This is an appeal from a judgment on a conviction of the appellants, on a charge of murder in the first degree; the first named appellant as principal, and the second, as accessory before the fact. The trial and conviction was at the last Term of the District Court for Madison county. There had been a trial at the preceding Term of the Court, and the appellants had been found guilty of murder in the second ' de
The overruling these motions, with various other grounds, have been assigned for error. Such of them as are considered as presenting any question of law, will receive our most deliberate attention and thorough investigation; others that we regard as merely questions of practice, will be disposed of in a more cursory manner, and with these we will begin, leaving the most important to be last discussed.
On the charge that the Judge assumed the province of directing the jury as to what had been proved, and thereby entrenched upon the province of the jury, we will say but little, because, on looking into the record, we do not believe the charge is sustained. Whilst we are at all times bound to sustain the right of the jury to decide on facts given in evidence, yet we are fully aware that it oftentimes occurs, that in charging on the law, the Judge is more distinct, and can be better understood by calling their attention to the evidence, of a particular fact or facts, if it is a controverted one, for the purpose of directing the jury to the rules of law that must govern them in arriving at the truth, and if uncontroverted for the application of the law to the fact. All that is required of the Judge, is, that he should neither decide upon the facts, nor endeavor to influence the jury in their decision on the facts; and there is nothing in the record from which it can be inferred that the province of the jury was attempted to be invaded.
We do not believe the Judge erred in refusing to charge the jury; that the immoral character of a witness destroyed, or invalidated her testimony. All the witnesses who testified to the character of the witness being bad, limited her bad character to the general reputation of a want of chastity. This is certainly a great want of morality • in a man, or woman either, but it did not render her infamous in the legal sense of the term infamous; and all the witnesses said they knew nothing against her character for truthfulness, therefore she was clearly a competent witness. How far the want of chastity would impair her credit, was a question to which the jury had the right and sole right to respond.
The appellants asked the Court to charge the jury, in effect, that if a confessionof the accused was proven to have been made, at one time, by one witness of the State, and proved to have been denied at another time, by another witness for the State, that one would destroy the other, and had, both, to be taken together. If this rule could be sustained, it would allow the accused to make
It has been said in argument, that the Judge had refused to charge the jury, that the confession of a party accused of a felony, should be received with very great caution, and that a jury should hesitate to convict upon such confession, unless corroborated by other circumstances. This is certainly a legal principle of evidence, founded on sound philosophy, and the purest humanity. But the Judge could not be called to give this charge unless the facts in evidence made such charge applicable. Under the influence of the rule regulating confessions, it would not be legal to convict, on the naked confession of the party accused of an offence, unless such offence had been proven to have been committed by some person. So if a man confesses that he had murdered A, it must be proven that A had been destroyed. Or, in the language of the law, the corpus delicti must be proven. The Judge in this cáse may well have refused to give the charge, because it was not at all applicable to the facts and circumstances by which it was corroborated and surrounded. In this case, there is no doubt of the life of the man being destroyed, and prima faoie% it was felonious killing. There was no evidence of surprise, fright, or any inducement held out to make the confession; such circumstances would have been proper to be considered by the jury, and if any of them had been in evidence, the refusal of the Court to give the charge would have been error.
We will now proceed to the investigation of what we regard as the most important objections to the affirmance of the judgment in the case. It appears from the record that there was a third person indicted and put on trial with the appellants, who
We believe, that the rule laid down by Chief Justice Sav
The misconduct of the jury is assigned as a ground for reversing the judgment. It appears from the affidavit of the Bailiff, that, at the request of the jury, he had twice taken to them whiskey, and that they drank it; that this was after they had received the charge of the Court and retired to consider of their verdict; and that they had once separated whilst he was conducting them through the crowd, after they, had taken their supper. The course of judicial decision upon the question, as to what kind of misconduct on the part of the jury shall be sufficient to vitiate their verdict, has been far from uniform; perhaps no question has presented so great a diversity of opinion. In England, the jury was subject to the most rigid iron rule, that they should be kept together without any refreshment whatever, neither meat nor drink, nor fire, until they had agreed, and the Bailiff was sworn, further, not to permit them to be spoken to by any one, nor to speak to them himself, but to ask them if they had agreed. In civil cases the rule was not so stringent, and it did not vitiate their verdict, if it was proven that they had sep
In the case of Brant v. Fowler, 7 Cowan, 562, the jurors were not allowed to separate, but were permitted to leave the Court room accompanied by an officer. One of the number separated from the officer and drank brandy, and for this cause the verdict was set aside. In the case of Williams v. Abrahams, 1 Hill, 207, Bronson, Justice, commenting upon the foregoing cases said, t: The case of Brant v. Fowler, can- “ not, I think, be supported. The mere fact that some of the “ jurors of their own head drank spirituous liquors in the 11 course of the trial of a cause, if, as was admitted in that “ case, there was no mischief, cannot be a sufficient ground “ for setting aside their verdict. There is no authority, an- “ cient or modern, so far as I have observed, that goes far “ enough to uphold such a doctrine.” He then contends that the case of the People v. Douglass, did not rest upon the mere fact of the jurors drinking spirits, but upon all the irregularities taken together, such as separating, and talking to bystanders about the case. We must conclude that in New York at this time the mere fact of the jury drinking spirits at their own procurement, is not sufficient, jjer se, to set the verdict aside. Mr. Waterman, in his notes to Archbald’s Crim
Inspiring bold John Barleycorn!
What dangers thou eans’t make us scorn !
Wi’ tippenny we fear nae evil;
Wi’ usque bae, we’ll face the devil.
Yes, it is but too true, that it will make a man bold and reckless, not only of consequences, personally, but also of the rights of those whose life and most valuable interests, property and reputation are at stake; and its effect is so very different on different men, that it would be dangerous in the extreme to attempt to lay down any rule by which it could or should be determined whether a juror had drank too much or not • and the only safe rule is, to exclude it entirety.
The rule laid down in the two overruled cases in Mew York, is founded in wisdom, and a careful regard to the pure and impartial administration of the legal rights of parties, and we adopt it as the law of this Court.
We have discussed this subject on the ground of misconduct of the jury. We have done so because this is the only one we conceive was established by the record. There does not appear to have been such a separation of the jury, or conversing with others, as would vitiate the verdict. We are aware of the difficulty, in the present condition of our count ry, of keeping the jury entirety secluded; hence, the propriety of a relaxation of the rigor of the ancient rules upon this subject. That the jury should be kept to .themselves, as far as practicable, and that they should not be permitted to sep- • arate, without the consent of the Court, cannot be doubted; '■but whether they should be permitted so to separate, and under
It is believed to be proper on this occasion to notice with reprehension what we regard as culpable negligence in this case, whilst before the Court below. It is certainly the duty of the prosecuting attorney and the Judge, to see that" some discreet, prudent man, shall take charge of the jury, and not an ignorant youth of seventeen years of age, as bailiff, in a capital case. The bailiff should be specially sworn for the occasion, and properly instructed in his duties: that he should not permit them to separate without the consent of the Court, if in his power to prevent it; that he should not permit them to take food, without the consent of the Court; that, as far as was in his power, he would prevent their conversing with any person not belonging to their body, and should not permit their drinking ardent spirits.
The next question to discuss is an important one, and presented for the first time in this Court, and we believe, but sel
This question has not often been adjudicated. Mr. Wharton, in his American Criminal Law, a work of great merit and regarded as high authority, lays down the doctrine to be, that where there are different counts in an indictment, presenting distinct offences, a conviction of an inferior offence presented in one count, an acquittal on the other counts, and a new trial, that the prisoner cannot be convicted of the higher offence charged in the counts on which he had been acquitted; but if the same count embraces two offences of different; grades, and there is a conviction of the inferior offence, and a new trial, the new trial will again open the whole case to the Court, and the prisoner may be convicted, on the second trial, of the higher offence; and he cites the case of The State v. Morris, 1 Black., 37, and the opinion of Mr. Justice Grier, in the Circuit Court of the United States at Philadelphia, reported in the Penn. Law Journal, 22. We have no access to the case cited from Blackford, but the case decided in Philadelphia shows the decided opinion of the Court in support of the rule laid down by Mr. Wharton. Several persons had been tried for murder and convicted of manslaughter, and a motion made by them for a new trial. The Judge earnestly cautions them to consider well before they asked for a new trial, assuring them, if a new trial should be granted, on the second' trial the jury might find them guilty of murder, and their lives might be forfeited. The question is not discussed by either Mr. Wharton or Judge Grier. The rule is only laid down by them; it seems to 'them to be unquestionable.
On the other side is the deliberate opinion, more than once expressed, of the Supreme Court of Tennessee, and the opinion of the Supreme Court of Mississippi, that the conviction for the higher offence, after a conviction of an inferior one, cannot be sustained. It would seem that the latter doctrine is
- The affirmative of the proposition claims strength from the supposed entirety of the verdict, that it could not be set aside in part and stand in part. This argument was held to be unsound in the case of the King v. Mawbey, 6 Term, R. 638, where all the Judges held that a verdict acquitting some of the prisoners and convicting others, could be set aside as to those convicted, without setting it aside as to those acquitted; and the same agrument was met by Judge Green, and with his usual ability abolished, (Campbell v. The State, 9 Yerger, 333,) and the Judge insists that, in principle, this is not different from setting-aside the verdict so far as it convicted, without disturbing that part of it that acquitted. The same doctrine was re-affirmed by the same distinguished Judge, in the case of Slaughter v. The State, 6 Humph. 410. The same doctrine was sustained by the Supreme Court of Mississippi, in a'well written opinion of Judge Fisher, in the case of Hart v. The State, Livingston’s Magazine for April, 1854. The result of our investigation is, that both on principle and the authority of adjudged cases, the appellants, after having been acquitted of murder in the first degree and found guilty of murder in the second degree, could not be legally tried and convicted of murder in the first degree, and that the verdict so finding them cannot stand as the basis of a judgment and execution thereon.
This proposition is attempted to be sustained, on the ground of analogy to a finding the principal in an indictment for murder, not guilty of murder, but guilty of manslaughter ; which, it is admitted, would discharge an accessory before the fact; there being no such offence known to the law as accessory before the fact to manslaughter. The analogy is not perceived. The offence of manslaughter, from its legal character, excludes the possibility of an accessory before the fact, as an element of its composition. It is committed suddenly, without reflection, in heat of passion, and without malice expressed or implied, and repels the supposition that the homicide was the result of premeditation, concert or aid ; all of which would be evidences of malice. Row, if the homicide had been committed without any of these indicia of malice, it could not be murder in the second degree. To constitute this offence, then, -there must be malice, and if malice, it would admit of complicity. The appellants seem to confound murder in the second degree with manslaughter, because the statute defines what kind of evidence of malice constitutes murder in the first degree. The statute, however, only designates such kind of murder as would be accompanied by the clearest and most express malice, making murder with any other malice, of the second degree. One might encourage and counsel another to commit some violent outrage on the person of a third person, mayhem or the like, not to kill; but in the execution of this design, a homicide might be committed. This would be murder in the second degree, under the statute; because it is not embraced in the statute classification of the evidences of mal
Reversed and remanded.