State v. Fox

25 N.J.L. 566 | N.J. | 1856

The Chief Justice

delivered the opinion of the court.

This case comes before the court upon bills of ex ceptions sealed, on the trial of an indictment for murder in the Middlesex Oyer and Terminer, at the term of April, 1856.

On the trial of the indictment, John Gordon, on being. called as a juror, was challenged by the defendant, “ for that he, the said John Gordon, had prejudged the cause.” Whereupon the defendant proposed to have the said John Gordon sworn, and to put to him the following question: “ Have you formed and expressed an opinion of the guilt of the prisoner at the bar of the crime with which he stands charged in the indictment.” The court overruled the offer, and this decision forms the ground of the first bill of exceptions.

Ellis Waite, on being called as a juror; was challenged to the favor, and triers were appointed to try whether he stood indifferent between the state and the prisoner. Whereupon the defendant proposed to have the juror sworn, and to put to him the following question : “ Have you formed or expressed an opinion of the guilt of the prisoner at the bar of the crime charged in the indictment.” The offer'was overruled, and no other evidence being offered on the part of the defendant, the triers found the said Ellis Waite indifferent between the parties, and he was sworn as a juror in the cause. This constitutes the ground of the second bill of exceptions.

The errors assigned upon these exceptions present for consideration two questions, viz:

1. "Whether a juror declaring his opinion beforehand of the guilt of the prisoner of the crime with which he stands charged, is in itself a good cause of challenge.

2. "Whether the juror himself may be examined to prove the existence of such cause of challenge.

These questions were considered and decided by Chief . iustice Hornblower, in the case of The Stale v. Spencer, in the Hudson Oyer and Terminer, at August term, 1846. (1 Zab. 196.) In that case, the Chief Justice said: “ A principal challenge propter affectum 'is founded, amongst other things, on the fact that the juror has declared his opinion of the case beforehand. In order to support such a challenge, it must appear that the opinion expressed was out of ill will or malice towards the party. It has been supposed that an opinion of guilt, founded on newspaper reports or other information, or on personal knowledge, disqualifies a man from being a juror. But this is not so. It has been solemnly decided by our own Supreme Court, in Mann v. Glover, 2 Green, 195, that a hypothetical opinon, founded on the supposition that the facts detailed are true, is no cause of challenge. And I have no hesitation in saying, that a bystander, who witnesses a homicide or any other breach of the peace, is a perfectly competent juror. A declaration of opinion to disqualify a juror, therefore, must be such a one as implies malice or ill will against the prisoner, thereby showing that the person challenged does not stand indifferent between the state and him.”

“ As to the mode of proving a challenge, the law of evidence is the same as in other cases. Proof may be made by records, papers, or witnesses, either to support the challenge or to disprove it. The juror himself may be examined as to his statutory qualifications or any other matter not going to his dishonor or discredit. But it has been repeatedly decided that it does go to his discredit to ask him if he has formed or expressed an opinion on the matter in issue, or that the prisoner is guilty. For as this is no ground of challenge, unless expressed in such a manner as to evince malice or ill will towards the prisoner, it would be great injustice to the juror, anda legal hnp>opriety which the court should not tolerate, to compel him, by his own testimony, to convict himself of what the law deems disreputable conduct. I know that this practice has been suffered on former occasions by my brethren on the bench, as well as by myselfbut it was an unauthorized departure from the rules of the common law, and yielded to under the pressure of high judicial examples in other states.”

This opinion is thus fully stated, because it contains, in clear and emphatic terms, an express decision of both the questions raised upon these bills of exceptions, and covers the whole ground now in controversy. It is -entitled to our most respectful consideration, not only from the learn ing of its author, but from the circumstances under which it was pronounced, and from the practical results of its application. Though delivered in the Oyer during the progress of an important trial, it was not formed during the haste of the trial, but was pronounced- upon full and mature deliberation. It materially qualified the opinion Ipreviously expressed by the same learned judge in Mann v. Glover. It conflicted with the practice which had previously prevailed to some extent in this state, and which, on former occasions, had Deen sanctioned by the Chief Justice himself. The opinion is understood to have been acquiesced in by his associates on the bench of the Supreme Court. It has since constituted the uniform rule of practice, having been adopted and acted upon throughout the 'state. It is believed to have met the very general approval of the profession. While its adoption has avoided much delay and embarrassment in the empannelling of juries, it lias not been found to operate prejudicially to tiic rights of the defendants. The most unequivocal proof of the truth of this statement is found in the fact, that although the rule has been adopted and applied on the trial of at least thirty capital cases since its adoption in Spencer’s case, and, although convictions for murder or for crimes of lower degree have taken place in a large number of these cases, no exception has been taken to the rule, nor has the question been in any way, hitherto, presented for consideration to this court.

A role which has been thus deliberately adopted by the court, approved by the bar, sanctioned by usage, and found by experience to operate beneficially in the administration of justice, ought not to be disturbed, unless it appear to be manifestly erroneous.

It is insisted, on the part of the defendant, that the rule is a violation of the constitution of this state ; that it is a departure from the ancient rule of the common law, and is in derogation of the legal and constitutional rights of the defendant. If the rule be obnoxious to either of these objections, tlie defendant has been deprived of a fair trial, and the conviction is illegal.

By the constitution of this state, Art. I, § 8, it is provided, that “ in all criminal prosecutions the accused shall have the right to a speedy and public trial Iry an impartial jury.'’ This clause confers upon defendants in criminal eases no new right. It invests with a constitutional sanction what was previously a common law right. Every criminal is entitled at common law to a trial by an impartial jury. The question still remains, what constitutes impartiality, or rather what is the test or evidence of that bias or partiality which disqualifies the juror. This must he settled by common law principles.

The question has undergone such repeated and elaborate discussion that no new light can be hoped for, and further discussion would he misplaced. It is proposed simply to advert to some of the leading cases in the books, and 'o state briefly the grounds on which the decision must r t.

In the Year Book, 1 Henry 6, fol. 25, Babington J., in his charge to the triors, says, “ if, whether the matter be true or false, he will pass for the one party or the other, in that case he is favorable. But if a man has said twenty times that he will pass for one or the other, you will inquire, on your oaths, whether the cause be for affection that he has to the party or for the knowledge he has of the matter in issue ; if for affection that he has to the party, then he is favorable, but otherwise not.” This opinion clearly places the ground of challenge not upon the mere expression of opinion, but upon the existence of bias or prejudice in the mind of the juror, upon which that opinion may or may not have been founded.

The case of Peter Cook, tried for high treason at the Old Bailey, 8 Will. 3, (1696) is frequently cited in support of the position, that the mere expression of an opinion by the juror, adverse to the prisoner, is a good cause of challenge. An examination of the case does not warrant that conclusion. It is true that when the prisoner addressed the court saying, “ I am advised that if any of the jury have said already that I am guilty, or they will find me guilty, or I shall suffer or be hanged, or the like, they are not fit or proper men to .be of the jury,” Treby, Ch. Just., replied, “ you say right, it is a good cause of challenge.” 13 Howell’s St. Trials 334. But when it was proposed to inquire of the juror himself, whether he had expressed such opinion, the question was overruled, on the ground that he could not be asked a question that tended to bring upon him scandal or infamy. And upon its being suggested that there was nothing scandalous or infamous in the mere expression of an opinion, Treby, Oh. Just., replies, “ it seems by what the prisoner says, that he would ask all the jurors whether they have not said that he was guilty, or that they would find him guilty, or that he should be hanged, or the like, which (presuming him innocent) is to ask, whether they have not defamed or slandered him in the highest degree ; and to force them to discover that they ham a mortal hatred to him, and come with a malicious resolution to convict him; which, admitting that they are not punishable by our law, yet are things so detestably wicked and so scandalous as are not fit to be required to be disclosed by and against themselves. * * * I take the question not to be concerning a man’s discoursing suppositively, as if, upon hearing news or a report of clear evidence, a man should say, supposing this to be trae, such a man is guilty, and I should find him so, if I were of his jury. This might not be sufficient to set aside a juror. For this has been a general discourse among the subjects upon occasion of this conspiracy ; and it imports that if evidence should not be true and clear he would acquit him. And so he is, as he should be, indifferent. But if a man qualified for a juror affirms positively that such a man is guilty, and that he will find him so, whatever evidence or proof be given or made to the contrary, I think that may be a misdemeanor, punishable as an owning and encouraging of falsehood, perjury, and injustice, and a contempt and scandal to the justice of the kingdom.” It is very obvious that something more was in the contemplation of the court than vague impressions or opinions founded upon knowledge or general rumor, free from the promptings of actual malice or ill will.

In Hawk. P. C., B. 2, ch. 43, § 28, it is said, “ It hath been allowed a good cause of challenge on the part of the prisoner, that the juror hath declared his opinion before hand that the party is guilty, or will be hanged, or the like. Yet it hath been adjudged that if it should appear that the juror made such declaration from his knowledge of the case, and not out of any ill will to the party, it is no cause of challenge.” Bacon's Ab. “Juries ” E, 5.

In 1 Chitty’s Cr. Law 542, the rule is stated thus : “ An actual partiality may be shown as well as a supposed bias. Thus, if a juryman has expressed his wish as to the result^ of the trial, or his opinion of the guilt or innocence of the defendant with a malicious intention, upon evidence of these facts he will be set aside.”

In The King v. Edmonds, 4 Barn. & Ald. 491, Abbott, Oh. Just., in delivering the opinion of the Court of Kings Bench, states the result of the ancient authorities to be, that expressions used by a juryman are not a cause of challenge, unless they are to be referred to something of personal ill will toward the party challenging.

In Hughes’ case, a juror was challenged propter affectum, and triors appointed. A declaration of the juror, on a former trial, having been given in evidence in support of the challenge,. Crampton, J., in charging the triors, said. " die mer“ expression of an opinion, as to the prisoner’s guilt w. innocence,-from any cause but that of malice or ill will, does not, I think, disqualify him; and if you are of opinion, from the evidence that has been given, that any ill will has been exhibited or entertained towards the prisoner by this man, any partiality or prejudice against him, you should find the issues against the crown ; but if you come to the conclusion that, by the notoriety of the facts stated publicly, and spoken of through the country at large, an opinion has been formed by him without partiality or a particle of ill will against the prisoner, then your verdict should be given for the crown.”

And on its being urged by the counsel of the prisoner, that the question submitted to the triors should be, whether the juror had in fact formed any opinion as to the guilt or innocence of the defendant, the judge refused so to charge, saying he did not feel the least doubt on the subject. Joy on Adm. of Conf. and Chal. of Jurors 205.

These eases,extending from the reign of Henry YI. nearly to the present tíme, a period of more than four hundred years, fully sustain the rule adopted in The State v. Spenser. They show that, by the rule of the eommon law, tlie mere expression of an opiñon as to the prisoner’s guilt or innocence, not arising from malice or ill will, does' not disqualify the juror, and that such declaration is in itself no evidence of tlie existence of malice dr ill will.

There are occasional dicta arid cases, to be found in the English books, indicating that the mere expression of ail opinion unfavorable to the prisioner is in itself a cause of challenge. But that such is riot the recognised rule of law, is abundantly evident from the fact, that the question is never suffered to be asked of the juror himself, whether lie has expressed such opinion; but tlie fact must be established by other evidence. The groxlnd of this practice is, that the question tends to bring scandal or infamy on the juror. But if the question is merely designed to prove ■ that the juror has expressed an opinion found on his knowledge of the case, or from having read or heard the evidence, or from common rumor, unconnected with any feeling of malice or ill will, it can by no possibility involve any degree of infamy, reproach, or moral turpitude: The rule of evidence applicable to the proof of the causé of challenge affords the strongest evidence of what the ground of challenge really is.

It is worthy of notice, moreover, that the rule excluding the proof of the canse of challenge by the juror, effectually excludes all challenges on the ground that the juror has formed opinions unfavorable to the prisoner, if they have not been expressed so as to be Capable of proof by others. But if the mere opinion of the defendant’s guilt would disqualify the juror, it is entertaining the opinion, not the expression of it, that constitutes the real ground of objection. The expression merely furnishes evidence of the existence of the opinion.

It appears, therefore, as well from the practice of the courts as from the adjudicated cases, that by the rule of the common law, as adopted and understood in England, ,the fact that the juror has formed or expressed an opinon unfavorable to the defendant, does not in itself constitute a good cause of challenge.

In most of the American courts there has been a departure more or less wide from the rule of the common law, which is sustained by much force' of argument, and sanctioned by eminent judicial authority. We nevertheless believe that the common law rule rests upon sound principle, and that neither reason or policy require that it should be abandoned.

A principal challenge rests in express favor or express malice. Co. Litt, 157, a. The actual existence of the malice may be proved, or it may be implied in law, from the situation, the relations, or the acts of the juror. The question at issue supposes the absence of all actual malice, and the only question is, whether the law will imply malice from the mere expression of opinion, founded on a knowledge of the facts or upon information supposed to be true. Legal implications are grounded on reason and experience; but neither reason or experience will warrant the conclusion that' such expression of opinion involves ordinarily, much less of necessity, the existence of malice. And by malice, we mean that state of mind, favorable or unfavorable, which resists the influence of truth, and prevents a decision of the cause, according to the weight of the evidence, without bias. On the contrary, the formation or expression of an opinion under such circumstances is perfectly compatible with the indifference of the juror, in the legal sense of that term. The very terms of the challenge, propter affeotum, for affection, imply a moral bias, partialty, or prejudice. A mind heated by passion, excited by controversy, or inflamed by party strife, labors under a moral bias. Where this is proved to exist, the challenge may be sustained. But knowledge is not prejudice. Wherever there is knowledge, from the very nature of tlie human mind, there must be opinion, and t e strength of the opinion will ordinarily bo proportioned Í tlie extent of tlie knowledge. In a community like ours, where intelligence of every kind is widely diffused, rapidly circulated, and eagerly sought after, to affirm that every one who acquires information of a crime, and forms, as every man capable of thought must form, some opinion in regard, to it, is laboring under a moral bias which perverts the judgment, is to affirm what is contrary to all reason and experience, and in direct conflict with the truth. The doctrine, carried to its legitimate conclusions, excludes the most intelligent class of citizens, and those best qualified to serve as jurors. It practically disqualifies every man who reads and thinks. Instead of purifying, it emasculates the jury box; and where the experiment has been fully tried, the lessons of experience have in this particular confirmed the deductions of reason. There may be minds so constituted that every ray of light necessarily produces obliquity of vision. But that is not the normal condition of tlie mind, and it cannot be wise to predicate a legal principle upon a mere anomaly.

In examining this question, much stress has been laid upon the fact, that it is a good cause of challenge that a juror has previously tried the same cause, or rendered a verdiet upon the same question. The cases are not analogous. The juror who has once tried the case is rejected, not on the mere ground that he has formed or expressed an opinion, but because he has officially examined, and under the sanction of an oath decided, the guilt or innocence of the prisoner. This solemn decision the law presumes is final, and that the mind is closed against a reexamination. With some qualifications, the same principle applies to the case of a grand juror who sat on tlie inquest. That the formation of an opinion is not the ground of challenge, is evident from the fact that it is no cause of challenge that the juror has tried and convicted another defendant Charged in the' sarde' indictment with the prisoner.

But it is said that the law demands perfect impartiality* arid will not tolerate the leást bias in a juror. The law does hot ásk impossibilities. A juror who is acquainted with either of the parties in the canse, and knows the charáetef Of either to be good or bad, or who has ever thought Of the principle involved in the Controversy, inay be said td have some bias; but it is hot that bias which the law Condemns.- ■ It neither blunts the perceptions nor perverts the jüdgméht. Thé purity Of the jury box will be effectually preserved by excluding those whose opinions ' are prompted by áetuál malice, or rest upon deliberate conclusions formed and expressed tinder tbe sanction of an oathyin tbe performance Of Official duty. •

■ The’ decisions'in tbe American courts upon this point havC beCri kery extensively influenced by tbe casé of Burr: Tbe very eminent character Of the learned judge before whom' that'-ease was tried- has deservedly given great weight to his opinions. - Bi.it no stronger illustration can be adduced of tbe impracticability of the rule adopted in the cáse Of Buff, Eind of the wisdom of the ancient rule of the' common law* than is afforded by that ease itself.- The case had occasioned deep and widespread popular feeling, Which cohtiríüed down to the time of • the trial. In the earlier stages of the-trial, the court appear to have been disposed tO - limit tlie objection to those jurors, who had formed arid expressed opinions that the defendant was gtriíiy Of the crime ■ charged in the indictment, and to iriáke the strength or weakness of the opinion thé test of qiialificatiori. Brit, in the progress of the cánse; this ground appears td have been kirtnally abandoned, and tbe cause Of disqualification to have been placed on the broadest possible gfound.- Every juror challeriged was rejected. Of the first panel Of forty-eight* only four were sworn. Of those rejected,• soiné liad formed arid expressed opinions of the prisoner’s guilt, others entertained strong prejudice®against him, but several were rejected who believed that the prisoner entertained treasonable designs, but who had-neither formed nor expressed any opinion of his guilt or innocence of the crime charged. Burr’s Trial (Carpenter’s Beporf) 11 to 67.

On the second panel returned, but few jurors were challenged, although many expressed opinions of the prisoner’s guilt, quite as decided as any of those who were rejected.

Christopher Anthony, one of the panel, said he had declared to an intimate friend that he came with the hope of being put on the jury, and if he was, that he would hang Burr without any ceremony. He added, “ I should be very unwilling to serve on the jury, because I consider myself disqualified, and thinking so because the rule had disqualified others who held the sanie opinion with me.” Ibid 70. The juror said, it is true, that the expressions used by him were spoken in levity. But when another juror said that his opinions were expressed in joke, the court said they could not indulge jokes on a serious subject, and set aside the juror. Ibid 27.

John M. Shepperd (another juror called) said, “he conceived himself disqualified to pass between the prisoner and the, country, as he had fully made up his mind, particularly from the deposition of General Eaton. He had believed that the prisoner had intentions hostile to the peace and safety of the United States, and he still believed it; and that he would at any time have overthrown the government, if he had had it in his power. It would be inflicting a wound to his own bosom if he was to be ¡compelled to serve. This was his most serious impression.” Ibid 72. Miles Botts (another juror) said, “ from the affidavits of General Wilkinson and General Eaton, my opinion was completely made up and delivered, at different times, several months ago;” and in answer to a question of the defendant’s counsel, the juror added, “ I have made my mind up so far as to say that Colonel Burr ought to be hung.” Neither of these jurors Avere challenged. On the contrary, it is evident, from the report, that the defendant and his counsel desired that they should serve. We have here the remarkable spectacle of a defendant charged with a crime of the highest magnitude, assisted by the ablest counsel, himself an acute and practised lawyer, spending days in purging the jury box of every man who entertained an unfavorable opinion, and then passing without challenge jurors who declared that they had formed and expressed the most deliberate opinions of the prisoner’s guilt of the crime with which he was charged.

A satisfactory solution of this apparent anomaly will be found in a remark of the prisoner, when the first panel was exhausted, and the court were about to award a tales. “ Mr. Burr said, he trusted that when the officer of this court should be inclined to seek for impartial men, they would be found; he could scarcely think that accident had thrown into this panel forty-seven out of forty-eigh' men of a particular Pram of prmeiples ” The real ground of challenging the jurors on the first panel was not that they had formed or expressed opinions of the guilt of the defendant, but that they were men of a particular train of principles, and the jui-ors on the second panel were xxot challenged, although they had formed and expressed th a most decided opinions of the prisoner's guilt, because they were men of another and different train of principles. The real objection to the jurors, in the mind of the prisoner axxd his counsel, was not the mere formation or expression of opinions of his guilt, but it was some train of principles, some previous habit of thought or prejudice, lying back of those opinions, which it was feax-ed would bias the mind and warp the judgment of the juror.

We are of opinion that the mere fox-mation or expression of an opinion is not of itself a ground of challenge ; that the ruling in Spencer’s case is supported by authority, by principle, and by considerations of sound public policy, and ought not to be disturbed.

The second question presented for consideration is, whether the juror himself may be examined as a witness to prove the alleged cause of challenge.

The juror challenged is clearly a competent witness to prove any ground of disqualification not involving his personal character. The only ground upon which his evidenco has been excluded is, that he shall not be called on to testify to his own disgrace. This objection, as applicable to witnesses generally, is removed by the fourth section of the act of April 5, 1855, (Nix. Dig. 888, § 4), by which it is enacted, that a witness shall not be excused from answering any question relevant and material to the issue, provided the answers will not expose him to a criminal prosecution or penalty, or to a forfeiture of his estate. No reason is perceived why a juror, sworn to testify upon the issue of his own competency, is not within the operation, as he is clearly within the letter .of this enactment. The statute operates to alter the common law rule, that a juror shall not be examined as to any disqualification tending to his own disgrace. Upon this point, the rule adopted in The Stale v. Spencer is superseded by the statute. It is hence insisted that the court below erred in not permitting the juror to be sworn.

By the record, it appears that the defendant proposed to have the juror sworn, and to propound to him the follow ing questions, w: “ Have you formed and expressed an opinion of the guilt of the prisoner at the bar of the crime with which he stands charged.” It does not appear that there was any decision by the court upon the simple question of the competency of the juror to testify to his own disqualification, or that that point was presented for consideration, The offer was to swear the juror, and to proposes o Mm a particular question. That offer the court Overruled. The question was in itself immaterial, and there was, therefore, no error in overruling the offer of the de- ■ fendant. If the fact proposed to be proved constituted no ground of challenge, there was no error in overruling the evidence in support of it

But it is further insisted, that although upon the principal challenge the answer of the witness may have been irrelevant, yet upotfthe challenge to thefa/oor, it was competent for the prisoner to .offer additional' evidence tending to show that the juror was not indifferent; that the question propounded was in itself lawful, and although it plight not alone establish the cause of challenge, yét it was one of a series of questions which might have shown, Jo the satisfaction of the triors, the disqualification of the juror.

" But it was not alleged upon the trial, nor is it now suggested, that there was other evidence to be offered, or that it was desired or intended to ask any other question -than that propounded to the juror. No other evidence was in fact offered. There was no error, in overruling the question in this aspect of the objection, unless other evidence was to be offered. If it was proposed or intended to introduce Other evidence, that fact should appear upon the record. It is incumbent upon the party complaining to establish the txistence of the alleged error.

But, admitting the existence of technical error in overruling the evidence, the exception affords no ground for reversal. By the act of 1855, which authoi’izes bills of exceptions in capital cases (Nix. Dig. 189, § 45), it is enacted, that no judgment given upon any indictment shall be reversed for any imperfection, omission, defect in, or lack pf form, nor for any error, except such as shall .or may have prejudiced the defendant in maintaining his defence upon the merits. Inasmuch as the question proposed was in itself perfectly indifferent, and no other evidence was offered, tlie error alleged clearly could not have prejudiced the defendant in maintaining his defence upon the merits.

It is proper to add, by way of guarding against misapprehension, that the second challenge was clearly, a principal challenge, and not a challenge to the favor. The fact, that it was permitted on the trial, is not to be regarded as sanctioning the right to make such challenge.

The third error assigned is, that the court admitted evidence of other injuries to the deceased than those inflicted by cutting his throat, although the indictment charges that death resulted from cutting the throat with a knife or razor. The point of the objection is, that the allegation and proof must correspond, and that the state was permitted, in violation of this rule, to prove a killing by other means than those described in the indictment. The objection is not sustained in point of fact by the record. The evidence is, that the injuries upon the throat by cutting would occasion death very speedily. But there is no evidence that death resulted from the other injuries described by the witness. The state having sustained the charge in the indictment by proof of tlio injury, as therein alleged, it was competent to show the nature and extent of the injuries inflicted on the deceased. But admitting the objection, as alleged, to be fully sustained by the re-cox’d, it forms no ground of ei’rox\ A variance between the indictment and the evidence, as to the instrumental cause of death, is not material, provided the party is proved to have died the same kind of death, (ex. gra. by violence or by poisoning) as mentioned in the indictment It is sufficient if the substance of the charge be proved without precise regax’d to circumstances, and therefore, if the indictment charge that the defendant, with a knife or dagger’, gave the mortal wound, and in evidence it appears that he gave the wound with a sword, staff, or bill, the defendant should be convicted. For the substance of the matter is, that the party indicted inflicted a mortal wound, whereof the deceased' died. Mackalley’s ease, 9 Coke 67, a ; 1 Gilbert's Ev. 872; 2 Hawk., cap. 46, § 37 ; 2 Hale's P. C. 185, 291; Arch. Cr. Pl. 211.

The fourth error assigned is, that the court admitted in evidence the model and measurement of certain injuries inflicted on the person of the deceased. It is not denied that the evidence was in itself competent; but it is urged — 1st, that it was improperly admitted in point of time; that it was not rebutting testimony, and was offered and admitted after the direct examination was closed and the" witness had been cross-examined. The rule is well settled, that the conduct of the trial and the general course of the examination of witnesses rests very much in the sound discretion of the judge, and does not constitute a ground of error. 1 Greenl. Ev. § 431, 447. Our practice in this respect has not been strict; and where either party had accidentally overlooked or omitted material evidence, it is usual and proper, in the discretion of the court, to permit thé omission to be supplied, even after the adversed party has rested.

It is further objected, that there was' no proof that the model produced was a correct model. A model is a copy or imitation of the thing intended to be represented. And when the witness states that he exhibits a model, it is to be inferred, in the absence of all proof to the contrary, that the model is correct. If otherwise, the fact should have been shown upon the trial.

The fifth and sixth errors assigned are, that the court admitted in evidence the conversations of third persons with the witness. The evidence was not offered or admitted to prove the truth of the facts stated to the witness, but merely to show what it was that called the attention of the witness to a fact stated- by her, or that fixed the fact in her recollection. Whether the statement of the third person was true or false was perfectly immaterial. The fact, that the communication was made to the witness, and not its truth or falsity, was the only material point. The conversations were not hearsay, within the proper meaning of that term, but were original and independent facts, and therefore admissible in evidence-. 1 Greenl. Ev. § 100, 101

There is no error apparent in the record. The judgment must be affirmed.

Cited in Donnelly v. State, 2 Dutch. 492, 495.