dissenting:
Two questions are presented in this case. First. Whether in case of the death of a circuit judge, whose term of office has more than one year to run, the governor has power to appoint a judge to discharge the duties of the office, until an election to fill the vacancy be held. Second. Whether the court erred in overruling the motion for a new trial based upon the affidavits, showing that one of the jurors who tried the cause had prejudged it, to the prejudice of the prisoner.
1. The 13th section of the fifth article of the constitution provides, that “ all vacancies not provided for in the constitution shall be filled in such manner as the legislature after the adoption of the constitution shall provide. An act was passed providing that “ whenever any vacancy shall occur in any state office, when the unexpired term thereof shall have more than one year to run, it shall be the duty of the governor when notified of such vacancy to issue a writ of election, requiring an election to be *898held to fill the un expired term of said office in the particular district or in the state, which election shall be held in the case of filling any vacancy in the office of a district officer, on thirty* days’ notice; and in case of a state or general officer, on sixty days’ notice, provided however, that the governor of the state may make a temporary appointment to any office, a vacancy in which occurs, to have effect and be in force until the election so ordered by him shall have been held, and the successor or person elected to the office be duly qualified in the manner prescribed by this act.” Hutch. Dig., 164.
The appointment in question in this case having been made in virtue of the proviso of this act, its validity would appear to be clear and unquestionable.
But it is objected. First. That it was the duty of the governor immediately on receiving notice of the death of the incumbent, to order an election to be held, on thirty days’ notice, and that the temporary appointment could not extend beyond the period at which the election was required to be held, and until the new judge should be qualified; and that as the notice of the vacancy under consideration, was received by him in June, and the election was not held until November, the appointment was void.
We do not consider this a proper view of the statute. In providing that it should “be the duty of the governor when notified of such vacancy,” to order the election, the term when was doubtless intended to refer to the condition upon which the election should be ordered, and not prescribe the time when it should be ordered ; and it should be understood as if the language was upon being notified. This is frequently the sense of the word in technical language.
Again, it is objected that the governor has no power to make a temporary appointment, until he has first issued the writ of election, and fixed the day on which the election shall be held. But the statute does not in terms render the performance of the former duty dependent upon the performance of the latter. It is made the duty of the executive generally to issue a writ of election to fill the vacancy, when the unexpired term shall exceed one year: and, as^bove shown, this duty must be per*899formed upon his being notified of the vacancy. The proviso then confers the power to make a temporary appointment, to continue in force until election so ordered shall have been held, and the successor qualified. What is to be understood by the terms “ so ordered ?” They do not mean that the election must be ordered at the time of his receiving notice of the vacancy, as is above shown. It can only, therefore, be understood to mean, that the temporary appointment shall continue in force until the election, which the executive in the preceding part of the act is required to order, shall have been held, etc.
It is certainly his duty to order the election in good faith and without necessary delay ; and we think, that the spirit of the law, and of the constitution, required it should be ordered speedily. He may not perform his duty in this respect with proper diligence. But this does not necessarily render a temporary appointment made by him void.
Nor is the fixing of the day of election previous to making the temporary appointment necessary, in order to fix the period for which the appointee shall hold the office. For if the election be ordered within such time as a faithful performance of that duty by the executive requires, the appointee is bound to take notice of the time so appointed for the election, and also, of the fact of the election and qualification of his successor; and it is not necessary that the period of the election shall be specified in the commission.
The special appointment must be presumed to have been made because the governor considered that the emergency of the public interest required it to be made ; and the power to determine the question of the necessity for the appqintment, is conferred upon him by law. He is also required to order an election to fill the vacancy. But it appears to me, that neither by the terms of the statute nor by the reason upon which the two acts are required to be performed, does the validity of the former act depend upon the previous performance of the latter.
■Another objection is founded on the fifth section of the fourth article of the constitution, which is, that “ all vacancies that may occur in said court,” (that is the high court of errors and appeals,) “from death, etc., shall be filled by election as aforesaid, *900provided however, that if the unexpired term do not exceed one year, the vacancy shall be filled by executive appointment.” The word “ court” in this section is sometimes, but erroneously, printed in some prints of the constitution “ courts.” But both the context and the correct prints of the constitution show that the high court of errors and appeals only is referred to; and as this objection rests solely upon the assumption that other courts were referred to, it is fully answered by the correct print of the constitution.
But, moreover, this provision of the constitution referred to the election or appointment of a judge, to fill the entire unexpired term. If that term exceed one year, it is required to be filled by election, which cannot be held without notice of thirty days. During that period, there would be an interregnum, or temporary vacancy in the office, not contemplated or embraced by this section of the constitution, and which the public interest might imperatively require to be supplied ; and this case, not being especially provided for in the constitution, is embraced by the 13th section of article 5th, and the act of 1833, passed in pursuance of that section; by which the power to make a temporary appointment until the election and qualification of the successor, is conferred upon the executive.
2. In support of the motion for a new trial, the prisoner introduced the affidavits of two witnesses, stating that on a day previous to the trial of the case at that term, they had heard E. K. Wells, one of the jurors who tried the case, and returned the verdict, say that if the evidence on the trial should be the same as that given upon a previous trial of the same case, and which said juror had heard, the prisoner was guilty of murder, and should be hung; also, the affidavits of the prisoner and of his counsel who defended him on. that trial, that they did not know until since trial, that the said Wells, or any of the jurors, had expressed any opinion in relation to the prisoner’s guilt.
It appears to be well settled, that if, after the trial, it appears .that a juror had prejudged the case, but had stated on his voir dire falsely that he had not formed or expressed an opinion upon it, and that the prisoner who was prejudiced thereby, was ignorant of the fact at the time, a new trial will be granted. *901Wharton Amer. Crim. Law, (2nd ed.,) 905, and cases there cited ; 1 Graham & Wat. on New Trials, 129.
But a qualified opinion, dependent on a particular state of facts, will not be a ground for a new trial. As where the juror said, that if the prisoner killed the man, he ought to be hanged. Commonwealth v. Hughes, 5 Rand., 655; or that if the prisoner had made the attempt to commit the crime charged against him, he ought to go to the penitentiary. Kennedy v. Commonwealth, 2 Virg. Cases, 510.
If it appeared by the record that the judgment of the court below, overruling the motion for a new trial, was based solely upon the ground that the opinion of the juror, as shown by-the affidavits, was qualified and hypothetical, we could not sanction that view.
It clearly appears, from the affidavits, taking them to be true and entitled to entire credit, that the juror had formed the opinion, from having hea/rd the testimony on a previous trial of the prisoner, that he was guilty; that the opinion must have rested upon his mind at the time he made the declaration ; and, if he spoke truth, it is impossible to conceive but that he had formed an opinion that it would have required testimony to remove ; the opinion expressed could not be said to be dependent upon the fact that the prisoner’s guilt should be established, and was therefore not hypothetical; but it was certain and fixed in the mind, and dependent on its being earned out, only on the fact that the same evidence should be introduced on the trial then to be had, which had been adduced on a previous trial.
But it does not appear by the record, that the motion for a new trial was denied on this ground, nor upon any particular ground. And, therefore, if there be any ground on which the court might have refused the motion, it must be presumed that the court acted on that ground..
The question of the credibility of the witnesses who had sworn as to the juror’s expression of opinion, was to be determined entirely by the court. It was a matter submitted to its isound, legal discretion. It was the duty of the judge to consider closely the character and position of the witnesses, which may have been known to him, and the character of the juror, *902the circumstances under which he may have been elected and empanelled on the jury, and the examination to which he may have been subjected at that time, and to determine from all these facts and circumstances whether the witnesses should be credited. It was competent for him to determine, from these circumstances, as well as from his own knowledge of the characters of the witnesses and of the juror, that they should not be credited. The State v. Duestoe, 1 Bay., 380. If this was not true, any party convicted of crime would readily be able to procure some corrupt witness, whose character was not sufficiently known to the community at large, to cause the proper legal testimony to impeach his credit to be adduced, to come forward and swear, that any one of the jurors had made use of declarations of the prisoner’s guilt. These declarations could easily be stated to have been made under such circumstances that no witness could be adduced to disprove them ; and if the affidavit of the juror would not be admissible for that purpose, it might be impossible to counteract the legal effect of the false statement of such a witness, and a most serious blow would be struck at the whole criminal jurisprudence of the country. Every verdict-, however just and fairly made, would be liable to be set aside upon testimony not intrinsically entitled to credit; and the facility with which this might be done, would endanger every verdict. From the nature of the case, therefore, the judge must have the power to scrutinize the testimony, and to settle the question of the credibility of the witnesses. If the court refused the motion upon this ground, it was, therefore, a matter within its legal discretion ; and as every presumption must be indulged in favor of the propriety of the judgment, which is not removed by the record, it must be taken that the court acted properly on this ground.
This presumption is much strengthened, when we consider the fact that the affidavits of these witnesses was in direct contradiction of the sworn statements of the juror, made when he was tried and elected as a juror, so that the question of the credit due to the respective parties must have been directly presented for the determination of the court, and may be very justly taken to have been the formation of its action.
*903I am, therefore, of the opinion, on the first point, that the judgment is correct, and on the second point, that we should not be warranted in declaring it wrong; and that the judgment should be affirmed.