objection. They will always terminate precisely where they should, that is, at the point, where the proof ceases to be relevant. The enlargement of the sphere of evidence, so fa as the testimony is competent, and material, is highly desira-; ble. Any thing which affords a‘fair presumption, or proof,.! should be received ; for so great is the temptation to the con-1 cealment of truth, and to the misrepresentation of facts, that no competent means of ascertaining the truth ought to be neglected. 1 Stark. Ev. 39.
That there is some danger that the evidence in question, might be misapplied, by the jury, to an unauthorized purpose, { I am net disposed to deny ; but in this there is nothing un- i common. If testimony is competent and relevant, it must bel admitted ; and confidence must be put in the jury, that they will legally apply it. It is the duty of the judge to instruct the jury as to the application of the evidence ; and that it was done in this case, there is no doubt; and it is the duty of the jury, to observe the direction of the court, on this point of law. That they exercised their jurisdiction soundly, is a presumption: of law ; and there must be something extremely peculiar, that should be permitted-to stand in the way of public justice, by the rejection of pertinent, and material evidence. No case or principle has been cited, to show the inadmissibility of the tes-i timony received. On the contrary, the reception of it derives support from Swearingen’s case, (in Maryland,) which was not very dissimilar from this.
Peters, Williams and Bissell, Js., were of the same opinion. Daggett, J,said he should acquiesce in the opinion of the Court, though he doubted whether the evidence objected to was properly admitted, and should have been as well or better satisfied with a contrary decision on this point. One purpos for which the evdence, was admitted, was, to show a motive for the commission of the offence; and the jury would not be apt to distinguish between this and proving the offence itself. lie concurred fully in the opinion that the communication made *63uy the juror, to the state’s attorney, was not a sufficient ground _ of arrest.
New trial not to be granted.