Dyson v. State

Homicide. The record, in criminal cases, must show that the jury were sworn, hut it need not set out the form of the oath prescribed to them by the court, McCarty v. State, 28 Miss., 299; and if the' swearing of the jury is improper in any respect, it must he made a part of the record by bill of exceptions. But where the oath is set out and is incorrect the verdict will be set aside. until the contrary appear, it will he presumed that the jury were sworn according to law. The statement in the record that the jury “ were sworn the truth to speak in the issue joined,” is sufficient to show that they were sworn according to law. If evidence is proposed, which, of itself, appears irrelevant to the issue on trial, and is objected to, the party offering it is bound to show its relevancy either by explanation to the court as to its bearing on the ease, or by introducing other evidence connecting it with the res gestee, and opening the door to its admission. Bare fear of danger or great bodily harm, unaccompanied by any overt act indicating a present intention to kill or injure, will not warrant a person in killing another. There must be actual danger at the time. There must be an overt act on the part of the deceased to carry out hi3 threats to warrant his killing, or the danger of such design must be imminent, pressing and unavoidable. The acts of public officers, especially judicial tribunals acting within their jurisdiction, are valid, and done rightly until the contrary is proven. The high court of errors and appeals will not take cognizance of points not presented in the court below;1 and the rule applies with greater force where the point is one of fact, and was raised and abandoned. Every fact incidental to the proceedings in the circuit court, not required by law to be incorporated in the record must be presumed to have been properly done.

Error to Panola circuit court. Milleb, J. James H. Dyson was indicted in the circuit court of Panola county for killing Samuel H. Nelms, and was found guilty of manslaughter in the first degree, and sentenced to fifteen years’ imprisonment in the state penitentiary. It was proven that Nelms was riding along the road leading from the town of Panola to his house. Jennings Estell, about sixteen years of age, was the only person in company with him. When within a mile of his own house, the accused (Dyson), who had previously taken his position about fifteen yards from the road, in a sink-hole in a ravine, shot Nelms with a gun as he passed, who fell from his horse. Dyson then walked up to where Nelms was lying badly wounded, and said to Nelms, “ You were going to kill me.” Nelms said, “ I was not.” Dyson then said, “ You tried to get Jones to kill me.” Nelms answered, he “ had not.” Dyson then presented his gun to Nelms’ head, who turned, as he lay on the ground, and said, “ Good-bye, Jennings.” The gun fired and killed Nelms dead immediately, and the muzzle of the gun was so near him that the powder burnt his coat and shirt and blistered his skin. The defendant offered in justification of this act of killing, threats made by Nelms against him (Dyson). The proof was in substance, that John B. Dickens, a few days before the killing, heard Dyson say to Nelms, “ You made a difficulty with me, and I don’t want a difficulty with you.” Nelms replied, “ God damn you, I don’t want any difficulty with you either,” and added, “ Mr. Dyson, you have treated me damned badly.” W. B. Killebrue says, as Nelms and he were sitting in the court-house yard, Dyson came in sight; Nelms looked up, and said, “Here comes the damned son of a bitch now. I will have him in less than ten days where he won’t bother me or any one else. I have got my triggers set for him.” It looked to him as if Dyson might hare heard what Nelms said as he passed on. Another witness says he heard the above, and told Dyson of it; say's he heard Nelms say if Jones would attack Dyson, and Dyson denied his charges, he (Nelms) would settle it. This, also, witness told Dyson. It was also in proof that Nelms told the witness that Turner had told him he was in danger from Dyson, and Nelms said he would give Dyson a fair fight. Thomas JB. Turner says Nelms told him Dyson was a damned rascal, and he would give Dyson a fair fight. James M. Jones proved that Nelms never urged him to get into a difficulty with Dyson. Anthony Foster and John B. Dickens and some others, proved that Nelms was a man of violent character. The opinion of the court contains all the instructions commented on by the court. The court below having refused to grant a new trial, Dyson prayed a writ of error to this court. The errors relied upon for reversing the judgment of the court below, will be stated and considered in the order in which they occurred. 1st. The jury by whom the prisoner was tried was not duly and legally sworn. That the record must show affirmatively that the jury was legally sworn. 1 How., 24, 30, 49Y; 4 S. & M., 110, 112. On this subject the language of the record is : “ Thereupon came a jury of good and lawful men, to wit (naming them), who being elected, tried and sworn the truth to speak in the issue joined, and having heard the evidence,” etc. This oath was an insufficient one. For the proper form of the oath which should have been administered to the jury, see Hutch. Code, 8Y9, § 132 ; 1 Chitty Cr. L., 551, 552. Nothing can be presumed in support of the record. 1 How., 30. The record undertakes to recite the precise oath which was administered to the jury, and the oath recited being insufficient for this Cause, the judgment must be reversed. The jury should have been sworn well and truly to try the issue joined between the defendant and the State of Mississippi, and a true verdict give according to the evidence. The oath, as administered, did not inform the jury between whom the issue was joined which they were to try; nor did it require them a true verdict to give according to the evidence. The oath was defective, therefore, in two material particulars. This objection is believed to be fully sustained by the case of Holt v. Mills, 4 S. & M. 110,112. 2d. On the bills of exception to the ruling of the court excluding testimony. 4 S. <fc M., 207. 3d. The court erred in giving to the jury the first, second, fourth and seventh charges, which were given for the state, and also in the explanation which it gave of defendant’s sixth charge. As expounded by the court in this case, the law of self-defense is practically annihilated. A person may legally assail another for injuries threatened when there shall be reasonable grounds to apprehend a design to do some great personal injury, and there shall be imminent danger of such design being accomplished. Hutch. Code, 957, § 3. So, too, a man may kill another who has threatened his life to prevent such other person from carrying this threat into execution. But these obvious and plain legal propositions are denied by the charges of the court in this case. The error in the fourth and seventh charges consists in the fact that these charges make it essential that an actual felony should be about to be committed, or a design to do some great personal injury, in order to justify the killing in self-defense; whereas the law gives the right of self-defense upon a reasonable apprehension of these things. On the law of self-defense, see Barb. Or. Tr., 40, 41 ; 1 Russ, on Cr., 451, n.; 4 Ired., 415, 417; Granger’s case, 5 Yerg. The fifth charge asked by the state should have been refused. • This charge, in connection with the other charges given by the court, left to the jury no discretion whatever, but required them, under the penalty of perjury, to find a verdict against the defendant. No one can carefully read-over the various charges and explanation of charges given by the court, without discovering that the jury, as to their verdict, were placed under something like duress. On contradictory charges, 13 S. & M. 40. 4th. The silence of the record as to the disposition that was made of the jury on the trial of the defendant, on the adjournment of the court on the evening of the 24th of May, and also ‘on the evening of the 25th, is a fatal objection to the judgment of the court below. The trial by jury in criminal cases, and the rights of criminals generally, are most scrupulously guarded by the constitution and laws of the state. By the tenth section of our declaration of rights, it is declared that, in all criminal prosecutions, the accused cannot be deprived of his life, liberty or property but by due course of law. It is also declared, by express legislative enactment, that no person shall be punished for any offense unless he shall have been duly and legally convicted thereof. Hutch. Code, 954, §,7. On this subject the decisions of this court have sustained fully the meaning and spirit of the constitution and laws of the state, and in no single instance has this court weakened or impaired those principles of the common law, which were designed as the shield and safeguard of the personal rights of Englishmen. It has been decided that the record must show affirmatively, that the court, trying an accused, was held at the place appointed by law, 4 How. 163 ; 5 ib. 20. That the caption of the indictment must state with sufficient certainty the style of the court, the judge presiding, the place at which the indictment was found, and the, jurors by whom it was found. 5 How. 20. That the record must show, affirmatively, that the accused was present during the trial. 8 S. & M., 722. The record must show, affirmatively, that the accused pleaded in person, after due and legal arraignment. 8 S. & M., 587, 595. From the foregoing decisions, it will be seen that this court has never indulged in any inference or presumption to sustain the action of a circuit court in a criminal trial, where such action involved the legality of the proceedings of the court in reference to a matter of judicial duty touching the rights of the accused. In several of the states of the Union it is held to be in the discretion of the court to permit the jury charged with a criminal case to disperse or separate during the trial (15 Ohio, 72); whilst in this state, the separation of the jury without the consent of the accused, has uniformly been held to be error, for which a verdict against the accused will be set aside. 13 S. & M., 398. In'Yirginia, it is held, that before jurors, elected by the prisoner, have been sworn, and the jury fully made up, they need not be committed to the care of an officer, 11 Leigh,' 714. Whilst in this state it is held, that in a criminal case, where a juror is elected, he must remain under the care of the court before, as well as after, he is sworn, 8 S. & M., 587. It has been also held, that no special oath need be administered to a sheriff, to whom a jury, in a criminal case, is committed during the trial, 8 Leigh, 745. Whilst in this state it .has been repeatedly decided, that it is the duty of the court to swear an officer to take charge of the jury. 4 How., 196; 13 S. & M., 402. In several of the states it is held, that after judgment, no advantage can be taken of the want of a prosecutor; whilst the contrary is the settled law of ⅛⅛ state, as established by the decisions of the court. There are many matters not entering necessarily into the record of a criminal case, as to which, until the contrary is shown, the action of the court will be presumed to have been correct. This principle explains all the cases on this subject relied upon by the state. But this principle has never been applied by this court to any matter constituting a necessary part of the record, or which, upon the principles of the common law, it was necessary that the record should show affirmatively; as that the court was held at the proper place; that the grand jury and petit jury were sworn; that there was a prosecutor marked; that the prisoner was in court during the trial. The law is, not only that the jury shall remain in charge of the court or a sworn officer, but that the record shall show affirmatively that this was the case. To the care and custody of the jury the law applies the same rule that it does to the place where the court was held; to the swearing of the grand and petit jury; to the name of the prosecutor; and to the personal presence of the prisoner during the trial. The fact must not only exist, but the record must show it. 6 Term B., 246 ; 1 Chitty Cr. L., 632; 2 Hale P. C., 296. The cases in 11 Blackford, 20, and 8 Leigh, 745, do not go to the extent of sustaining the judgment in this ease. In those cases the record contained the statement that the jury was committed to the care of the sheriff, with instructions, etc. And in the absence of this express statement, it is certain that those cases would have been reversed. 2 Black., 475; 8 Leigh, 745. Even the case in 2 Gillman, 551, concedes the common law rule; and the decision there made is placed on grounds to which this court can give no countenance without a departure from the principles and spirit of its previous decisions. 4 How., 187, 196 ; 8 S. & M., 587,596; 9 ib., 465,467, 468,469; 13 ib., 259. See 2 Metcalf, 18,19 ; 18 Johns., 212, 217,118. The following references are to cases in which the very question under consideration was decided. 2 Cain, 373 ; Johns., 2 Blackf., 475. In Bennett’s case, 8 Leigh, 745, in which the record states that the jury was committed to the care of the sheriff, who was charged, etc., but omits to state that he was sworn, the majority of the court who sustain the judgment, place their decision on the ground of the practice in Virginia; whilst the minority, who were for deciding the case on principle and authority, were-for the reversal of the judgment. The dissenting opinion in this case is able and lucid, and the attention of the court is respectfully invited to it. In Hare’s case, 4 How., 193, Chief Justice Sharkey, in delivering the opinion of the court, quotes with approbation from 12 Pick., 496, this language : “ It is a well-settled rule of practice incident to all jury trials, that, after the jury are charged and have left the court to consider of their verdict, they are to be kept by themselves, without refreshment and without communication with others, until they have agreed. Any departure from this rule is an irregularity.” In the same case the chief justice says: “ It is the duty of the court to swear an officer to take charge of the jury; his oath is, that he will not speak to them or permit others to do so.” 4 How., 196. In McQuillen’s case, 8 S. & M., 587, the record show's that a portion of the jury was selected, though not sworn, when the court adjourned until the next day, and the record then proceeds: “And thereupon the persons selected as jurors were charged according to law, and required to be in attendance the next morning, at ten o’clock.” Page 589. After this the jury was sworn, without objection, and a verdict of guilty found against the defendant. A motion was then made for a new trial, but it does not appear from the case as reported, whether or not one of the grounds of this motion wa3 that the persons elected as jurors on the first day, were permitted by the court to disperse until the next day. This was one of the errors, however, assigned in this court, and it was sustained. The court say: “ It is thirdly assigned that seven of the jurors were tendered to the prisoner, and elected, and permitted to disperse until the next day, without having been sworn, and that they were not sworn until the next day when the panel was completed. The record shows this to have been the fact, and it is a palpable error. When a juror is elected, he must remain under the care of the court or an officer, before as well as after he is sworn, and it is error to permit the jury to disperse without the consent of the prisoner.” Passing over a few sentences, the court add : “ Perhaps the prisoner had a right to object to them the next day, before they were sworn; if so, they should have been retendered to him. But even if he had such rights, it did not cure the error in permitting them to disperse.” 8 S. & M., 596. - The case is submitted as an authority directly in point. If, when the record shows that the jurors were charged according to law, and required to be in attendance the next morning at 10 o’clock, it shows, in the absence of all other proof, that the jurors were permitted to disperse; much more is it shown by the record under consideration, which shows that the court adjourned from day to day, without making any disposition of the jury, and which states affirmatively, that on the evening of the third day ef cburt, “ the jury not agreeing, were committed to the care of their officer, and were adjourned over until tomorrow.” At the close of the first day, the record says: “ The day being expired, this cause is continued till to-morrow.” ; On the next day, the record says: “ Thereupon came the jury impanelled and sworn on yesterday,” and proceeds thus: “ The cause being fully argued, the jury retired to consider of their verdict.” And on the next day, the record states, among other things: “ And also came the jury, etc., who, not agreeing, were committed to the care of their officer, and were adjourned over until to-morrow.” Now, on this state of the repord, is there room for the inference or supposition, that the jury, on the ‘first and second adjournments of the court, was committed to the care of a sworn officer ? The statement that, on the evening of the third day, the jury was committed to the care of an officer, leaves the implication a necessary one, that prior to this time no such disposition had been made of it; and, in this connection, it is an important consideration, that one of the grounds assigned in the court below for a new trial is, that “ the jury were not kept together as the law requires.” This objection having been thus raised in the court below, when it was competent for the court to have changed or amended its record, so as to make it conform to the truth of the case, can it now be supposed by this court that the record does not show the entire action of the court below in the premises \ In Carpenter’s case, 4 How., 167, it was urged upon the court to presume that the circuit court, in which the accused had been convicted, was held at the proper place, when the record was Bilent on the subject; but to this it was replied by Mr. Justice Smith, who delivered the opinion of the court: “It (that is, the place where the court was held,) is not directly expressed, and no presumption can be indulged which contradicts the'record; nor are we warranted in the assumption of any fact which is not necessarily included in that which is expressed.” Now, apply this rule to the present case, and the presumption that the jury from the first were regularly committed to the charge of á sworn officer, is certainly cut off. That the jury was thus disposed of during the adjournment of the court, for the first two days, is certainly “ not necessarily included in that which is expressed.” In McCann’s case, 9 S. & M., 465, Mr. Justice Thacher, in delivering the opinion of the court, states the practice of criminal courts “ according to the forms anciently established at trials and gives the form of the oath administered to the bailiff who takes charge of the jury, when they retire. He suggested it as probable that it might be held sufficient for the officer to be sworn at the commencement of the term, to take charge of all the juries, and then adds : “ The trial by jury, so justly prized, should be scrupulously preserved inviolate, as guaranteed by the constitution, and protected against encroachments in all its essential attributes; and every change or modification of form should be admitted only when found to be absolutely necessary to meet the changes of society and the times. Its very forms being designed to protect it from innovation, are said, in 4 Black. Com., 320, to be sacred, and not to be dispensed with.” 9 S. & M., 468. Now, in 6 Term R., 531, the form of the proper entry of the swearing of the bailiffs to take charge of the jury, and of the disposition made of the jury on the adjournment of the court, is given, and these forms all the common law authorities require to be substantially observed; but in this case, the forms of the law, which has ever been held to be the evidence of what the law is, are proposed to be wholly overlooked, or to be supplied by in-tendment or presumption. In McCann’s case, 9 S. & M., 469, the case of Jones v. State, 2 Blackf., 475, is quoted, in the opinion of the court, as an authority to be followed. This case in Blackford, it will be remembered, arose upon a record which was silent as to the disposition made of the jury by the court on its adjournment; and this silence was held to be fatal to the judgment. In Boles’ case, 13 S. &M., 402, Chief Justice Sharkey, in delivering the opinion of the court, says : “ The rule of the common law is, where the jurors depart from the bar, a bailiff must be sworn to keep them together, and not suffer any one to speak with them. This is a plain, practical and safe rule. It cannot be mistaken and is easily followed. Any departure from it is a violation and leads to confusion and difficulty in which there is no rule of law to guide us. Each departure may make a new case for the discretion of the court, for, when there has been a departure from the given rule, the verdict must depend upon the discretion of the court.” The truth of this language is fully verified by the experience of several of the states. In Ohio, New Hampshire^ Vermont, Virginia, and some of the other states, this doctrine of the discretion of the courts, with reference to jury trials, is prevailing and growing. But in this state, so far, this doctrine has found no foothold or countenance; and it is certainly to be hoped that, if it is ever introduced, it will not be by “judicial legislation,” but by legislation proper. It is respectfully submitted that, if in this case the presump tion can be indulged that the jury was from the first committed to the charge of a sworn officer, when the court adjourned for two evenings without making any entry on its minutes about the jury, and when it is nowhere stated in the record that any officer ever was sworn to take charge of the jury, or that the jury ever was committed to the sheriff (from the third day onwards, the language of the record is, that “ the jury was committed to their officer,” without saying who this officer was or that he was sworn), the precedent will be set for presuming in future, where the record is silent, that the court was held at the place appointed by law ; that the jury in every case was sworn; that in every criminal case there was a prosecutor; and that the prisoner was duly arraigned and was in court during the whole time of the trial. The court is no more required to see to these matters, than it is to see to the proper care and custody of the jury during the progress of a criminal case. Nor can any reason be assigned for requiring the record to state affirmatively any one of the foregoing matters, which does not apply with equal force to the care and custody of the jury. 1. It is not “made to appear” that the court erred by any thing contained in the bill of exceptions. The rule of presumption, therefore, makes good the proceeding below. Briggs v. Clark, 7 How., 457 ; Robinson v. Frances, 7 ib., 458 ; Smith v. Berry, 1 S. &M., 321 ; Pender v. Felts, 2ib., 535. 2. The bill of exceptions does not show or set out the testimony which was rejected by the court below. Harris v. Newman, 5 How., 654; Bone v. UcGinley, 7 ib., 671. Witness Turner was asked if he knew anything of an attack made on the defendant, by one Jones, the day before Nelms was killed ; and if so, to state what took place on that occasion. The bill of exceptions does not show how such proof was pertinent to the issue joined, and it was properly ruled out as being irrelevant. State v. Wisdom, 8 Porter, 511; Stone v. State, 4 Humph., 27 ; and many others. Several witnesses who had deposed to the violent character of the deceased, were asked if they had communicated their knowledge to the accused. The court refused to allow them to answer. The question asked was not an admissible one. On the trial of an indictment for homicide the general rule is, that the character of the deceased is not in evidence. In some one or two instances, when the nature of the offense committed was very doubtful, the general character of the accused has been drawn into evidence. But the rule undoubtedly is, that the character of the deceased can never be made a matter of controversy, except when involved in the res gestee ; for it would be a barbarism to allow A. to give as a reason or excuse for killing B., that B. was a savage and riotous man. The state was forbid to prove murder was a familiar thing to Dyson as an excuse for hanging him. So the defendant may prove that he was acting in self-defense in this particular case, or he may exhibit whatever provocations were given him at the time by the deceased ; but he cannot set up general reputation as a defense. State v. Field, 13 Maine R., 248; Com. v. York, 7 Law R., 507; State v. Tilley, 3 Ired., 424; and many others. 3. On the charges only two points arise : Threats against Dyson by Nelms were in evidence before the jury. The defense attempted is, that it appeared from the threats that Dyson’s life was in danger from Nelms, and consequently that, to save his own life, he was compelled to take the life of Nelms; and, therefore, the homicide was excusable or justifiable. The law on this subject, as it exists in Mississippi, is as follows : It is so when committed in defense of a person, “when there shall be a reasonable ground to apprehend a design to commit a felony or do some great personal injury, and there shall be imminent danger of such design being accomplished.” Code, 957. At common law the same doctrine was thus expressed and explained at the same time : “ But a bare fear of any of these offenses, however well founded, as that one lies in wait to take another’s life, unaccompanied by any overt act indicative of such intention, will not warrant him in killing that other by way of prevention. There must be an actual danger at the time.” 1 East Cr. L., 271, 272, 293, 294; Russ. Cr., 513, 517. The same is found in Foster, Hale, Hawkins, Chitty, and Blackstone, in the same language. It is also expounded and practically applied in cases where threats were proven and self-defense set up as an excuse; cases far less hideous in their general features than the one at bar. State v. Scott, 4 Ired., 409; Wiltberger’s case, 3 Wash. C. C. R., 522; 3 Eng., 451; 8 Humph., 671; 2 Hill S. C. R., 619. In this case I will even admit the correctness of the law laid down in the celebrated case of Grainger, 5 Yerg. R. There the party was excused on the score of ungrounded fears and cowardice in the presence of an apparent assailant. The case at bar is simply one of cold-blooded and deliberate assassination. The facts of this case will uphold the charges of the court. They show the commission of the most deliberate murder which record of crime has for a long time furnished. Exception is taken to the charge given by the court for the state. The substantive meaning of this charge is, that jurors should regard the law as expounded to them by the court. Of course, the jury have the power to disregard the law in their finding, as they have the power to disregard the evidence in the case. If so, however, they disregard the obligation of their oaths. This subject has been carefully examined by Judge Story. He says that, if he thought the jury were the proper judges of law in criminal cases, he should feel it to be his duty to abstain from the responsibility of giving the law in charge to them upon any such trial. That he holds it the most sacred constitutional right of every party accused of crime, that the jury should respond as to the facts, and courts as the law of the case, and they cannot act otherwise without a violation of their sworn duty. This is most certainly the doctrine of common sense, and safest for the state, the accused, and general purposes of justice. II. S. v. Battiste, 2 Sumn., 243; Com. v. Knapp, 10 Pick., 477 ; U. S. v. Shive, 1 Bald., 512. I contend, this court will not entertain these questions now, as the same were not raised in the court below by motion in arrest, demurrer, or otherwise. In many cases this court has so held. I will cite them before assigning a general rule for the rule in this case : In the case of Loper v. State, 3 How., 432, the record showed that the prisoner, on his trial below, was not served with a copy of the indictment and a list of the venire, two days before his trial, as is expressly commanded by law. The point was raised in the high court. It said, “ as the prisoner made no objection in the court below, he cannot object here.” Such was the decision of this court in Johnson’s case, Walker, 396, and Shseffer’s case, 1 How., 238.. In the case of Brantley, 13 S. & M., exceptions were taken to the grand jury in this court. Judge Clayton says : “No objections were taken to the grand jury in the court below by plea or otherwise. We cannot, in this court, after a plea of not guilty and trial without objection, go back to look for defects in the organization of that body.” In Walker, 540, C. J. Turner says: “We can only reverse for errors which were excepted to, and none other.” In 4 How., 90, the court says: “ It is a general rule, subject to very few exceptions, that a party shall not be permitted to assign for error in the appellate court, matter not insisted on in the court below.” The court says: “ This principle was adopted in Randolph v. Goss, 3 How., 214, and it will be adhered to as one which is essential to maintain the true purposes of an appellate jurisdiction, and prevent injustice and oppression.” Neely v. Planters’ Bank, 4 S. & M., 116; Sessions v. Reynolds, 7 ib., 730 ; Doe v. Natchez Insurance Company, 8 ib., 197; Ferguson v. Oliver, ib., 332; Rabe v. Fyler, 10 ib., 440; Talbert v. Melton, 9 ib., 9. I have examined nearly every important case relied on to support the point, and I find they do not conflict with my position, as in every instance the objection was made in the court below, and thus came before the appellate tribunal in a shape proper to be decided. It was so in each of the following cases, in which points similar to these under discussion were raised. 3 Halst., 298; 5 ib., 348; 2 Bay., 451; Peck. R., 165, 166, 308; McCord, 301; 1 Murph., 181; 5 How., 20; 2 Humph., 451; 5 Cow., 283; Hare’s case, Carpenter’s case, Boles’ case, in this state. But one case makes the points as here made, and decides them against the state. It is the case of Jones v. State, 2 Blackf., 475. I submit this case is not an authority. I meet its authority and utterly overturn it by the sound and powerful reasoning contained in the following cases in other ,states. McKinney v. People, 2 Gilm., 551; Pate v. People, 3 ib., 657; McClure v. State, 1 Yerg., 218. As to the general correctness of the rule, in regard to the caption of the indictment, see, in addition to the foregoing cases, State v. Wasden, 2 Tay., 163; Kirk v. State, 6 Mis., 469 ; Wac-calaksbee’s case, Morris, 332. And as to the neglect of the care of the jury, see in same way, 8 Leigh, 745; 7 Blackf., 20 ; 11 Ohio, 474; 13 ib., 492; 15 ib., 72. In regard to the oath of the jury, see Judah v. McNarree, 3 Black. R.; Clifton v. Mann, ib. Citing a criminal case, State y. Jones, 5 Ala., 72; State v. Pile, 5 ib., 666 ; 1 How., 215; “ Code; ” Thacher Crim. C., 118. In conclusion, I maintain that, in the language of Judge Trotter, “ in order to preserve the true purposes of an appellate tribunal, and to prevent oppression and injustice,” this court will refuse now to listen to all these objections not raised in the court below. Give the state some repose ; let at least that be considered as rightly done, of which no one was ever heard to complain. Under our system we give the accused every advantage compatible with bringing him to trial at all. Every presumption is in his favor, and every doubt weighs for him. He has his counsel and his witnesses, and every avenue to a successful defense is thrown wide open. He can plead in abatement; demur, and move in arrest of judgment. He can take his exception at every step in the cause, and fix judicially every fact which he conceives to his prejudice. He can move for a new trial, and on its refusal can embody all his evidence and have a trial, de novo, in the appellate court. To the state, no error is allowed, or appeal given. Though an ignorant judge may set at defiance the law, or a corrupt jury set at defiance both the law and the evidence, yet the state is powerless. From a community, by its own courts, is withheld every privilege which is extended to an individual, though he has broken and outraged every law common to the whole. I ask, then, under all these circumstances, if it is not most unequivocally to encourage and invite a fraud upon all the privileges which the benign spirit of our law has secured to the accused, a fraudulent tampering with the courts of the country at this stage and in its forum, to allow exceptions, such as those now urged, to prevail over the demands of justice ? All I ask is that this court will carry out and give full weight to the principles expressed by Judge Trotter in the case of Lo-per, and by Judge Clayton in the case of Erantley, and uphold the sound and conservative doctrine of Judges Lockwood and Treat of Illinois, and Judge Catron of Tennessee.