Mr. Justice Thacher
delivered the opinion of the court./ — -f
This was an indictment for murder preferred in the Warren county circuit court, which resulted, upon a trial, in a verdict of manslaughter in the second degree.
The first ground claimed for error, is that the grand jury, which found the indictment, was composed in part of bystanders not of the original venire facias, and not brought into court by a special venire facias.
The record shows, upon this point, that a grand jury was empanelled, of which twelve persons were taken from the regular venire, and it having then become exhausted, two persons were taken from bystanders, summoned by the sheriff.
It has been held that objections to the personal qualifications of grand jurors, or to the legality of the returns, cannot affect any indictments found by them, after they have been received *681and filed by the court; but such objections, if any exist, must be made before the indictments are found, and may be received from any person who is under a presentment for any crime whatsoever; or from any person present who may make the suggestion as amicus curies. Commonwealth v. Smith, 9 Mass. 107. But assuming that this objection is well taken in point of time in this case, it is not clear that it is well taken in point of fact.
The first inquiry which grows out of this assignment of error is, the legality of completing a grand jury by means of tales grand jurors, in cases of an exhaustion of the jurors returned upon the regular venire facias.
The constitution of this state has provided that “the right of trial by jury shall remain inviolateand it has further provided, that “ before an individual shall be held to answer for a capital or otherwise infamous crime, except in cases not now pertinent to enumerate, there must be a presentment or indictment for such crime, by a grand jury. It is contended that by thus adopting modes of legal proceeding, we have adopted'them with all their incidents as known to the common law, or at least, so far as not changed by absolute legislation. The history of this country and the opinions of some of its most eminent jurists, show that this position, when generally claimed, must be taken with restrictions. Mr. Justice Story, in his Commentaries on the Constitution, vol. 1, p. 132, sec. 148, enlarges those limitations to a great degree, and excludes all rules repugnant to our local and political circumstances. The historical fact is, that the early colonists of this country were more learned in divinity than in jurisprudence; and Hutchinson, the best colonial historian, observes, in his History of Massachusetts, 1, 399, that its “judicial proceedings were in as summary away as could well consist with the preservation of any' tolerable method or order.” None would contend, at this day, in a trial of a writ of right, for the extraordinary jury, called the grand assize, composed of four knights, “ girt with swords,” and who chose twelve other persons to be joined with them. It has been déemed necessary, in this state, to secure by enactment, the privilege of a jury d'e *682medietate linguae,. Yet both these juries were known to the original common law. It will be observed that the modifications in this country, of the English forms of legal proceedings have not always been formally made, as by legislation, but have sprung naturally from our circumstances. The old common law has been insensibly changed and tempered to our situation and institutions, and thus practice, custom and usage, which are always as potent as legislation in such cases, have made a common law for the individual states. Thus while the constitution must be construed to have adopted the generous privilege of the common law trial by jury in its essential elements, it reasonably follows, that whatever was an accidental and not an absolute part of that institution, the mere superfluous forms and complicated proceedings of the English courts, is not necessarily included to have been guarantied in the right, by the clause of the constitution. It was therefore competent for legislation to point out the mode of empanelling juries, both grand and petit, so long as it did not intermeddle with the constituents of those bodies; and, whenever legislation is silent, we must presume an intention to adopt the forms of the common law, unless they are found to be repugnant to our local or political circumstances, and well-established usages. In this state, the mode of empanelling grand juries differs in many respects from the mode existing at common law. One of the marked differences is, that at common law, jurors duly served with process under a venire facias, were compellable to appear, and their appearance in the common pleas was enforced by writs of ha-beas corpora, and distringas juratores, and in the king’s bench and exchequer, by the writ of distringas juratores alone. Bac. Abridg. tit. Juries. With us, jurors duly served with process under a venire facias, and failing to attend, are liable to a fine, unless good cause be shown for their non attendance on or before the first day of the regular term of the court next after their default, or before a final judgment on scire facias issued according to law against them. H. & H. 492, sec. 48. They are not com-; pellable to appear at the return term of the venire facias. The statute has affixed the penalty and the whole penalty fop such *683non attendance. The scire facias against a defaulting juror in this state, corresponds to the distringas juratorem of common law, the latter having been returnable immediately, and the former being returnable to a subsequent term of the court. In this interpretation of the statute, the legal maxim, that Expres-sio unius est exclusio alterius, applies with much force. It is a legitimate mode of ascertaining the meaning of a statute, to compare it with others of a similar character. For instance, the statutes of this state respecting the summoning and attendance of witnesses upon trials, resemble the rules governing jurors; they are subject to the same penalty, and same process of its recovery. H. & H. 599, sec. 2 and 4. In the case of witnesses, however, there is a special statute authorizing the issuance of a warrant or attachment to compel their attendance, which does not exist in the case of defaulting jurors. H. & H. 605, sec. 21. In further confirmation of this view of the law upon this point, it may be observed that the statute, H. & H. 492, sec. 49, provides that the grand jury shall be constituted from the whole number of the jurors, summoned by the venire facias and attending thereon, which seems plainly to anticipate the contingency of the non attendance of some of the jurors summoned by the regular venire facias. In reply to that branch of the assignment of error which would appear to hold, that, under the circumstances, a special venire facias should have been awarded to complete the grand jury, it is enough to observe that the statute providing for such an order, (H. & H. 498, sec. 68,) authorizes it only when not any of the regular jurors summoned to a particular term, shall be in attendance. This is but a re-enactment of the common law, as will be hereafter seen. Then, there existing no means of enforcing the appearance of the defaulting jurors of the regular venire facias, and it not having been a case for the award of a special venire facias, what was the proper course to be adopted to complete the number of jurors necessary for a legal grand jury % Our statutes, although they do not expressly point out the mode, point it out by inference, by acknowledging the legal existence of. tales grand jurors. H. & H, 499, sec. 70. At common law, *684if a jury did not attend on the habeas corpora or distringas jura-tores, which were to bring them into court, there was a writ of undecim, decim or octo tales, according to the number deficient, to force others into court; and also subsequently, 35 H. Till, 6, “ the court could cause a supply to be made of so many men as were wanting, of them as were standing about the court,” and hence the act itself was styled a tales de circumstantibus. The tales de circumstantibus was given by statute to trials by assize and nisiprius. In this state, the tales and the tales de circum-stantibus have been indifferently used by custom of the courts.
It occurs here to notice the objection that the two persons, bystanders, do not appear to have been competent jurors. Although this objection is likewise involved in the difficulty of having been taken too late in point of time, as before sustained by authority, it is not well made in point of fact. The two persons were summoned from the bystanders to sit upon the grand jury. The circumstances show that they were summoned as tales de circumstantibus. The word tales is similitudinary, and has reference to the resemblance, which there ought to be in esse. Thus at common law, if the array were quashed, or all the polls challenged or absent, a new venire facias was awarded, and not a tales, because there were no quales. The mode of proceeding shows, therefore, that the persons summoned were “such as” “those” of the jury already empanelled, and who, nothing to the contrary appearing, must be considered to have been good and lawful men, and invested with all the necessary qualifications.
Upon the examination of the second assignment of error, some remarks are equally applicable to the one just considered. The second ground claimed as error is, that the circuit court erred in refusing to allow the prisoner to challenge peremptorily a greater number than twelve of the jurors tendered to him by the state for his trial.
Our statute, (H. H. 674, s. 46,) limits the number of peremptory challenges in capital cases to twelve. At common law, in capital cases, the prisoner could challenge thirty-five peremptorily. By statute 38 H. VIII. c. 3, peremptory challenges were re*685duced to twenty, but by 1 & 2 W. & M. c. 10, the challenge of thirty-five in treason and petit treason was restored. In this state, formerly, by act June 11th, 1822, peremptory challenges were allowed to the number of twenty. The origin of peremptory challenges shows that the reason for the common law rule has ceased at this day. The trial by the petit jury was introduced to do away with the trial by ordeal, the jury of twelve being after the manner of the canonical purgation of accusation. Among the canonists, the whole pares were not upon the jury, but only a select number was brought in and chosen by the accused himself. A middle way was therefore adopted, and the accused had liberty to challenge peremptorily any number under three juries, four juries being as many as generally appeared to make the total pares of the county. Gilbert’s Com. Pleas, 99; Bacon’s Abridg. title Juries, E. It might be extremely inconvenient, and indeed, in some instances, work a complete denial of public justice, under our local circumstances of sparse population, to adhere implicitly to this feature of the common law. The trial by jury is by twelve free and lawful men, who are not of kin to either party, for the purpose of establishing, by their verdict, the truth of the matter which is in issue between the parties. It is called a trial by one’s peers ; that is, by men who have that concern for the party on trial, which naturally flows from a parity of circumstances, common to him and his judges. 3 Black. Com. 361. The jurors should be as impartial and independent as the lot of humanity will admit, and be allowed to judge upon the matter submitted to them freely and without fear or favor. Such is the trial by jury, guarantied by the constitution, and originally secured by the magna charta of England. Any legislation, therefore, which merely points out the mode of arriving at this object, but does not rob it of any of its essential ingredients, cannot be considered an infringement of the right.
'f'he third point relied upon as error, is, that a witness on the part of the state was permitted to testify as to the general habit of the prisoner, in his'capacity of overseer, in punishing slaves upon the plantation of the owner of the slave charged to have been killed.
*686It is not necessary to prove strictly as laid in the indictment, the instrument or means by which the crime of murder has been committed, for if it be proved to have been effected by any other instrument, capable of producing the same kind of death, it will be sufficient. But the mode in which the death is alleged to have been effected, must be proved to a reasonable degree of certainty. In this case, the answer of the witness was a response to the allegation in the indictment, of the instrument used to inflict the wounds, but was general in its character, and had no other than a general reference to the individual slave charged to have been killed. It cannot, therefore, be viewed as evidence in this case of killing, even though we supply the fact that this slave was upon the plantation. The primary rule in relation to evidence is, that the evidence must correspond with the allegations, and be confined to the point in issue. A principal reason for this rule is, that a party, having had rio notice of such a course of evidence, may not have prepared himself to rebut it. It is not an answer to this to say, that the matter in evidence having no relation to the point in issue, cannot therefore influence the mind upon it. It may have the effect to withdraw the minds of the jury from the point in issue, and thus to mislead them. If the admitted evidence tend to prove that the prisoner has committed another distinct offence, it may thus excite prejudice, and even raise the inference of the commission of the offence alone in question. It is of the last importance to a person charged with an offence, that the facts laid before the jury should consist exclusively of the transaction, not only because he can be expected to come prepared to answer them alone, but because, even should he happen to be so prepared, it is so much irrelevant matter tending to confuse the minds of the jury, and to take from him the benefit of their exclusive consideration of the merits of the matter solely in issue. The customary manner of the prisoner’s punishing slaves upon the plantation under his control, was not the point in issue, nor a collateral fact of that point, nor did it constitute any part of the transaction to which that point related. The prisoner was not necessarily prepared to prove his customary mode of pun*687ishing slaves. Such a matter involved an inquiry into circumstances that might draw away the minds of the jurors from the true merits of the investigation submitted to them. It might have tended to prove that the prisoner had committed the offence of cruel and unusual punishment upon a slave, which is a misdemeanor under our statutes, and thus have excited an improper prejudice against him in the minds of his jury. There was error, therefore, in permitting the question complained of to be asked and answered by the witness.
With the foregoing view of this case, its remaining points relied upon by counsel need not be reviewed.
.The judgment of the court below is therefore reversed, and a new trial awarded.
Mr. Chief Justice ShaRKey
delivered the following opinion.
One of the objections raised in this case is, that the grand jury was illegally organized. It seems that after the venire was called, only twelve of the jurors who had been summoned appeared, whereupon the court ordered the sheriff to summon two bystanders to serve on the jury, who were accordingly sworn. The regularity of this proceeding seems to me to depend entirely upon the sixty-eighth section of the circuit court law, which is in this language. “ If at any regular or special term of any court in this state, there shall not be in attendance any of the regular jurors summoned to such term, it shall be the duty of the court to award forthwith a special venire facias, directing the proper officer to summon without delay, persons, freeholders or householders of the county in which the court shall be sitting, to serve as jurors at such term of the court,” &c. Now the question is, does this section authorize the court to exercise this power only when all the grand jurors fail to attend, or is the special venire facias to issue to bring in a less number than a full panel 1 I think the statute is not to be read as providing only for the non-attendance of the whole panel, but if any part fail to attend, then a venire shall issue to make up the requisite number. The sense of the statute is made apparent by reading it thus: “If there shall not be in attendance any one or more of *688the regular jurors,” &c., or “any number of the jurors,” then it shall be the duty of the court to issue a special venire. The word “ any ” means every, either, whosoever. By giving to it either of the latter significations, my construction is sustained, and the statute leaves no contingency unprovided for. It would seom singular, indeed, that the legislature should have intended to authorize the court to issue a special venire only in the event of the non-attendance of the whole jury, a contingency that is least likely to occur, and that they should have overlooked the difficulty which is most probable, and which must, in the nature of things, often occur, by the non-attendance of part of the jury. Thinking, then, that the statute provides for supplying the deficiency, in case any one or more of the jurors should fail to attend, the question is narrowed down to this; may the court disregard the mode prescribed by the statute, by pursuing a different method 1 I think not. The statute must be followed. As Avell might the court dispense with the venire facias entirely, and summon the whole of the grand jury from the bystanders. It is not for the court to say that the provision of the law is useless, or that its object may be accomplished without process, when process is required. The law requires that the special venire facias shall direct the sheriff to summon freeholders or householders of the county, but under a mere order, verbally given, the defendant has no security that competent persons will be summoned. It is safe to follow the law, but dangerous to depart from it. If my construction of the statute be the true one, then the indictment was bad, and the judgment ought to have been arrested.
I concur with the majority of the court in holding that improper evidence was permitted to go to the jury. The testimony which tended to show the defendant’s treatment of other slaves, should have been excluded.