delivered the opinion of the Court.
On the trial of this cause in the Court below, one of the jurors was asked if he entertained such conscientious opinions, where the offence charged was punishable with death, as would рreclude him from finding the defendant guilty; to which he answered, that he was “ opposed to capital punishment on principle.” He was then challenged by the District Attorney for cause, and the challenge sustained.
The three hundred and forty-seventh section, subdivision nine of the criminal сode, Compiled Laws, 466, provides, that a person shall neither be permitted or comрelled to serve as a juror where the offence charged is punishable with death and he entertains such conscientious opinions as would preclude him from finding the prisoner guilty.
The first question which presents itself for consideration is, whether the answer of the juror was responsivе to the interrogatory and disclosed any disqualification on his part.
There is an important diffеrence between conscience and principle. Conscience is defined by Webster to be, “ internal or self-knowledge, or judgment of right and wrong, or the faculty, power or principle within us, which decides on the lawfulness or unlawfulness of our own actions and affections, аnd instantly approves or condemns them; conscience is called by some writers, the moral sense, and considered as an original faculty of our nature.” Principle he also defines to be, in a general sense, “ the cause, source, or оrigin of anything; that from which a thing proceeds, as the principle of motion, the principlеs of action; ground, foundation, that which supports an assertion, an action, or a series of actions, or of reasoning; a general truth; a law comprehending many subordinate truths, as the principles of morality, of law, of government,” etc.
In the language of the learnеd counsel for the appellant, “ the one is the result of judgment, is tested by reason, defendеd by argument, and yields to the decision of an intelligent mind. The other springs from some internal sourcе of self-knowledge, which acknowledges no superior, bows to no authority, yields to no demоnstration, and is governed by no law; it ignores reason, defies argument, and is unaccountable аnd irresponsible to all human tests and standards; it is a law unto itself, and its scruples, and its teachings arе not amenable to human tribunals, but rests alone with its possessor and his God.”
All writers on moral philosоphy make this same distinction. In fact, in very many cases, conscience and principle have no connection whatever, and a man may be opposed on princiрle to what he conscientiously believes to be right. Many men are
It is contended that the prisoner has not been injured by the аllowance of the challenge, and that it is the duty of this Court to affirm the judgment, unless it clearly aрpears that error has intervened. In other words, that the prisoner having been fairly tried by a competent jury, we are not at liberty to say that the result would have been different if the Court hаd not excluded the particular juror excepted to. What the result might have been under such circumstances, we are of course unable to say, but the human mind is so constituted, that faсts and circumstances do not always produce the same results; the judgment of two men upon the same state of facts may be diametrically opposite, particularly in the determination of a criminal case, when every doubt is carefully weighed and scrupulously balаnced.
It is enough for us to know, that the result might have been different j that the prisoner was entitled to be tried by a panel summoned in a particular way, and that the Court erred in deciding that one of the jurors was incompetent.
Judgment reversed, and new trial ordered.