delivered the opinion of the court.
At a special term of the circuit court for the-county of Crawford, holden on the 16th day of August, 1837r the grand jury of that county found an indictment against Mary for the murder of a child of a Mr. Rrinker. There are two counts in the indictment; the first lays the killing to- be done with a stick of wood by beating; the second charges the killing to be done by drowning. On not guilty pleaded the jury found a verdict of guilty gen-ally on both counts, and judgment of death was pronounced on the prisoner by the court. The- case is •brought here by appeal.
The first objection taken to the proceeding is, that the order of the circuit judge, for holding the special-court, *s erroneous and void. The act requires the judge, on being informed that there is a person in custody, charged’, with crime, to make an- order for holding a special' the circuit court. The act does not say to whom. the order is to be directed-, nor on whom to be made. Ire this case Judge Evans made the order to the clerk.. It is-howevei’, that the writing in..this case does not expressly order that a court shall be-holden, but-only sayS a court will be holden. I am of- opinion that the substance of the law has been complied'with, though the order is not entirely formal.
The next objection taken by Brickey and Cole for the aPPe^ant' is> that by law the cQurt:had no power to cause a grand jury to be- supyponed tp. the- special term, but. *79that the indictment must be found by a grand jury summoned to the regular term of the circuit court, and that when an indictment is so found, and the prisoner is after-wards arrested and committed, the judge can only make an order to hold a special term of the court. To dispose of this objection, it becomes necessary to look' into the law authorizing the special term of the court. By the 48 th section of the 1st article, of the act respecting revised Code, 139) it is enacted, that the judge of any circuit court may at any time hold a special term for the trial of persons charged with crime and confined in jail, by making out a written order to that effect and mitting it to the clerk, who shall enter the same upon the-record of the court. The act then makes some other provisions preparatory to the holding of the court, but says nothing about summoning either a grand or petit jury. In the case at bar, the clerk, on the reception of the judge's, order, made out a writ to the sheriff of the county,requiring him to summon a grand jury, was done. This grand jury found the indictment on which the prisoner was convicted. I am of opinion this grand jury was a legal one, ánd my reason is this: the words and substance of the 48th section, above named, require this interpretation to give effect to the obvious intent of the legislature. The section says “ the judge of any circuit court may at any time hold a special term for the trial of persons charged with crime and confined in. jail, by making an order,” &c. The argument of counsel is, that the words “ charged with crime and confined in-jail,” mean that the court can only be ordered where the-person is charged on the oath of a grand jury) arrested and in jail on that charge. I admit that an indictment by a grand jury is a charge of crime; but it also; seems to me that where a person is charged on the oath of some-witness, and a warrant is issued, and a party brought before a magistrate and by him committed to prison for safe keeping, that such person is charged with crime in. solemn form of law, although it is true that a charge by indictment makes the- 'charge still more solemn. The statute law nowhere expressly declares to what court the grand jury shall come. But I think the grand jury must come to the court having power to try the offence; and in this case, the law having given the power to the special court to- try the person charged with crime, all the means necessary to accomplish the end are necessarily given. It seems to me, therefore, there is no error on this point.
Quero. In an dictment for mur-ingufhave been .occasioned by beating^wab o other count all eg-es it to have been occasioned by the jury1InTa general verdict fhatYt'woulcfbe13 aafer for °the jury to specify under which count guilty. „ , . , , .capital offence, after the evidnce on behalf been closed and none offered by defendant, by andS with leave of the.court,the jury until ínornin^on the re^pening’of the ct. the coun-reexamined some wimessea for the prosecution that ^"beforeEndin' troduce^s’ome ditional ones. Held, to he error,The next objection taken by counsel is, that the court •erred in refusing to arrest the judgment. One count in the indictment charges that the offence svas accomplished by the prisoner beating the child to death with a piece of wood, and the other .count charges that the death was occasioned by drowning, and the jury have both charges-to be true; which the .counsel say is a repugnancy, and that the verdict is-therefore void. -I am of opinion that the child could not come to its death by both these modes. If the child was beaten with the stick in such manner that it must inevitably die in a sjj0rt time by the wound, yet if it were in that condition thrown into water deep enough to drown it, and it thereon strangled and drowned, I should say that drowning was the mode of the death, for as long as the child lived after the beating the death could not be said to have yet been produced by the beating. If two causes be opera-at ^ same time on a subject, either <of which is en-;firely sufficient-to produce .a given end in time, and one gets in advance of the other, and the result then takes the approximate cause may safely be supposed to produce the end. I think the jury m this case should have been sent back to make up their -mind on which -count of the indictment the defendant was guilty, as she might be guilty on effher, but could not have murdered by both modes. The court is not now entirely satisfied that for this reason, the judgment should be reversed.
The next and only remaining point, is one arising out of • the bill oí exceptions saved on the trial. It appears by the bill of exceptions’ that the State by the prosecuting attorney closed her evidence, and that the defendant gave none, and that then the court was about to adjourn till next day, before the argument-Could take place, Whereon it was agreed between the circuit -attorney and the prisoner’s counsel, under leave of the court, that the jury might disperse till next morning, on the condition defendant should not and would not offer any testimony at all. The court adjourned till next morning, and the jury dispersed. -On the opening of the court the next íury came, and the State offered to re-examine some .of the witnesses examined the day before, and to examine some others not before examined at all* ^le Pr*soner,s counsel objected to this; the court over-^ie objection, and the witnesses were examined, What the witnesses deposed to does not appear, nor do I consider it material it should appear; the objection goes against the danger of the practice. It seems to me that *81on this point the court erred. I never have yet seen a case that goes as far as this case goes; when the plaintiff has closed his evidence in chief, if the defendant gives none, he cannot, merely on the ground that he forgot something, be allowed to examine new witnesses, nor to re-examine old ones. This is not allowed, for two reasons; first,because there must be an end of the examination; and secondly, because to examine a witness after he has been discharged, and after the evidence is closed, is to allow him an opportunity to fill up gaps by perjury;and to call others, or the same, after they have mingled with the crowd, is of most dangerous consequence to truth and justice. This is the general rule: after the plaintiff has closed his case, he can only give thereafter rebutting testimony, but that can only take place when the other party gives some evidence, otherwise there can be nothing to rebut. In the case at bar the defendant had no testimony at all; consequently the evidence the State gave afterwards was not of that character. There is no reason given on the record why the prosecution asked leave and was permitted to give the amendatory evidence. It is possible there may be cases in which it might be allowed, but I cannot' now think of •them. The case stands then on the ground that the prosecution discovered some defect in the evidence that might be supplied, and had leave, as matter of right, to' amend his hold. If this is permitted, what is to hinder parties from manufacturing evidence over night to fit the case, after, perhaps, they may have some hint from some unwary juior as to the opinion of the jury. If such a door is once opened, both good and bad men will enter the same. I admit good men would not take unlawful advantage of the privilege, but bad ones would; and as the law is not wise enough to distinguish between the bad and the good, it forbids both good and bad from the use of. the privilege. If this door were once opened, I venture to believe that life and property would be more and more insecure, and perjury become more than ever an article of purchase. For these reasons I am of opinion the judgment of the circuit court of Crawford county ought to be reversed.