The judgment of the court was pronounced by
Preston, J.The prisoner is indicted for the murder of Jules Ra'bourdin, in the parish of St. Mary, on the 5th day of March, 1850. An indictment was found against him on the 4th of June, he was arraigned and plead not guilty on the 5th, and was put upon his trial on the 10th of that month, without having applied for a continuance. On the 14th of the month the jury were discharged, having declared that they could not possibly agree upon a verdict.
At the term of the court for the parish, in January, 1851, the accused was again put upon his trial. He made an application to the court to continue the cause, based upon the following affidavit: “ Personally appeared before me, the undersigned authority, Alexander Brette, of the parish of St. Mary, defendant in the above entitled cause, who, being duly sworn, deposeth and saith, that he cannot safely go to the trial of this suit at the present term of this honorable court, because of the absence of the following witnesses, to wit, Henry L. Bornet, Francis Budd and Pierre Viaud, each and every of which witnesses is material and important for the defence of this deponent in this prosecution He further saith, that said Bornet was duly recognized by the committing magistrate in the month of March last, to appear and testify on the trial of this suit, and that he is now absent without the procurement or knowledge of deponent; and deponent verily believes he will be enabled to procure the attendance of said Bornet at the next term of this court. He further saith, that the said Francis Budd was duly summoned in the month of June last, to appear and testify on the trial of this suit, and that he is now absent without the consent or procurement of deponent; and deponent verily believes he will be enabled to procure the attendance of said Budd at the next term of this court. Deponent further saith, that on the 1st day of the present term of this court, he caused a summons to be duly issued to the aforesaid Pierre Viaud, commanding him to appear instanter, and give his testimony on the trial of this cause; and that said summons was then mailed to the sheriff of the parish of St. Martin, where said witness resides, with directions to said sheriff to serve the same on said witness without delay, and to make due return thereof. And he further saith, that said summons has not yet been returned. And deponent further saith, that he expects to prove, *654by said Bornet, all the facts as testified to by him on the examination of this case before the committing magistrate; and further, the following facts, to^wit, that the deceased, Jules Ralourdin, on the 5th of March last, came to the coffee house of Paul Prevosttwith the express purpose of cowhiding deponent; that the deceased had been, for four weeks previous to said 5th of March, hunting deponent for the purpose of cowhiding him; that on the 27th of February last, said Bornet, having heard of the violent threats of said deceased against deponent, went to the residence of the late Adrien de Vivilie, where a public sale was being held, and where said Bornet knew deponent would be present, and where he supposed the said deceased would also be present, and that said Bornet so went there, under the apprehension that said deceased would attack deponent with deadly weapons, and for the purpose of preventing said deceased from carrying his threats against deponent into effect. And deponent also expects to prove, by said witness, other facts material to his defence, which he is not now able to disclose. Deponent will prove, by said Francis Budd, that five weeks previous to said 5th of March, the said deceased used the most insulting and opprobious language concerning deponent, because deponent was engaged in the defence of a suit brought by the wife of the deceased, and avowed his intention to cowhide deponent the first time he should meet him; and deponent expects also to prove, by him, all other facts as proved by him on the former trial of this cause. By the testimony of said Viaud, deponent expects to prove that several weeks prior to said 5th of March, deceased publicly used the most abusive and insulting language concerning deponent, because of deponent’s connection with the aforesaid suit brought by the wife of deceased, and threatened to cowhide deponent at first sight, and that, if deponent should resist, he would kill him. That deponent has used his utmost endeavors to procure the attendance of the three above named witnesses at the present term of this court, but has been unable to do so. And deponent further says, that Jean Dryris is also a material and important witness for deponent, to enable him to make out his defence to this prosecution. That said Dryris was duly recognized in the month of March last by the committing magistrate, to appear and give evidence on the trial of this case ; that he is now absent without the consent or procurement of deponent, and that deponent has used his best endeavors to procure his attendance at this term of the court without effect. That deponent, on the 16th day of the present month, caused a writ of attachment to issue from this honorable court against the said Dryris, on'which attachment the sheriff has returned that said witness cannot be found, and deponent cannot safely go to the trial of this suit without the testimony of said Dryris; and that deponent verily believes he will be able to procure the attendance of said Dryris at the next term of this court. And deponent expects to prove by the testimony of said witness, the following facts, to wit, that on the 5th day of March last, the deceased, Jules Ralourdin, came to the coffee-house of Paul Prevost for the express purpose of cowhiding deponent; that on said day, he entered said coffee-house with his whip in hand, walked hastily on deponent without stopping at anyplace, and when within three or four feet from deponent, raised his whip to strike deponent, and that he was in the act of striking deponent when he was shot. And deponent further says, that Achilles Briard is also a material witness for deponent in the defence of this prosecution, without whose testimony deponent cannot safely go to trial; that said witness was duly summoned to appear and testify on the trial of this case at the last term of this honorable court, but that he is now absent without *655the consent or procurement of deponent; and deponent verily believes he will be enabled to procure his attendance at the next term of this court. Deponent has used his best efforts to procure the attendance of said witness at the present term of this court, but in vain. And deponent will prove by the testimony of said Briard, that on the day previous to said 5th of March last, the deceased, Jules Rabourdin, being present at a public sale at Mistress Prevost’s, made inquiries for deponent for the purpose of attacking deponent, and threatening personal violence against deponent could he meet him, and, at the same time, struck his hand upon his pocket, where there appeared to be some weapon, saying, in an excited manner, that he was réady for deponent. And deponent saith, that this affidavit for continuance is not made for delay, but for the sole purpose of enabling him to have the evidence pf the above named witnesses at his trial, and to secure him impartial justice."
The application for a continuance was rejected by the court, and the defendant took the following bill of exceptions : “ Be it known, that on the 23d day of January, 1851, in the present term of this honorable court, Alexander Brette, the defendant in the above entitled suit, moved this court for a continuance of this suit, on the strength of his affidavit hereto annexed, marked A, and made a part of this bill of exceptions, which motion was overruled by the presiding judge, upon the grounds of the prosecuting attorney’s admitting that the witnesses, Henry L. Bornet, Francis Budd and Achilles Briard, in said affidavit named, would, if present, testify to the facts as disclosed in said affidavit, reserving to the said prosecuting attorney the right to contradict said witnesses and to controvert the facts thus admitted; and also, upon the grounds that defendant was obliged to disclose in his affidavit for a continuance, all the facts he expected to prove by his absent witnesses, notwithstanding this is the first application for a continuance, this being the second trial of the case, there having been a mistrial at a previous term; and also, upon the ground that said affidavit did not show due diligence to procure the attendance of Pierre Viaud, one of the witnesses in said affidavit named, and that the prosecuting attorney was not bound to admit the facts expected to be proved by said Viaud, as set forth in said affidavit, nor that, if present, he would testify to them. To which ruling of the said court the defendant, by his counsel, excepted on the following grounds, to wit, 1st. That the defendant has a right to have said suit continued to enable him to secure the personal attendance of his witnesses. 2d. That if forced to the trial without the personal attendance of his witnesses, it should be upon the prosecuting attorneys’ admitting the absolute truth of the facts set forth in said affidavit as expected to be proved by said absent witnesses, and not merely that said witnesses would, if present, testify to said facts. 3d. That defendant has a right to have this suit continued upon his affidavit, without disclosing the facts he expects to prove by his absent witnesses, as this is his first application for a continuance. 4th. That this suit should be continued to obtain the testimony of Pierre Viaud, a witness named in said affidavit, due diligence being shown in said affidavit to procure his attendance at this term of the court, or else that the district attorney should be required to admit that said witness, if present, would testify to the facts as disclosed in said affidavit.”
The accused being indicted and on trial for murder, the testimony of his absent witnesses was indispensable to alleviate the charge into the crime of manslaughter, and was therefore most material on the trial. No question is raised by the bill of exceptions as to the diligence of the accused to procure the attendance of the *656witnesses, Briard, Bornet and Budd, nor as to the truth of his affidavit that he expected to procure their attendance at the next term of the court. Could he then be forced to trial by the admission of the district attorney,that the witnesses would swear to the facts stated, and not absolutely that those facts were true, but, on the contrary, reserving the right to contradict the witnesses and to controvert the facts thus admitted 1
It is conceded that, under these circumstances, a continuance in a civil case would not have been granted; because the 466th article of the Code of Practice, as amended by the 9th section of the act of 1839, expressly forbids it. But those laws are limited to the regulation of practice in civil cases, and do not purport to change the principles which governed criminal proceedings. Now, by' the act of 1805, it is expressly provided, “ that the method of trial, the rules of evidence, and all other proceedings whatsoever, in the prosecution of crimes, shall be, except as otherwise provided, according to the common law.”
The practice as to the subjects under consideration was, at common law, sub-substantially the same in civil and criminal cases. Now, in the case of Larrat v. Carlier, “the defendant prayed a continuance on an affidavit, stating a certain fact which he expected to prove by the absent witness.” The counsel of the plaintiff said, “ I will admit at the trial the fact to have been sworn to by the witness.” The counsel of the defendant replied, “ if the plaintiff will admit the existence of the fact, we have no objection to proceed to trial; but if the fact is only admitted as sworn to, and witnesses are to be introduced to contradict it, by the detail of circumstances, from which it is expected to draw an inference that the fact cannot have existed, and cannot have been sworn to without perjury, we will want the absent witness in order that, by giving his testimony with the same particularity, he may show that he is entitled to belief.” The distinguished judge to whom the application for the continuance was made, sustained these views. He said, “ the defendant has taken every legal means in his power to procure the attendance of his witnesses. He may therefore demand a continuance ex debito justilias. I am unable to recollect any case in which the court has ever gone so far, in Great Britain or the United States, except in Massachusetts, in which, by a rule of the Supreme Court, the party praying a continuance cannot have it, if his opponent offer what is now proposed to the defendant,” and granted the continuance.
In the case of the People v. Vermillia, 7 Cowen, 369, it was held in New York, that it is not sufficient that the opposite party should admit that the absent witness would testify to the specific facts ; there must be an admission that those facts are absolutely true. And it is laid down as a general rule in Cowen and Hill’s notes upon Phillips, vol. 2, p. 49, that where the defendant states particulars, it is not enough to deprive him of a continuance that the plaintiff admits the facts, if such admission be not full and unqualified; but that a full admission of the facts would be a good cause against the continuance. There are conflicting opinions, but in the conflict we feel safe in adhering to that of our late very able chief justice, and conclude, therefore, that the district court, on this trial for murder, should have granted the continuance prayed for on the affidavit filed.
The answer of Jesse Matthews, a juror on his voir dire, when called to be sworn, was not a sufficient ground for his challenge. He answered, “ that from the rumors he has heard of the case, his mind is biased and prejudiced, but that that bias and prejudice can be removed after he has heard the evidence in the case, and that his mind is open to conviction, and thinks he can do justice between the parties.”
*657It was held, in the case of the State v. Williams, 3 Stewart’s R. 454, that “in a capital case, it is not a ground for a peremptory challenge to a juror that he has formed upon common report, and expressed an opinion of the guilt of the prisoner, if the juror believed that such opinion would have no influence upon him in the formation of his verdict, should the evidence on the trial be different from the report of the facts.” In the case of the State v. Queensberry, 3 Stewart and Porter’s Rep., 308, the decision was to the same effect. The same principle has often been decided in Virginia. Commonwealth v. Armstead; Same v. Brown ; Same v. Ossander; Leigh’s Rep.
It is only when the juror called has formed so decided an opinion on the case, that he believes himself, or the court believes, it would influence his verdict, that he should be rejected. The prejudice and bias in the present case was produced, not by ill-will nor by evidence, but by rumors. The juror, himself, and the court did not doubt but that it would be dispelled by his oath, his duty, and the evidence to be heard. "When a homicide is committed, and the perpetrator is known, rumor will almost necessarily circulate reports to his prejudice, and bias men against him. It must affect all men very much alike, until the defence is ascertained by evidence. But all can remove that prejudice and bias when truth and evidence is opposed to rumor, and they "are sworn and empanelled in the jury-box, to do justice to a fellow man according to that evidence.
A majority of the court are of opinion, that they have no power to inquire whether the discretion of the court, in refusing a new trial on the ground of misconduct of the jury, wasproperly exercised. State v. Hunt, 4th Ann. 438; also, 4th Ann. 504; 3 Wheeler’s Crim. Law, 309. A careful examination of the testimoney has brought me to the same conclusion with the district judge, that there was no material misconduct on their part; that there is no sufficient evidence that they separated from each other, farther than necessity required, after the case was committed to them; and that there is no evidence of the exercise of improper influences upon their minds against the prisoner. Even if the threats of Barlow were real, there is not the least reason to believe that Wimer was influenced by them. So Bauvilin, being a lawful juror, had every means to know and understand the case which the law affords, and a new trial could not be granted, on account of . his failure to do so, if that was the fact.
It is settled as law, that jurors should not be examined to impeach their verdict. And a high regard for that tribunal in criminal cases, requires the rigid enforcement of the rule. We adhere to the decision of this court, in the case of the State v. Caldwell, 3 Ann., 435. The verdict is the record of their deliberate judgment. They cannot be permitted to impeach the record by parol. 8 R. R., 433.
The separation of the jury, in Hornsby's case, was admitted; also, in Hismond’s case ; and the reluctance with which we adhered, in the latter case, to the decision in Hornsby's case is a sufficient reason for requiring indisputable evidence of a separation which would produce effect, before affording relief on this ground.
Still, the case before us presents a new and most difficult question. The prisoner was indicted and tried for the crime of murder. The jury found him guilty only of manslaughter. The homicide was therefore, beyond a doubt, perpetrated by the defendant. The testimony which he sought for, from his absent witnesses, by no means tended to cause a doubt upon the fact that he committed a homicide, but should, if believed, have alleviated it from murder into manslaughter. Now, the jury have found the prisoner only guilty of man*658slaughter. They, therefore, believe the statements as to the testimony which could have been obtained from the absent witnesses. They have given it its full effect, and the accused has enjoyed the full benefit of it. The judge, on a full and unqualified admission of the facts stated, could not have instructed the jury that they had any other legal effect than that which the jury has given to them. It is possible, if they had been fully admitted, the jury, being the judges of the law as well as of the facts, might have acquitted the prisoner entirely; but then, they would have given to the facts an effect to which they were not entitled in law. And when the facts bring a case even within a technical manslaughter, tho jury should not hesitate to convict, for when human life is destroyed, the letter of the law should be vindicated. Our legislature were so sensible of this, that they have left the greatest discretion, as to that offence, with the courts. For, according to the circumstances of alleviation or aggravation, the judge may inflict a day or twenty years imprisonment, and a fine of one dollar or two thousand dollars.
Where a party, on a trial for murder, has been convicted of manslaughter only, in the event . of a new trial being granted, he cannot be again tried for murder; but will be tried, as if the prosecution had been originally for manslaughter. The accused, on his trial for murder, was convicted of manslaughter. He asked for a new trial, upon the ground, that he was forced to trial in the absence of witnesses, who would have proved certain facts. Held,: That as the facts stated, if proved, would not have formed a good dofence to the charge of manslaughter, he was not entitlod to a new trial.*658If the jury had found the prisoner guilty of murder, we would undoubtedly have set aside the verdict and reversed the judgment, because of the error in ruling the accused to trial without the presence of material witnesses. But can we set aside a verdict and reverse a judgment, which was the necessary and legal effectof theevidence admitted, even if unimpeached, the factof the homicide being established ? We think not. The case has often occurred, of great errors committed in the hurry, the toil, the trouble, and real difficulties of a jury trial. But if they do not affect the great result, if substantial justice has been done, and tho whole object of the law has triumphed, the Supreme Court would abuse, and not aid the inferior courts, and justice itself, by seizing upon those errors, not to correct them, but without any reasonable motive or legal advantage to the public or individuals, to annul the proceedings of the inferior tribunals.
If the testimony which the accused expected to obtain from the absent witness, Viaud, stood upon the same footing with that of the other two witnesses, the case would be still more difficult; for the statement is, that “ the deceased threatened to cowhide the accused at first sight, and that if he resisted, he would kill him.” The district court, however, was of opinion that the affidavit did not show due diligence to procure the attendance of the witness, Viaud, and it has become the settled jurisprudence of this court, that, on appeals, we cannot revise decisions involving questions of fact. See the case of the State v. Hunt, 4th Ann., 439, and the cases there cited.
The judgment of the district court is therefore affirmed, with costs.