State v. Knight

In all challenges to the jury for cause, the ground of challenge must be distinctly stated and entered upon the record. By the provision of the Constitution of the Commonwealth of Massachusetts, it was indispensable that a doctrine of the common law of England should have been adopted and approved, and actually practiced upon in courts in the colony, province or state, in order to render them obligatory ; and this provision declaring what laws shall remain in force excludes all others. The common law practice in England in relation to triors in a challenge to the jury for favor, has been superseded by satisfactory provisions of statutes under the different forms of government in Massachusetts. Challenges of jurors are allowed in criminal as in civil causes, and for similar reasons, and the court is the only tribunal which the statute has provided for their trial, whether they be principal challenges or challenges to the favor. A question which may bo answered in a manner to disclose evidence given before the grand jury cannot be proper. A witness cannot be called upon to state his testimony given on a former occasion in a trial where the same evidence is relevant. It is proper for a surgical expert who examined a wound to give his opinios ' of the character of the instrument that produced it. A witness possessing scientific skill may properly be inquires! of whethei? there be a distinction — chemical, physical or microscopic — between the qualities of human blood and that of any animal, A diagram approximating to perfect representation, when exhibited by a witness qualified to give explanation, may be used to illustrate his meaning. The result of scientific knowledge and experience is proper for the consideration of the jury. The court will not determine the truth or absurdity of such facte. If untrue their fallacy is to- be shown by evidence of other experts who have made application of their scientific knowledge and experience. The jury are not bound to disregard the testimony of a witness which they fully believe, because it is inconsistent with the evidence of another called by the same party; and the evidence tending, to show the mistake of the witness, being properly before the jury, is the subject of legitimate argument, * Where the unlawful killing is proved, and there is nothing to explain, qualify or palliate the act, the law presumes it to have been done mali- ’ ciously, and the burden is upon the accused to rebut the presumption. Instructions in law applicable to the evidence in the case, should always be' given, on request, but a judge is not bound to give them in the language used by the counsel making the request, nor to ropeat them when requested, if once given. Tile judge may properly refuse to give a requested instruction involving no question of law.

The defendant was tried and convicted of murder in the first degree, before Rice, Justice, upon the following indictment: The jurors for said State upon their oath present that George Knight, of Poland, in the county of Androscoggin, laborer, on the sixth day of October, in the year of our Lord one thousand eight hundred and fifty-six, with force and arms, at said Poland, in said county of Androscoggin, in and upon one Mary Knight, of said Poland, she, the said Mary Knight, then and there being a human being, and she then and there. Being in the peace of said State, feloniously, wilfully, and of his express malice aforethought, did make an assault; and that he, the said George Knight, with a certain knife, which he then and there in his right hand had and held, her, the said Mary Knight, in and upon the throat of her, the said Mary Knight, then and there, feloniously, wilfully, and of his express malice aforethought, did strike, cut, stab and thrust, giving to the said Mary Knight, then and there, with the knife aforesaid, in and npon the throat of her, the said Mary Knight, one mortal wound, of the length of five inches, and of the depth of three inches; — of which said mortal wound, the said Mary Knight, then and there instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said George Knight, her, the said Mary Knight, in manner and form aforesaid, then and there, feloniously, wilfully, and of his express malice aforethought, did kill and murder: — against the peace and dignity of the State aforesaid, and contrary to the form of the statute in such cases made and provided. And the jurors aforesaid, upon their oath aforesaid, do further present: — that the said George Knight, at Poland aforesaid, in the county aforesaid, in a certain bed-room within a certain dwelling-liouse then and there occupied by the said George Knight and Mary Knight, there situate, on the sixth day of October last past, in and upon the said Mary Knight, feloniously; wilfully, and of his malice aforethought, did make an assuit; and her, the said Mary Knight, in and upon the throat of hor, the said Mary Knight, with some cutting instrument and weapon, to the jurors unknown, then and there, feloniously, wilfully, and of his malice aforethought, did strike, cut, stab and thrust, and deprive of life; giving to the said Mary Knight, then and there, with the instrument and weapon aforesaid, in and upon the throat of her, the said Mary Knight, one mortal wound, of the length of five inches, and of the depth of three inches; — of which said mortal wound, said Mary Knight, then and there, instantly died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said George Knight, her, the said Mary Knight, In manner and form aforesaid, then and there, feloniously. 'wilfully, and of his malice aforethought, did kill and murder; against the peace of the State aforesaid, and contrary to the .form of the statue in such case made and provided. When the name of the first juror was called, the counsel for the defendant challenged him for favor, and demanded triors to be appointed, according to the course of the common law, to hear and determine the question as to his indifference and impartiality. But the presiding justice denied the demand for triors, and ruled that in all cases of challenge for cause, whether for favor or otherwise, the question of indifference or impartiality must be heard and determined by the court, and the juror was sworn to make true answers, and was examined by the counsel on both sides, whether he had given or formed any opinion, or was sensible of any bias, prejudice or particular interest in the cause, and also whether he stood indifferent between the State and the defendant ; and after the hearing, the court ordered the juror to be set aside, and another to be called in his stead, for the trial of the defendant. Subsequently, when another juror was called, the counsel for the defendant challenged him for cause, and again demanded triors as aforesaid, which were refused by the presiding justice, and the juror was sworn and examined as before; and the court determined that the juror was indifferent, and refused to set him aside, whereupon the defendant challenged the juror peremptorily. The forty-seven jurors first named in the list were called before the panel was made complete, and the light of peremptory challenge of the prisoner was exhausted when the forty-sixth juror was called. The judge stated to the counsel for the defendant, after the second demand for triors was made, that it would not be necessary to repeat the demand, as the point would be saved for the full court, whether the defendant, in such cases, had a right to demand triors, or whether it was the province of the court to hear and determine the matter. Other challenges for cause were made by the defendant, before the panel was completed; some of which were allowed and others were disallowed, on hearing before the presiding judge, under the ruling aforesaid. The government relied entirely upon circumstantial evidence to prove the guilt of the defendant. The defendant’s counsel requested the presiding judge to give the following instructions to the jury: 1. That the burden of proof is upon the government, to prove the whole charge as laid in the indictment. 2. That it is incumbent upon the government to prove the death of Mary Knight on or about the sixth of October, 1856, and in the manner and by the means alleged in the indictment, and also to identify the body found of the said Mary Knight. 3. That after the death of the said Mary Knight is proved, and the identity of her body is established by the evidence in the case, that then it is necessary for the government to prove that the said Mary Knight came to her death by the unlawful act of another person. 4. That “ the possibility of reasonably accounting for the fact (her death) by suicide, by accident, or by any natural cause must be excluded by the circumstances proved.” 5. That "it is only when no other hypothesis will explain all the conditions of the case and account for all the facts, that it can be safely and justly concluded that it (the death) has been caused by intentional injury.” 6. That if the jury do not find from the evidence in the case that the said Mary Knight came to her death “ by the unlawful act of another,” that then the defendant must be acquitted. 7. That if the jury find from the evidence that the said Mary Knight came to her death by the unlawful act of another, that the question whether or not the act was perpetrated by the defendant, is a question entirely for the consideration of the jury, under all the circumstances proved in the case. 8. That to entitle the government to a verdict in its favor, tbe guilt of tbe prisoner must be proved by tbe evidence in the case, “ beyond all reasonable doubt.” 9. That the jury are required by law to consider the defendant innocent until he is proved by the evidence of the case to be guilty, “ beyond all reasonable doubt.” 10-. That the defendant is presumed to be innocent until he is proved to be guilty by the evidence in the case, “ beyond all reasonable doubt.” 11. That in order to warrant a verdict of guilty, the evidence must be sufficient to overcome the presumption of innocence, and to establish the guilt of the defendant “ beyond reasonable doubt.” 12. That the jury are required by law to enter upon the examination and consideration of the evidence in the case, on the basis that the defendant is presumed to be innocent until he is proved to be guilty, “beyond all reasonable doubt.” 13. That the jury are required by law to examine and consider the evidence on the basis that the defendant is presumed to be innocent until he is proved guilty, “ beyond any reasonable doubt.” 14. That in examining and considering the evidence, the jury are bound to give the defendant the benefit of the legal presumption that he is innocent until he is proved guilty, and that before a verdict of guilty can be rendered against him, the jury must be satisfied of his guilt by the evidence in the case, “ beyond any reasonable doubt.” 15. That in cases depending entirely upon circumstantial evidence, “ each fact necessary to the conclusion (that the defendant is guilty) must be proved by competent evidence, “ beyond any reasonable doubt.” 16. That the government is bound (in such cases) to prove every single circumstance which is essential to the conclusion, in the same manner and to the same extent, as if the whole issue rested upon the proof of each individual and essential circumstance. 17. That “ it is essential, in circumstantial evidence, that the circumstances from which the conclusion is drawn should be fully proved.” 18. That “it is essential, in circumstantial evidence, that all the facts should be consistent with the hypothesis.” 19. That it is essential, in circumstantial evidence, that, the circumstances should be of a conclusive nature and tendency. 20. That “such evidence is always insufficient, where, assuming all to he proved which the evidence tends to prove, some other hypothesis may still be true.” 21. That “it is essential (in circumstantial evidence) that the circumstances should, to a moral certainty, exclude every hypothesis but the one proposed to be proved.” 22. That “in order to justify the inference of legal guilt from circumstantial evidence, the existence of the inculpatory facts must be absolutely incompatible with the innocence of tlio accused, and incapable of explanation upon any other reasonable hypothesis than that of his guilt.” 23. That the law makes it the duty of the jury to consider whether the connection betwixt the circumstances proved, and the crime charged, is a necessary one or only casual and contingent; and whether the circumstances proved necessarily involve the guilt of the prisoner or only probably so.” 24. That when circumstantial evidence “ merely establishes some finite probability in favor of one hypothesis, rather than another, such evidence cannot amount to proof, (of guilt,) however great that probability may be.” 25. That “ in criminal cases the mere union of a limited number of independent circumstances, each of which is of an imperfect and inconclusive nature, cannot afford a just ground for conviction.” 26. That whenever mere inconclusive probabilities concur, tbe result, however the degree of probability may be increased by the union, will still be of a definite and inconclusive nature.” 27. That tbe government, by calling and examining Lydia Knight, has accredited her as a competent and credible witness, and is thereby estopped to deny or call in question either her competency or predibility. 28. That'the government, by calling and examining Lydia Knight as a witness, has accredited her as a witness of sufficient intelligence to testify in this case, and is thereby estopped to deny or call in question that fact. 29. That “the legal presumption of innocence is to be regarded by the jury, in every case, as a matter of evidence, to the benefit of which the party is entitled.” 30. That “ in order to convict the defendant upon the evidence of circumstances, it is necessary, not only that the circumstances all concur to show that he committed the crime, but that they all be inconsistent with any other rational conclusion.” 31. That no conviction in a criminal case ought ever to take place on circumstantial evidence, where the government has introduced direct evidence tending to show that the defendant could not have committed the crime charged. 32. That direct evidence introduced by the government, tending to prove the innocence of the defendant, “ shall not be held refuted, from being opposed to circumstances incongruous with that evidence.” 33. That the theory that the blood of animals, such as the ox or the sheep, can be discriminated from that of man, when in a dried state, by chemical means, is too uncertain to be used as evidence, or to be relied on as evidence, in this case. 34. That the theory that the blood of the ox, or of the sheep, can be distinguished from that of a human being, when in a dried state, by microscopic observation, is too uncertain to be used as evidence, and the difference in size of the globules is too slight to be relied on as evidence in this case. 35. That the distinction between positive and negative testimony is applicable to direct testimony, and cannot be applied to circumstantial evidence, when placed in direct conflict with positive testimony. The first twenty-nine requested instructions were given to the jury, and the remaining six were not given as requested. Br. Augustus A. Hayes, Assayer to the Commonwealth of Massachusetts, and a scientific expert, being called for the government, testified: “ I have made chemical and microscopic examinations of the articles before me, (knife, shirts, arty, or hath directly or indirectly given his opinion, or is sensible of any prejudice in the cause.” Prov. laws, Anc. Charters, p. 626. It must be obvious that the provisions above cited .related solely to civil causes, and that there is no pretence that it repeals or is in any respect inconsistent with the act of 1641, or the act declaring general privileges passed in 1692. Idem, pp. 191, 214. Both those statutes recognizing challenges in criminal cases as at common law were unrepealed and in full force in 1780, when the constitution of Massachusetts was adopted, That constitution provides as follows: “ All the laws which have heretofore been adopted, used and approved in the Province, Colony, or State of Massachusetts Bay, and usually practiced on in the courts of law, shall still remain and be in full force until altered or repealed by the legislature; such parts only excepted as are repugnant to the rights and liberties contained in this constitution.” Constitution of Mass., chap. 6, article 6; Comm. v. Webster, 5 Cush., on pp. 303, 304. Chief Justice Shaw says in that case that the common law "was adopted when our ancestors first settled here, by general consent. “ It was adopted and confirmed by an early act of the provincial government, and was formerly confirmed by the provision of the constitution above cited. "So far, therefore, as the rules and principles of the common law are applicable to criminal law, and have not been altered and modified by acts of the colonial or provincial government, or by the state, they have the same force and effect as laws formally enacted.” 8. Those who allege the alteration must show it. The burden is upon the government in this case, and if they set up a repeal of the common law right, they must show it clearly; as the maxim is that statutes passed in derogation of the common law are to be construed strictly, and are not to operate beyond their words or the clear repugnance of their provisions. Stowell V. Zoueh, Plow. R. 365 ; 1 Kent’s Comm., part 3, sec. 20, p. 464; Ileydon’s case, 2 Coke, R. part 3, p. 9; 6 Bac. abr. statute 4; 1 Bishop Grim. Law, sec, 91, and case cited; 2 Weller 75. A statute which is to take away a remedy given by the common law aught never to have a liberal construction, Hammond v. Webb, 10’ Mod., 282; 6 Bac. abr. statute 6, page 388. Where the new statute does not repeal the old law, both have a concurrent efficacy, and suitors may elect under which they will proceed. 1 Bishop Crim. Law, sec. 93, and cases cited; Statutes are never repealed by nonuser. White V. Boot, 2 Term, p. 274 ;■ 1 Bishop Crim. Law, sec. 56, and cases cited. The common law is an essential part of the jurisprudence of this state. Our constitution provides that “ all laws now in force in this state, and not repugnant to this constitution, shall remain and be in full force until altered or repealed by the legislature, or shall expire by their own limitation. Const., art. 10, sec. 7. And it is. provided by the act creating the Supreme Judicial Court, that “ the said court may exercise jurisdiction, power-and authority agreeably to the common law of this state, not inconsistent with the constitution or any statute. R, S., chap. 96, sec. 7. 9. Whence comes the right of challenge at all, whether-peremptory, or for cause ? Challenge for cause is not mentioned in any statute now in force, nor in any one that ever was in force in this state. Peremptory challenges are only referred to for the purpose of limiting the number. Take for example the act of 1821.. It is as follows: “ And' no person who shall be indicted for any such offence shall be allowed to. challenge peremptorily above the number of twenty persons of the jury.” Laws of 1821,. chap. 59, sec. 42. No person * * * * shall be allowed to challenge peremptorily more than twenty persons of the jury. R. S.)v chap. 172, sec. 17. That number is reduced to ten by chap. 100, sec. 1, of the Laws of 1849. At common law, the prisoner on a charge for treason, was entitled to thirty-five peremptory challenges, and such was the law of the commonwealth, derived from the common law, until after the declaration of independence. It was not until 1777 that any change was made in this respect. The number was then reduced to twenty, and the attorney general was forbidden to challenge peremptorily any juror about to be empanneled for any criminal accusation or charge. Appendix 2, Laws of Mass., chap. 61, secs. 13 and 14, p. 1050. Section thirteen applies to trials for treason, and has no reference whatever to other capital offences. The authority conferred upon the court by Revised Statutes, chap. 115, sec. 65, furnishes no answer to the inquiry. 10. Challenge for cause is the right of the accused. It is an absolute right, and not one dependent either upon the discretion or caprice of the court. No such right is conferred or even recognized in that section.. The court may or may not make the inquiries, and so far as that provision is concerned, neither the prisoner or his counsel have any rights whatever; Comm. v. Gee et. al, 6 Cush., pp. 177 and 178. Parties may adopt that mode by consent, and if they do, it is clearly a waiver of the common law right of challenge for cause. People v. Mather, 4 Wend., on p. 240; Lewis Crim. Law, on p. 612; Wliar. Crim. Law, sec. 3041. It is a convenient mode, and one frequently followed, and unless triors are demanded, it may be regarded as satisfactory. No greater error, however, can be committed, than to regard that provision as repealing by substitution the common law right. One is an absolute right vested in the prisoner, which he may exercise himself' or by counsel, the other is merely discretionary with the court, and cannot be exercised by the prisoner or his counsel, except as a matter of concession by the court or presiding'-justice. Waiving these difficulties, which are insuperable, there is still another, quite as serious as the one described. Every interrogatory prescribed in that provison has reference entirely to causes of principal challenge. Assuming (what I deny) that the provision was intended as a' substitute foz\jjthe common law right, then the right of challenge for favor does not exist. All must agree that by the common law it did exist as a right, and for centuries was regarded in England as a valuable right. Our ancestors brought the common law with them, as appears by the terms of their charters from the crown, and they adopted and confirmed it by repeated statutes, some of which have been referred to. And now, if it is lost, when was it lost ? Where was it lost ? By what means was it lost ? 11. We go further, and contend that the provision when rightly construed, is in all respects save one, perfectly consistent with our views, and that is its discretionary aspect. Suppose it may be applied in capital cases, which we deny, zpzless by consent, it does not militate with the argument in any respect except the one mentioned. 12. Every one of the interrogatories prescribed relate to principal cause, which is always determined by the court when the facts appear and are undisputed. The provision must receive a reasonable construction according to the' rules of law, and when so construed it will be found to support our views. “ Statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature; for statutes are not presumed to make any alteration in the common law further or otherwise than the act expressly declares; therefore in all general matters the law presumes the act did not intend to make any alteration, for if the legislature had that design, they would have expressed it in the act.” 1 Bishop Ci’im. Law, sec. 86, and cases cited; 6 Bac. Abr. Title Statute 4, p. 384; Az’thur v. Bokeman, 11 Mod'., 150. Applying that rule to the interpretation of that provision, and there is not a word in it contradictory to the common law right of. challenge for cause. Take tbe phrase “ If it appear from his answers * * * another juror shall be called and placed in his stead for the trial of the cause.” It is just so at common law, if the challenge is for principal cause, and it appear from the answer of the juror, or in any manner, that he Is not Indifferent, the question becomes a mere question of law, and is determined by tiro court unless the facts are drawn Into dispute, and then the question must be submitted to triors. Suppose the fact is disputed, the provision of our statute is silent as to the manner in which the disputed fact is to be ascertained. It must be construed in accordance with the common law, and if so construed, it may well be inferred that the disputed fact shall be ascertained in the manner and by the means prescribed by the common law. But the provision has reference entirely to trials In civil cases, and cannot bo made applicable to the impanneling of jurors in capital cases. 13. Jurors in civil casos are impanneled generally for the term, and not for any particular cause. It was so in Massachusetts, and has always been so In tbis state. R. S., chap. 115, sec. 58-GG; Laws of Mass., March 12,1808, vol. 4, p. 41. It is obvious that this provision was intended to prescribe interrogatories to bo propounded to jurors after they are sworn, and tbe panel is made up, and they are called for tbe trial of a particular cause. The words of the provision are expressly to that effect, another juror shall be called and placed in his stead for the trial of the cause.” Another juror could not be placed “ in bis stead,” unless the juror displaced or set aside had already been placed in the panel. It must cost much ingenuity to make this provision apply to the impanneling of a jury in capital trials, where a new list is required to be made from the venires, and arranged in alphabetical order, and when the prisoner is required to make his challenges “ before the juror is sworn.” Such conclusion would be contrary to every known rule of interpretation, contrary to the very words of the provision, and contrary to common sense. It cannot, therefore, be adopted. 14. The only remaining provision in 'the Revised Statutes is the following: The same challenges of jurors shall be allowed in criminal as in civil causes to the attorney general or other prosecutor, and to the defendant. R. S., chap. 172, sec. 31. That section is an affirmation of the common law in all criminal trials under the degree of felony. Parlies in civil suits never had, the right of peremptory challenge, and conse~ quently it cannot he applied in capital cases. Marsh v. Coppoch, 9 Carr, and P., p. 480. Suppose it were otherwise, it can make no difference. It relates to the character of the challenges, and not to the manner in which they are to be made. No statute is in existence specifying the manner in which challenges for cause shall be tried, nor was there ever one in this state or in Massachusetts, except the one cited before, passed in 1641. Anc. Char., chap. 98, p. 199; 2 Bon., S. D., Trial 606. That provision of the Revised Statutes is a new one, unknown in the history of previous legislation in this state, consequently can have no influence in determining what are the constitutional rights of a person accused of a capital offence. The meaning of the phrase “ impartial jury,” must be ascertained by the state of things which existed when the constitution was formed, and not by anything which has since occurred. Waiving that, however, and assuming that the rules of interpretation before cited are correct, it follows that this provision cannot be held to make any change in the common law right of challenge for cause. It does not purport to make any such change, nor can it be so construed without supplying words which the provision does not contain. The rule of construction must be reversed to give it any effect inconsistent with our views. 15. Challenge is a technical word. It is an “ exception to jurors who are returned to pass on a trial.” 1 Chit. Crim. Law, p. 534; 1 Bouv. Law Die., challenge, p. 216. It must be made as they are called, and before they are sworn. No such proceeding is contemplated by the provision in chap. 115, sec. 65, of our Revised Statutes. That proceeding is not a challenge in any sense. Neither in form, nor the time of making, nor in the manner of its exercise. The right of peremptory challenge continues until the juror is sworn. 3 Co. Litt. (483*); Regina v. Frost, 9 C. and P., 129, (38 E. C. L. 70); Whar. Crim. Law, sec. 3026; 1 Chitt. Crim. Law, p. 545; Lewis Crim. Law, on p. 612; People v. Bodine, 1 Den., p. 181; Comm. v. Knapp, 9 Pick., p. 419. Cannot be made after the juror is sworn. Comm. v. Knapp, 10 Pick., on p. 480. May be made after oath. Comm. v. Twombly, 10 Pick., in note on p. 480; U. S. v. Morris, 1 Curtis, on p. 37. Must precede the statute questions. Comm. v. Webster, 5 Cush., on p. 298. This is not good law if statute questions constitute a challenge for cause. The right continues until the juror is sworn. Morris, case 4; Howell’s Case Trials, p. 1255; Manley v. State, 7 Blackf., 593; Morris v. State, 7 Blackf., 607; the justices, &e., v. Plank Road Co., 15 Geo. 39. 16. It was first enacted in 1760, as a cumulative mode of securing an impartial jury in civil cases, and was never regarded, as far as can be ascertained from the course of legislation, as repealing the common law right -of challenge. 7 Dane Abr., chap. 222, art. 17, p. 380; Robinson v. the State, 1 Kelley, (Geo.) 563; People v. Doe, 1 Manning R. (Mich.) 451; Copenhavin v. the State, 12 (Geo.) 444; Stuart v. the State, 8 Eng. (Ark.) '720. Serious doubts were formerly entertained how far jurors could be examined on the voire dire as a ground of challenge, and there are not wanting contradictory decisions upon that point. Anonymous, 1 Salk.,. 153. The law is now well settled that a juror is bound to answer all questions which do not tend to render him infamous. People v. Bodine, 1 Den., p, 281; Whar. Crim. Law, sec-. 3010; Mechanics’ and Farmers’ Bank v. Smith, 19 Johns., on p. 121; 3 Bac. Abr. Title Jury E.; People v. Jewett, 3 Wend., p. 314. 17. It seems certain, therefore, that Mr. Dane has furnished the true solution and design of this provision. It was not to abridge the rights of parties, or to deprive them, of their common law right, but to furnish the court with additional means to secure an impartial jury. Subsequent legislation has stripped that provision of all its value as a right, and made it purely a matter of discretion. We think it clear, therefore, that the challenges allowed in criminal cases and referred to in the Revised Statutes, chap. 172, sec 31, are the challenges known and allowed in that “ great repository of rules, principles and forms, the common law,” and not the discretionary proceeding referred to in chap. 115, sec. 65 of our statute before mentioned. Comm. v. Webster, 5 Cush., on p. 303. 18. A bill of exceptions lies for refusing triors, or upon any question arising upon a challenge to jurors in a case where triors may be demanded. People v. Freeman, 4 Dem, on p. 33; 2 Tidd Prac., 786; Archb. Prac. 210; Bul. N. P„ 316; Rex. v. Edmunds, 4, Barn, and Cress, p. 471. Any law or decision which would place a right, so important as that of the right of challenge for cause, in capital trials, within the control of a single judge, will require a solid foundation on which to rest, or it cannot stand. It is no answer to say that the prisoner may except; so he may in all matters of law. It should be remembered, however, that challenge for cause, whether principal or for favor, involves questions of fact where there is no remedy by bill of exceptions, and challenges for favor are always “ left to the conscience and diseretion. of the triors to find the jurors favorable or not favorable.” People v. Bodine, 1 Den,, on p. 305. “ They are final judges upon the matters submitted to them; and from their decision, when properly instructed, the law has provided no appeal.” Freeman v. the People, 4 Den. on p. 34; 3 Bl. Comm., on p. 363. 19. A single judge has no right to hear and determine such matters, and the presiding justice erred in refusing the demand for triors and in ruling that “ in all cases of challenge for cause, whether for favor or otherwise, the question of indifference or impartiality must be heard and determined by the court.” “Other challenges for cause were made by the prisoner before the pannel was completed; some of which were allowed and others were disallowed, on hearing before the presiding judge, under the ruling aforesaid.” 20. The prisoner, therefore, is entitled to a new trial, if the right to demand triors in a capital case exists in this state. 11. 1. The questions, propounded by the counsel of the defendant, on cross-examination, to L. D. Rice, were proper, as effecting the credibility of the witness, and were improperly excluded. Desailly v. Morgan, 2 Esp. R., 691. “A witness may bo asked what he has said or written at a previous time at variance with his testimony.” Ros. Crim. Evidence, p. 182; Tucker v. Welsh 17, Mass. 166. Clearly, the second question was proper, and the ruling of the judge, in excluding it, was erroneous. The prisoner had a right to know where the witness so testified, if it was not before the grand jury. 1 Greenl. Ev. sec. 462, and sec. 449 on p. 576. The witness voluntarily testified that, “this is not the first time I have testified that I saw Mr. Prout put his hand on deceased’s face.” Surely, after that the prisoner had the right to inquire where it was he so testified. 1 Stark. Ev., (199*), 198; Thomas v. Newton, Moo. and M., 48. 2. The question propounded by the government to Dominicus J. Prout, was clearly improper, as was also the answer of the witness. Both questions and answers should have been ruled out. A party has no right to confirm a statement of his witness by proving that he gave the same account out of court. Proof of declarations, made by a witness out of court in corroboration of testimony given by him on the trial, is clearly inadmissible. Ware v. Ware, 8 Greenl., on p. 55; Whar. Grim. Law, sec. 820; Dudley v. Bolles, 24 Wend, on p. 472. “ A fortiori he cannot be permitted to corroborate his own testimony, that he made the same statement to others.” Deshon v. Merchants’ Ins. Co., 11 Met., on p. 210; 1 Greenl. Ev., sec. 469; King v. Parker, 3 Doug., 242. A question is always irregular, when it assumes a fact not proved, or admitted. 1 Grenl. Ev., (6th ed.) sec. 434, p. 554; Turner v. the State, 8 Sm. and Marsh., p. 104; People v. Mather, 4 Wend, on p. 249; 1 Stark. Ev., (7th Am. ed.,) (189*) 188 and note; Ros. Grim. Ev., 169. 3. Experts, in the strict sense of the word, are persons instructed by expei’ience. 1 Bouv. Law Diet. Every fact stated is matter of common observation, axid no more within the province of an expert than is the conclusion to be drawn from any statement of circumstantial facts. Other legal wxdters define the term as referring to persons professionally acquainted with the science or practice of which they are called to testify. Stark, on Ev., p. 408; Campbell v. Richards, (27 E. C. L., on p. 210,) 5 Barn, and Adol., p. 837; 2 Stephen N. P., p. 1778. It seems to be admitted that the opinion of such witxxesses is admissible whenever the subject matter of the interrogatory is one requix'ing peculiar skill and experience, in order to attain the requisite knowledge to answer the inquiry understandingly, ox*, in other words, when it so far partakes of the nature of science as to require a course of previous study or experience to qualify the witness to give the requisite information. 4» Opinions even then should be strictly limited to scientifie deductions. Jefferson Insurance Company v. Cotheal, 7 Wend. 72. It does not follow that the opinion of the witness is admissible because it appears that he is a man of science, nor even that the general subject matter of the inquiry is one of a scientific nature. 1 Stark. Ev., (175*) p. 174. 5. The opinion of witnesses, whether men of science or otherwise, cannot be received when the inquiry is into a subject matter, the nature of which is not such as to require any peculiar habits or study in order to qualify a man to understand it. Eolkes v. Chadd., 3 Dong., 157 ; 1 Greenl. Ev., (6th ed.,) sec. 440; Rex. v. Searl, 2 M. and M. E., 75; 1 Smitlfs Leading Cases, (286) p. 544; Best Prin. of Ev., sec. 346. 6. Whenever an interrogatory is more comprehensive than the law allows, it should be rejected. III. 1. The engraved plates and the skeleton of the bones of the human neck, introduced and exhibited to the jury, were in the nature of medical works, and therefore were inadmissible. Ware v. Ware, 8 Greenl. R., pp. 56, 57; Com. v. Wilson, 1 Gray, 337; Collier v. Simpson, 5 Car. and P., p. 74; Cocks v. Purday, 2 Car. and Kiw., 270. 2. The last question propounded to Dr. Alonzo Garcelon was improper and should have been excluded. Secret things belong to God. He alone knows what is impossible. Persons in a sudden phrenzy often perform strange and almost incredible acts, and frequently inflict injuries and wounds upon themselves which no sane person could perform. Besides, the right hand of one person for all practical purposes is the same as the left hand of another. One person can perform physical acts with ease, when it would be impossible for another of equal strength to approach their performance. The witness did not, and could not know whether it was impossible for the deceased to have inflicted that wound. That might depend upon her situation at the moment, as whether standing, sitting or lying on the bed, or it might depend upon the physical peculiarities of the muscles of tho arm or shoulder, or upon a variety of circumstances known only “ to that Being, who,” (in the language of Judge Rice,) “ has written the records of this world’s progress in the solid rocks.” It may be true that the record of this world’s progress is written in the solid rocks, but it is scarcely to be supposed that an expert may be asked to tell the day or the year when that record commenced. Science cannot determine the matter with sufficient certainty to allow the question to be asked in a court composed of men whose knowledge at best'is imperfect. Experts are allowed to give opinions only where the conclusion is an inference of skill and judgment, and the examination ought to be carefully limited to interrogatories of that nature, as the right to use such testimony is founded on an exception to the general rule. 1 Stark. Ev., (174*) p. 173. The general rule is that witnesses ought,to be examined as to facts only, and not as to any opinion or conclusion which they may have drawn from facts, for those are to be found by a jury. 1 Greenl. Ev., sec. 440; Rex. v. Wright, Russ and Ryan, p. 456. IY. The deed, George and Mary Knight to Moses S. Jordan, was improperly admitted and read to the jury. 1. It is apparent that an indictment for murder cannot be regarded as “ an action touching the realty,’’ and therefore it is not a case where office copies of deeds might be read as evidence. Rules of Court, No. 26, p. 14; Hutchinson v. Chadbourne, 35 Maine, 189; Kent. v. Weld, 2 Eairf., p. 459 ; Doe v. Scribner, 36 Maine, 168; Jackson v. Nason, 38 Maine, 85, per. Rice, J.; Dunlap v. Glidden, 31 Maine, 510. These cases are decisive that office copies could not be used, and therefore it is equally clear that the original could not without proof of its execution. “ It is a general principle of the law of evidence that the party offering to prove a fact by deed, must produce the original and prove its execution.” Kent v. Weld, 2 Eairf., p. 459 ; 1 Grenl. Ev., (6th ed.) secs. 569 to 573 inclusive. 2. No case is known where it has been held that evidence that a party once had a deed in his possession, is sufficient to dispense with proof of its execution by the subscribing witness. 3. The cases cited affirm a different rule, and it is believed that none can be found to sustain a departure from the principle which they affirm. Vacher v. Cocks, (20 E. C. L., on p. 366,) 1 Barn, and Adol., p. 145, per. Bayley, J.; Cronk v. Frith, (38 E. C. L., on p. 77,) 9 Car. and P., p. 197; Betts v. Badger, 12 Johns., 225 ; Jackson v. Kingsley, 17 Johns., 158 ; 2 Stephen’s N. P., 1704; Knight v. Martin, 8 East, 548, overruling; Rex. v. Middleton, 2 Term, 41. Office copies can “ be admitted only in actions touching the realty, and in all other actions the general principle of the law of evidence prevails, that a party offering to prove a fact by deed, must produce it and prove its execution. Hutchinson v. Chadbourne, 35 Maine, on p. 192; Kent v. Weld, 2 Fairf., 459; Wilkins v. Cleaveland, 9 Barn, and Cress., 864, (17 E. C. L., on p. 515;) 1 Chitt., C. L., p. 579, (580*;) Ackler’s case, 1 Leach, C. C., 175. It is insisted also for the same reason that the deed, Moses S. Jordan to George Knight, was improperly admitted. 5. The testimony of Dr. Augustus A. Hayes furnishes a striking example of the perversion of the rule, that the opinion of experts should be limited and confined to such matters as are of a scientific nature. He was allowed, notwithstanding the objections of the counsel of the prisoner, to call the attention of the jury to what the witness characterized as a “ peculiarity which the stain itself presents,” and was allowed to describe it according to the impressions which it made upon his mind. All this matter of description was as open to the observation of the jury as of the witness, and should have been excluded. People v. Bodine, 1 Den., on pp. 311, 312; 2 Russ, on Cr., p. 923. A party calling and examining a witness, has no more right to stultify the witness, when the testimony is against him, than he has to impeach his competency or credibility under like circumstances. It is admitted, and all the authorities agree, that a party is estopped to impeach either the competency or credibility of a witness, however much he may be disappointed in his testimony. The rule is, that “ a party by calling and examing a witness, accredits him as competent and credible, and is estopped from avowing the contrary.” Stockton v. Demath, 7 Watts., 39; People v. Salford, 5 Den. pp. 117, 118. ERRORS ALLEGED IN THE INSTRUCTIONS GIVEN TO THE JURY. I. The judge instructed the jury that “ in all cases where the unlawful killing is proved, and there is nothing in the circumstances of the case as proved, to explain, qualify or palliate the act, the law presumes it to have been done maliciously ; and if the accused would reduce the crime below the degree of murder, the burden is upon him to rebut the infers ence of malice which the law- raises-, from the act of hilling by-evidence in defence.” It is the last paragraph of the instruction to which objection is made. Cases may be cited,, undoubtedly, which furnish some countenance to the doctrine of the- instruction. The true rule,, however,, was laid down by Mr. Justice-Wilde, though differing from the majority of the court in Comm, v. York, 9' Met., pp. 133 and 134. 1. That when the facts and circumstances, accompanying a homicide, are given in evidence, the question whether the crime is murder or manslaughter, is to be decided upon the-evidence, and not upon any presumption from the mere act of killing. 2. That if there be any such presumption, it is a presump-, tion of fact, and if the evidence leads to a reasonable doubt, whether the presumption be well founded, that doubt will avail in favor of the prisoner. 3. That the burden of proof, in every criminal case, is -on the state to prove all the material allegations in the indictment ; and if on the whole evidence, the jury have a reasonable doubt whether the defendant is guilty of the crime charged, they are bound to acquit him. That rule is now generally adopted and has been regarded as law ever since the opinion of that distinguished judge was published, wherever the question has been considered. According to my understanding of the matter, it is now the law of Massachusetts; and if not, it is destined to be the law of every people where the English language is spoken. Comm. v. McKie, 1 Gray, 61; Comm. v. Hawkins, 3 Gray, on p. 466; Bonn and Heard, Load. Grim. Cas., pp. 347 to 360; State v. Fly, 26 Maine, 312; State v. Merrick, 19 Maine, 398 ; State v. Tibbets, 35 Maine, 81; Whar. Grim. Law, (4th Am. ed.,) sec. 717. 2. “ When men are found to keep silence when they are surrounded with circumstances of suspicion, which require explanation, or give false explanation, or attempt to induce others to relieve them by falsehood and perjury, inferences necessarily arise prejudicial to them; and when such moral coincidences are connected with physical circumstances, it frequently gives a conclusive and inculpatory character to circumstances which otherwise might be inconclusive, or slightly inculpatory.” It is the province of the jury to judge of the force of circumstances, and not for the court. The proposition, as stated, left nothing for the jury to determine, except to ascertain whether the inculpatory circumstances wore proved. It should have been left to the jury to draw their own inferences. 1 Stark Ev., (7th Am. ed.) p. 577; 1 Greenl. Ev., sec. 49. 3. “ That Being, who has written the record of this world’s progress on the solid rocks and on the cliffs of the mountains, writes also the history of secret crime in characters which will be found so legible that they may be read with almost unerring certainty, if you will only give them your attention. “ Such, gentlemen, is the character of circumstantial evidence, which is often inconsiderately spoken against; but, if properly understood and its principles correctly applied, will seldom lead to erroneous results. “ With these rules for ascertaining the truth, thus imperfectly illustrated before you, and with an earnest desire to arrive at just conclusions in the case, let us proceed to the examination of the facts proved, that you may determine what legitimate inferences should be drawn therefrom as to the guilt or innocence of the prisoner.” It seems to the counsel of the prisoner, that the rules for ascertaining truth from circumstantial evidence, are colored, and their efficacy as a guide to right results, is greatly overstated, and that, too, in a manner calculated to mislead the jury, and therefore erroneous. Miller v. Marston 35, Maine, 153 ; Pierce v. Whitney, 32 Maine,' 113. 4. “You are asked, the government are asked, where are the foot-prints of the prisoner which connect him with his house in his passage to and from the heater-piece. “ It is said that there is a space of one mile and ninety-two rods which you are asked to overleap without testimony. “ Gentlemen, you are to try this case by the evidence in the case, and not that which is out of it.” Circumstantial facts, when grouped together, are justly characterized as a chain of circumstances, and it is their connection and consistency which gives them force and efficacy, as evidence in judicial trials. The absence of proof, naturally to be expected, especially in cases depending upon circumstantial evidence, often furnishes an argument as strong against a given hypothesis, sis would a positive repugnance in the circumstance proved. 1 Phill. Ev., (1st Am. ed.) Appendex, Rule 13, p. 61; 1 Stark. Ev., p. 573. 5. “If, however, the absence of such proof throws an insurmountable barrier in your loay, then the hypothesis of the government fails. “ But if the situation of the parties at the time, and subsequent occurrences are such that you may suppose that it would not have been possible for the government to have given you this species of evidence, then it is no imputation on the integrity or intelligence of the prosecuting officers that they have not done so, because they are not called upon to perform impossibilities.” This instruction is clearly erroneous. It does not allow the jury to acquit the prisoner unless the absence of such proof (the footprints) “ throws an insurmountable barrier in the way” of the conclusion of guilt. It is violative of every principle of law intended for the protection of the innoeent in jury trials. 6. “If Lydia Knight was in that room with Mary Knight at the time of her decease, and did not see the blow struck by which her life was taken, you are not compelled to come to the incredible conclusion that Mary Knight is not dead. “ It does not necessarily follow that because Lydia Knight was present, but did not observe the manner or time of death, that it did not occur. “ There is a distinction between positive testimony and negative testimony.” There is an important distinction between positive and negative testimony, and in cases where the principle applies, it is not unfrequent that the judge, at the trial of an issue, depending upon the conflicting statement of witnesses, reminds the jury of it as a means of reconciling those statements consistently with the integrity of the witness. It is contended that the principle in this case was wholly misapplied. 1 Stark. Ev., p. 578 ; 3 Bek. Com., p. 371. 7. “ It is strongly insisted that the situation of that window is absolutely inconsistent and incompatible with the guilt of the prisoner; that he could not, by possibility, have committed the murder and escaped through that window, ahd that there is no suggestion of escape in any other direction. “ The consideration is worthy your attention, whether there were greater obstacles to the escape of the prisoner tlian there would have been to that of any other person. “ If you come to the conclusion that Mrs. Knight did not commit suicide, but was killed by the hand of another, that other hand must in some way have come in contact with her. “ What person had the most favorable opportunity to perform this act ? “ Who had a motive to do it ? Who possessed the means and had the facilities with which to accomplish it? In what direction and to whom do the circumstances in the case, as proved, point, as being connected with the transaction ? “Do these circumstances all point in one direction? Are the circumstances of a conclusive and inculpatory character ? Do they point to the prisoner as the guilty party ? And are they of -such a character as actually to exclude, to a moral certainty, and beyond all reasonable doubt, every other hypothesis except that of the guilt of the prisoner ? ” It is apparent that the remarks of the judge were equivalent to an absolute denial of the rule of law “that all the facts should be consistent with the hypothesis.” 3 Greenl. Ev., sec. 137, p. 127; 1 Stark. Ev., p. 572; 3 Greenl. Ev., sec. 134; Willes on Cir. Ev., p. 168. Y. Errors in refusing requests for instruction. 1. .The counsel of the prisoner requested the judge to instruct the jury that “ in order to convict the prisoner upon the evidence of circumstances, it is necessary not only that the .circumstances all concur to show that he committed the crime, but that they all be inconsistent with any other rational conclusion.” 3 Greenl. Ev., sec. 137, p. 127; Hodge’s Case, 2 Lew. Crim. Cas., 227, per. Alderson, R.; 1 Stark. Ev., p. 560. 2. •• And the counsel of the prisoner requested the Court to instruct the jury that no conviction in a criminal case ought ever to take place, on circumstantial evidence, where the government has introduced direct evidence tending to show that the prisoner could not have committed the crime charged. 1 Stark. Ev., pp. 577 and 583. 3. And the counsel of the prisoner requested the court to instruct the jury, that direct evidence introduced by the government, tending to prove the innocence of the prisoner “shall not be held refuted, from being opposed to circumstances incongruous with that evidence.” 1 Phill. Ev. (1 Am. od.) appendex, p. 56, Rule 5; 1 Stark. Ev., p. 586. 4. And the counsel of the prisoner requested the court to instruct the jury: That the theory that the blood of animals, such as the ox or sheep, can be discriminated from that of man, when in a dried state, by chemical means, is too uncertain to be used as evidence or to be relied on as evidence in this case. “ The counsel of the government then asked the witness: Is there a distinction, chemical or physical or microscopic, between the qualities of human blood and that of any beast.” To which the counsel of the prisoner objected, the court overruled the objection, and the witness answered: “there is a distinction, a physical distinction, existing between the blood of man and that of some beasts. I do not know of any precise chemical distinction.” We deny that the blood of man when in a dried state can be discriminated by chemical means from the ox or the sheep, and insist that the theory that it can be so discriminated is not a science, and therefore that the instruction was improperly withheld. Taylor’s Med. Jurisprudence, pp. 236 and 237 and 238. 5. And the counsel of the prisoner requested the court to instruct the jury that the theory, that the blood of the ox or rif the sheep can be distinguished from that of a human being, when in a dried state, by microscopic observation, is too uncertain to bo used as evidence, and the difference in size of the globules is too slight to be relied on as evidence in this case. It is contended for the prisoner, that such evidence is too uncertain and unreliable to bo received in a court of justice, and we deny that such discrimination can be made with sufficient certainty to authorize the court to allow the statements of the -witness to be submitted to a jury in a criminal case. Whar. and Stille, Med. Jur., pp. 562 and 563; Taylor’s Med. Jur., pp. 239, 240, and authors cited; Carp. Prim Phys., pp. 159 and 160; Todd and Boman Physiological Anatomy, p. 634, (1857;) Dunglison Med. Diet., p. 408. 6. And the counsel of the prisoner requested the court to instruct the jury that the distinction between positive and negative testimony is applicable to direct testimony, and cannot be applied to circumstantial evidence when placed in direct conflict with positive testimony. 1 Phil. Ev., (1st Am. ed.) appendix, p. 55, rule 5. POINTS AND AUTHORITIES EOR THE STATE, BY N. D. APPLETON, ATT’Y GENERAL, AND O. W. GODDARD, COUNTY ATTORNEY. I. Triors were properly refused, because, 1. The common law authorizing their appointment (3 Blackstone, 363; Bacon’s Abr., E. 12,) was modified in Massachusetts by the colonial ordinance of 1641, which substituted for the ancient. system another tribunal, to wit: the bench,, or the rest of the jury, at the election of the party challenging. “Also it shall be in the liberty of both plaintiff and. defendant, and likewise of every delinquent to be judged by a jury, to challenge any of the jurors, and if the challenge be found just and reasonable by the bench, or the rest' of the jv/ry, as the challenger shall choose, it shall be allowed him, and tales■ de circumstantibus empanneled in their room.” Anc. Charters and Laws, chap. 98, sec. 3, p. 199. We do not deny that by ancient and modern law practice, triors were allowed, as the counsel contends. But when trial of jury came to this country, it was not accompanied by all which there attended it. This was never adopted, but was modified by statute in 1641. No distinction between challenge for cause and favor. 3 Bl. Com., 361. 2. But this privilege, to wit, of submitting the challenge to the rest of the jury instead of the bench, seems never to have been exercised by the party challenging, and thus became obsolete. "Notwithstanding the privilege allowed of referring the challenge to the bench or the rest of the jury, a practice might insensibly grow up under the influence of the circumstances already alluded to, (their simpler habits,) in which the first settlers were placed, which should withdraw the decision upon the competency of jurors challenged from the rest of the jury, and give it to the court.” American Jurist, vol. 12, p. 330. And accordingly no instance of its adoption in practice has been found. 3. Thus, by the repeal of the common law relative to triors, in 1641, and the entire disuse or rather neglect of the privilege substituted, the duty of hearing and determining-all challenges to jurors, passed by statute and usage into the court. And this v;as one of those ancient usages, originating from laws passed by the legislature of the colony of Massachusetts Bay, which were annulled by the repeal of the first charter, and from the former practice of the colonial courts, accommodated to the habits and manners of the people. Commonwealth v. Knowlton, 2 Mass., 534, bottom of the page. And thus it became in part the common law of Massachusetts, and was adopted in her constitution. Constitution of Mass., chap. 6, sec. 6; Sackett v. Sackett, 8 Pick., 309; G-owe® v. Emery, 16 Pick., 107; Cotterell v. Myrick, 12 Maine, 222; American Jurist, vol. 12, pp. 230-240, and cases there cited. So the old common law right of polling the jury has never been adopted in this state nor Massachusetts. Com. v. Roby, 12 Pick., 514; State v. Fellows, 5 Maine, 333. Likewise the right of an alien to a jury de medietate Ungues. Dane’s Abr., p. 381, chap. 221, art. 6, 93. 4. Hence, we find that triors have never been appointed nor claimed in this state, nor in Massachusetts, and that the common law touching this subject has never been practised •upon here nor in that state. Borden v. Borden, 5 Mass., 67. (Language of Mr. Dexter on this point, acquiesced in by the deft’s counsel, and sustained by tbe court.) Com. v, Knapp, 9 Pick., 498; same case, 10 Pick., 480; Com. v. Webster, 5 Cushing, 295; Com. v. Rogers, 7 Metcalf, 500. All of them ' being “ cases which excited great intererest at the time, and in which learned and active counsel were employed.” 5. Nor in any other New England State. Rollins v. Ames, 2 N. H., 349; Boardmán v. Wood, 3 Ver., 570; 2 Swift's System of Connecticut Laws, 233. “ Challenges” (to the favor) “are often tried in this way” (by triors) “in most of the states south of New England.” Dane’s Abr., vol. 7, chap. 221, art. 7, sec. 12. Therefore it is denied that any such right exists. Eor in the language of Lord Coke, “As usage is a good interpreter of laws, so non-usage, where there is no example, is a great intendment that the law will not bear it; ” or of his great master, Littleton, “ no action can be brought, insomuch as it was never seen or heard, &o.; and if any action might have been brought for this matter, it shall be intended that at some time it would have been put in use.” Co. Litt.,’81 b. and 383 b. 6. Moreover this trial of challenges is expressly vested in the court, by act of June 26, 1784, sec. 8, Laws of Massachusetts, which provides, that “If it shall then (on challenge) appear to the court, that any juror does not stand indifferent in the cause, he shall be set aside from the trial of that cause, and another called in his stead.” And upon the separation of Maine from Massachusetts this provision is copied into chap. 84, sec. 9, of the laws, 1821. 7. The same provision, that the court, and not triors, shall try all challenges, both in civil and criminal cases, is now the express law of this State. R. S., chap. 115, sec. 65; R. S., chap. 172, sec. 31; 12 Pick. Com., v. Robie; 2 Howe’s Practice is the only authority from which any suggestion should be made that triors may be appointed. 8. But even if the common law right to triors did exist in this state, the prisoner’s exception cannot avail, because it does not appear from the exceptions what the ground of challenge was, whether for principal cause or for favor. This should appear on the record, for how else can the court know whether it was for principal cause or for favor ? “When a juror is challenged for principal cause or for favor, the ground of challenge should be distinctly stated, for without fcliis the challenge is incomplete, and may be wholly disregarded by the court. It is not enough to say, ‘I challenge,’ and stop there; the cause of challenge must be specified.” Freeman v. The People, 4 Denio, 31. This appears nowhere in the prisoner’s exceptions, and according to the law in states whore triors can bo claimed, this defect is fatal. 9. But granting, for the sake of the argument, all that the prisoner claims; conceding that the right to triors exists here, and that the ruling of the court denying them was erroneous; still the prisoner’s exception cannot be sustained. Because it does not appear from the exceptions that a singlo juror was challenged for cause, either for favor or otherwise, who was not either rejected by the court, according to the prisoner’s request, or else peremptorily challenged and excluded by the prisoner. Not a single juror on the panel which convicted him was challenged or objected to, and if ho had been allowed triors according to his demand, so far as his panel was concerned, they would have had nothing to try. Hence, the prisoner has literally enjoyed the privilege of selecting his own jury, and cannot now be allowed to complain of the result of his own election. (The People of Now York v. Knickerbocker, 1 Parker’s Criminal Reports, 302; Freeman v. the People, 4 Denio, 31; People v. Bodine, 1 Denio, 300.) II. The prisoner’s question to L. D. Rice, “ Is not this the first time (excluding what you may or may not have stated before the grand jury,) that you have testified that you thought you saw blood on the prisoner’s wrist?” was prop-e rly excluded, because, 1. An affirmative answer must have disclosed a portion of the witness’ testimony before the grand jury. The admission of that question, in view of the previous , testimony; elicited by the prisoner, would have been an infringement of the rights of the witness and of the privilege of the grand jury and the government, and contrary to the settled and uniform policy of the law. 2. A witness cannot be asked what was his testimony on former occasions. (Regina v. Holden, 8 Carrington and Paine, 606; [34 Common Law Reports, 507:] Regina v. Sh.illard, 9 Carrington and Paine, 280; [38 Common Law Reports, 121.}) 3. The prisoner’s next question to L. D. Rice, “ Where was it that you so testified, provided it was not before the grand jury?” was open to the same objections as the preceding, (Exc. No. 2,) and was properly excluded, because, Although, at first sight it appears unobjectionable, seeming, like the former, to exclude all reference to the grand jury, it will yet be perceived that- a negative answer would have involved the fact that the witness had testified before the grand jury, and before the grand jury only, that he “ saw Mr. Prout put his hand on the deceased’s face,” because Mr. Rice had already testified on cross-examination, that “ that was not the first time that he had sworn that he had seen that act.” The court is not obliged to permit the introduction of a collateral fact, which might occasion a new issue. State v. Whittier, 21 Maine, 341. IY. The question propounded by the government to Mr. Prout, “ Did you on that day, or the day after, inform any person of having seen the prisoner coming from the place, and in the direction above described?” was properly allowed, because, 1. The answer would be explanatory of the testimony of Merrill, Thurston and als., showing the knowledge and information on which their conduct was based. It was an independent fact proper to be known, and within the witnesses’ own knowledge, a part of the history of the transaction intimately connected with the finding of the knife; a feet which led to it, and without which it probably would not have happened. Its obvious effect, when answered affirmatively, was to show that the search instituted at that particular point and time, was an intelligent and not an accidental one. 2. This was no hearsay testimony, but derives its effect solely from the credit attached to the witness himself, and does not rest on the veracity of others from whom the witness might have received information. It admits of the usual tosts of truth which the law requires; the sanction of an oath, and the test of a cross-examination. 1 Phillips’ Evidence, 184; 1 Greenl. Ev., 111. 3. The information given by Prout to Thurston was admissible as being a part of the res gestae connected with and explaining the facts and circumstances attending the finding of the knife. It was itself a fact, a circumstance accompanying this principal event, and as one of the surrounding circumstances, it was rightly shown to the jury along with the principal fact, viz.: the search for and finding of the knife, and its admissibility depended upon its degree of relation to the main fact. This degree of relation was properly determined by the judge, being a subject for the exercise of his sound discretion. 1 Greenl. Ev., p. 120, sec. 108; Lund v. Tyngsboro’, 9 Cushing, 42. As to what circumstances are a part of the res gestae. Poole v. Bridges, 4 Pick., 378; Allen v. Duncan, 11 Pick., 308; Stansbury v. Arkwright, 3 Oar. and Paine, 575; [24 Com. Law Rep., 462;] Taylor v. Williams, 2 Barn, and Adolph., 845; [22 Com. Law Rep., 195;] Rydley v. Guide, 9 Bridgham, 349; [23 Com. Law Rep., 304.] 4. If this was not a part of the res gestee, it was by reason of the vagueness of the answer, which, if it failed to show the connection between the information and the search before the knife was found, became immaterial and without injury to the prisoner. Bemis' Webster case, 115. Y. The question to Dr. Carr, first objected to by the prisoner, “What was the general character of the instrument occasioning tho wound, as indicated, in your opinion, by the wound ?” was properly admitted, because, 1. Dr. Carr was called, and testified as a medical and scientific expert, and for the express purpose of giving his opinion on medical and scientific subjects, and his opinion was for that reason admissible when other men would be confined to the statements offacts. Roscoe’s Orim. Ev., 167; 1 Chit. Criminal Law, 620; 1 Greenleaf’s Ev., pp. 489 and 611; 1 Starkie’s Ev., 154; State v. Smith, 37 Maine, 370; Davis v. Mason, 4 Pick., 156; Com. v. Webster, 5 Cushing, 295; [Report of Webster case, pp. 72, 79, 97 and 98 ; Opinions of Drs. Wyman, Jackson and Holmes, and p. 184, testimony of Tyler;] Norman v. Wells, 17 Wend., 162; Eorbes v. Chad., 3 Doeg., 157; Cotterell v. Myrick, 12 Maine, 222; Boyce v. McAllister, 12 Maine, 308; Sweetser v. Lowell, 33 Maine, 447; 1 Archbold’s Orim. Law, 168, 3; Hathorn v. King, 3 Mass., 371; Definition of the word expert in Bouvier’s Law Diet., and in Webster’s Diet.; Van Dine v. Burpee, 13 Met., 291; Hobbie v. Dana, 17 Barb., 11; 2 Archb., 261, (note.) 2. It did not directly involve a main fact — either that the prisoner was guilty of murder, or that a murder had been committed — nor does it fall within any other exception to, or qualification of, the general rule. It was peculiarly within the knowledge of a physician and surgeon, and not equally, if at all, within the knowledge of the jury. And it was necessary for their clear comprehension of other portions of his testimony, to wit: the appearance of the wound, the condition of its edges, &c. 3. The answer was strictly responsive to the question, was within the medical and scientific knowledge of tho witness, was not within the sphere of the judgment and observation of ordinary men, and was unobjectionable in every respect. VI. The question to Dr. Carr next objected to by the prisoner, “ Could a person, in your opinion, after the infliction of such a wound as that disclosed, perform acts of voluntary motion ?” as well as the next question to the same witness, “ In your opinion, did or did not the wound indicate whether more than one impulse was communicated to the instrument producing it?” was properly admitted for the same reasons heretofore given. These questions all related to an important and legitimate inquiry, to wit: whether the death of the deceased was a suicide or a homicide. This the government did not attempt to prove directly by the opinion of Dr. Carr, but by showing the inability of the sufferer to communicate to the instrument producing the fatal wound, the second impulse, which, in the doctor’s opinion, was given by the hand that inflicted it, as well as the impossibility of her retaining the voluntary power to suppress the flow of blood, jam down the pillow, and perform the other acts testified to as having occurred after the infliction of the wound. VII. Dr. Garcelon was properly allowed to illustrate his testimony descriptive of the wounds by diagrams, plates and skeleton. Those were not admitted as evidence nor authority, but simply as chalk for illustration, and as such have always been, admitted in the courts of Massachusetts and this state, both in civil and criminal trials. (Report of the Webster case, pp. 62 and 69.) It is of no consequence whether the first three questions put by the government to Dr. Garcelon, and objected to by the prisoner, were properly admitted or not, because, whether in themselves objectionable or not, the answers to them were, at the prisoner’s request, all stricken out. An improper question becomes injurious only when answered. Consequently the prisoner has sustained no injury from the questions, and they therefore can furnish no ground for exception, and should not have been included in the exceptions. VIII. .The question to Dr. Garcelon last objected to by the prisoner, “ State, whether, in your opinion, as a physician and surgeon, the wound described on the neck of the deceased, could have been inflicted by the right hand of the deceased?” was probably put, for the reasons given in answer to exceptions No.’s 5, 7, and 8. IX. The deed from the prisoner and his wife to Jordan, and the deed from Jordan back to the prisoner alone, were properly admitted without proof of their execution, because, 1. They were relevant to the issue as tending to show one of the prisoner’s motives to the murder. Will, on Cir. Ev., chap. 2, sec. 4, p. 51, chap. 3, sec. 1, p. 54; Hendrickson v. the People, 1 Parker’s Crim. Law, 486; Com. v. Watkins, 11 Conn., 47. Hence they were neither collateral nor irrelevant, and instead of prejudicing the jury, their admission tended very strongly to throw light upon his conduct, and to explain it to the jury. 2. It was not necessary for the government to prove the deeds by the subscribing witness. Surely this could not* reasonably be asked of the government in a prosecution for forgery, of the very deeds in question, because it would involve the absurdity of requiring the government, in limine, to prove an instrument to be valid, and a signature genuine, when the very gravamen of the charge sought to be established is, that the former is worthless and the latter counterfeit. 1 Starkie, p. 349 and notes. Equally absurd would it be to require it of the government in this case, where nothing is claimed of the prisoner by conveyance, where the title to no. real estate is in controversy, and where, instead of seeking to establish the validity of his deeds, the government point to his certain fraud and probable forgery as a strong additional inculpatory circumstance. His guilty motive is made apparent by his connection with forged papers. The possession of documents under such circumstances, affords ground for affecting parties with an implied admission of the statements contained in them. 1 Greenl. -Ev., 231; Shaley v. State Georgia, 11 Georgia, 123. Hence the propriety and importance of the question to Jordan, “ Did you ever see the deed (from George and Mary Knight to you) before ?” Also the other question to the same witness, “ Did you over know of its existence before ?” The negative answers to both show, that though the deed purported to be duly executed to Jordan, and though it was treated by the prisoner as a valid deed, and even recorded as such, yet in tact it never had any validity, and was made for a fraudulent and sinister purpose. X. Dr. Hayes, a distinguished chemist and assayer of the Commonwealth of Massachusetts, was properly allowed to illustrate his testimony on the subject of the blood-staina and the qualities of blood by a diagram. Dr. Hayes was properly permitted to point out to the jury the peculiarity which the blood-stain on the prisoner’s undershirt presented, as exhibiting on one side of the fabric a larger portion of the coloring matter of the blood than on the other side, Because a reference to a visible fact was necessary to a proper explanation of the chemical experiments and microscopic observations to which he, as an expert, had subjected the stain, which experiments and observations sustained the inference drawn from its outward appearance. The government, therefore, contend that an expert has a right to illustrate his testimony touching the experiments he has made, and their results by reference to a peculiarity in the appearance of the article experimented on, even if that peculiarity is of such a character as to be “ open to the observation of the jury.” So also the question put by the government to Dr. Hayes, “ Whether blood flowing directly from the skin upon the shirt, could or not have produced such a spot ?” as well as the next, “ In your opinion, could or not blood flowing directly upon the outer surface of the shirt, have occasioned such a spot ?” and the subsequent explanations of and reasons for his opinion, were properly admitted, Because all his testimony related to a subject peculiarly within the knowledge and sphere of experience of a chemist and microscopist, and of no one else, viz.: the fact that th» chemical and physical constitution of blood is such as to show in a given case that the stain on a flannel undershirt worn next to the prisoner’s skin on the night of the murder of his wife, could neither have issued from his own veins upon it, nor flowed on it from without, except through the interstices of some other fabric which had strained it of some of its original coloring matter. The government ask with confidence, who but an expert, a man of rare scientific experience, is qualified to form such an opinion, upon the facts presented on the trial of this case V To exclude such testimony would be alike dangerous to the government, and to the innocent accused. The question put to Dr. Hayes by the government, and objected to by the prisoner, “ Is there a distinction, chemical, physical or microscopic, between the qualities of human blood and that of any beast?” was properly put, as appears from the clear and unhesitating testimony of Dr. Hayes in reply. Dr. Hayes had been sworn as an expert, without objection, and had testified at great length and with great ability, touching the qualities of blood, a subject with which both his reading and experiments had rendered him perfectly familiar. This question, like all the preceding, related to the same general subject, the qualities of blood; it simply narrowed down the inquiry to human blood. How can the court decide in advance, that no such distinction as Dr. Hayes testifies to, in fact exists, without arrogating to themselves the wisdom of experts ? It is impossible, in the very nature of things, to make a question of law here, where there is nothing but fact. Surely the distinction cannot be made that Dr. Hayes, having acquired familiarity on the entire subject of blood, by hi.s own personal studies and researches, has been permitted to ' testify thereon, as an expert, in a court of justice, up to a certain .point, giving all the characteristics of blood generally, and then shall be peremptorily forbidden to utter a word tending to show that the vital fluid of man differs from that of any brute, excluding liis learning just at the point where it is most useful ? Such a decision would voluntarily blind justice to the advancing light of science, jeopardizing at one time the safety of society, and at another the life of the innocent 'accused. The courts of this state, as well as of other enlightened commonwealths, on both sides of the Atlantic, have admitted testimony of this character. The testimony was properly admitted, to receive from the jury, in the language of the presiding judge, “ the consideration to which they thought it justly entitled.” The same reasons fully authorized and required the admission of the testimony in answer to the next question, put by the government to Dr. Ilayes, “Have you subjected any of the articles before you to any observations or tests touching this distinction?” — -to the succeeding, “Will you please state what these observations and tests were, and their result ?” and to the last, “ In your opinion, could the blood upon the knife first shown, have flowed from a sheep ?” The reply did not prove that the blood was human, but that it was not ovine. XI. The objection to that part of the closing argument of the counsel of the government which referred to Lydia Knight, “ That the government had no right to argue against the intelligence and capacity of its own witness,” Lydia Knight, to the extent pursued by the government on that occasion, is without foundation, either in principle or authority. 1. The counsel of the government expressly conceded the competency and credibility of Lydia Knight, and all its other witnesses, disclaiming all purpose of impeaching either, and claiming only the right to correct mistakes. This the government had a right to do. 1 Greenl. Ev., p. 599, cases cited in the note; 2 Phillips’ Ev., p. 448, note 392; 1 Starkie’s Ev., 424; Gilbert’s Law of Ev., 151. A party may always correct his own evidence, though by directly contradicting him. Lawrence v. Baker, 5 Wend., 305; Johnson v. Leek, 12 Wend., 105; Cowdin v. Reynolds, 12 Serg. and Rawle, 281; Steinback v. Columbia Ins. Co., 2 Caines, 131; Crowell .v. Kirk, 3 Devereaux, 357; Eriedlander v. London Ass. Co., 4 Barn, and Adolph, 193; Bradley v. Ricardo, 8 Bingham, 57; Regina v. Ball., 8 Car. and Paine, 745; [34 Eng. Com. Law Rep., 616.] 2. It was not only the privilege, but the duty of the government to call Lydia Knight, because she was present at, or very near the time of the beginning of the assault, which terminated in the murder with which the prisoner was charged. Under circumstances somewhat similar, Patteson, Justice, said that the witness ought to be called, and animadverted upon the course of the prosecuting officer, in intimating an opposite purpose. Regina v. Holden, 8 Car. and Paine, 606. But in being generous and liberal to the prisoner, they do not understand that they are bound by every answer of their witness, however erroneous, and estopped from pointing out to the jury, in argument, even honest mistakes. • How unreasonable is such a doctrine, and how impractica-, ble in its application! It would seem difficult to contrive one more unjust or dangerous. 1 Hale’s P. C., 455, note 1, 1st Am. ed.; note, Com. v. Knapp, cited 4 Black., to show that the prisoner must reduce the crime below murder, chap. 23, p. 425 to 429; 1 East. P. C., pp. 224, 340 and 436, chap. 26; State v. Varney, 8 Bos. Law Rep.; 2 Metcalf, 1; 19 Pick., 25. XI. The prisoner’s sweeping exception to the entire “ charge and instructions ” of the presiding judge, “ and to each of them, and to each and every part thereof,” without further allegation or specification, was not only unreasonable, unusual and improper, unjust to the court and to the government, but unauthorized either by the letter or spirit of our law. R. S., chap. 96, sec. 17; Jackman v. Bowker, 4 Metcalf, 236; Decker v. Mathews, 2 Kernan, 313 ; 1 Starkie, pp. 472 and 473. Although, in the opinion of the counsel for the government, the charge, even as reported, will sustain itself without any defence from them, they are unwilling to concede the legality of the form in which this exception is presented, or the reasonableness of requiring them to answer it. Com. v. York, 9 Metcalf, 133; 1 Chitty’s Crim. Law, 483; Roscoe, 651 and 652; Com. v. Webster, 6 Cushing, 305; 1 Starkie’s Ev., 474; Ware v. Ware, 8 Greenl., 42. XII. The thirtieth instruction requested by the prisoner, “ That in order to convict the prisoner upon the evidence of circumstances, it is necessary not only that the circumstances all concur to show that he committed the crime, but that they all be inconsistent Avith any other rational conclusion,” had been already substantially and repeatedly given by the judge to the jury, in his charge, as Avell as in Nos. 18, 19, 20, 21 and 22 of the prisoner’s requested instructions. The language of Mr. Greenleaf (Greenl. Ev. 3, sec. 137,) is borrowed and condensed from Starkie, (1 Starkie’s Ev., pp. 507 and 512,) and in his charge the court instructed the jury in the words of the original author, of which it is not known, that Mr. Greenleaf’s language is any improvement. This court will determine whether, on every point of Iuav discussed, in the charge, a sufficient number of repetitions of the same idea were not allowed the prisoner in the twenty-nine requested instructions given. Com. v. Dana, 2 Metcalf, 329; Wolcott v. Keith, 2 Foster, 196. 3. If so, then the form of the instruction is immaterial, provided the idea has been already substantially given. Wolcott v. Keith, 2 Foster, 196. XIII. The thirty-first instruction requested by the prisoner, “That no conviction in a criminal case ought over to take place on circumstantial evidence, where the government lias introduced direct evidence tending to show that the prisoner could not have committed the crime charged,” Avas properly refused, because, 1. The requested instruction was based on a state of facts which did not exist in the case. There Avas no such direct evidence. 2. It attempts to draw a distinction detween direct and circumstantial evidence, unknown to the law. Any intrinsic and necessary superiority of one over the other is denied. 1 Starkie, 494. 3. Such a doctrine might withdraw from the consideration of the jury material testimony, proper for their consideration, and of the weight of which they should be the exclusive judges, by embarrassing the government in every case of circumstantial evidence, with the apprehension that some direct evidence of the character named might be elicited from some of their witnesses. 4. The cases cited in answer to exception No. 34, show that it was the duty of the government to introduce, and of the jury to consider and weigh the whole testimony in the case, applicable to the question at issue. The requested instruction would have rendered this impossible. 5. The doctrine of the requested instruction is, that however overwhelming and conclusive the number and weight of the circumstances against a prisoner, in any criminal case, still he shall never be convicted thereof upon such testimony, provided that any direct evidence, however little, tending in any degree, however slight, to negative the hypothesis of his guilt, may, during a trial of whatever length, have been elicited from any one of the government witnesses. It is obvious that such a rule would render a conviction for any offence, upon circumstantial evidence, on a seriously contested trial, a ¡practical impossibility, and consequently it cannot be law. u ■6. The judge in his comments on the testimony of Lydia Knight, as well as in other parts of his charge touching the nature and effect of circumstantial evidence, had already given all the instructions on this subject which were necessary and proper. ' The same reasons and authorities apply to the refusal of the judge to give the thirty-second instruction requested by the prisoner, “ That direct evidence introduced by the government, tending to prove the innoconce of the prisoner, shall not bo hold refuted, from being opposed to circumstances incongruous with that evidence.” This requested instruction is merely the counterpart of the preceding, and was properly refused. XIV. The thirty-third instruction requested by the prisoner, “ That the theory that the blood of animals, such as the ox or the sheep, can be discriminated from that of man, when in a dried state, by chemical means, is too uncertain to be used as evidence, or to be relied on as evidence in this case.” was properly refused. 1. it was not pertinent nor applicable to the case, for no evidence had been introduced tending to show that the blood of the ox, in a dried state, could be distinguished from human blood. 2. The judge had already, in the charge, given full, ample and correct instruction on this point. The same reasoning and authorities apply to the thirty-fourth instruction requested by the prisoner, “That the theory that the blood of the ox, or of the sheep, can be distinguished from that of a human being, when in a dried state, by microscopic observation, is too uncertain to be used as evidence, and the difference in the size of the globules is too slight to be relied on as evidence in this case.” This was properly refused for reasons given in the preceding. XV. The last instruction requested by the prisoner, “That distinction between positive and negative testimony is applicable to direct testimony, and cannot be applied to circumstantial evidence, when placed in direct conflict with positive testimony,” was properly refused, Becauso it attempts to introduce into the law a distinction between direct and circumstantial evidence, which the law has never recognized. Each has its appropriate sphere, and either may be more or less satisfactory than the other, according to the peculiar circumstances of the case. These can never be defined in advance by any such general and unbending rulo as tho one now sought to be introduced into the law, and consequently the law recognizes no fixed and permanent superiority of one over the other. Wills on Cir. Ev., p. 31; 1 Greenl. Ev., sec. 13, A.; 1 Starkie 494-5.