dissenting [omitting his statement, which has already been given]. The charge in this case was singularly atrocious, being nothing less than the foul, treacherous murder of the wife by her husband in conspiracy with his paramour. The evidence was entirely circumstantial; but the Circuit Judge before whom it was offered, after listening to “earnest and eloquent argument” from defendant’s counsel, refused to grant a motion for a new trial, upon the ground of the insufficiency of evidence; and, therefore, this court has no right whatever to consider that subject. Our only province is to determine whether, in the rulings as to the admission of testimony or the conduct of the jury, there was such error of law, or irregularity, as should avoid the verdict.
In respect to the last exception (9), it cannot be necessary to do more than repeat what this court said in the case of State v. Coleman (20 S. C., 455), that “we know of no law or practice which would permit us to hold a Circuit Judge in error for instructing the jury that the phrase ‘reasonable doubt,’ used in the books, means a ‘serious, well-founded, substantial doubt.’ ” Substitute the word “strong” for that of “serious,” and the cases are identical. (The State of Nevada has actually passed an act undertaking to define the phrase “reasonable doubt.”)
*405Exception 8 is answered by the judge himself, “that he had no remembrance of speaking of D. N. Senn and Helena Boland as husband and wife, but if so, it was a mere slip of the tongue, obvious to all, incapable of misleading any one, and not objected to at the time, when it might have been corrected.”
Exception 6 alleges error in allowing Dr. Pool to be recalled before the evidence was closed, to supplement his testimony, by adding that he thought that Senn. in the conversation before referred to, told him that he had given his wife laudanum. This was objected to, upon the ground that Senn had not denied the statement, and therefore it was not in reply. We cannot say .that the necessary discretion given to the trial judge was abused. (See Cantey v. Whittaker, 17 S. C., 527.)
Exception 3 charges that it was error to admit the testimony of Peterson; that as trial justice he had, at the instance of the deceased, issued a peace warrant against her husband, the defendant, Senn. The simple fact that such a warrant issued — not the details or merits of it — surely tended to show the relation which existed between Senn and his wife, and therefore was “germane” to the issue, and receivable in evidence.
Exception 2 alleges error in admitting testimony that the deceased, in her life-time, had, in the presence of her husband (Senn), charged him with having made the threatening declarations to her (before stated), and that Senn was present and did not deny the charge. We are not able to distinguish this from the ordinary ease, where a declaration is made in the presence of another, who does not deny it. “Although neither the evidence nor declaration of a wife is admissible against the husband on a criminal charge, yet observations made by her to him upon the subject of the offence, to which he gives no answer, or an evasive reply, are receivable in evidence as an implied admission on his part.” Rose. Crim. Evid., *54.
Exception 1 complains of error in allowing Dr. J. T. Pool, a physician, to express his opinion as to what the streaks and bruises on the neck of the deceased “were made by.” The doctor did not undex-talt'e to say that the bruises were made by the defendants, or either of them; but after giving a full description of cei’tain bruises which he saw, he said that he was of opinion *406that they were made by some external force, but what that force was he could not say; he was inclined, however, to think it was-a hand. This testimony may not have been entitled to much weight, but we cannot say that it was inadmissible. “Opinions of medical men are constantly admitted as to the cause of disease or death, or the consequences of wounds,” &c. 1 Greenl. Evid., § 440.
Exceptions 4 and 5 complain of error in admitting the testimony of J. N. Bass as to the statements of defendants under oath at the inquest before him as coroner. The statements referred to were made.by the defendants at the first inquest, August 25, and they (defendants) were not arrested, on the charge of being principals in the murder, until a week after — on September 3rd. It seems to us that this is a novel question. To be admitted in evidence, confessions, or declarations in the nature of confessions, must be voluntary, and therefore when made under the charge of crime, they are not, as a rule, regarded voluntary. But it has never been doubted that .declarations made by one not a party, but in a prosecution against another, are deemed voluntary, and as such may be subsequently used against him. See 1 Greenl. JEvid., § 225. As in the late case of State v. Jones (29 S. C., 201), where the only question was whether, in the matter of contradicting a witness, his written statement before the coroner was admissible against him, and it was rightly ruled that it was admissible for that purpose,
This being the law, the inquiry was soon made as to what should be the rule when the statement was made by one not a party at the time, but made so afterwards. The test being whether the statement was voluntary at the time it was made, the difference would seem to be small, between a case where the charge was against another, and where there was no charge at all. The earlier cases, however, seem to have taken the other view, and to have held that the subsequent charge and arrest operated retrospectively, and made the prior statement involuntary and therefore inadmissible. Mr. Greenleaf, whose excellent book on evidence was written in 1844, confessed that at that time such was-the tendency, glthough, as he stated, “it might seem to bo at variance with the general principle in regard to the testimony *407given in another case.” See section 226 and note. He stated the authorities for that view.
But the later cases seem to have considered the matter differently, and to have corrected the “variance” pointed out by Mr. Greenleaf; and have, as we think in accordance with principle and all the analogies, settled the law' otherwise. See Rose. Grim. Evid. (7th edit.), and *79, where it is said: “The prisoner’s deposition on oath, in reference to another inquiry, is clearly admissible. 3 Russ. Crim., 411, 4th ed. It was, however, formerly doubted whether, if a person who had given evidence before a coroner, were afterwards made the subject of a criminal charge arising out of the same facts, his deposition could be given in evidence against him (citing the early cases); but in several later cases they have been admitted. R. v. Owen, 9 C. & P., 238 (38 E. C. L. R., 99); R. v. Colmar, 9 Cox C. C., 506, and others. In R. v. Biggadike (Lincoln winter assizes, 1868), Byles, J., admitted in evidence a statement upon oath, made by the prisoner voluntarily, and before she was in custody, not signed by her, but taken down by the coroner at the time. The coroner was called. His lordship said the authorities were in favor of the admissibility of the evidence, and he himself had no doubt on the subject. The prisoner, who was charged with wilful murder by poisoning, was sentenced to death and hanged,” &c. We cannot say that the testimony was inadmissible.
Exception 7 renews, as grounds of error, all the points urged upon the motion for a new trial. We are not sure that we understand precisely what is meant by (e) that there is now no law under which the defendants could have a trial or be convicted. As to (d), alleging “a variance” between the allegations of the indictment and the evidence in the case, in this, that the name of the person with whose death the defendants are charged is alleged to be M. Ozella Senn, the evidence being that her name was Melissa Ozella Senn. There is no copy of the indictment in the Brief, so that it cannot be certainly known how the name is therein stated. Besides, after trial and verdict, it is too late to make the objection. Courts will take judicial notice of the customary abbreviations of Christian names. Stephen v. State, 11 Ga., 225.
*408Point (a) complains that two constables were present with the jury during a portion of the time the case was under advisement. We observe that one of the affidavits of a juror states that he found one of the constables of the court “sitting at the stove in the court room in the midst of the jury — in the court room in which the jury were deliberating.” This makes it plain how the constable happened to be in the room. It is obvious that the constables did not go into the jury room proper, but the jury, being up all night, returned into the court room, where they could warm by the stove, and where they found the constables on duty. This was really no fault of the constables, and it was in truth merely a casual presence, without any intrusion or evil intent. As was said by this court in State v. Nance, 25 S. C., 172 : “Great care should be taken, especially in State cases, to guard the jury against all irregular and improper influences; but there may be objections more fanciful than real.” The court cannot lend a ready ear to disclosures coming from the jury room. There is not the slightest allegation that the constables exercised or attempted to exercise any influence upon the jurors. A wise discretion must be exercised, and, in doing so, we cannot regard the accidental presence of the constables in the court room, as an irregularity of so serious a character as to set aside the verdict. See State v. Nance, supra; McCarty v. MeCarty, 4 Rich., 598; and State v. Tindall, 10 Rich., 212.
But points (b) and (i) make an objection of a different character as to. “the verdict,” which, it is said, taken in connection with the evidence, is contradictory, and other affidavits of jurors are introduced to assail it. If the verdict were inconsistent, we do not very well see how that could be error of law. The affida vits undertake to state the manner in which the verdict wras reached, and especially that the recommendation to mercy was to induce a commutation of the death penalty. It is very clear that it can have no such effect. The court is bound to take the verdict as it was rendered, and refuse to listen to any affidavits of jurors tending to impeach it. There are reasons of public policy why jurors should not be heard to impeach their verdict, whether by showing their mistakes or their misconduct. Neither can they be properly permitted to declare, with a view to affect their ver*409diet an intent different from that actually expressed by their verdict as rendered in open court. See Smith v. Culbertson, 9 Rich., 111; State v. Tindall, 10 Rich., 213; 3 Graham & Waterman on New Trials, p. 1428, and cases cited. In the case of Culbertson, Judge Wardlaw, in pronouncing the unanimous decision of the old Court of Appeal, said: “The mischiefs, the delays, the arts, the scandal, likely to ensue, come naturally to our thoughts, when we imagine encouragement given to the pursuit of jurors by disappointed suitors, for the purpose of obtaining affidavits to invalidate verdicts regularly rendered. * *' Whether -they have been misled by sophistry or mistake, or have adopted the determination of a majority or of a chance, they have upon their oaths unanimously rendered a verdict in solemn form, and high considerations of justice and policy place that verdict beyond their future influence.”
We think the defendants have had a fair trial, defended with the greatest earnestness and zeal by able and eloquent counsel. The duty devolved upon the court is a painful one; but finding no errors which would justify us in setting aside the verdict, it only remains for us, with becoming regret, but with firmness, to discharge that duty.
Upon this dissenting opinion was endorsed by
Mit. Chief Justice Simpson.I think a new trial should be had in this case, because Dr. Pool was allowed to say that he was inclined to believe that the marks on the throat of the deceased were made with a “hand;” this, it seems to me, was the expression of an opinion beyond the limit of a medical expert in such a case as this. And also because of the admission of declarations of Mrs. Senn made before the trial justice, charging her husband with having made certain bitter expressions against her, to which he made no reply. As I understand it, Mrs. Senn was being examined by the trial justice in a case before him, when she made these declarations, and though Senn, her husband, was present, yet under the circumstances he was not called, nor could he have properly interposed a denial. For these reasons I am unable to concur in this opinion. Rose. Or. Evid., *p. 56, and the notes.
Judgment reversed.