We listened to the able and earnest arguments of the counsel for the prisoner with the attention they deserved, and have given them the deliberate consideration which the character of the case and our sense of duty required, but without being satisfied that there is any error in the record, or any sufficient ground for a new trial.
1. In relation to the supposed error in the judgment, there is a fallacy in their argument which lies in the assumption that the order remanding the prisoner to the custody of the warden, which is contained in it, is a punitive part of the sentence. Such, we all know, was not the intention of the court, and such is not the legal effect of it. That part is directory merely.
The record is not full, and does not show the process by which the prisoner was brought before the court. It appears in the indictment as a fact found by the grand jury, that he was confined in the state prison for crime, and it must bo presumed that he was in the custody of the warden, by the command of a warrant, to be holden until the expiration of his sentence or until discharged by law. It does not appear in the record but is admitted in the argument that the time for which he was sentenced to that prison had not expired and would not expire before the 9th day of October, 1871, and it must be taken to be true that it would not. Neither the homicide, nor the indictment found, could affect that sentence, or the legal duty of the warden. Nor did the Superior Court do anything to *136affect either. They sent for the prisoner and tried and sentenced him. In order to do that, did they take him from the custody of the warden, or did the warden take him before the court for trial pursuant to a writ of habeas corpus, retaining his custody until he was formally remanded ? This does not appear expressly, but it was the proper course, and the court must be presumed to have acted rightly and to have pursued it, and that they did do so has been stated in the argument and not denied.
When an officer produces the body of a prisoner before the court, pursuant to the command of a writ of habeas corpus cum causá, both are subject to the order of the court, but the custody of the prisoner is unaffected until determined by an order of the court. If the court decides the custody to be lawful, there is usually, in form, an order-of remand, but it is a form of dismissing the case merely, for the officer in contemplation of law has not been deprived of that custody. So in this case, the warden was presumptively before the court in obedience to a writ stating the purpose, and had the prisoner there in his keeping, though both were subject to the order of the court. Such was the precise command of the writ if in the usual form. The remand then was formal in its nature and directory. Whether the court could have ordered him out of the custody of the warden, and into that of the sheriff, to be kept by the latter until the execution, except by its overriding death warrant, is a question we need not consider. Clear it is the court were not bound to do it, and it was the most proper course, to say the least, that they should not, but leave him where they found him until he was wanted for execution, and then take him by force of the final warrant, which, from the necessity of the case, must override that under which the warden held him in the prison.
When a prisoner has been convicted of murder he must be kept in custody, and the sentence or judgment usually contains an order for such keeping. Such an order must be made and appear of record somewhere, and may well be contained in the record of the judgment. Where a prisoner has been bound over or. committed to jail before trial, the sentence *137usually directs, according to the form in Swift’s Digest, that he “ he takon to the place whence he came.” Before the statute was passed prescribing the place of execution, it was further directed “ that he should be taken thence,” on the day named, “ to some convenient place of execution.” 2 Swift’s Digest, 443. That part of the form of the sentence was clearly directory, and not a part of the punishment.
The same we are satisfied is true in respect to this sentence, and the provision it contains for the custody until execution. The proper course was pursued by the court below, and there is no error in the record.
2. All the questions raised in respect to the jurors are determinable by principles recognized in our own decisions. The constitution provides for an impartial jury, and the provision is in affirmance of the common law. All therefore are agreed that jurors must be impartial, and the fact that they are must be ascertained before they can be legally sworn. The fact is ascertained at common law, and in some of our sister states, by inquiry and the decision of triers; in other states, and here, by the court. It would seem to be an easy and simple matter to determine the question by a voire dire examination if the juror is honest; and it should be so. Where there is partiality inferrible from the relations of kindred or business, or where there is personal prejudice or ill-will, or an existing controversy, the question of indifference is easily determined. And where the objection to a juror is grounded on an opinion .affected by relationship, or fixed and settled by prejudice or ill-will, or influenced by a controversy, or induced by a distorted or perverted statement of fact from one who entertains prejudice or ill-will, or is the repeated statement of the facts, or of an opinion which originated from any such prejudiced source, the rules which have been read to us from the cases cited are more or less applicable. But the efforts of astute criminal lawyers to magnify opinions and impressions, which a word of denial or explanation would brush away, and which would have no effect upon the mind of a man when he had assumed the duties and obligations of a juror and sworn to make a true deliverance according to the *138evidence given in court, into fixed or settled opinions which it would require material evidence to remove, and which wotdd therefore weigh in the scale of judgment against the prisoner; and the difficulties which must necessarily attend every effort to ascertain with-precision the character of an opinion formed in, or an impression made upon, the mind of any man and determine correctly whether it he a fixed or settled opinion, have filled the books with definitions and rules which are not always reliable, and cases which are more or less -conflicting. A considerable selection of these has been read to us; but we do not care to analyze them, or to discriminate in reference to them. Very few of them are applicable to a case like the present.
The opinions, impressions, suppositions, beliefs, or whatever one may choose to call them, entertained by the jurors objected to, differed from those to which we have alluded. They had their origin in no relationship, partiality or prejudice, but from reading an ordinary statement of the circumstances attending the killing, for aught that appears impartially obtained; and candidly stated in the newspaper, and those opinions, impressions, or suppositions received no tincture of prejudice from any other source. For various reasons we are satisfied that such opinions should not in theory, and do not in fact, incar pacitate a man from sitting as an impartial juror.
In the first place, nineteen-twentieths of the intelligent men of the county where a homicide has taken place, and the fact with the circumstances attending it have been published in the newspapers, would be incapacitated from sitting as jurors, if the objections raised in this case were well-founded. All of them would read the account, or hear the facts detailed by some one who had read them. Most of them would form just such opinions, or get just such impressions, as the jurors had in this case. And if we were to adopt the principles and sustain the objections which have been urged upon us, we should open our courts to just such judicial farces as the one which has recently been acted in the case of Foster in the city of New York. That state of things we must avoid; and we are satisfied that the jinors selected under our system can *139be relied upon to try cases impartially and upon the evidence given in court, notwithstanding they may have heard or read accounts of the transaction, and formed an opinion, if such it. may properly be called, therefrom.
Opinions thus formed are not in their nature such as should disqualify a juror. If he is free from partiality or prejudice derived from any other source, his opinion is, as a matter of course, hypothetical, not fixed or settled in the sense in which those terms are used, when used correctly, in the law. All men take newspaper statements as current news, liable to qualification, explanation or contradiction, and when qualified, explained or contradicted, they change their opinions or belief accordingly, as matter of course. It requires no stronger evidence to satisfy the mind of a juror having such an opinion, impression, supposition or belief, one way or the other, as the evidence may preponderate, than it would if he had never read the statement. His mind is certainly in no worse situation than the mind of a juror who has heard one side in court making a primé facié case, is "to hear the defence when made upon the other side, and give it its just weight.
These views are not new in this court. They are contained, in substance, in the.opinion of Judge Williams in The State v. Potter, 18 Conn., 166. In that case the prisoner had made a confession which wás published in the newspapers with other accounts of the transaction, and read by the juror, who was of opinion that, if the accounts were true, a horrid murder had been committed, but he had formed no opinion of the truth or falsity of the reports, and remarked upon reading them, that the case would probably turn out a different affair upon the trial. He answered, on inquiry, that he had no settled opinion, and coidd render an impartial verdict. He was received as a juror, and his reception sustained by this court. Judge Williams, in his opinion, cited from Hawkins, and adopted the principle that the expression of opinion formed even from a personal knowledge of the case, and not out of any ill-will to the party, is no cause of challenge, and adds that the opinion expressed must be such as to indicate hostility, or a want of indifference in the juror. He further says *140that “ where a juror has a settled opinion in a case and has declared it, he ought not to sit, but while it is a mere impression arising from facts supposed to exist, of the truth of which he has formed no opinion, or where the opinion is upon a point so free from doubt as to lay no foundation for dispute, there can be no ground to infer hostility or prejudice, and so the juror must be considered indifferent. To exclude persons on such grounds would be to adopt a rule not known to the common law, and in cases of great notoriety would be to say that there shall be no trial at all by jury, or that the trial shall be by persons the least fitted by their situation and intelligence to do justice to the cause they are called to determine.”
The pith and-marrow of these extracts is that the 02)inion must be formed in such a way, or be of such a character, that hostility or prejudice toward the prisoner may be inferred from its existence or expression. But hostility or prejudice cannot, as a rule, be inferred from an opinion formed and expressed simply from reading, or hearing stated, as current news of the day, the fact of a homicide and the circumstances attending it. There should be found some other circumstances of relationship, partiality, prejudice, hostility or ill-will, acting at the same time upon the mind and giving it a bias, or the juror should be acce2)ted. The court in its determination should be guided rather by the existence or the absence of such other circumstances, which might have affected the reports read or heard, or may be operating directly upon the mind of the juror, and assisting the reports to create a bias or prejudice which renders Mm not indifferent.
A2^plying these rules to the jurors in question, we are of opinion that the court was right in its finding that the jurors were indifferent. The juror Smith formed his opinion singly from the newspaper accounts which he read at the time, upon the supposition that they were true, and in expressing that opinion, he qualified it by saying that, if they were true, a horrid murder had been committed; but he said that he had no bias or 2rrejudice against the prisoner, and formed no settled opinion of the nature or degree of the crime, and believed he *141could try the cause fairly, and render an impartial verdict. I think it is not too much to say, that if that man had not been holden qualified as a juror in the case, it would have been impossible to obtain a jury of sufficient integrity and intelligence in Hartfoz-d county, from those who had z’ead or heaz’d anything of the transaction.
The difference in the case of Mills, consisted in the fact that lie said at the outset of his examination that he believed what he had heard and read of the matter, and so foz’med his opinion of the guilt or innocence of the accused, and then held it because he had seen no occasion to change it. But upon further inquiry he said he had zio knowledge of the facts except fi’om the newspapers and remarks, and took it for granted that the prisoner killed the warden, and believed that the act of killing was a crime. He further said that his opinion was not a settled opinion, but an impi’ession merely, that it would yield to evidence, that it could not be a settled opinion until confirmed by something further. And he said three times in answer to the question by prisoner, attorziey, and court, that he believed he could try the case fairly and impartially on the evidence, but would not say positively that he could..
Here were three of the principal elements which the couz’t recognized in The State v. Potter, and which fully justified the fiizding of the juror indifferent by the court below.
The first was that the opinion of the juror was derived from newspaper accounts, or statements which he had heard as current news, and nothing appeared to show that they were from a prejudiced sozzrce, or that his mind was in any other way prejudiced or biased toward the prisoner. He attended the funeral of Oapt. Willard, but it does not appear that that fact created,,any prejudice or bias izz his mind, azzd it cannot be presumed that it did.
The second is that he had no settled opinion, but ah impres. sion merely, which could not be a settled opinion until confirmed by something further.
The third is that he believed that he could try the case fairly and impartially upon the evidence given iiz court, but would-not say positively that he could. No honest man, under *142similar circumstances and with like impressions, or with any •impressions derived from facts received as current news, would undertake to say more than this juror said. He could not have knowledge of what his conduct would be, so as to speak positively ; he could have an honest and conscientious belief, • and that was sufficient to show that he was as indifferent as any man could be who' had any knowledge of the case from any source.
It is impossible to read the examination of that juror and infer that he had hostility or prejudice toward the prisoner, and this court, as constituted when the case of The State v. Potter was tried, would undoubtedly have liolden that such a juror was indifferent; and guided by the principles they recognized, and the light which discussion has since thrown upon the subject, we approve the decision of the court below in that matter, without the slightest hesitation.
3. But few words are necessary to express our reasons for approving the action of the court in excluding the evidence offered in justification by the prisoner. If all that the prisoner claimed to be able to prove had been proven, or admitted to be true, the court would have been bound to instruct the jury that it furnished no justification for tlio killing. Other means of safety and redress, by complaint to the proper authority if his life was in danger, were open to the prisoner, but he made no attempt to avail himself of them, and no man can justify the killing of another in self-defence until he has exhausted all other means of safety. The suggestion of counsel that the evidence might be admissible to mitigate the offence, was without force; for the undoubted effect of the evidence was to show that the killing was intentional, deliberate and premeditated, and not occasioned by any sudden provocation.
A new trial is not advised.
In this opinion the other judges concurred.