At the May term, 1858, of the district court of Dubuque county, the defendant was indicted for the murder of his wife, Mary Giliick. The cause was continued until the next term, in August, at which time a new grand jury was impannelled. After the impannelling of the same, the prosecuting attorney withdrew the indictment found at the previous term, and procured a new in*305dictment, to be found by the grand jury at the said August term. The defendant moved to quash this second indictment, for the reason that, having been held in custody to answer for a public offense, at the time the grand jury that found the same was impannelled, no opportunity was allowed him to challenge the said grand jurors. The court sustained the motion, and the indictment was quashed.
The grand jurors were then brought before the court, in order that the defendant might exercise his privilege of challenge. Charles Corkery, one of the grand jurors was interrogated by the defendant, as follows : “ Have you formed or expressed an unqualified opinion that the prisoner is guilty of the crime with which he is charged ?” The juror replied: “ I have, of course; but it was in the grand jury room, in the finding of the indictment already, quashed.” The defendant then moved the court to discharge the said Corkery from .the grand jury, so far as the consideration of the charge against the defendant was concerned. The challenge was disallowed by the court. The defendant proceeded to interrogate the other grand jurors, in the same manner, but the court interposed, and refused to permit the questions to be asked, except in the following form: “ Have you formed or expressed an unqualified opinion as to the guilt of the prisoner, prior to the time which you were impannelled as a grand juror?”
The first error assigned is. the disallowing the defendant’s challenge of the juror, Corkery.
The authorities are not numerous as to what will constitute good cause of challenge to a grand juror. On the trial of Aaron Burr, C. J. Marshall allowed a challenge to a grand juror, for the same cause that would have constituted a good objection to a petit juror. 1 Burr’s Trial, 38. Taking this as the rule, there can be no doubt but that the challenge, in this case, should have been allowed.
The rule of law is, says Lord Ccke, that the juror must stand indifferent, as he stands unsworn. Co. Litt., 155 b. A juror cannot be impartial, or indifferent, who confesses that, from, a knowledge of the facts, he' has made up his *306mind that the accused is guilty. He cannot be supposed to stand impartial, merely because he has no malice or ill will against the defendant, or because he has not formed his opinion from rumor. If the least bias is sufficient to exclude, the source from which it is derived is not material. It is the same thing to the accused, whether it proceeds from pre-conceived opinions, or from malice or ill will. The defendant is equally affected in either case. Ex parte Vermilyea, 6 Cowen, 555.
Among the earlier authorities, we find it said to be good cause of challenge on the part of the prisoner, that the juror has declared his opinion before hand, that the party is guilty, or will be hanged, or the like. Hawkins, B. 2, chap. 43, sec. 28. Hawkins adds: “Yet it hath been adjudged, that if i-t shall appear that the juror shall have made such declaration from his knowledge of the cause, and not out of any ill-will to the party, it is no cause of challenge.” If a juror says he will pass for one party, because he knows the verity of the matter, it was formerly no cause of challenge. It is now conceded, says Maroy, J., that if the opinion of the juror be founded on a knowledge of the facts, or on information derived immediately from those acquainted threrewith, it constitutes a good objection to him. If in any case it would be safe to admit a juryman, who had formed and expressed an opinion, the presumption of fairness and impartiality would certainly be stronger in favor of him who founds his belief on authenticated, facts, than to him who has given credence to vague and groundless rumors. The People v. Mather, 4 Wend., 229. If it be said, says Marshall, C. J., in the trial of Burr, that the juror has made up his opinion, but has not heard the testimony, such an excuse only makes the case worse, for if the man has decided on insufficient testimony,. it manifests a bias that completely disqualifies him from the functions of a juryman. 1 Burr’s Trial, 370.
The disqualifying bias which the law regards, is one. which, in a measure, operates unconsciously on the juryman, and leads him to indulge his own feelings, when lie *307thinks he is influenced entirely by the weight of evidence. 1 Chit. Crim. Law, 443; Bacon’s Abr. Title Jury, (E.), 5.
Though the juror is sincerely determined to discard his prejudices, he is not to be received, because the law does not hold him capable of doing so. He will listen, says Marshall, O. J., with more favor to that testimony which confirms, than to that which would change his opinion. It is not to be expected that he would weigh testimony or argument, as a man whoso judgment is not made up in the case. In Pennsylvania, it has been heen held, that a defendant confined in jail on a charge of homicide, may be allowed to challenge a grand juror for favor, after the grand jury were sworn. Commonwealth v. Clarke, 2 Brown, 325.
It is no sufficient answer to the prisoner’s challenge to Corkery, that his opinion had been formed from the evidence given before him as a grand juror, upon which the second indictment was found. The first indictment against the defendant was set aside, and the second one found without his knowledge. He had not been allowed his privilege of challenging the grand jurors, at the time they were called into the jury box to be sworn. This was a right the law accorded to him ; aud when the jury were brought into court, in order that he might exercise this right, they stood in the same relation to him, as if they had not been impannelled and sworn. His right of challenge was the same as if he had been permitted to exercise it in the first instance. The jurors must stand indifferent to him, as they stand unsworn. His right to an impartial jury is as unconditional as his right to any jury at all. Ex parte Vermilyea, 6 Cowen, 562.
The juror challenged was as much disqualified from taking any part in the consideration of the charge against the defendant, by reason of the opinion formed by him' from the evidence given under oath in the grand jury room, and by his action there on, as if that opinion had been formed from rumor, or had been induced by malice or ill-will. It is the preconceived opinion that ren*308ders him incompetent, and not the sources from which that opinion is formed or derived. A juror who has formed or expressed an opinion, is set aside, because he is supposed not to be indifferent to the result of the matter to be tried. Such an opinion, in the presumption of law, is not less the effect of partiality and prejudice operating on the mind of the juror, than it is the efficient agent to produce such partiality and prejudice on his mind, perhaps without hie consciousness.
II. This conclusion disposes of the matter embraced in the second assignment of error, wherein it is alleged that the district court refused to permit the defendant to interrogate the grand jurors, except as to any opinion formed or expressed by them as to the guilt of the accused, prior to their being impanelled as grand jurors. In this, also, there was error.
III. The third assignment of error is based upon the fact, shown by the record, that the clerk, in preparing ballots containing the names oí the, jurors, placed the same, not being folded, in a hat, without top or cover, from which the said ballots were drawn, and not from a box to be kept for that purpose, as required by law. .Code, sections 2961, 2966.
We think that sufficient is not shown by the record to amount to substantial error. The statute is directory; and the fact that its provisions have not been pursued by the clerk in drawing the jury, will not amount to error sufficient to reverse the judgment, unless it is shown further, that on application to the court, and its attention being called to the mode of proceeding by the clerk, it had refused to require the directions of the statute to be carried out; or, unless it was otherwise shown that some substantial prejudice had resulted to the defendant. And, even when this is shown, it is always better that the question should be first made to the district court,, on motion for a new trial. On the overruling of which, the matter will come more legitimately before this court for consideration.
IY. The fourth assignment of error rélates to the ¿vi*309dence of the witness, Dr. Sprague. It is urged by the defence that the evidence was not proper to be given to the jury, either as the dying declarations of the deceased, nor as part of the res gestae.
The witness testified, that hearing the report of a pistol, and understanding that a woman was shot, he went into the house, and saw the deceased lying on the floor, and the defendant standing over her. It was not a minute after the report of the pistol. The deceased was conscious; she appeared to be frightened, and said : “ take him away — he has murdered me.” The defendant said to her that he was sorry, and appeared to want to help her’. The witness, on examination, found she was shot through the body. Tie looked around for the weapon with which the deceased was shot, and found a pistol under the bed, that had been freshly fired off. The deceased said, that’s what did it.” She was shot through the cavity of the chest, and through the liver. The wound was necessarily mortal. She frequently called for some one to go for the priest. The defendant seemed to wish to raise, or assist her. ITe appeared to be in a state of bewilderment, and made no attempt to escape; but, when the officers came to take him away, he requested to stay. "When the deceased said he had murdered her, he answered, “ Mary, I am sorry for it.”
We think this evidence was proper to be given to the jury. It was admissible as the declarations of the deceased, made in the presence of the defendant, for the purpose of showing his conduct and behavior, when charged with causing the injury done to deceased. The jury, in such case, may fairly be allowed to judge whether what the defendant said in reply, was an admission of the charge made by his wife.
Before the evidence was allowed to be given to the jury, as the dying declarations of the deceased, it was necessary that the court should first be satisfied that they were made under a sense of impending death. The deceased must be shown to have been conscious of the peril of her situation, and believed that her death was impending. The *310declarations must be made in the full belief that she could, not recover. It is enough, if it satisfactorily appear, in any mode, that the declarations are made under a sense of impending death. It may be proved, by her evident danger, or from her conduct, or other circumstances of the case —all of which are resorted to, in order to ascertain the state of the declarant’s mind. 1 Greenleaf’s Ev., section 158, The State v. Nash & Redout, post. The consciousness of death may be inferred from the nature of the wound, or state of illness, or other circumstances of the case, although the deceased should not have expressed any apprehension of danger. Commonwealth v. Murray, 2 Ashm., 41; same v. Williams, Ib., 69; Anthony v. The State, 1 Meigs, 265; McLean v. The State, 16 Alab. 672. This restriction, it should be observed, only applies where the declarations are offered on the sole ground that they are made by a person in extremis, for, where they constitute a part of the res gestae, or come within the exception of declarations against interest, or the like, they are admissible, as in other cases, irrespective of the fact that the declarant was under apprehension of death. 1 Greenleaf Ev., section 156.
In Hill's Case, 2 Grattan, 594, the question is asked by the court, but not decided, whether declarations made by the deceased, immediately after the wound was inflicted, and before he has had time to fabricate a story, and when the lis mota did not exist, might not be given in evidence as part of the res gestae. The same question arose in Rex v. Foster, 6 C. and P., 325. The prisoner was charged with manslaughter, in killing the deceased by driving a cabriolet over .him. A .witness was called, who said that he did not see the accident, but immediately after, on hearing the deceased groan, he went up to him and asked him what was the.matter. It was objected, that what the deceased said, in the absence of the prisoner, as to the cause of the accident, was not receivable in evidence. The court held, that what the deceased said at the instant, as to the cause of the accident, -was clearly admissible. It was the *311best possible testimony that, under the circumstances, could, be adduced to show what it was knocked the deceased down. See, also, Aveson v. Kinnaird, 6 East., 193; Thompson v. Trevannian, Skinner, 402; Commonwealth v. McPike, 3 Cushing, 181.
V. The court charged the jury that, “ a man shall be taken to intend that which is the immediate or necessary consequence of his acts — as if' a man was seen, within shooting distance of another, to raise his gun and take aim, and fire, and the man falls, the ball having inflicted a mortal wound; if these are all the facts proved, the question whether this is murder in the first or second degree, is answered by applying the rule stated above. The taking aim, and firing such a weapon — one'' from which death would most likely ensue — would, of itself, be prima facie evidence that he intended it; and it is therefore a wilful, deliberate, and premeditated killing.” It is claimed by the defendant, that this instruction was erroneous.
The rule of law has long been settled, that a person who does an act wilfully, necessarily intends that which must be the consequence of his act. Rex v. Farrington, Russ & R., 207; Rex v. Dixon, 3 M. & S., 15; Com. v. Drew, 4 Mass., 391; Wharton’s Crim. Law, 232, 268, 359; 2 Russell on Crimes, 231. Malice is legitimately inferred from the weapon used; and where the killing is with a dangerous weapon, calculated to produce, and actually producing death, in the absence of proof that it was accidental, or upon provocation, the presumption of law is, that the act was voluntary, and with malice aforethought. TJ. S. v. McGlue, 1 Curtis C. C., 1; Olvver v. State, 17 Ala., 5.87. In Ohio, where a homicide is proved, it was held that the presumption of law was, that it was murder in the second degree. "Wright’s O., 20. Such was held to be the law in Virginia, in Hill's Case, 2 Grattan, 594.
Murder in the first degree, under our statute is, that which is perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate, or premeditated killing, or which is committed in the perpetration of, or *312attempt to .perpetrate, any. arson, rape, robbery, mayhem, or burglary. Code, section 2569. The same distinction has been adopted by other states of the union. The practical working of the statute, (says Wharton), has been to divide murder, as limited by tlie common law, into two classes, leaving the original boundaries between murder and manslaughter unaltered. The statute requiring murder in the first degree, to be deliberate, it has been held, did not change the common law doctrine in that respect, with regard to murder ; the degree of deliberation requisite in both cases, being the same. The distinctive peculiarity attached by the statute to murder in the first de: gree, however, is, that it must necessarily be accompanied with a premeditated intention to take life. The “ killing” must be premeditated. Wherever, then, in cases of deliberate homicide, there is a specific intention to take life, the offense, if consummated, is murder in the first degree ; if there is not a specific intention to take life, it is murder in the second degree. Wharton’s Am. Crim. Law, 420; 4 Penn. Law Journal, 156.
In Republica v. Mulatto Bob, 4 Dallas, 145, the change made by the law of Pennsylvania, was examined by Mc-Kean, C. J. It has been objected, he says, that the amendment of our penal code, renders premeditation an indespensable ingredient to constitute murder in the first degree. But still, it must be allowed, that the intention remains, as much as ever, the true criterion of crimes, in law, as well as in ethics ; and the intention of the party can only be collected from his words and actions.
In New Jersey, the same construction has been placed upon the law of that state. In the case of State v. Spencer, 1 Zabriskie, 196, C. J. Hornblower, remarks: “The statute does not alter the law of murder, in the least respect. What was murder before its passage, is murder now. What is murder now, was murder before the statute passed. It has only changed the punishment of the murderer in certain cases. The laAV of murder is the same.” “ The premeditation, or intent to kill, need not *313be for a day, or an hour, nor even for a minute. Eor if the jury believe there was a design of determination to kill, distinctly formed in the mind, at any moment beforé; or at the time the pistol was fired, or the blow was struck, it was a willful, deliberate, and premeditated killing, and murder in the first degree.”
In Bivens v. The State, 6 English, 455, it was held, that the premeditation must exist before the act of killing; and where the killing was with a deadly weapon, it was prima facie evidence that the design to kill, was formed in the mind of the party committing the act, and that the killing was the consequence of such design.
If the malice is to be inferred from the weapon used, the taking aim and firing with a weapon, from which death was likely to ensue, may well be said to furnish evidence of intent, in addition to the malice ; and in this view, we think the instruction given, is sustained by authority. 1 Leigh, (Va.), 598.
We come next to that part of the charge of the court, in which the jury are directed that, “ the question whether the act of killing was done with deliberation and premeditation, must depend upon the following facts :
1. The fact that the defendant had previously had a difficulty with his wife, when he had been drinking; 2. The infliction of a fatal wound with a deadly weapon, in the defendant’s previous possession, without any provocation. 3. The declaration of defendant, made to the wit-' ness, Wall, that he had done what he wanted; and 4. The declaration of the deceased, that she had been murdered by the defendant.
The question was left to the jury to decide, whether deliberation and premeditation were inferrible from these facts. If the charge of the court is to be understood as assuming these facts to be proved, we think the court erred in so assuming, and in directing the jury what inferences might be drawn from them, as proved. It should ' have been left to the jury to say, whether the facts were *314proved. There would have been no error in directing them, that if they judged that such and such facts were proved, they were at liberty to draw the legitimate inferences from them. It would have been preferrable, also, if the charge had been so framed, as that the jury might not be led by it to conclude, that these were the only facts from which deliberation and premeditation by defendant, may be inferred.
VI. The court, at the request of defendant, charged the jury: “ That although it is not necessary for the state to show a motive for the crime, yet the absence of a motive may be taken into consideration by the jury, when they come to consider whether the homicide was wilful, premeditated, deliberate, and with malice aforethought.” It refused, however, to charge further, “ that when no motive appears, it is evidence that the act was the result of sudden heat and passion, rather than of premeditation and deliberation.” And this is the sixth error assigned by defendant.
We think there was no error in the refusal of this part of the instruction. The part given was sufficiently favorable to the defendant. The unlawful act being shown, unaccompanied by any circumstances justifying the commission of it, it is the presumption of law, that he has acted advisedly, and with intent to produce the consequences which have ensued. Rex v. Dixon, 3 M. &. S., 15. In every charge of murder, says Mr. Justice Poster, the fact of killing being first proved, all circumstances of accident, necessity, or infirmity, are to be satifactorily proved by the prisoner, unless they arise out of the evidence produced against him; for the law presumes the fact to be founded in malice, until the contrary appears. Foster, 255; 1 Hale P. C., 455; Com. v. York, 9 Met., 93. If the defendant would reduce the offense to manslaughter, the burden of proof is on him to show the extenuating circumstances. Hill’s Case, 2 Grattan, 594; State v. Turner, Wright’s O., 20.
*315VII. The seventh and eighth errors assigned, refer to the action of the district court, in receiving the verdict of the jury, in the absence of the prisoner’s counsel, and in overruling a motion for a new trial. As the judgment will be reversed, and a new trial awarded, the necessity for any decision by us on the question raised, is obviated.
Judgment reversed.