This case comes before the court by motion in error from the judgment of the court below, and also by motion for a new trial.
The first specific ground of error assigned is, “that the court erred in issuing an order to the sheriff, in the absence of the defendant, and in the absence of his counsel, and without their knowledge, and before the trial commenced, to summon talesmen for the jury to be impaneled for the trial of said cause.”
This claim of the defendant is founded upon a mistaken view of the action of the court. The order in question was not an order to summon talesmen to supply the panel in this case, but was issued several days in advance of the trial, to procure the attendance of persons from whom talesmen might be taken if they should be required and the sheriff should so elect, and thus to make some provision against delay in filling the panel. The sheriff when called upon by the court to supply talesmen might take them from the persons so in attendance, or might, if he saw fit, take them from outside persons. His discretion in this particular was limited only by the statute, which requires that they shall be “ judicious electors.”
It is not unusual in practice for a sheriff, of his own motion, in anticipation of a trial" in which there will probably be a deficiency of jurors summoned for the term, to procure the attendance of persons qualified to act as such at the time when the jury is to be impaneled; nor for the court under such circumstances to suggest to the sheriff in advance of the trial that he have such persons in attendance. Some of the inconvenience and delay consequent upon postponing the trial to procure the attendance of jurors may thus be saved, and we know of no reasonable objection to the practice.
Such suggestions or directions when made by the court are usually verbal, but the fact that in the present case the dii-ections to the sheriff were in writing seems to us immaterial..
The information upon which the court acts in such cases may properly be obtained from the public prosecuting officer. The compfaint of the counsel for the accused that they were not consulted, seems to us to be without foundation.
*136Another ground of error assigned is, that the court which issued the order was held by one judge only. We have already observed that the proceeding referred to was in no sense a part of the trial, and hence the attendance of two judges was unnecessary.
The further assignment “ that it was error to proceed to a new trial at the same term and before the same judges who had presided at the preceding trial, is sufficiently answered by a statement of it.
The only remaining assignment of error is, that the court erred in refusing the motion of the defendant to summon twelve additional jurors from the regularly appointed jurors of the term.
The statutory provision referred to by counsel in support of this claim (Gen. Statutes, p. 433, § 9), in terms refers the summoning of new jurors to the discretion of the court. The refusal of the court to exercise its discretion in the manner requested by the defendant is no ground of error.
The motion for a new trial shows, that upon the trial it " was claimed by the State that the accused and one Henry Hamlin, both of whom were lawfully confined in the state prison, conspired to escape from such confinement, and to use all means which might become necessary to effect such escape, even to the taking of the life of any one who might oppose them, should it become necessary to do so in order to overcome such opposition; that in pursuance of such combination they provided themselves with two loaded revolver pistols, one a seven-sliooter, and the other a four-shooter, and with handcuffs and a gag, and on the evening of September 1st, 1877, escaped from their cells and secreted themselves in the hall of the prison, where they were discovered by Welles Shipman, an armed night-watchman of the prison, arid that tliei-eupon they both fired at Shipman, who was wounded by one of the shots, and died from such wound on the next day; and that after Shipman was wounded he ran towards the alarm bell, pursued by the accused and Hamlin, who overtook him, when he sank insensible upon the corridor,, and was then handcuffed and gagged by them; that Allen then went *137to Ms cell about one hundred and fifty feet distant, leaving Hamlin with Shipman, where he was discovered and fired at by the guard of the prison, and that thereupon Hamlin went to the cell of Allen and that both then broke into the attic and were taken the next morning. The State claimed that Shipman was shot before he was handcuffed.
It was claimed by the defense that if there was any conspiracy between the accused and Hamlin it was merely to bribe an officer of the prison to permit them to escape, and that whatever was done after Shipman discovered the accused and Hamlin, was not in pursuance of any plan or conspiracy ; and that immediately after Shipman was handcuffed and gagged Allen abandoned the enterprise and went to his cell, and that Shipman was afterwards shot by Hamlin alone.
It was admitted upon the trial that the bullet found in Shipman’s body fitted the four-shooter and did not fit the seven-shooter, which was of smaller caliibre. The defense claimed that the seven-shooter was the pistol carried by. Allen and that it had not been discharged, and in support of this claim called as a witness an officer of the prison, who after testifying that ho found the two pistols in the attic of the prison, upon information given him by Allen of the place where they were concealed, was inquired of, “Did Allen inform you as to the condition of the pistol before you found it?” This question, upon the objection of the State, was excluded, and we think properly so. The defense claims that the question is not within the operation of the rule that the accused cannot avail himself in evidence of his own declarations, because Allen’s knowledge of the condition of the pistol, (assuming that the question related to the seven-shooter,) could not have been acquired unless it was the one which he carried, and that such knowledge is therefore a fact to which he was entitled. There would be some force in this claim if the assumption of the defense as to- Allen’s means of knowledge was well founded, but it is not. We suppose that by “the condition of the pistol” is meant its condition as to being loaded or otherwise. While Allen and Hamlin were together after Shipman was shot and. before *138they were taken the next morning, each had every opportunity to know the condition of the other’s weapon, and would, naturally, have been informed as to it.
The objection of the defense to the two warrants of commitment under which Hamlin was imprisoned was properly overruled. The evidence was admissible and important, in connection with proof of the combination of Allen and Hamlin to escape, to characterize such combination as a conspiracy, by showing that they were lawfully imprisoned, and hence that the combination was for a criminal purpose, and the existence of the conspiracy being proved, to show that in its prosecution Hamlin, for whose acts Allen his co-conspirator was liable, was not striving to liberate himself from illegal imprisonment, hut was criminally attempting to escape from lawful custody.
The court charged the jury as follows: “ If the jury shall find that Hamlin and Allen, at some time previous to the homicide, made up their minds in concert to break the state prison and escape therefrom at all hazard, and knowing that the enterprise would be a dangerous one and expose them to be killed by the armed night watchman of the prison should they be discovered in making the attempt, willfully, deliberately and premeditatedly determined to arm themselves with deadly weapons, and kill whatever watchman should oppose them in their attempt; and if the jury should further find that in pursuance of such design they armed themselves with loaded revolvers to carry their original purpose into execution, and while engaged in efforts to escape from the prison were discovered by the watchman Shipman, the deceased, and in the scuffle which ensued he was willfully killed by Hamlin or Allen while they were acting in concert and in pursuance of their original purpose so to do in just such an emergency as they now found themselves in, then Hamlin and Allen are both guilty of murder in the first degree. And in the opinion of the court, Allen would be guilty of murder in the first degree, if, in the state of things just described, he in fact abandoned, just before the fatal shot was fired by Hamlin, all further attempt to escape from the prison, and the infliction *139of further violence upon the person of Shipman, without informing Hamlin by word or deed that he had so done, and Hamlin, ignorant of the fact, shortly after fired the fatal shot in pursuance of and in accordance with the purpose of the parties down to the time of the abandonment.”
We do not think that the objection made by the defense to this part of the charge is well founded. Under such circumstances Allen’s so-called abandonment would be but an operation of the mind—a secret change of purpose. Doing nothing by word or deed to inform his co-conspirator of such change of purpose, the reasonable inference would.be that he did not intend to inform him of it, and thus he would be intentionally encouraging and stimulating him to the commission of the homicide by his supposed co-operation with him. Such intent not to inform Hamlin of his change of purpose would, under the circumstances, be decisive of his guilt.
But the charge proceeds: “In other words, if during the fatal encounter with deadly weapons, in the state of things just described, Allen suddenly abandoned Hamlin, abandoned the enterprise and went to his cell, without saying a word to Hamlin to the effect that he had abandoned the enterprise, and Hamlin, supposing that he was still acting with him and that he had gone to his cell for an instrument to carry on the encounter, fired the fatal shot, his abandonment under such circumstances would be of no importance. A man cannot abandon another under such circumstances and escape the consequences of the aid he has rendered up to the time of the abandonment.”
A majority of the court think that the jury may have been misled by this part of the charge, and that therefore, especially in view of the grave issues involved in the case, a new trial should be granted.
If Allen did in fact before the homicide withdraw from the conspiracy, abandon the attempt to escape, and with the knowledge of Hamlin leave and go to liis cell, Hamlin’s misconstruction of his purpose in leaving did not necessarily make his conduct of no importance.
Until the fatal shot there was the “ locus penitenticsP To *140avail liimself of it Allen must indeed have informed Hamlin of his change of purpose, but such information might be by words or acts; and if with the intention of notifying Hamlin of his withdrawal from the conspiracy he did acts which should have been effectual for that purpose, but which did not produce upon the mind of Hamlin the effect which he intended and which they naturally should have produced, such acts were proper for the jury to consider in determining the relation of Allen to the crime which was afterwards committed.
Allen’s act of leaving and going to his cell, if he did so, had some significance in connection with the question of intention and notice, and was therefore proper for the consideration of the jury. How much weight was to be given to it would depend upon circumstances, such as the situation of the parties and the opportunity for verbal or other notice.
The same observations are perhaps applicable to the charge of the court in answer to the sixth request for instructions. While it is clear that the request as made should not have been complied with, the charge that was given may be open to the implication that some notice of Allen’s abandonment of the conspiracy must have been given by him to Hamlin beyond that afforded by his act of leaving.
The answers of the court to the other requests for instructions seem to us, in view of the claims of the counsel and the admitted facts in the case, to be correct and sufficiently explicit.
A new trial is advised.
In this opinion Granger, Sanford, and Hovey, Js., concurred. Loomis, J., dissented.