[1.] We do not think there was error in the- constitution of the jury in this case. When the Sheriff, had been ordered to give each talesman notice to come into Court as he summoned them, and then proclamation had been made at the-door¿ that all talesmen were required to walk into Court j we-think sufficient effort had been used to secure the pressénce of those who had been summoned. • Besides, the prisoner had no right to have any particular persons on the panel. A- complete panel of men who were all present, was the one put on him.
[2.] We think the evidence of Mrs. Duncan, respecting what her husband, the deceased, had said to her in the way of previous threats against the prisoner, was properly rejected, for two reasons. In the first place it was inapplicable to the case. There was no single act in the whole drama of the killing that could have been illustrated or modified by ■ it. It was not proposed to show that these threats had been made known to Lingo. That would be a-different case. How far these threats would have justified, or palliated his act, if he had acted on a knowledge of them, is one question ; but it is a very different one- whéré he-knew nothing of them,- and where the circumstances of the- killing wére such as to render it immaterial whether Duncan had made threats or not. Threats or- no threats, he had a right to deféñd himself, and that was all he did. In the second, place, this-evidence was to be drawn from an illegal source, the wife, who was such when the declarations were made to her. The husband was dead, and so it is true that-the relation had ceased when the testimony was offered; but communications between husband and wife are protected- forever. This is necessary to the preservation of that perfect- confidence and trust which should characterize and bless the relation of man and Wifé. Each- must feel that the other is a safe- and sacred depository of all secrets. And the protection *484which the law holds over the dead, is the very source of greatest security to all the living.
[3.] But it is said the verdict was contrary to law and evidence, because the killing in this case was not murder. We are constrained to say that it was murder, long planned, and deliberately perpetrated murder. Lingo had declared he would have Duncan’s heart’s blood; at the time of the killing he commenced a quarrel and rushed on him; Duncan retreated, and warned him not to pursue; he did pursue with his hands behind him, and Duncan still retreated, and warned him several times that he would shoot him if he persisted in the pursuit; he did persist, and Duncan did shoot. The shot took no effect, and Duncan then fled, and Lingo exclaimed “ now damn you, I’ve got you.” He then pursued till he overtook Duncan, and plunged a spear into his heart. Most literally and fearfully did he accomplish his threat. Where is anything to justify this act, or to reduce it one shade below the crime of murder ? It was admitted in the argument, that there was no provocation for the commencement of the attack, but it was suggested that the killing was induced by a provocation arising in the conflict; that Duncan’s shooting at him was a provocation, that he did not begin the assault with an intent to kill, but only to whip, and that the intent to kill did notarise till the shooting had furnished an excuse for it. The fallacy in this argument lies in assuming that Duncan’s shooting was any •provocation at all. It was justifiable shooting. Whether Lingo had before that, intended to kill or not, he had at least tried to make Duncan believe that such was his intention, for he declared afterwards, that he had held his hands behind him to make Duncan believe he had a pistol. There was certainly ground to excite the fears of a reasonable man, and this was enough to justify Duncan in shooting.' Lingo had himself rendered the shooting necessary to Duncan’s self-defence; he had intentionally put himself in an attitude which forced Duncan to believe that his life was *485in danger. All that Duncan did was entirely justifiable, and could not, for that reason, be any provocation. But the case does not rest here. His own declaration above quoted, shows that his intent to kill had been formed before Duncan shot. For what reason did he wish to make Duncan believe he had a pistol? It was in the expectation that he would shoot, and with the hope of destroying his aim, by putting him under terror. He proceeded with great nerve and skill. He counted upon his antagonist missingjhis aim, and being then in his power. He had the nerve to take the hazard, and the skill to render it harmless to himself. But why take this hazard ? It was to get his victim in his power, and the use which he intended to make of his power is best shown by the use he did make of it.
