This case comes here on the report of the circuit judge, before whom it was tried. The defendant was indicted for murder, and by the jury found guilty of manslaughter. The judge having doubts as to the correctness of his ruling, upon some of the questions which arose at the trial, reported the case to this court, according to the statute.
The first point to be decided, is in regard to the correctness of the ruling, in admitting proof of the dying declarations of the deceased.
It appears from the report, that a witness was introduced by the prosecution, and interrogated as to these declarations. The questions were objected to by the defendant’s counsel, on the ground that no foundation had been laid for the introduction of the testimony, by showing that the *494deceased was conscious, when he made the declaration, that he could not survive.
The witness was then questioned upon that subject, and answered that the deceased was conscious at the time that he could not survive. The court then decided that the declarations might be proved. Before the witness testified farther in regard to them, it appeared that they were reduced to writing at the time they were made ; the counsel for the defendant then objected to thd evidence concerning them unless the writing was produced. The writing was then produced, and went to the jury as evidence.
We think the ruling of the court upon this subject was correct. The general doctrine in regard to the admissibility of dying declarations in evidence is well settled. When made under a sense of impending death, they are proper testimony to go to the jury to show the cause of death, but are not evidence of any other fact.
It appears further from the-report, that after the evidence upon this subject had gone to the jury, other testimony was introduced in regard to the condition of the deceased when the declarations were made, and the circumstances under which he made them. Upon this subject the court charged the jury in substance, that if the deceased, at the time he made the declarations, was conscious that he could not survive, they were evidence for the juxy to consider; but if he was not conscious of impending death — if he had then a hope of recovery, they must be excluded from the consideration of the jury. The court also charged the jury, that they were to consider whether the deceased, at the time when the declarations were made, had such possession of his reasoning faculties, as entitled his declarations to credit.
We think the charge of the court upon this subject was correct. The question as to whether the declarations shall go to the jury, is one for the court to determine. Rex v. Hux, 1 Stark. 521; and in order to make them admissible, the case *495on trial must be one of homicide, “ when the death of the deceased is the subject of the charge, and the circumstances of the death are the subject of the dying declarations.” Rex v. Mead, 2 Barn. & C. 605.
In this case a witness testified, before proof of the declarations was received, that they were made when the deceased was conscious that he could not survive. This was sufficient to lay the foundation for proof of them, and afterwards, when farther testimony upon this subject had been received, the court properly left it to the jury to determine what weight should be given to the declarations, in view of all the circumstances under which they were made. Greenl. Ev. 160.
The court further reports that he was asked to charge the juiy as follows: ‘ ‘ That if there is a doubt whether he died in this county or in the county of Wabashaw and territory of Minnesota, that this doubt should be resolved in favor of the prisoner; that, so far as the above point is concerned, it is immaterial whether the courts of this state have jurisdiction over the entire Mi^issippi or not; that the allegation that the death took place in this county must be proved by the prosecution, or the defendant will be entitled to an acquittal.” This the court refused to do, but, upon this subject, charged the jury as follows:
“As to the venue, I think, although it is, so far as I am aware, a new question in our courts, it would be sufficient if it be proven that the mortal wound was given in this county, if the deceased died anywhere upon the Mississippi, within the jurisdiction of this state, and neither above nor below the county line bordering upon the river.”
We think the charge of the judge correct. The constitution of the state, Art. 9, § 1, provides that this state shall have concurrent jurisdiction on all rivers and lakes bordering on this state, so far as such rivers or lakes shall form a common boundary to this state and any other state or territory.
The judge further reports, that before the jury had been *496sworn, but after they had been accepted by the counsel for the prosecution and by the defendant, the defendant asked leave to challenge peremptorily a juror, he not having challenged the number allowed by the statute. This the court refused to permit him to do.
A majority of this court think that this ruling was correct. The cases cited by the counsel for the prosecution show that in two of the states the practice is hot to allow a defendant in a criminal prosecution to challenge a juror peremptorily, after he had been accepted, while in Massachusetts it appears that the privilege must be exercised before the juror is examined. Commonwealth v. Rogers, 7 Met. 500. An examination of the authorities shows that the practice is different in different states, and has not been uniform in the same courts.
The judge further reports, that he refused to permit the defendant to put certain questions to the grand jurors, for the purpose of establishing a cause of challenge for favor, and restricted him to the causes of challenge enumerated in the statute. The statute referred to, Laws of Wis. Ter. 269, § 14, provides that a person held to answer to any criminal charge, may object to the competency of a grand juror, before he is sworn, on the ground that he is a prosecutor or a witness on the part of the prosecution.
The question which the defendant proposed to put to the jurors did not relate to either of the causes of challenge mentioned in the statute, and the court decided correctly in refusing to allow them to be put to the jurors. Tucker's Case, 8 Mass. 286.
The judge further reports, that he refused to allow the defendant to challenge the array of grand jurors, for the reasons set forth in his motion, which are, that fifteen jurors were summoned by the sheriff, by order of the court, to supply a deficiency in the regular panel; that the court did not order the list of grand jurors called, for the purpose of ascertaining how many were in attendance, but ascertained from the report *497of the sheriff that only eight were present; that the jurors thus summoned were taken from the county at large, and that the sheriff was the son of the prosecuting attorney.
We think that the decision of the court was right. It is not claimed that, in point of fact, there was not the deficiency of jurors to be supplied, which the court ordered the sheriff to supply, but it is said that he did not ascertain the deficiency in a proper manner. The statute provides that, in case of a deficiency of grand jurors in any court, writs of venire facias may be issued, etc. If the deficiency in fact existed, and the court was satisfied of its existence, it was its duty to award a venire facias, as was done in this case. The statute is silent as to the mode of proceeding to ascertain the deficiency. It is no objection that the jurors, who were summoned by the sheriff, were not drawn, but were taken from the county at large. The statute was complied with, if the persons summoned were such as were qualified by law to serve; nor do we think that the fact that the sheriff who summoned them was the son of the prosecuting attorney constitutes an irregularity which would justify the challenge.
The judge further reports, that he refused to permit the defendant to challenge the array of petit jurors for the reason that the sheriff who summoned the jurors was the son of the prosecuting attorney, and, as was alleged by the defendant, not indifferent between him and the prosecution.
The fact that the sheriff was the son of the prosecuting attorney is, of itself, no cause of challenge, and we are not informed that any proof was offered to the court to show that the sheriff was not indifferent. A challenge to the array of petit jurors, for the reason of the partiality of the sheriff who summoned them, unaccompaxfied by any offer to prove the partiality alleged, it was clearly the duty of the court not to allow.
There is another matter reported by the judge, and that arises upon the indictment.
*498It appears that objection was taken to the indictment, because it charges the defendant Garrieron with giving the mortal wound, in two counts, and one David Lefly with being present, aiding and abetting; while, in another count, Lefly is charged with giving the mortal wound and Garrieron being present, aiding and abetting. It will be seen that they are both charged as principals, and there is no incongruity in charging the offense in this way. 1 Chit. Crim. Law, 256. We see no reason for arresting the judgment.