delivered the opinion of the Court.
This case has been before this Court before, and is reported in 8 W. Va. 687. The opinion of the Court, delivered by President Haymond, states accurately what proceedings had taken place in the circuit court of Ohio county, prior to its being then brought before this Court. The following is a statement of the proceedings:
“At a circuit court held for the county of Ohio, oil the 20th day of May 1872, there was foundby the grand jury attending said court, “a true bill” of indictment against Taylor Strauder for the murder of Anna Strau-der, in said county of Ohio. The indictment contains three several counts, each for the same murder; but they differ somewhat in the description of the offense. On the day the indictment was found, Taylor Strauder was led to the bar of the court in the custody of the jailer; and he then and there, in his proper person, demurred to the indictment; and the State by her attorney, joined in the demurrer. The court upon consideration overruled the demurrer; and thereupon he pleaded, that “he was not guilty in the manner and form as in the indictment against him is alleged, and of this he put himself upon the country;” and the State by her attorney did likewise. Afterwards, on the 6th day of June 1872, at a circuit court *779held for the said county, this entry was made on the record of said court in the case, viz : “The State of West Virginian. Taylor Strauder, upon an indictment for murder. On motion of the defendant, and for reasons appearing to the court, this cause is continued until the next term.” Afterwards, on the 22d day of October 1872, he was again led to the bar of the court in custody of the jailer ; and thereupon he moved the court for a continuance of the cause, until the next term, and the court granted the the motion and continued the cause accordingly.
On the 6th day of May 1873 was again led to the bar of the court, in custody of the jailer; and thereupon he moved the court to remand him to the county court of Ohio county, for examination of him upon the said charge of murder, whereof he stood indicted as aforesaid, according to the provisions-of the act of the Legislature, approved on the 3d day of April 1873. But the court overruled the said motion, and refused to allow him the examination before the county court of the county of Ohio, under said Act of the Legislature, which he thus prayed; and he excepted to the opinion of the court overruling his said motion; and his bill of exceptions was signed, sealed and made a part of the record in the case. 1 hereupon came a jury of twelve men, who were elected, tried and sworn to well and truly try and true deliverance make between the State of West Virginia and said Taylor Strauder, and a true verdict render according to the evidence. The trial of the cause occupied the 6th, 7th and 8th of May 1873. On the day last named the jury found him guilty of murder in the first degree, in manner and form as he stood indicted. Whereupon he moved the court to grant him a new trial; and the court also overruled this motion. He afterwards, on the 8th of Jnly 1873, and before judgment, prayed the court that judgment on the verdict of the jury, of guilty, be arrested for reasons assigned, which motion was also overruled by the court. The court thereupon rendered judgment upon the verdict of the jury, that he be hanged by the neck till *780dead, and that execution upon the judgment be done upon him by the sheriff of Ohio county, on Friday the 20th day of August 1873, between the hours of ten o’clock a. M. and four o’clock p. m. of that day, at the usual place of execution. During the trial of the cause, Taylor Strauder excepted to several opinions of the court, not hereinbefore referred to, as appears by the record.
A writ of error was allowed him to the said judgment of .the circuit court; and the judgment of this Court thereupon rendered July 20, 1874, appears from the conclusion of said opinion of President Haymond, in 8 West Va. R., p. 705, which is as follows : “We, therefore, consider that the judgment of the said circuit court of the county of Ohio, rendered in this cause against Taylor Strauder, on the 8th day of July 1873, upon the verdict of the jury found in the case, whereby he was condemned to death, and the said judgment and order of the said circuit court in refusing and overruling said motion of the said Taylor Strauder, and all the proceedings of the said circuit court had in the case, after his said motion was so refused and overruled, be reversed and annulled, and that the verdict of the jury rendered in said case be set aside.
And this Court, proceeding to render such judgment, as the said circuit court ought to have rendered upon the said motion of said Taylor Strauder, to be remanded to the county court of the county of Ohio, to be examined by the said county court upon the said charge of murder in the said indictment alleged against him; it is considered that he be remanded to the county court of said county, to be examined by it upon the said charge of murder, in the said indictment alleged against him according kto the provisions of the said act of the Legislature, entitled: ‘An act providing for the examination of persons charged with a felony before the county court;’ and be otherwise proceeded with by the said county court, accórding to the law made and provided.” And *781this Court accordingly so remanded him, with the requisite directions to carry out its said judgment.
When this case again came before the said circuit court oí Ohio county, the following proceedings were had therein: On the 9th day of January 1875, there was found, by the grand jury attending said court, “A true bill” of indictment against Taylor Strauder for the murder of Anna Strauder, in said county of Ohio. The indictment contained three several counts, which were identical with those in the indictment found by the grand jury on the 20th day of May 1873. This bill of indictment was indorsed: “The State of West Virginia v. Taylor Strauder. A true bill;” signed,“Andrew Wilson, foreman.” And this entry was made on the order book of said court of said date: “An indictment against Taylor Strauder for murder; a true bill. Andrew Wilson, foreman.” On the day this indictment was found he was led to the bar of the said court, in custody of the jailer of said court; whereupon he moved the court to be discharged, for the reason that three terms of said court had passed since his commitment to jail for said offense, before the finding of said indictment; he also moved the court to quash said indictment, and further, moved the court to certify this case to the Circuit Court of the United States for the fourth judicial circuit, and in support thereof filed his petition therefor (which is copied in the second bill of exceptions),which motions, after argument by counsel and consideration by the court, were all overruled. And thereupon the prisoner demurred to the indictment and each count thereof, and the State, by its attorney, joined therein; and the court, on consideration thereof, overruled said demurrer. Whereupon the prisoner pleaded, that he was not guilty in the manner and form, as in the indictment against him was alleged; and of this he put himself upon the country; and the State did the like. And thereupon came a jury, who were elected, tried and sworn to well and truly try and a true deliverance make between the State and the *782said prisoner at tbe bar. The trial of the cause before this jury, occupied the 2d, 3d, 4th and 5th days of November 1874; oii the day last named, said jury found a verdict as follows:
“We, the jury, find the prisoner guilty of murder in the first degree, as charged in the indictment.
“ Michael Noth, Foreman.”
Whereupon the prisoner moved the court to set aside said verdict and grant him a new trial, which was continued for future consideration; and the prisoner was remanded to jail. At the same term of the court, on January 9, 1875, he was again led to the bar of said court in the custody of the jailer; and the court having maturely considered his said motion for a new trial, refused the same; and thereupon the prisoner moved, that the judgment on said verdict might for reasons assigned, which are set forth in the eighth bill of exceptions, be arrested; but the court overruled this motion; and nothing further being alleged why the sentence of the court should not be pronounced, the court thereupon rendered judgment upon the verdict of the jury: that he be hanged by the neck till he be dead, and that execution of this judgment be done upon him on Friday the 26th day of March 1875, between the hours of ten in the forenoon and four in the afternoon of the same day, at the usual place of execution, in the vicinity of the city of Wheeling, it appearing in the opinion of the court that there is no jail yard of sufficient size for said purpose ; thereupon he was remanded to jail.
Upon the trial of the case the prisoner excepted to various opinions and rulings of the court, and tendered eight bills of exceptions, which were as follows :
Bill of Exceptions No. 1.
Be it remembered, That when the defendant in this cause was called upon, at the October term. 1874, to answer to the indictment in this cause, he demanded of the attorney for the State to elect upon which indict*783ment be would proceed to try Mm, whether the one found at the May term 1872, or the one at the present term; and thereupon the said attorney for the State elected to try the defendant upon the indictment found at the present term; and thereupon the defendant moved the court to discharge him from custody, because the said indictment had not been found before the end of the second term of the court after he was in custody and filed the mittimus of the justice in support thereof, which is in the words and figures following:
State oe West Virginia,
Ohio County, to-wit:
To Robert Junldns, who was appointed by me to act in this case as special constable of Madison township in said county, and to the heeper of the jail of said county:
These are to command you, the said constable, in the name of the State of West Virginia, forthwith to convey and deliver into the custody of the keeper of the said jail, together with this warrant, the body of Taylor Strauder, charged before me, Robert H. Gillespy, a jnstice of said county, by an inqusition with a felony by him committed, in this: that the said Taylor Strauder on the 18th day of April, in the year 1872, in the said county, did wilfully murder Annie Strauder with a hatchet or other weapon. And you, the said keeper of the said jail, are hereby required, in the name of the State of West Virginia, to receive the said Taylor Strau-der into your jail and custody, that he may be examined for the said offense by me on the 26th day of April 1872, at my office in the township of Madison, said county, and him there' safely keep, unless he shall be discharged by due course of law.
Givenjunder my hand and seal this 25th day of April, in the year 1872.
Robert H. Gileespie, Justice.
Also the orders of the circuit court showing that more than two terms of the court had elapsed.
*784But the court overruled tbe said motion and refused to discharge the defendant from custody, to which opinion and ruling of the court the defendant excepted, and ' prayed that his exception might be signed, sealed and made a part of the record, which is accordingly done.
T. MelviN, [Seal.]
Bill oj Exceptions No. 2.
Be it remembered, That when this cause was called for trial, and before the trial commenced, on the — day of — 1874, in the circuit court of Ohio county, West Virginia, the defendant filed a petition praying that his cause might be removed to the Circuit Court of the United States for reasons in said petition assigned, which said petition is in the words and figures following, to-wit:
To the Honorable Judge of said Court:
The petition of Taylor Strauder, the above named defendant, respectfully represents unto your honor, that he is a citizen of the United States and was indicted at the October term 1874, of the circuit court of Ohio county, for the alleged murder of Annie Strauder. Your petitioner further represents, that he is a person of color and was formerly a slave, and was emancipated by the result of the late rebellion. Your petitioner avers that under the laws of Virginia and West Virginia, the relation of husband and wife was not recognized between slaves, and that an impression is general in this county and the adjacent ones, and throughout the whole State, that colored men are not entitled to the same protection in their marital relations as white .men. That the defense of this petitioner will depend greatly upon the fact of the petitioner having been a married man at the time the offense he is charged with was committed. Your petitioner further avers, that under and by virtue of the laws of the State of West Virginia, no colored man is eligible to be a member of the grand jury or serve on a *785’ petit jury in this State; and that white men are so eligible ; and your petitioner, by reason of his being a colored man and of his having been a slave, has reason to believe and does believe that he cannot have the lull and equal benefit of all laws and proceedings in the State of West "Virginia for the security of his person, as is enjoyed by white citizens, and that he has less chance of enforcing in the courts of this State his rights in this prosecution as a citizen of the United States, and that the probabil- ' ities of a denial of them to him as such citizen on every trial, which might take place on this indictment in the courts of this State, are much more enhanced than if he was a white man. Your petitioner hereby offers to give good and sufficient security for his filing, at the next Circuit Court of the United States for the fourth judicial circuit on the first day of its next session, copies of the processes and proceedings in this case, and likewise offers to give bail for his apperance, if your honor should discharge him from custody (your petitioner being a close prisoner). Wherefore your petitioner, the said Taylor Strauder, prays your honor will make such orders in the premises, as maybe consonant to law, and according to the form of the act of Congress, in that behalf made and provided.
Taylor Strauder.
State oe West Virginia,
Ohio County to-wit:
Taylor Strauder, the petitioner named in the foregoing petition, personally appeared before me, and being duly sworn, says that the facts and allegations therein contained are true. Taylor Strauder.
Sworn to and subscribed before me, the undersigned, this 2d day of November 1874.
John O. Pendleton, Notary Public.
But the court, being of opinion that "the said defendant was not entitled to have his cause removed to the Circuit Court of the United States, for the reasons ap*786pearing in said petition, denied tbe prayer of tbe petitioner, and refused to certify the cause into tbe Circuit Court of tbe United States, and compelled tbe said' defendant to proceed to trial in the circuit court of Ohio county, West Virginia. To which opinion of the court denying the prayer of the said petitioner for the removal of his cause to the Circuit Court of the United States and compelling him to proceed to trial' in the circuit court of Ohio county, West Virginia, the defendant excepted and prayed that this his exception might be signed, sealed and made a part of the record, which is done accordingly. T. MelviN. [Seal].
Bill of Exceptions No. 3.
Be it remembered, That before the trial of this cause the defendant moved to quash the venire facias, and the return thereon, which are in the words and figures following, to-wit:
The State of West Virginia,
To the Sheriff of Ohio County, Greeting:
We command you that you summon thirty good and lawful men of your county, duly qualified to serve as jurors, to be and appear before the Judge of the circuit court of Ohio county, on Monday the 19th day of October 1874, to serve during the said term as jurors for the trial of causes, unless sooner discharged. And have then there this writ.
Witness, Samuel B. McColloch, clerk of our said court, at the court house of our said county, this 18th day of September 1874, and in the 12th year of the State of West Virginia.
Samuel B. McColloch, Clerk
List of jurors drawn by the undersigned, September 18, 1874, to serve at the October term 1874, of the circuit court. Then follows a list of thirty jurors.
Executed by summoning the following drawn jurors:
l John Branstroup, 2 Martin Ewing, 3 Brice Supler, *7874 Jabez Exley, 5 Theo. Darrah, 6 H. N. Hirst, 7 John Barr, 8 David Atkinson, 9. non-resident, 10 Caleb Sylvis, 11 S. Welty, 12 F. M. Porter, 13 James Kerr, 14 Louis Keller, 15 Samuel Kline, 16 John Medick, 17 Louis Wagner, 18 Edward Steele, 19 W. E. Hughes, 20 James M. Todd, 21 Joseph Debold, 22 Louis Meder, 23 Henry Roemer, 24 Geo. Roth, 25 not found, 26 Leonidas Bru-ner, 27 W. F. Carter, 28 Charles Kraus, 29 Jacob Dick, 30 Fred. Werner.
G. W. KENNEDY, D.8.,
October 12,1874. for JR. S. Brown, S. O. C.
Stephen Berry is no inhabitant of my bailiwick, nor found therein October 12, 1874.
G. W. Kennedy, JD. 8.
for JR. 8- Brown, 8. O. C.
J. B. Lyle not found within my bailiwick October 12, ,1874. G. W. Kennedy, TJ. S.
for JR. 8. Brown, 8. O. G.
Because the said writ was not issued according to law, was not formal and was not issued for the trial of Taylor Strauder, the defendant in this cause; because the law, under which it was issued, was unconstitutional, null and void; and further because the return thereon was not made according to law; but the court overruled the said motion, and refused to quash the said venire faeias, to which ruling of the court the defendant excepted, and prayed that his exception might be signed, sealed and made a part of the record, which is accordingly done.
T. MELvrN. [Seal].
Bill of JException JNo. 5.
State of West Virginia, vs. Taylor Strauder.
n. ri , ¿ . Girowit Court for Oh%o County.
Be it remembered, That after the jury had been examined upon their voir dire, accepted and sworn, and after considerable testimony had been taken, on the third day *788of the trial, the counsel for the prisoner approached the judge presiding, and advised him in a low tone of voice, that information had recently been received that one of the jurors, Edward Larkin, had, before being sworn as a juror, expressed an opinion adverse to the prisoner, and showed him and left upon bis table the affidavits of Jamos A. Robinson, the prisoner and his counsel, which affidavits are in the words and figures following:
Circuit Court por Ohio Couniy.
State op West Virginia,
Ohio County, to-wit:
Personally appeared before me, the undersigned, James A. Robinson, who being first duly sworn, deposes and says, that during the latter part of July or the first part of August 1874, Edward Larkin, one of the jurors now sitting and impanelled on the trial of State of West Virginia vs. Taylor Strauder for murder, the said Edward * Larkin was passing my place of business, No. 1050 Market street, in the city of Wheeling; he asked me what I thought ought to be done with Strauder. I replied I did not care what was done with him; what do you think ought to be done with him ? He replied in positive terms: He killed his wife, and he should be hung for it. There were some other words to the same effect, when a customer called, and I had to go into the store, and the conversation ceased. This was about the time the case of Strauder was before the Supreme Court in this city; and I suppose that face brought up or caused the conversation. And further deponent says not.
James A. RobiNson.
Subscribed and sworn to before me, this 4th day of November, 1874. Samuel B. McColloch, Clerk.
State op West Virginia, Ohio -CouNty, to-wit:
State of West Virginia, vs. Taylor Strauder.
Oireuit Court of Ohio County.
Personally appeared before me, the undersigned, Tay*789lor Strauder, the delendant in the above cause, who being duly sworn says, that he had no knowledge of the fact that Edward Larkin, one of the jurors, had at airy time expressed an opinion, or stood otherwise than indifferent on the issues involved in the trial of his cause at the time the juror was sworn, and only at this time for the first time, learns of the facts contained in the affidavit of James A. Robinson filed in this cause.
Taylor Strauder.
Subscribed and sworn to before me this 4th day of November, 1874.
S. B. McColloch, Glerk.
State of West Virginia, Ohio County, to-wit:
State of West Virginia, vs. Taylor Strauder.
Criauit Court of Ohio County. Indictment for murder.
Personally appeared before me, the undersigned, Geo. O. Davenport and B. B. Dovener, counsel for the defendant, Taylor Strauder, in the above case, who being first duly sworn, depose and say, that they had no information of the bias or prejudice of the juror, Edward Larkin, at the time he was sworn upon his voir dire or at the time of his being sworn upon the jury, and that only at this time for the first, are they informed of the facts contained in the affidavit of James A. Robinson, filed in this cause as to the bias and prejudice of the said juror, Edward Larkin. B. B. Dovener.
Gec. O. Davenport.
Subscribed and sworn to before me this 4th day of November, 1874.
Samuel B. McColloch, Clerk.
The State of West Virginia, vs. Taylor Strauder.
In Circyuit Qourt of Ohio County.
Personally appeared before me, the undersigned, Edward Larkin, who being duly sworn deposes and says, that he has read and examined the affidavit of James A. *790Robinson, filed for the defendant in the above entitled cause, that he did not on the occasion referred to in said affidavit, or on any other occasion say to him or any one else, that Taylor Strauder had killed his Avife and should be hung, or any words to that effect; that on the contrary he has never entertained any prejudice or bias towards the said defendant. Edavard Larkin.
Subscribed and sworn to before me this 5th day of January, 3875. R. H. Gillespie, J. P.
But the prisoner and his counsel made no motion based upon said affidavits, or looking to any action on the part of the court relating to the said juror, and the court took no action upon the said affidavits, and alloAV-ed the trial to proceed without any objection' formally made on the part of the prisoner. And after the jury had returned their verdict, the prisoner moved the court to set aside the verdict and grant him a new trial of the cause upon the ground, among others, that the juror Larkin had expressed an opinion hostile to the prisoner, as shoAvn by the said affidavit of James A. Robinson; Avhereupon the State, by its attorney, submitted the counter affidavit of the juror Larkin, which affidavit is in the words and figures following, to-wit:
The State of West Virginia vs. Taylor Strauder.
In the Circuit Court of Ohio County.
Personally appeared before me, the undersigned, Edward Larkin, Avho being duly sworn deposes and says, that he has read and examined the affidavit of James A. Robinson, filed for the defendant in the above entitled cause, that he did not on the occasion referred to in said affidavit, or on any other occasion say to. him or any one else, that Taylor Strauder had killed his wife and should be hung, or any words to that effect; that on the contrary he has never entertained any prejudice or bias towards the said defendant. Edward LarkiN.
*791Subscribed and sworn to before me this 5th day of January 1875. B. H. Giillespie, J. P.
And thereupon the court overruled the motion of the prisoner and refused to grant a new trial of the cause; whereupon the prisoner excepted and asked that this his bill of exceptions be signed, sealed and made a part of the record, which is accordingly so done.
T. Melvin, [Seal.]
Bill of Exception No. 6.
Circuit Court for Ohio County.
State of West Virginia. vs. Taylor Strauder.
Indictment for murder.
the the en-Be it remembered, That on the trial of this cause, defendant moved the court to instruct the jury in words and figures following, to-wit: “If the jury tertain a rational doubt as to the soundness of the mind of the prisoner at the time of the commission of the homicide charged, he is entitled to the benefit of that doubt, as he would be to the benefit of a doubt as to any other material fact in the case, it being under our statute a necessary ingredient of the offense, that the person charged shall at the time of the commission of the offense be of sound mind, although the jury may believe he had judgment and reason sufficient to discriminate between right and wrong in the ordinary affairs of life, even at the time of the commission of the offense, they cannot find him guilty.”
But the court overruled said motion, and refused to give said instruction to the jury; but in lieu thereof gave the following instruction, to-wit: “ To entitle the prisoner to an acquittal, upon the ground that he was insane at the time of the commission of the offense charged in the indictment, such insanity must be proved to the satisfaction of the jury; though in passing upon this question, they may look upon the whole evidence in 'the cause, as well that for the State as for the prisoner.”
*792To which opinion of the court overruling the prisoner’s motion, and denying and refusing to give the instruction to the jury asked for, as well as the giving of the instruction to the jury as aforesaid in lieu of the instruction asked for, the defendant excepted, and prayed that this his exception might be signed, sealed and made a part of the record which is accordingly done.
T. Melvin. [Seal].
Bill of Exception No. 7.
Circuit Court for Ohio Couhty.
State of West Virginia, vs. Taylor Strauder.
Indictment for Murder.
Be it remembered, that after the jury had returned a verdict of “ guilty of murder in the first degree ” in this cause, the defendant moved the court to set aside the said verdict and grant him a new trial upon the several grounds set forth in the bills of exceptions herein marked Nos. 1, 2, 3, 4, 5 and 6, and for the reason that the facts proved, as shown by the certificate of the evidence herewith presented, would not support a verdict of murder in the first degree. (See statement of evidence filed herewith marked “ Certificate of Evidence.”) But the court overruled the said motion, and refused to grant the defendant a new trial, to which ruling of the court the defendant excepted and prayed that his exception might be signed, sealed and made, a part of the record, which is accordingly done.
T. Melvin. [Seal].
Billlqf Exception No. 8.
Circuit Court for Ohio CouNty :
State of West Virginia vs. Taylor Strauder.
Indictment for Murder.
And now, after verdict and before sentence, comes the said Taylor , Strauder, and prays that judgment may be *793arrested, and assigns for cause, because of the uncertainty and insufficiency of the indictment; because the venire facias was informal and not issued according to law, and because there was no proper return thereon; because the jury were not properly sworn; and because it appearing from the record that the defendant was a man of color, and was a slave emancipated by the late rebellion, and that he petitioned to have his cause removed to the circuit court of the United States for reasons appearing on the face of the petition; and because it appears from the record that since his arrest and commitment, more than two terms of the circuit court had been held before the indictment, on which he was tried, was found, and the prisoner, before pleading to said indictment, moved the court to discharge him from custody for that cause; because the juror Edward Larkin should have been withdrawn by the court, at the time his incompetency was suggested by the prisoner; and for other manifest defects in the record appearing. But the court overruled the said motion, and sentenced the defendant to be executed on the 26th day of March 1875, to which ruling and sentence the defendant excepted, and prayed that this his exception might be signed, sealed and made a part of the record, which is accordingly done.
T. Melvin. [Seal].
The certificate of evidence, referred to in the seventh bill of exceptions, shows the following facts were proven at the trial:
Annie Strauder was a negress, the daughter of Barbarra Sly; she married one Gus Green ; be took her to Kentucky and abandoned her, leaving with her two children ; she then returned to her mother in Wheeling, and was divorced from her husband ; about June 1871, she married the prisoner, Taylor Strauder, a negro carpenter; he was a peaceable, quiet, industrious and sober man, but lived unhappily with his wife; his wife was guilty of adultery with different persons, negroes and white men; *794Taylor Strauder, as well as others, strongly suspected ber of being guilty of adultery; and his acquaintances occasionally jeered him about his wife’s conduct. This conduct of hers and the jesting about it by bis acquaintances annoyed Taylor Strauder, and occasioned frequent quarrels between him and his wife, and resulted sometimes in his using violence to her person and threats of killing her. A month or so after their marriage she had him arrested for threatening to kill her; he suspected her of adultery with a negro named Elijah Pullins, who visited her house during his absence, and frequently teased him about his wife’s want of chastity; this led to the difficulty, which resulted in his wife procuring the warrant for his arrest; he was however anxious to settle this difficulty with his wife, and sent an acquaintance to her to bring about a settlement; this acquaintance learned from her what- their difficulties arose from, and urged her not to permit other men, and particularly Pullins, to come to the house at all. The matter was settled and the warrant to arrest him was destroyed ; still they did not live happily together; he treated her well, except when angered by her improper conduct, or teazed about her conduct by his acquaintances. lie would then quarrel with her, and sometimes use violence and threats. About two months after their marriage, and about eight months before she was killed, she threatened to leave him ; and he said he would kill her before she should leave; but the evidence does not show the origin of this difficulty; nor does he then appear to have used any violence to her, only abusive language. On another occasion they had a quarrel on the street, because she insisted on going to a ball, which he thought was no lit place for her to go to, but she would go, and he went after her to bring her away; the bad feeling arising from this lasted for a while, but they were again reconciled. Some five or six weeks before she was killed they quarreled ; he seized hold of her, and she seemed to apprehend that he would kill her; and an officer arrested him. The *795origin of this difficulty is not shown by the evidence, but may be inferred from the Commonwealth’s saying, that at that time Taylor Strauder “first said he loved that woman, and then he was sorry he had not killed her.” These difficulties between them, all apparently having their origin in the same source, seem to have lasted but a short time, when they would be reconciled, and again would have a like difficulty. About two weeks before she was killed, a witness states that he met him, and he seemed to be very unhappy, and told the witness he had something he wanted to tell him ; but the witness, being then in a hurry, did not wait to hear what he had to tell; and he did not afterwards tell him. Two days however before she was killed, they seemed to be entirely reconciled. A witness uses this language: “I was going down the alley, and she called me and I went over, and she was trying to learn him to read. I thought they were sitting very lovin’ there, and I stayed fifteen or twenty minutes. They were actin’ very nice and very well together then.” This was at his (Taylor Strauder’s) house. The night of the next day, April 17, 1872, he was at Miller’s saloon, on Market street, in Wheeling; went there about nine o’clock at night. There were fifteen or twenty negroes there; some of them drunk. They played dominoes in the back room. Taylor Strau-der did not get drunk, but it is probable he drank some; he had some fuss with one of the parties, and something of a fight, in which he was thrown down but not hurt. Afterwards, while in the back room, where games were played, Elijah Pulling said to him : “You damned son of a bitch, you had better go home; I expect there is some one in bed with your wife now.” He feid nothing in reply, but walked out and went into the saloon part of the building. He remained there some time, probably a half an hour, when he asked the keeper of the saloon for his bucket, saying he was going home. It was then about half-past eleven o’clock. Prank Hawley said: “he had better go home, that may be somebody was in bed with his wife *796then, that some one had been sleeping with her.” He ' made no reply, started for his home with Charles Gardner, who went by his house. On his way he did not, by conversation or otherwise, show that he was angry. When he nearly reached his home he said: “he expected his wife would give him hell for not bringing the yeast home.” He went in his house, what occurred in his house that night and afterwards was thus stated by Taylor Strauder, after he was arrested some days subsequently in Pittsburgh. He said: “that as he was going in at his door he saw a white man going out the back door, and that he asked his wife about it, and she denied of anybody being there at all, and they wrangled all through the night about it; and in the morning she got up; she was sitting at the fire putting on her shoes, and there was a hatchet lying there; and he still insisted on this white man being there, and she denied it, and he picked up the hatchet and hit her twice. Then he got across the river and got up in a coal mine, and he started back; but his heart failed him, and he went back up the river, and near Portland he was taken before an officer, but he let him go.” He also stated that his step-child was in the room when he killed his wife; and that he told her that he Avould kill her if she made any noise or got up. This statement made by him is probably in all respects true. It is corroborated by the child, a daughter of his wife by her former husband. She was a child then eight years and seven months old, scarcely as intelligent as children usually are at that age, but disposed apparently to tell truthfully all she knew or could remember. She seemed to have no idea of time or distance. She stated that she and her mother went to bed that night together; that next morning she found she had been put out of the bed on the lounge; that during the night she heard them quarreling about a man being there, she thinks. That her mother was in the rocking chair lacing her shoes next morning after daylight, when Taylor Strauder took the hatchét and killed her, She can not *797remember what had been said before that in the morning by Taylor Strauder or his wife, except he ashed her' where his shoes were, and she told him just where lie put them. She says that, after he struck her mother with the hatchet, he went out, but before so doing, told her to lie still and not hollow, or he would come back and kill her. After a time she got up and went to her mother, who was sitting in the chair dead, and told her to raise her head up, may be she would not die. This was a short time after Taylor Strauder left the house. This child could give ho detailed account of what she saw or heard; but the few things she did-state, she could be made to state but in one manner; and she seemed to be telling truly what she did remember, and refusing to say anything she did not remember. The body of Annie Strauder was found by others about seven o’clock in the morning of Thursday, April 28, 1872; she was sitting up in a rocking chair, leaning over on one of her hands; she was dead, but her body was still warm; there were two wounds on her head, evidently made by blows of a hatchet, which was on the floor three or four feet from Annie Strauder’s body. The pole of it was all bloody, and there were clotted hairs on the hatchet. There was a pool of blood on the floor, which had dripped from her head, as she sat in the chair. There were two wounds on her head, one on the left temple, the other behind the left ear, either sufficient to produce death. A large mass of testimony was certified as taken, but the above is the substance of all that seems material.
On the 9th day of March, 1875, a writ of error was accorded Taylor Strauder to the said judgment of the said circuit court, rendered on the 9th day of January, 1875.
The errors aforesaid, assigned in the petition for the writ of error, will be considered in the order in which they have been presented by the petition. The first error assigned is: “ The court erred in not discharging the prisoner from custody, three terms having elapsed since he was impris*798oned, and no indictment having been found.” A pre- " liminary question arises in considering this assignment of error; is this court, in deciding this point, confined to the consideration of the facts set forth in this first bill of exception's, that is the mittimus of the justice Robert H. Gillespie, dated April 25th, 1872, ordering a special constable to arrest Taylor .Strauder, charged with the murder of Annie Strauder, and ordering the jailor to receive him into custody, that he might be examined for said offense on the 26th day of April, 1872, and the orders of the circuit court of Ohio county showing, that more than two terms of said court had elapsed since the date of said mittimus to the time, when said second indictment was found by the grand jury; or can this court in acting on this question, properly look at the record in this Court, upon the former writ of error. This question is answered by the 7th section of chapter 17 of the Acts of 1872-3, page 58, which is: “The appellate court may, when a case has before been in such court, inspect the record upon the former writ of error.” This provision applies equally to civil and criminal cases.
In Adeoch’s case, 8 Gratt. 661, a motion was made by the prisoner to be discharged from the offense, on the ground that three regular criminal terms of the court had been held,since he was examined and remanded for trial for said offence, without his being indicted for the same. And on the trial of this motion the commonwealth introduced the record of the proceeding under the former indictment for the same offense, upon which a trial had been had, and a verdict of the jury against the prisoner, and a new trial awarded by the judge, because of a variance between the allegations in the indictment, as to the ownership of the goods alleged to have been embezzled, and the proof. The commonwealth had entered a nolle prosequi, to the first indictment, before the finding of this second indictment for the same offence. It was obviously proper in that case to introduce the record in the old case, as a nolle prosequi had been entered in it; and *799the record in it constituted no part of the record in the new case, and could not have been inspected therefore' by the court, unless it had been introduced m proof. In the case before us no nolle prosequi has ever been entered, and the former proceedings constitute a part of the record in this case, which the statute expressly authorizes us to inspect. When inspected, itshows that Taylor Strauder was indicted at the term of the court held on May 20, 1872, within less than one month after the date of the warrant of Justice Gillespie, filed with the first bill of exceptions; and that, at the first and second terms of the court after the indictment was found, the cause was continued tor the prisoner on his motion, and at the third term it was tried, a verdict found against the prisoner, and sentence pronounced against him ; to which he obtained a writ of error, and this Court annulled this sentence, because the court below had refused to remand the prisoner to the county court, that he might be examined for the offense charged. His discharge from custody was asked under the 12th section of chapter 158 of Code of W. Va., p. 715, which provides : “that a person in jail, on a criminal charge, shall be discharged from imprisonment, if he be not indicted before the end of the second-term of the court, at which he is held to answer,” except in certain specified cases. The entire record being inspected in this case, it appears that the prisoner was indicted at the first term of the circuit court after he was arrested. Even if we did not inspect the record of the case as it was before us formerly, the prisoner does not, by the evidence he has adduced, entitle himself to be discharged; for, while he shows that five terms of the court had elapsed since the warrant was issued for his arrest, yet he entirely fails to show what was the return on this warrant, or that he was arrested under it; and looking only to the record brought up to us now, he may not have been arrested under this warrant issued by Gillespie, but for all that appears to the contrary might have been just arrested; *800unless we are to infer his arrest in 1872 from the statement in bill of exceptions number one, that the attorney of the State elected not to try the prisoner under the indictment found at the May term, 1872. And if we should from this draw such inference, it would at the same time show, that he had been indicted at the first term, after which a warrant for his arrest had been issued. It is unnecessary to determine whether his motion, under this section of the Code to avail him, ought not to be made before his-indictment; as in this case, if so made, he would not have been entitled to be discharged from imprisonment. Nor would he, had he asked it, been entitled to be discharged from prosecution for the offense, under the 25th section of chapter 160 of the Code of W. Va., p. 721, which provides for the discharge of a prisoner from prosecution for ever, if not tried within three terms of the court after his indictment, except under certain specified circumstances. In Adcock’s case, 8 Gratt. 661, it was held that, if a prisoner was indicted, tried and convicted in time, and the verdict set aside for a variance between the allegations in the indictment and the proof, such as did not preclude the commonwealth from again indicting the prisoner for the offence, such second indictment, if found promptly after the abandonment of the first, is in good time, and the prisoner is not entitled to his discharge, though more than three terms had elapsed since his examination and former indictment. There was therefore no error of the court in overruling this first motion of the prisoner.
The next error assigned is: that the court “should have quashed the indictment on the prisoner’s motion,” the prisoner also demurred to the indictment and to each count thereof, which the court overruled. No argument is presented by the prisoner’s counsel in this Court for either of these points; and I see no reason why the indictment should have been quashed, or the demurrer sustained. The indictment is in the exact words of the former indictment, the demurrer to which was overruled *801by the circuit court, aud its judgment in so doing sustained by this Court, when the case was before it on the former writ of error, sec. 8 W. Va. 689. There was therefore no error in the overruling by the circuit court of this second motion of the prisoner.
The third error assigned is: that “ the court should have granted the prayer of the prisoner to have his cause removed to the circuit court of the United States.”
The revised statutes of the United States, section 640, under title 13, chapter 7, (see R. Statutes of U. S. p. 114), provide among other things “ when any criminal prosecution is commenced in any state court against any person who is denied, or cannot enforce, in the judicial tribunal of the State, or in that part of the State where such prosecution is pending, any right secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction of the United States, such prosecution may, upon the petition of such defendant filed in said State court at any time before the trial, stating the facts, and verified upon oath, be removed for trial in the next circuit court to be held in the district where it is pending.” And section 1977 of the Revised Statutes of the United States under 24th title “ Civil Rights ” p. 348, provides: “All persons within the jurisdiction of the United States shall have the same right in every State and territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses and executions of every kind and to no other.
The authority of the Congress of the United States to pass these acts, is claimed under the thirteenth and a portion of the fourteenth amendments of the Constitution of the United States, which are in these words: “ Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party has been duly *802convicted, shall exist within the United States at any place subject to their jurisdiction.” And “all persons, born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” And under a general provision applying to both the fifteenth and fourteenth amendments “ Congress shall have power to enforce the provisions of this article by appropriate legislation.”
Before considering the question whether the court erred in refusing to remove this case to the circuit court of the United States on the application of the prisoner, I will consider the true meaning of these amendments of the Constitution, and the acts of Congress passed, as is claimed, by their authority. And first I will consider the question what is the meaning and scope of these amendments of the Constitution. If they do not authorize Congress to legislate, so as to give jurisdiction to the federal courts in such a case as is presented, it will be useless to go further and consider, whether the acts of Congress cited intended to permit the federal courts to take jurisdiction ; for if these amendments to the Constitution do not confer on Congress the power so to legislate, such legislation is unauthorized and void, being unconstitutional. What then is the true interpretation of the first section of the fourteenth amendment of the Constitution above quoted, it being the only one which really has any bearing on the question under discussion ? This first section is divided into four clauses.; the first is: “All persons, born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The evident object of this clause, was to settle *803forever a question, which for many years had been the subject of bitter controversy : whether every person, born in the United States and subject to their jurisdiction, was a citizen. In the case of Dred Scott v. Sandford, 19 How. 393, the Supreme Court of the United States decided that a negro, though he might be a freeman, was not and could not be a citizen. This decision, though disapproved by many lawyers, had never been overruled. By this decision the whole negro race were not only not citizens, but were incapable of becoming so, except by an amendment of the Constitution of the United States. To remove this difficulty was the object of the first clause above quoted ; and it was obviously the principal, if not the whole object of the entire first section of the fourteenth amendment of the Constitution of the United States; the other clauses, as we shall presently see, were principally intended to insure the carrying out of this first clause to its full extent; and if they add anything to its force or scope, such addition is very small and practically amounts to nothing. It is true that Judge Swayne in the case of the United States v. Rhodes, decided in February 1868, by the Circuit Court of the United States for the district of Kentucky, and reported in the American Law Times Reports, vol. 1, p. 23, had decided that all persons born in the United States and subject to their jurisdiction were citizens; and Congress had by the act of April 6th 1866, so expressly declared. But as this act of Congress and decision of the circuit court of Kentucky were in direct opposition to the decision of the Supreme Court of the United States in the Dred Scott case, it was wisely considered that neither this act of Congress, nor this decision of Judge Swayne would ever be acquiesced in as setting aside a solemn and well considered decision of the Supreme Court of the United States. And hence the passage of the fourteenth amendment of the Constitution of the United States. The next clause of this amendment is, - “ No State shall make or enforce any law, which shall abridge the privi*804leges or immunities oí citizens of tbe United States.” This was really no new provision in the Constitution of the United States ; a provision was already in the Constitution, which in effect and almost in words corresponded with this clause. The first clause in the second section of article four of the Constitution provides: “ The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States.” It is obvious on inspection, that the only change made by this second clause is to insert instead of “ citizens of the several States,” in the 4th article, the words, “ citizens of the United States.” The object in making this change of phraseology is obvious. It was not thereby intended to confer on anybody, any new rights privileges or immunities. It had been said by eminent judges, that no man was a citizen of the United States, unless he were a citizen of one of the States of the Union. Those therefore who ‘had been born and resided always in the district of Columbia or in the territories, though within the United States, were not citizens. Whether this proposition was sound or not, had never been judicially decided by the Supreme Court of the United States. A great controversy had been carried on by statesmen as to the character of the government of the United States, and whether any allegiance was due from the people directly to the United States, or whether their allegiance was due only to the states severally. In. view of these difficulties, it seems highly probable that this change of words, the substituting of “citizens of the United States” for “citizens of the several states,” was made to have its effect on these mooted questions. It is unnecessary to determine what effect, of this character, they may have. Its effect, if any of this sort, is a political effect; and a case can hardly arise in which it can become proper for the courts to express an opinion upon its effect in this respect. We can however with great confidence .s,ay that this change of phraseology can have no effect whatever on the rights, immunities or *805privileges of any person whatever. The first clause of the 2d section of article 4 of the Constitution ex-' pressly confers on the citizen of each state all the privileges and immunities of citizens of the several states. And this is all the effect of this provision of the 1st section of the 14th Amendment, so far as it operates on the immunities and privileges belonging to any person. By denying to the states the right to abridge the immunities of the “citizens of the United States,” was evidently meant the denying to a State the right to abridge the immunities of persons having permanent residences in other states, or in the territories, as distinguished from citizens of the state. The rights of the states over its own citizens was not intended to be changed by this amendment-of the Constitution; and a state may now deny to any of its own citizens, any rights and immunities whatever, excepting only such as are protected from violation by express provision in the Constitution of the United States. These rights and immunities thus protected are but few, and are specifically enumerated; as for instance, the right to have one’s contract enforced, which is protected by the provision that no state shall impair the obligation of contracts. It is true that the Congress of the United States, in the passage of the Civil Bights Act, before quoted, evidently assumed that this 14th Amendment had conferred- on the United States powers far beyond those, which this interpretation would confer; and that the states were by this 14th Amendment restricted to a great extent in their power of denying to their own citizens rights and immunities, which had theretofore been considered under the control and protection of the state governments. It is also true that certain of the judges of the Circuit Courts of the United States under unfavorable surroundings, and at times when their judgment was warped by the general condition of the country, have given to this Constitutional amendment, and- especially this clause, a far wider scope than I have indicated. But the'Supreme Court of the United States has disapproved of such *806N’oad construction of this amendment, and lias, witb constantly incréasing clearness, declared these eonstruc-fio ns, whether made by the circuit Judges, State courts, or Congress, were unjustifiable. Their most recent decisions approximate closely to the views I have above expressed. > A few examples of these perverted views of this amendment, repudiated by the Supreme Court of the United States, will be cited. Thus in the case of The State v. Dunlap, decided by the supreme court of North Carolina, in June 1871, reported in the American Law Times Reports, vol. 4, p. 205, it was held that “ an affidavit by a colored man in a criminal case pending in a State court, setting forth, in substance, that by reason of his color and previous condition of servitude, he could not obtain justice in the courts of his State, entitled him to have his case removed into the United States Circuit Court.” In examining this case, it will be observed that the colored man was indicted for murdering a white man as his petition set forth; he also stated in it, that at the time of the alleged homicide, a systematic effort was made by divers persons, members of the democratic party, to produce the impression that the murdered man was killed by the prisoner, and that in killing him he was actuated by political motives; that the officials by whom the jury would be formed, were all democrats; that a colored man was seldom on the jury, which would be composed almost entirely of democrats and under these circumstances he could not obtain justice in the state courts. It is obvious that the circumstances surrounding this case were exceedingly' unfavor-. abtó for obtaining a fair and impartial construction of the constitution or law; and it is therefore not surprising that Chief-Justice Pearson decided as he did. But we had a right to expect him, in rendering such a decision, to make some sort of reference to the Constitution ’ of the United States, apd not content himself, as he did,, with construing the 3d section of the act of Congress of April 9, 1866, which confers exclusive jurisdiction upon *807tbe courts of the United States in all cases, civil and criminal, affecting persons who are denied or cannot eh-force in the state courts, any of the rights secured by-the'' 1st section of that act, among which is the full and equal benefit of all laws and proceedings for the security of persons and property. Had he examined it, he would have found' that the Constitution not only did not authorize the Congress to permit the interference of the Federal courts, because the laws of a state would not be fairly enforced against citizens of the state, because of prejudice, but equally forbid such interference, when the state laws on their face made discriminations against certain of its own citizens; and permitted such interference only when the state laws on thei-r face improperly discriminated.against residents of other states, even though they might be sojourning in the state. Such a decision as was rendered by Judge Pearson may be apologized for by referring to the times in which it was rendered, ■ but can never be justified, much less followed. So too in the case of United States v. Rhodes et al., decided by the Circuit Court of the United States, for the district of Kentucky, in February 1868, reported in the American Law Times Reports, vol 1, p. 23, Judge Swayne decided that the Civil Rights Law of April 6, 1866,- was agreeable to the 13th Amendment of the Constitution of the United States abolishing slavery, and empowering Congress to enforce the same by appropriate legislation ; and that Congress had rightfully thereunder given to colored persons, the same right to testify, as is enjoyed by white citizens, and had also given to the courts of the United States jurisdiction of all causes, civil and criminal, which concern the colored man, whenever the right to testify equally with white men is denied him. The judge in this decision did not, like Judge Pearson, omit to take notice of the Constitution of the United States. To reach his conclusions, as the 14th Amendment of the Constitution had not passed, he had first, to overrule íhé decision of the Supreme Court of the United *808States in the Dred Scott Case; he then had to decide that - the words “ civil and criminal causes ” in the civil rights act did not mean “ civil and criminal cases, ” but causes or matters, out of which cases arose.. This construction was necessary, or otherwise he would have had likewise to have overruled the decision of the Supreme Court in The United States v. Ortigu, 11 Wheat. 467 ; but this nice distinction is overruled by the Supreme Court of the United States, in the case of Blyew v. United States, 13 Wal. 581; and the decision of Judge Swayne, in The United States v. Rhodes, which was cited in that case, was expressly overruled; the entire court concurring in this conclusion, excepting only Bradly and Swayne who dissented. This decision of the circuit court of Kentucky, is worthy of consideration, as one showing in a remarkable degree, the extent to which the judicial mind may be warped by the times and circumstances under which cases are considered. It was rendered before the passage of the fourteenth amendment. And it is difficult to conceive how the amendment abolishing the institution of slavery could possibly have been considered as restricting the rights of the States over any freeman. It left, of course, the rights of freemen exactly where they formerly were, and only declared that all persons should have these rights; but the power of the States and of the Federal Government over the rights of freemen were not, and could not be affected by the thirteenth amendment; yet it was held in this case, that this thirteenth amendment authorized Congress to pass a law, in effect nullifying a law of Kentucky, whereby colored men could not testify against white persons. Such laws existed in many States; and no one had ¡ever questioned the right of the Legislatures to pass them. The Constitution of the United States had in no way prohibited such legislation by the States and all had admitted the right of the States to legislate on this subject as they chose. The thirteenth amendment conferred no rights on any freeman, and could not *809therefore possibly affect the rights of the State to legislate on this subject. And the act of Congress,' so far as it interfered with the acknowledged right of the states, was unconstitutional and void. But Judge Swayne held otherwise. He held' that the simple abolition of slavery by the Constitution conferred on Congress the right to treat as nullities the laws of the states passed with reference to freemen. If Judge Swayne was right, it was worse than useless to pass the 1st section of the 14th Amendment of the Constitution of the United States; for Congress already had all the powers and greater powers than are conferred on it by this section. Even since the passage of the 14th Amendment, it has been decided that a state has a right to exclude from testifying in its courts, apy class of its inhabitants or citizens that it chooses. Thus in California, by statute, Chinese are not permitted to testify for or against white persons; and the supreme court of California has decided that this law is not in violation of the 14th Amendment of the Constitution of the United States: see People v. Brady, 40 Cal. R., p. 198.
In Hobbs’s case, decided September 1870 in the District Court of the United States, for the northern district of Georgia, reported in the American Law Times B., vol. 4, p. 190, Judge Erskin held, that a state law prohibiting marriage was not repugnant to the Civil Bights Bill, marriage not being a contract within the meaning of the Civil Bights Act, and he held further, that such a law was not in conflict with the 14th Amendment of the Constitution of the United States, though he gave a much more comprehensive meaning to that amendment, than is given by some of the state courts, and by the Supreme Court • of the United States. Thus, in delivering the opinion in that case, he says that the first clause of the 2d section of article 4 of the Constitution of the United States applies to citizens removing from one state to another • while he seems to think that language, which we have seen is in substance the same, and almost in the same *810words, when used in the 14th Amendment has a much broader meaning and includes permanent residents of the state as well as citizens of other states. This view however has been repudiated, not only by the Supreme Court, but by state courts. Thus the same decision, in reference to the constitutionality of a state law prohibiting marriage between white persons and negroes, was made by the supreme court of Indiana, in the State v. Gibson, 36 Black R. 389, decided in 1871. But this decision is based upon much more satisfactory reasonings. The conclusion reached by that court, after a careful consideration of the whole subject, is (hat the 14th Amendment of the Constitution of the United States has not in any manner, or to any extent, impaired, we'akened or taken away any of the reserved rights of the states, as they had existed and been fully recognised by every department of the national government from its creation; it conferred citizenship upon all persons born in the United States, and subject to their jurisdiction, and it did no more. These views have, to a large extent, met the approval of the Supreme Court of the United States. In the Slaughter House case, 16 Wallace 36, the Legislature of Louisana had conferred on The Crescent City Live Stock, Landing and Slaughter House Company certain exclusive privileges, denied to other citizens of Louisiana, which was regarded an oppression and unjust to them, and raised the question: whether since the passage of the 14th Amendment of the Constitution of the United States, “can any exclusive privileges be granted to any of its citizens or to a corporation by the Legislature of a state.” It was insisted that such an act was a violation of the 13th Amendment of the Constitution of the United States, as it created “an involuntary servitude.” The court, in its opinion, delivered by Justice Miller, says (page 69): “To withdraw the mind from the contemplation of the grand and simple declaration, of the 13th Amendment, of the personal freedom of all the human race within the jurisdiction of this government, and *811with a microscopic search, endeavor to find in it a reference to servitudes, which may have been attached to' property in certain localities, requires an effort, to say the least. That a personal servitude was meant is proved by the use of the word: 'involuntary,’ which can only apply to human beings.” - The court deemed it unnecessary to say anything more upon the application of this article of the Constitution to the Louisiana statute; the 13th Amendment of the Constitution, in their judgment, evidently had no bearing on the case. The court, in considering the meaning and effect of the 14th Amendment of the Constitution, says: “That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, 'subject to its jurisdiction,’ was intended to exclude from its operation children of ministers, consuls and citizens, or subjects of foreign states, born within the United States,” page 73; with reference to the next clause, the court says: “The language is, no state shall make or enforce any law that shall abridge the privileges or immunities of citizens of the United States. It is a little remarkable, if this clause was intended as a protection to a citizen of a state against the legislative power of his own state, that the words, 'citizen of the state,’ should be left out, when it is so carefully used, and used in contradistinction from 'citizens of the United States,’ in the very sentence which precedes it. It is too clear for argument that the change in phraseology was adopted understandingly and with a purpose.” The circuit court of Northern Georgia, in the case above cited, seems to have lost sight of what seems so clear to the Supreme Court. The conclusion of the Supreme- Court is, that “the privileges and immunities belonging to citizens of a state, as. such, must rest for their security and protection where they have heretofore rested; for they are not embraced by this paragraph of the amendment,” and again it says: “with very few exceptions, the entire domain of the privileges and immunities of *812citizens of the States lay within the constitutional ' and legislative power of the States, and without that of the Federal Government. Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal Government? And when it is declared that Congress shall have power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States? All this must follow from the construction insisted upon. Such construction would constitute this Court a perpetual censor upon all legislation of the States on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with these rights, as they existed at the time of the adoption of this amendment. The argument, we admit, is not always the most conclusive, which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and prevailing, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.”
The next clause of the first section of the fourteenth amendment is: “Nor shall any State deprive any person of life, liberty or property without due process of *813law.” The court in reference to this says: “this paragraph has been in the Constitution since the passage oí the fifth amendment, as a restraint upon the Federal power. It is also to be found in some form of expression in the Constitutions of nearly all the States, as a restraint upon the powers of the States. This law then has practically been the same as it now is during the existence of the government, except so far as the present amendment may place the restraining power over the States in this matter in the hands of the Federal government.” It was held by the court that this provision could in no manner effect the question under consideration.
The only remaining clause in this 1st section of this 14th Amendment of the Constitution's: “Nor shall any state deny to any person within its jurisdiction, the equal protection of the laws.” Upon the true meaning of this clause, the Supreme Court of the United States, in the Slaughter House case, says but little; they seem to regard it as obvious that the case before them, the giving of exclusivé privileges to some citizens of a state by a state law, which was denied to others, was no violation of this provision; and that its operation and effect would probably be confined to very few cases; they use language which implies that it ought probably to be confined to the single case of legislation directed against negroes as a class. The language used is: “We doubt very much whether any action of a state, not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision. . It is so clear a provision for that case and that emergency, that a strong case would be necessary for its application to any other. But as it is a State that is to be dealt with, and not alone the validity of its laws, we may safely leave the matter until Congress shall have exercised its power, or some case of state oppression, bv denial of equal justice in its courts, shall have claimed a decision at our hands.” I can see *814no reason why the court should have considered that "under this provision of this Amendment, “it was a State-that was to be dealt with, and not alone the validity of its laws,” any more than under the preceding paragraph, which provides that, “no State shall deprive any person of life liberty or property, without due process of law,” or any more than under numerous other provisions of the Constitution, such as those contained in the 10th section of article 1, where it is said no State shall do a number of things enumerated — all these restrictions on the powers of the state have, so far as I know, been enforced simply by regarding acts, done in violation of these provisions, nullities; and I see no reason why the provisions of the 14th Amendment of the Constitution should not be so construed and enforced. Again, the court seems to think a much stronger case of unjust discrimination by a State against any class of its inhabitants, such as Chinese, Catholics, Mormons, naturalized foreigners or women, would be required to be made out, before a case could come within the purview of this provision in the fourteenth amendment, than would have to be made out if the discrimination were against negroes. I can not believe that the States, which adopted this amendment, designed thereby to secure to the negroes any rights or privileges, that were not equally secured to all others. It is true that the occasion for this provision and all the other provisions of the thirteenth and fourteenth amendments was the supposed necessity of protecting the negro ; but special care was taken to extend these provisions to all persons whatsoever. The language is as broad as it possibly can be: “ No person' shall be denied the equal protection of the laws.” A Chinaman or a naturalized foreigner or Roman Catholic is obviously under this provision entitled to this equal protection of the laws to the same extent as a negro ; and though the Supreme Court has used this language, I can not believe, when the case arises, that they can, or will, in any decision they may render discriminate *815against others in favor of the negro. If they had held the law of Kentucky, forbidding a negro to testify for or against a white person, unconstitutional, they would assuredly have held the law of California, prohibiting a Chinese to testify for or against a white person, also unconstitutional. From the general tenor of the decisions of the Supreme Court, it is fair to conclude that they regard the position taken by the supreme court of Indiana, if not entirely sound, as substantially so; and that the thirteenth and fourteenth Amendments of the Constitution of the United States have little or no other effect, than to abolish slavery and declare á negro a citizen, when born in the United States; and that the powers of the State Legislatures over the civil rights, privileges, duties, or immunities of any and all of.pts citizens, whether ne-groes or whites, remain as they always were; and that no power with reference to these rights is conferred by Congress on the Federal judiciary. This decision of the Supreme Court has since been followed up by others, based on the same views of the meaning of these Amendments of the Constitution. Thus in Bradwell v. The State, 16 Wall. 130, the court decided that the decision of the supreme court of Illinois, that a woman resident in Illinois ought to be refused a license to practise law in the courts of that state, by the law of that state, was no violation of the 14th Amendment of the Constitution of the United States, basing that decision on the broad ground that, no matter what laws a state may pass relative to its own citizens, their rights or immunities, such law would not violate this amendment of the Constitution; and .on these principles, any state could prohibit a Chinese or a negro, or a white man, resident in the state, from practicing law or sitting on a jury, or giving evidence in its state courts. In the same spirit, the 3d and 4th sections of the act of May 31, 1870 (16 Stat. 140), providing for the punishment of state officers of election and others, was pronounced unconstitutional by the *816Supreme Court, in the case of the United States v. Reese et al., 2 Otto p. 215, the same not being regarded as “appropriate legislation,” within the meaning of the fifteenth Amendment of the Constitution. And in the United States v. Cruikshank, 2 Otto R. 542, the Supreme Court decided that the fourteenth Amendment of the Constitution of the United States prohibits a state from depriving any person of life liberty or property, without due process of law, and from denying to any person within its jurisdiction the equal protection of the laws; but it adds nothing to the rights of one citizen against another. It simply furnishes an additional guaranty against the encroachment by the states upon the fundamental rights, which belong to every citizen as a member of society. The duty of protecting all its citizens in the enjoyment of an equality of rights was originally assumed by the states, and it still remains there.
I will follow the example of the Supreme Court of the United States in the Slaughter House oases, 16 Wal. 81, and not undertake to state my views of the cases, to which the last clause of the first section of the fourteenth amendment may apply, till some case arises of oppression by the State, by the denying of equal protection of the laws to some person within its jurisdiction ; and content myself, as they did, with saying that we find no such ease in the one before us. For this is obviously no such case. The prisoner has not been denied the equal protection of the laws of West Virginia. It follows from the case of Blyew v. The United States, 13 Wal. 581, that in the opinion of the Supreme Court, the prisoner could not be regarded as being denied the equal protection of the laws, if white persons had been, as they were, permitted to testify against him, even if our State laws had prohibited, which they do not, a negro to testify in an exactly similar case against a white prisoner on trial. And surely if this be the case, the mere prohibition of negroes to sit upon the jury which tried him can not be regarded as the denial of *817equal protection of tbe laws to him. The negro has no more right to insist upon the equal protection of the' laws, than a Chinaman or a woman. And surely it will not be pretended that a State, which by its laws, prohibits a Chinaman or a woman from sitting on a jury, does thereby deny to a Chinaman or woman, who is being tried for a felony the equal protection of the laws. Has not a woman as much right to insist that a State, by its laws, must permit her to be defended by a woman as her counsel, as she has to insist that women should be allowed to sit on a jury which tries her. And yet the Supreme Court of tbe United States decided in the case of Bradwell v. The State, 16 Wall. 130, that a State has a right to prohibit women from acting as counsel in any case. I agree with the Supreme Court in the Slaughter House cases, that it is doubtful whether in the future, any action of a State is likely to occur, which will ever beheld to come within the purview of this last clause of the 1st section of the 14th Amendment, prohibiting a state to deny to any person the equal protection of its laws. But I cannot think that a state is likely to bring .a case within the purview of this provision, by discriminating against the negro in such manner as to deny to the negro the equal protec-tiod of the laws, as it has been heretofore interpreted. And as I have before said, I believe the interpretation of this provision ought and must be the same, whether applied to negroes, Chinamen, women or other persons. I know of no state law which has been passed since the adoption of this .Amendment of the Constitution which violates it by thus discriminating against negroes; and though there have been some state laws, even in our own state, which would perhaps be regarded as violating this provision of the Constitution of the United States, yet they were directed not against negroes but against white persons. They have however been repealed, and it is not likely that such acts will ever be again passed by any state. It is confidently believed that no such acts ' *818will be ever again enacted in this State. An example of this sort of legislation may be found in the act passed February 28, 1865, and re-enacted in the Code of West Virginia of 1868; see Code of West Virginia, chapter 136, sections 10, 11, 12 and 13, page 645. This act prohibited any person who had abetted the Confederate States from suing a person who had remained loyal to the government of the United States.
The views I have expressed show clearly, that in the case before us, the circuit court did not err in refusing to order the removal of this case to the United States Court for trial. The prisoner in his petition based his application for such removal on two grounds : first, because a false impression prevailed throughout the State of "West Virginia, that colored men are not entitled to the same protection in the marital relation as white men. This amounts to an allegation that prejudices exist in this State relative to negroes, that would injuriously affect him, if he were tried before the State courts. It is obvious from what has been said, that in my opinion this gives him no right to have the trial of his case removed to the Federal court. If it did, any citizen of this State, white or black, could at his pleasure on affidavit remove any case, civil or criminal, from the State to the Federal courts. The other ground, alleged in the petition for the1 removal of the cause to the Federal court, is that under the laws of West Virginia none but white persons are allowed to serve as jurors, and therefore he being a negro has not the equal protection of the laws. We have seen that in the trial of a citizen of this State for an offense committed in the State against her laws, the prisoner could in no case have a right to have the trial removed to the Federal court; the fourteenth amendment not being intended to protect the citizens of any State against unjust legislation by their own State. In the particular case before us, I can not see why a jury of white men would not be quite as likely to do justice to the prisoner as a jury of negroes; but if it were otherwise, it would *819give him no right to have his case removed to the Federal court for trial.
The third error assigned is, that “the circuit court ought to have quashed the venire facias, issued for the trial of the cause, on the motion of the defendant/’ The venire facias was a summons, issued by the clerk of the court, directing the sheriff to summon thirty good and lawful men, duly qualified to serve as furors, to be and appear before the court on October 14, 1874, to serve during the term as jurors for the trial of causes, unless sooner discharged. It was dated September 18, 1874, and-was accompanied by a certificate of a list of thirty jurors, drawn by the clerk of the county court, on the 18th day of September 1874, to serve at the October term 1874 of the circuit court, which certificate was signed by the clerk of the county court, Robert B. Woods, and witnessed by him in his official capacity. And the summons was returned by the sheriff, executed by summoning twenty-eight of the jurors, whose names are given, and returning the other two as non-inhabitants, the return being dated October 12, 1874. It is insisted by the prisoner that this summons was. irregular, that the 3d section of chapter 47 of the .acts of 1872-3, p. 703, provides how a venire facias should have been issued, and that these directions have not been pursued; and that under this section the venire facias should have been issued-for the trial of this case specially, and not for the trial of causes generally. It is unnecessary to consider how a venire facias for the trial of a felony case, under this section, should be issued, as it is obvious from the face of the record in this case, as set forth in the third bill of exceptions, that this summons was not issued under this third section. The 6th section of said act provides, that should the county court choose, another and different mode of summoning juries for the trial of criminal and civil causes in the courts of the county might be resorted to. The mode, thus prescribed, requires the county court to prepare a list of persons qualified as jur*820ors, whose' names are placed in a box, from which are to "be drawn, at least twenty days before the term of any court, the names of thirty jurors, and that the list should be given to the sheriff who has in hand the summons or venire facias. The mode of doing this is given in great detail in said act. The record shows that this mode of obtaining the jury was resorted to in this case. The summons or venire facias is pursuant to the 11th section of the act. The certificate of the county clerk shows that the jurors were drawn, and the list was furnished the sheriff, as provided for in the 15th section of the act; and it was returned pursuant to the 14th section of the act. The face of the record shows no irregularity in the venire facias, or in its return. It is true no proof was offered to show, that all of the provisions of this act for summoning a jury had been complied with by the county court, or the various officers on whom duties in connection therewith were devolved by said act. But this was clearly unnecessary. It will be presumed that all these details have been properly pursued, unless the prisoner making the objection to the venire facias shows, that they have been violated to his injury in some respect. In the present case he has failed to show, that they have not been fully complied with; and so far as the record speaks on the subject, they seem to have been complied with; and when it is silent it must be presumed that the provisions of the law have been obeyed.
The fifth error assigned was the failure of the court to quash the panel of jurors on his challenge of the array for reasons set forth in the fourth bill of exceptions; but no reasons were assigned for quashing the panel except those already considered by me; and they were, as I have shown, insufficient.
The sixth error assigned is : “ that the court should have withdrawn the juror, Edward Larkin, after the discovery of his incompetency.” The facts, on which this assignment of error is based, are set forth in the fifth *821bill of exceptions. The facts are, that after the jury had been examined on their voir dire, accepted and sworn,' and after considerable testimony had been taken, on the third day oí the trial, the prisoner’s counsel showed to the Judge privately the affidavit of one James A. Robinson, that about the first of August 1874, Edwin Lar-kin, one of the jurors, in passing his place of business, asked him what ought to be done with Strauder? That affiant replied, he did not care what was done with him ; and asked him (Larkin) what he thought; he replied in positive terms: he killed his wife and should be hung for it; also Taylor Strauder’s affidavit and that of his counsel, that they had just learned, that Edward Larkin had expressed any opinion, or had any bias in the case.
The court further certified that the prisoner and his counsel made no motion based upon said affidavits, or looking to any action on the part of the court, relating to said juror; and the court took no action and allowed the trial to proceed without any objection formally made on the part of the prisoner. And after the jury had returned their verdict, the prisoner moved the court to set aside the verdict and grant him a new trial, in part because Larkin was an incompetent or improper juror, when the attorney for the commonwealth submitted the counter affidavit of Larkin, and the court refused the new trial. This counter affidavit was that he did not on the occasion referred to, or on any other occasion, say to Robinson, or any one else, that Taylor Strauder had killed his wife and should be hung, or words to that effect; but on the contrary, he had never entertained any prejudice or bias towards Taylor Strauder.
I am clearly of opinion, that the court did not err in its action in this matter. If neither the prisoner nor his counsel had ever heard of Larkin having expressed an opinion, till after the verdict, it is clear, upon the authority of The State v. McDonald, 9 W. Va. 456, that the court ought not to have granted the prisoner a new trial on the facts above stated. In *822that case, one of the jurors had sat upon the grand jury that indicted McDonald. On his voir dire, he stated that he had not made up or expressed an opinion as to the guilt or innocence of prisoner, and that he had not been a member of the grand jury who found the indictment against the prisoner. The prisoner and his counsel discovered after the verdict, that this juror had been upon the grand jury. The state made no effort to explain why the juror had so acted and sworn; yet this court, after a careful review of the Virginia authorities on the subject, sustained the judgment of the circuit court in refusing to grant a new trial, under these circumstances; the prisoner failing to show that he suffered injustice from the fact that the juror served upon the jury. In this case the record fails to show that the prisoner suffered injustice from Larkin being on the jury ; and the facts shown are far weaker for the prisoner than those shown in McDonald’s case. I am further of opinion that the case of the defendant is weakened, rather than strengthened, by the fact that he was aware of the state- , ment, that Robinson would make, before the case was submitted to the jury, and made no formal motion to the court to exclude him from the jury. It was not the duty of the court to act upon the ex parte affidavits shown ir, without any motion and without affording the attorney for the commonwealth an opportunity to contradict them; and the prisoner having made no motion to exclude Larkin from the jury, he cannot be heard to complain of his having served after the rendition of the verdict.
The next error assigned is, that the court erred in refusing the instruction asked for by the prisoner, and giving the instruction it did in lieu thereof to the jury. The instruction asked by the prisoner’s counsel and refused by the court was: “ If the jury entertain a rational doubt as to the soundness of the mind of the prisoner at the time of the commission of the homicide charged, he is entitled to the benefit of that doubt, as he would be to the benefit of a doubt as to any other material fact in the *823case (it being under our statute a necessary ingredient of the offense, tbat the person charged shall, at the time of' the commission of the offense, be of sound mind) although the jury may believe he had judgment and reason sufficient to discriminate between right and wrong in the ordinary affairs of life, even at the time of the commission of the offense, they cannot find him guilty.” And the instruction given in lieu thereof by the court was : “ To entitle the prisoner to an acquittal upon the ground that he was insane at the time of the commission of the offense charged in the indictment; such insanity must be proven to the satisfaction of the jury, though in passing upon this question, they may look at the whole evidence in the cause, as well that for the State as the prisoner.” The instruction as given by the court is in almost the words of Judge Moncure in delivering the opinion of the court in Boswell’s case, 20 Gratt. 875. There is unquestionably respectable authority to the effect, that all the proof, required to repel the presumption of sanity is only so much as would raise a rational doubt of the sanity of the prisoner at the time of committing the act charged upon him : See People v. McCann, 16 N. Y. 58; Ogleton v. State, 28 Ala. 692; State v. Bartlett, 43 N. H. 224; Polk v. State, 19 Ind. 170; Hopps v. State, 31 Ill. 385; also Chase v. People, 40 Ill. 358. But on the other hand the weight of authority, English and American, is that insanity must be proven to the satisfaction oí the jury, to entitle the prisoner to an acquittal; and that it is not sufficient that the evidence raises a rational doubt of the prisoner’s sanity at the time he committed the offense, &c. See Rex v. Stokes, 3 C. & K. 138; Rex v. Taylor, 4 Cox C. C. 155; State v. Bringer, 5 Ala. R. 244; State v. Stark, 1 Strobh. R. 479; State v. Hutting, 6 Benn. R. 474; State v. Starling, 6 Jones’s R. C. R. 471; State v. Spencer, 1 Zabr. R. 202; State v. Bonfunt, 3 Menn. R., 123; State v. Brandon, 8 Jones N. C. R. 463; People v. Myers, 20 Cal. R. 518; Com. v. Eddy, 7 Gray R. 583; Com. v. *824Rogers, 7 Met. R. 500. Moncure, President, in deliver- ' ing the opinion of the court in Boswell’s case, 20 Gratt. 875, cites all these cases, and after reviewing them, concludes, that “insanity, when relied on as a defense to a charge of crime, must be proven to the satisfaction of the jury, to entitle the accused to an acquittal on that ground; though such proof may be furnished by evidence introduced by the commonwealth to sustain the charge, as well as by evidence introduced by the accused to sustain the defence.” This conclusion is, I think, sustained not only by the weight of authority, but also by sound reason. When the state proves the corpus delicti, and 'that the act was done by the accused, it has made out its case. And if the prisoner relies on the defense of insanity, he must prove it to the satisfaction of the jury. This rule is necessary to protect the public interests, and is just to the accused. I think therefore the circuit court did not err in refusing the prisoner’s instruction, and in giving the instruction it did in lieu thereof.
The last error assigned is : the refusal of the court to grant a new trial, or arrest the judgment on the motion of the defendant. All the grounds upon which such motions could be based have been reviewed already and found insufficient, except upon the ground alleged that the evidence was insufficient to justify the verdict. It is unnecessary to review this testimony; it is sufficiently set forth in the statement of the case, to show its general character, and the material facts on which the jury found their verdict. I will however note a few of the most prominent facts, which tend to show the degree of the murder. The evidence shows, that, however annoying the conduct of his wife may have been, he was, as proven by prisoner’s witness, entirely reconciled to her two days before he killed her. They were then seen sitting together for some time on the porch of his house ; in the language of the witness, “they were sitting there very lovin’, they were acting very nice and very well together. She was trying to learn him' to read.” The *825night preceding her hilling, though jeered by his acquaintance on account of the want of chastity of his wife, in disgustingly coarse language, he apparently took no offense at it, showing no anger and remaining, where he was liable to be thus jeered, a considerable time after the jeering commenced.. He went to his home about half-past eleven o’clock at night; on his way there he neither in his manner nor by his conversation showed, that the jeering of him by his acquaintances had either angered him or seriously annoyed him. He seems to have become so accustomed to it, that it annoyed him much less than it had done, when it commenced some months before. On entering his house, he saw, or thought he saw, a white man pass out of the back door. He charged his wife with being with this man; she denied that any man was there ; they wrangled about it during the night. In the morning they got up, and she was sitting in a chair lacing her shoe, when he again charged her with having been with this man, which she denied; we do not know exactly what he said, or what she said in reply; but Avhatever it was, it so provoked him, that he took up a hatchet and struck her oh the head two severe blows, of which she died in probably less than an hour.
The evidence did not even raise a rational doubt of his sanity. And the verdict of the jury that he was guilty of murder in the first decree, was justified by the evidence. The circuit court properly overruled the motion for a new trial, and the motion in arrest of judgment.
The judgment of the circuit court pronounced on January 7, 1875, that Taylor Strauder be hanged, must for these reasons be affirmed.
Judges Haymond, Moore and JOHNSON concurred.JUDGMENT Affirmed.