it cannot well be denied, that the circumstances attending the homicide set forth in this re- ** cord, legally speaking, constitute a case of murder; and if so, it is contended with much strength of argument, that the testimony offered in relation to the Prisoner's violent temper, ought not to influence the decision of the case, because if it had been proved- that he possessed a mild and peaceable disposition, it would still be a case of murder, f am not disposed to controvert this proposition. But in the consideration of this case, it must be kept in view, that by tiie constitution of the State, it is declared that no freeman shall be convicted of any crime but by the unanimous verdict of a Jury of good and lawful men, delivered in open Court.
Now if it could be reduced to a moral certainly, that Juries could and would at all times, in the discharge of their duties, strictly adhere to the law which defines murder, the reasoning would be unanswerable. But from the nature of things, this is not to be expected, it is the nature of man to lean in favour of an unfortunate criminal, when he is surrounded with a good character. Our feelings are too often indulged at (he expense of the understanding, whether friendship or hatred be tbe food they feed upon. It is therefore of much importance that the rules of evidence should be strictly adhered to ; one of which is, that evidence of the Prisoner’s general character shall not, against his consent, and at the instance of the prosecutor, be given in evidence against him, unless the nature of the charge renders it necessary. This however is not that case.
I am pretty well persuaded, that it was not the object of the Judge to. impugn this rule. The question, which I think a departure from it, was put upon the heels of one which was asked by the Prisoner’s Counsel, which was intended to establish the fact, that the Prisoner on account of weakness of mind, was not altogether an accountable being. The question asked respecting the *278violence of his temper, related more to the qualities of ^ll’^e!U,t, ant* nature of disposition. I am of opinion* that the Prisoner’s Counsel, by asking that question, did no(: p„j (|,e Defendant’s character in issue. The question that followed did so, to a certain extent. It brought forth the answer, that he was a man of violent temper. This might have had an effect with the Jury unfavorable to the Prisoner, it may seem to be a small circumstance for which to grant a new trial, but it possibly maybe one on which the prisoner’s life depends. The rules of evidence in favor of life, cannot be too closely adhered, to. I am of opinion that a new trial should be awarded.
Henderson, Chief-Justice, concurred!