Same Case — On a Re-Hearing.
*659judgment of the court, on a re-hearing, was pronounced by
Eustis, C. J.From the manner in which this case has been prepared in the court below and presented, in argument, to the consideration of this court, I am apprehensive that some misconception exists, as to the extent of its powers, in the revision of criminal causes, and of the mode in which those powers are exercised. These subjects have been very fully discussed by the most eminent counsel at New Orleans. In the case of the State v. Flint, 2d Ann. 838, it was held, that the Constitution confers appellate jurisdiction on this court, in questions of law alone; and in that of the State v. Bogan, Ib, 839, that the accused is not entitled, on the appeal, to a statement of facts, as a means to enable the court to review questions of law, which he desires to present; and the court refused a mandamus to that effect. In the case of the State v. Peterson, Ib. 923, it was held, that the court could not examine the evidehee, for the purpose of determining whether the court below properly exercised its discretion in refusing the accused a new trial; the question being one of fact, in relation to which we are not permitted to inquire or to determine. In the case of the State v. Nelson, 3d Ann. 500, the want of power in the court to examine questions of fact, was again asserted. In the case of the State v. Hunt, the subject of the powers was elaborately argued, and thoroughly reconsidered. Hunt, the appellant, was convicted of larceny, and sentenced to the penitentiary. He applied for a new trial on his affidavit, that he had, since the trial, discovered two witnesses, by whose testimony he could establish an alibi. The district judge refused the application, and the accused appoalod. The court delivered the following opinion:
“ The State v. Hunt. — Oliver Hunt was convicted of larceny in the First District Court of New Orleans, and was sentenced, for his offence, to two years imprisonment at hard labor in the penitentiary/ He applied for a new trial, on his affidavit that he had, since the trial, discovered two witnesses, by whose testimony he could establish an alibi. - The district judge overruled the application for a new trial, and Hunt has appealed from the judgment awarding the sentence.
“We do not propose to examine the sufficiency of the affidavit; but to consider the question, whether this court, under the constitution, can review the decision of the district judge, in refusing the application for a new trial. The jurisdiction of this court in criminal cases extends to questions of law alone, whenever the punishment of death or hard labor may be inflicted, or when a fine exceeding three hundred dollars is actually imposed. By the 33d section of the act of May 4th, 1805, for the punishment of crimes and misdemeanors, the rules of evidence and all other proceedings in criminal cases, except as otherwise provided, were to be according to the common law, changing what ought to be changed; and since that period, all our criminal statutes have been enacted and construed with reference to that system. It is therefore a safe guide, in construing the article of the constitution vesting the court with its limited criminal jurisdiction. Under the common law, judgments can be reversed by writ of error, which lie from all inferior criminal jurisdictions to the court of Queen’s Bench, and from the Queen’s Bench to the House of Lords. A writ of error does not lie to the House of Lords for an error of fact; but, for an error of this description, a writ of error coram nobis, as it is there called, lies in the same court. This is the case in some of the States *660of the Union, where the courts, from their organization, can issue a venire for the trial of the error of fact. See case of Arnold et al v. Duncan, 14 Johnson’s Rep. 417.
“ It seems to us to be clear,that the'constitution, in limiting the jurisdiction of this court, in criminal cases, to questions of law alone, by its terms excluded all cognizance of questions of fact. The Supreme Court of the United States, in construing its common law jurisdiction, under the constitution, and the judiciary act of 1789 — a jurisdiction by no means restricted as much as ours — has determined, by a series of decisions, what points are open for examination under a writ of error; and those decisions have all been made in conformity with what were understood to be the rules and principles of the common law. By the 22d section of the judiciary act, it is provided that on a writ of error to the Supreme Court, there shall be no reversal for error in fact. That court has always held, that error does not lie on the refusal of the court below to grant a new trial. Although that court takes no cognizance of criminal cases, except in a division of opinion of the judges of the court below, the decisions in civil cases appear to us conclusive of the principle. Henderson v. Moore, 5 Cranch, 11. Barr v. Gratz, 4 Wheaton, 213, Blunt's lessee v. Smith et al. 7 Wheaton, 248. Brown v. Clark, 4 Howard, 4.
“In the case of Barr v. Grantz, Judge Story remarked that the proposition was too plain for argument.
“Nor does error lie, on the refusal of the court below to continue a cause after it is at issue. Marine Insurance Co. v. Hodgson, 6 Cranch, 218. In that case, Mr. Justice Livingston says, it may be very hard not to grant a new trial, or not to continue a cause; but in neither case can a party be relieved by a writ of error. Wood v. Young, 4 Cranch, 237. 5 Cranch, 280. 7 Cranch, 152. 7 Cranch, 565, etc.
“If this court cannot examine a question of fact in criminal caséis, it cannot review the acts of a judge of the first instance resting in his discretion. In the present case, the judge did not believe the affidavit of the prisoner, that he could prove an alibi. He sat on the trial of the cause, he heard the, witnesses, and had an opportunity of forming an opinion of the whole affair, with its attendant circumstances; and, we think, the constitution has provided wisely in leaving these matters in the discretion of the magistrate, who has the best means of thoroughly understanding them. If the facts attempted to be proved by the affidavit of the prisoner, were to be confessed in court by the attorney general, a different case would be presented; and cases have occurred, in which courts have acted upon the confession of the attorney general, on writs of error of errors in fact. Rex v. Wilkes, 4 Burrows, 2550.
“ In this case nothing is conceded ; and a question of fact, which we are not permitted to determine, is an insuperable obstacle to the exercise of our jurisdiction, which is confined to questions of law alone.
There is nothing in the statute of 1846, which provides for the mode of bringing criminal cases before this court, which affects the question under consideration. It depends upon the constitution alone.
“ Previous to the adoption of the present constitution, the late Court of Errors and Appeals, in the case of the State v. Charlotte, 8 Robinson, 529, held, that, under the statute creating this court, it was empowered to grant relief against decisions of inferior tribunals, in criminal cases, on questions confided to their legal discretion. The ground on which that decision was based, was, that the various decisions of the Supreme Court of the United States on that subject, *661were inapplicable to that court, because, under the statute creating it, the court was not a court of errors only. The insertion of the word “alone,” in the constitution, confines the jurisdiction of this court exclusively to questions of law; and on the reasoning of the Court of Appeals, the decisions of the Supreme Court of the United States would be applicable to the question of jurisdiction of this court.” 4th Ann. 438, 439.
Up to this period, the place on the bench now held by Mr. Justice Preston, was filled by the late Judge King, an excellent criminal lawyer, and of great experience. The court was unanimous in its conclusions on this subject, from its organization in 1845. On the accession of Mr. Justice Preston to the bench, as the successor of Judge King, the subject was again reargued and fully reconsidered. After a long deliberation, the doctrine in the case of the State v. Hunt, was affirmed ; Mr. Justice Preston dissenting. Vide the State v. --, 6th Ann. I think, after what has passed, that decision, on the powers of this court, ought to be considered as settling the questions therein decided.
My opinion is, that on the trial for murder, the district judge was wrong in ruling the prisoner to trial, on the ground stated in the bill of exceptions, and, in so doing, committed an error of law. And my impression, when the opinion of the court was prepared, was, that if the jpry had found the accused guilty of murder, it would have been our duty to have set aside the verdict, on account of this error of law. This impression I still retain, although there are difficulties in giving the accused the benefit of this question, which embarrasses its application in the administration of criminal justice, under the powers of this court and the courts of the first instance. In giving a prisoner the benefit of all questions of law erroneously decided against him in the courts of the first instance, the case is, necessary in order, not to encroach upon the discretionary powers which the judges of the district court hold, and must exercise, in the delicate and responsible cases of applications for continuances and new trials, over which this court has no supervision, except in determining the questions of law alone, submitted to them by bill of exception, or on an assignment of error.
The extreme legal effect of the evidence, of which the accused was deprived by the ruling of the judge, would have been to reduce the case from the crime of murder to that of manslaughter. The verdict for manslaughter is an acquittal of the crime of murder. The accused never can again be put on his trial for murder: if a new trial be awarded, he can only be tried for manslaughter. The legal aspect of the case, at present, is the same, as if the prosecution had been originally for manslaughter. The judge of the first instance, in considering the subject of the right of the accused to have the benefit of this evidence, on an application for a new trial, would have been bound to refuse it, according to the rules of law. If this evidence had been offered, on another trial for manslaughter, the court would have been bound to direct the jury to consider it as affording no justification or defence whatever to the offence, for which the accused was then on his trial. The change in the state of the case, by the result of the trial, presents an unusual condition with reference to the evidence, which would have been so material on the original trial; but I can come to no other conclusion, than that of the opinion delivered by the court, that we are not authorized, on the principles of law, to disturb the verdict.' 1 conceive, that according to the principles established, in the cases cited, in Hunt's case, of courts of the highest authority; and, in that case, the duties of-this court are plain and beyond all reasonable doubt.
*662There are some cases, which I have found, which seem to recognize the principle upon which our conclusion on the subject is founded; they are not similar to the present case, but are, in affirmance of a principle, strongly analogous to that upon which it is decided.
If the court refuse to give an opinion, when required, upon a point relative to the issue, and the jury should, notwithstanding, find a verdict in accordance with the opinion requested, there is no error of which the party can complain. Douglass et al v. McAlister. 3 Cranch, 298.
If the judge states the law, and states it erroneously, his opinion ought to be revised, and if it can have any influence on the jury, the verdict ought to be sot asido. Etting v. The Bank of the U. States. 11 Wheaton, 59. Vide 11 Wheaton, 199.
Our decision, in relation to the competency of Matthews, the power was .made on a thorough consideration of the subject, and we can discover no sufficient reasons for changing our conclusions.
The point made concerning the alleged misconduct and separation of the jury, we consider as within the cases decided by this court, and affording no authority to this court to set aside the verdict. The State v. Hunt, and other cases cited. The petition for a re-hearing is therefore refused.
Peeston, J.The time limited for our sessions in the country, and the great-amount of important litigation, renders it impossible to give to the cases that long and considerate examination which we could wish, and they deserve; wo acknowledge, with much satisfaction, the great aid we receive from counsel by their well prepared briefs, their able arguments and the liberal use of their libraries. Yet, new questions arise sometimes, which we cannot investigate and decide with that confidence in tho correctness of our decisions, which we enjoy when surrounded with more extensive libraries, a greater number of practitioners, and the necessary leisure.
This important case affords a striking example. It presented several questions of frequent occurrence, which were argued at the bar with uncommon ability. But after examining these, another, and to us at least, entirely new question arose, which had not been argued at all, and which we yet thought was fatal to the appeal. Under these circumstances, we thought it best to present our views on the whole case, after less than a day’s examination, in order to afford ample timo for a reéxamination of the caso, on an application for a re-hearing, with the aid of counsel, on this new point.
The counsel of the accused having applied for a re-hearing, and expressed his dissent from the whole opinion in the strongest terms, I have re-examined that part of it, which, I think, presents a new question, and have come to my former couclusion. But I will frankly confess, with that diffidence which results from the examination of a now and difficult question, in a limited time, without authorities in relation to it, nor ample means of coming to a correct conclusion.
We have fully expressed our opinion, that a continuance should have been granted to the prisoner, on his trial for murder, and given the reasons. On that trial, an error of law had boon committed; it was our duty to point out that orror, that it might not occur again in the necessary hurry of a jury trial. Having done so, the question necessarily arose, as to the effect of that error on the cause in its present situation. In civil cases, it is well settled, that orror of law in tho progress of a trial, shall not affect the judgment, unless we can clearly sco that it has produced substantial injustice. There is no reason why the samo rule should not be followed in criminal cases.
*663Shall the verdict for manslaughter, on a trial for murder, be annulled, and the judgment of the court be reversed ? That cannot bo done without legal grounds, adequate motives and the imperative commands of justice. The accused was, by the verdict, substantially acquitted of murder, and his life cannot be put in jeopardy again for the same offence. The trial has removed even the suspicion that he committed a deliberate and malicious homicide.
If we remand the cause, it is that the accused may be put on trial for manslaughter. Events subsequent to the application for a continuance, having rendered the testimony which he sought to obtain unnecessary, as to the crime of murder of which he is not now in reality charged, it must be viewed as testimony sought to defend him against the existing charge of manslaughter. And if the cause is remanded, it must be for the sole purpose that he may have the benefit of that testimony, on his tl'ial for manslaughter.
The testimony implies, that he committed a homicide, and is desired for the sole purpose of showing, that it was an excusable homicide in self-defence. It is therefore necessary, to know precisely what was the testimony sought, in order to judge whether the cause should be remanded to obtain it.
And before adverting to the testimony expected from the absent witnesses, it is necessary to observe, that the district court, in the exercise of its discretion, had a right to require the disclosure of all'the facts to be proved by tho absent witnesses, in order to judge whether they were material to the defence, or not, and whether there was a legal necessity to continue tho cause, in order to obtain them. Wharton, C.L., 597.
A trial for murder could rarely be had where there was great danger of conviction, if to be continued on the general affidavit of the prisoner, that the absent testimony was material; for, in his opinion in his own causo, every thing would be material on such an awful occasion. We cannot doubt, therefore, the prudent exercise of his discretion, by the judge, in imposing terms, that the testimony should be disclosed, on this trial, which was taking place nearly eleven months after tho homicide.
It is further to be observed, that it does not clearly appear whether the statement of the facts to be proved was required by the judge, in order to decide upon the application, or was tendered by the prisoner. The affidavit was drawn and sworn to several days before the trial, and it does not appear that he tendered a general affidavit, or that the court required a particular statement. Whether tendered or required, it should have been a statement of all the facts upon which the accused relied for a continuance; and we cannot examine any others than those before us.
The prisoner stated in his affidavit, that he could prove by Bornei, “all the facts as testified to by him on the examination of this case, before the commiting magistrates.” Now, he has not brought that deposition before us, nor made it a part of his bill of exceptions. It is impossible, therefore, for us to say, that it entirely excused the accused. On the contrary, notwithstanding that affidavit, the committing magistrates committed him to prison, and he was not even bailed until after the first trial, more than three months subsequent to tho examination. For the same reason, we cannot consider the “other facts (as expressed in the affidavit,) material to his defence, which he expected to prove by him, but which he is not now able to disclose.” Nor can we consider the testimony expected to be obtained from the absent witness, Viaud, for the reasons given in the opinion already delivered.
*664Now, read the detail of facts to be obtained from the testimony of Bornet attentively. They are: 1. That the deceased came, on the 5th of March, to the coffee-house where his death occurred, for the purpose of cowhiding the defendant. 2. That for four weeks before, he had hunted him for that purpose. 3. That the witness, on the 27th of February, having heard of the violent threats of the deceased against the accused,, sought for him, in order to restrain him, under the apprehension that he would attack the accused with deadly weapons, and to prevent him from carrying his threats against the accused into effect.
The testimony to be obtained from Budd, is far from being as strong.
The testimony to be obtained from Briard is, that the day before the homicide, the deceased inquired for the accused, for the purpose of attacking him ; that he threatened personal violence, and struck his hand upon his pocket where there appeared to be some weapon, saying in an excited manner, he was ready for the accused. This is the whole substance of the testimony of the absent witnesses.
Now, if the deceased came to the coffee-house to cowhide the accused, he came to commit an assault and battery. This does not excuse homicide. Even if he attempted it with a whip, not a deadly weapon, the homicide which prevented it, would have been manslaughter. Though, like the homicide of him found in the act of seducing a wife or daughter, it would have been manslaughter of the lowest grade; and as, in such a case, in England the hand would have been touched lightly with the brand, and would not have been after-wards unworthy of the grasp of honest men, so, in a case of homicide committed in a sudden conflict, to prevent the degradation of being whipped with a cowskin, a temporary and not very disgraceful punishment in the penitentiary would be inflicted. A homicide committed in a sudden affray, under such circumstances, falls within the very definition of manslaughter. Why then every thing necessary to alleviate homicide, from murder, into manslaughter! For, it is laid down as one of the rules of manslaughter, “that any assault made with violence, or circumstances of indignity upon a man’s person, if it be resented immediately by the death of the aggressor', and it appear that the party acted, in the heat of blood, upon that provocation, will reduce the crime to manslaughter.” Wharton Criminal Law, 236.
Even Chief Justice Parker, in his charge on Selfridge’s trial, which has been the subject of much consideration, stated to the jury “his doubt, whether self-defence could in any case, be set up, where the killing happened in consequence of an assault only, unless the assault be made with a weapon, which, if used at all, would probably produce death,”
So, threats the day before, of a kind not disclosed to us, or for four weeks before, or even the possibility that a hostile individual carried a concealed weapon, does not entirely excuse homicide. Opinions to that effect, cannot be found in any elementary book or judicial decision of high authority. In the case of Selfridge, always quoted on these occasions, the court undoubtedly laid down correctly the principles of law abstractly considered. But the verdict of the jury, upon facts somewhat similar to those disclosed by the affidavit we are considering, was erroneous, and is a lasting memento of the weakness of juries, sometimes in favor of persons upon trial, and has caused a deplorable recklessness of human life. Let this prosecution, now for manslaughter, be tested by a special defence, on account of the facts stated in this affidavit. Indicted for manslaughter, would it be sufficient for the accused to plead that the deceased *665threatened me four weeks, or four hours before the catastrophe; or that he hunted to cowhide me; or came to a coffee-house to doit; or was suspected of carrying a concealed weapon, to be ready for me ? All this would alleviate the homicide into manslaughter; but could not entirely excuse it.
It is said, these facts connected with others, might induce the jury to excuse the accused. Still, as judges, we are bound to pronounce, that the excuse must result from the other facts, and not from these which can have no such legal effect. And we cannot remand the cause, that when proved, they may have an illegal effect.
What, then, is necessary entirely to excuse homicide on the ground of self-defence ? The answer is, what the terms purport, that the homicide is absolutely necessary to the defence. If our person can be protected by any other means than the awful resort to homicide, it will not be excused. In general, a known felony must be attempted upon our person. 1. East Pleas, C. 871. The danger must be actual and imminent. Wharton, C. C. 497. The accused must show, that he killed his adversary through mere necessity, to avoid immediate death, or at least insupportable outrage. 1 Russel, 779. In cases of personal conflict, in order to maintain the defence, it must appear, that the party killing had retreated, at least as far as the fierceness "of the assault would permit him. 1 Hale, 481, 483. In a word, it must be proved, that the assault was eminently perilous, and could not be avoided or resisted, except by slaying the assailant. In all these cases, and all others of self-defence, the excuse of the party killing, must result from facts which occur at the very time of the conflict.
Great previous provocation will not even justify an assault and battery. Antecedent threats would be a good ground for binding over the party to keep the peace. Approaching an antagonist with a cowhide, is to be redressed by the laws, unless such an assault be made, as does not appear in this affidavit. They do not show the great ingredient in the plea of self-defence, an inexorable necessity to kill. Now, it must be forever borne in mind, that the question is not whether the evidence should have been obtained on a trial for murder or, even whether it should be admitted, on a trial for manslaughter; but, whether a verdict and judgment having been rendered for manslaughter, substantial justice requires that both should be reversed, in order to remand the cause to receive this testimony, to reduce the homicide to that which is excusable in self-defence. The' moro I reflect upon the testimony, the more I feel that it cannot have that legal effect, and cannot, therefore, consent to annul and reverse a solemn verdict and judgment, to remand the cause, in order to give this evidenco an effect to which it is not entitled in law.
Rost, J.I adopt the conclusion of my brethren, for the reasons given by the chief justice.