The first error assigned is the refusal of the court to permit the defendant to withdraw his plea of “ not guilty,” and, plead in abatement to the indictment. The matter in abatement, as set out in the plea tendered, was, in substance, that the board of supervisors was illegally constituted, and the grand jury which preferred the indictment, having been selected by it, was an incompetent body. It might be a sufficient answer to say that the incumbents of the board were de facto officers, discharging their functions ; and that their acts as such, so far as third persons are affected, are as valid as if they were officers de jure; so that if the exception stated in the proferred plea was true in point of fact, it would not avail the plaintiff in error. But there is another more conclusive answer. The empaneling of the grand j ury is made by statute conclusive evidence of its qualification and competency. After it has been embodied sworn and charged, no exception, by plea or otherwise, can be taken as to its legality as a whole, or to the qualifications of its constituent members. James W. Head v. State, supra, 731.
It would, therefore, not be error in the court to decline to allow the plea to be filed, when the matter of the plea would b.e of no benefit to the accused. When the case had progressed to that stage that, according to the practice, the true for pleading dilatory pleas had passed, a party cannot ex-, pect, and ought, not to ask, that his plea to the merits may be withdrawn, unless he presents matter in abatement, time in point of fact, and valid in law. The court in adjudging upon such an application favorably to the accused, ought to be satisfied that the plea is sufficient and valid.
Ought the motion to quash the venire facias to have been sustained for the reasons stated: 1st. That it was not delivered to the accused or to his counsel one entire day before the trial; 2d. Because the jurors were not qualified, one of them being a subject of the kingdom of Great Britain, and not a citizen of the United States. The general policy of the jury laws is to discourage exceptions to the entire body *796of the venire, trusting to the examination on voir dire into the qualifications, and the challenge for cause, and perenip-' torily, as. ordinarily ample ¡to insure the- selection' of an-unbiased jury. ..Hence, the statute makes.-all law's relating to drawing,.summoning and. empaneling-jurors- merely -directory.- Rev. O.ode, 500, ,art. 142, forbids a challenge to the" array, except for fraud, “ñor shall-any- venire facias, except' a special venir e facias,-. in. a criminal - case-, be quashed 5 for-any-cause whatever.”’ Array is the .¡whole'-body - of persons summoned to-, attend a court, as they, are- arrayed "or arranged- '' on .the panel.- . Comyn’s: Dig.-, ¡Challenge,- B..; Venire facias ju(Uoationis.is the writ by which-the sheriff caúses’to -come ;' from.the body, of his. county,•„ a •. certain-number <0f qualified citizens'who .are to act as, jurors in -the :courib -Steph. on PL; : 104. A challenge to-the array is,-an irregular'form of -plead- -- ing by which exception .is made to'all the jurors upon-the venire for, some original .defeefin making'the return thereto-' 1 Chift. Crim. Law., 53.7. -It-must relate', -to some - defect or= ■ partiálity in.,arraying-the panel.- Ooke-on Litt., -Mi • The special ‘' venire was returnable on the.-LOth-day of-August, anda copy was delivered-.to..the counsel.-of the accused on the 8th day ’ of,the .month,.so tha-f-one entire day:did> elapse between the service of the,'.copy., and th’e trial.- Shaffer v. '■ the State, 1 How., 242.
2d. Itis no ground-for quashing -the reñire’ that one of the jurors named in-it,, was not .a - citizen of the -United States ; that, would have, -been a.good cause: of. personal '-challenge. It would b.e ,a challenge- to, the poll-,and - not-a-defect in" the' writ. The, sheriff wus bound to. execute, the writ according to its:cpmmand;;.no..discretton isentrusted-toffiirn toetrikeout or substitute names, or to ■ omit -service, .because . in his judgment, particular-persons are incompetent jurors-. The statute-, is silent ,as-„.to th.e ..causes for which-: a venire facias may be-quashed; ;it.must be. either *,for sOmé misconduct in ■ the officer, which would be fraudulent, -or-it'must be founded on some.manifest -error -committed.in.-selecting; drawing, or sum-moping the jurors by npt pursuing the-law.' :It > is - notpre-*797tended that.there was error in.the selection,'drawing ar-sum-moiling of. the Jurors, nor is partiality or corruption imputed to the officer. If. .the , mnir&. had not:, be’en. -, served o.n the 'defendant a,t a proper time, that would hav,e-been good reason to .postpone the -triql pntil the. accused- had-the time allowed by. law to examine and purge the panel..- • Bat-it would mot be good reason for .quashing- the : writ, if it ^yere otherwise unobjectionable... As saij by the court, ip Loper v. the State, 3 How., 432; “the.statute.r.equires service of- copy of tenirej to enable the prisoner to prepare.his defense, and his-- chai--lenges to thg. polls.’.’ -If he doesmot.object, to a. trial for this reason, and ash an enlargement of time, he will be taken to waive the objection, ..The return of the .sheriff is conclusive nhless contradicted Woodsides v. the State, 2 How., 655; Shaffer v. the State, 1 How., 247.
The instruction given.to the. jury should have reference to-the special state of the.facts in evidence,-with-a view to lay. before them the law applicable to the, -facts., -.-The doctrine, was announced jn Wesley v.-.the State, 37,Miss., 357, “ that-if the conviction,is .clearly .right on the evidence,.and the jury-, could not have been misled by the . court to, the defendantls-prejudice, looking to. the tenor of .all. the instructions, the: judgment ought to.have beenaffirme.d.”,. The language of, the court is, .“it is not for. every: error ooipmitted by. the cir--cuit courts in granting or refusing, . to .charge-the- jury,-that-this, court will reverse, It is .only .after - an -.examination of-, the. whole record,. and when it appears-, that the.pa-rty com-; plaining has either been injured,-or may .have been injured,, that this court will interfere and. correct, the error.V Wei should be very, slow and reluctant to disturb .the verdict .if' the-law was correctly ex-ppunded to .the..-jury, in-..refe,rence to, the main and material facts developed in the evidence;,, although there may have been error on some point; collateral, and not touching .the material and- -vital.-merits,of the. case. Error is predicated. of all- the- .instructions given at the ¡ instance of .the prosecution,but,in the ..argument,..objection is only taken to the last three. To have in the mind the facts *798to which they point, it is proper to sum up the leading and undisputed circumstances immediately preceding and attending the killing. The deceased, early in the morning, displayed in the yard and near the dwelling house of Kinkead, a boisterous, angry humor, directed toward the deceased, most probably excited by some communication recently made to him by a woman. He immediately started in pursuit of deceased, and found him in one of the houses at the quarter. On sight, he, in an angry manner, accosts him with the declaration that “ this must be stopped ” or there must be a fight; the parties walk off some distance, when the accused stabbed the deceased, from which he shortly after died.
The 13th charge states to the jury as law, that if accused had malice against the deceased, and provoked a fight, and used a deadly weapon, whilst the deceased was unarmed, and killed the deceased, it is murder. There is no evidence of any violence or demonstration of violence by the deceased, at or just preceding the stabbing. The thrust with the dirk knife was the first and only blow given. There is not the shadow of pretence in the evidence that excuse existed for the use of a deadly weapon. There may have been, and perhaps was, a willingness on the part of the deceased to go out and fight on equal terms, that is, without arms, for he had none. The jury were warranted in infering that a resolution had been formed to take life, before the fatal blow was struck, and that the stabbing was in pursuance of such purpose. Under the facts in evidence it matters not whether the accused was in the habit of carrying the dirk knife, the implement of death, or whether he prepared himself with it for the special occasion, he was the aggressive party. He sought out his adversary and invited him to the conflict. He employed his weapon on the first onslaught, when in no danger of harm to life or limb, and from the circumstances of its use, the law implies an intent to kill with malice pre-pense, because there was neither excuse nor justification.
If, on sudden provocation, parties begin a conflict on *799equal terms, and when one party is sorely pressed and overcome, and, at the same moment, his life is endangered, he may be excused in seizing any means within his reach to ward off the impending danger. But this is only in sudden quarrel and fight when there is no malice, but momentary passion is the exciting cause. If, however, the one who uses the deadly weapon has that advantage over his enemy towards whom he has a grudge, or entertains malice, and brings on the fight with the intent to use it to slay his adversary, then it is murder.
The 14th charge, as a general proposition, is too broad ; it ought have been accompanied with a statement of the condition and circumstances which make a killing with a deadly weapon in mutual combat criminal, either as murder or manslaughter, but those conditions are so fully stated in the previous instructions that the jury could not have been misled. The last charge correctly expounds the law on the subject of malice prepense, or the deliberate design in order to constitute a homicide, murder.
Wherefore the judgment is aifirmed.