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Nelms v. The State of Mississippi.

2. On the refusal to allow the notes of the vice-chancellor to be read to impeach a witnes, he cited 2 S. & M. 58.

3. On the subject of the dying declarations, and the exclusion of the testimony to impeach them, he cited Greenl. Ev. 198; 4 Stark. Ev. 461; 2 H. & McH. 120; Rex v. Pike, 3 C. & P. 598; 2 Phil. (C. & H.) 611.

4. That the affidavits of the jurors were admissible; they did not tend to impeach their own conduct, but that only of the officer.

5. That the misconduct of the officer vitiated the verdict. He cited 10 Yerg. 241; 4 Humph. 38, 289; 7 Cow. 562.

6. That the jury found contrary to the evidence. On this point, Mr. Tarpley reviewed the proof.

D. C. Glenn, attorney-general, for the state,

Argued the cause in reply; and, on the various points raised, referred to the following authorities :

1. As to the competency of the juror. Sam v. State, Ante, 189; 2 Leigh, 769; 3 Ib. 785; 9 Ib. 651, 661; 3 Stewart, 454; 2 Va. Cas. 375; 4 How. 330; 5 Rand. 660, 665; 5 How. 730.

2. As to the exclusion of the proof to contradict the witness. 1 Greenl. Ev. § 463.

3. As to dying declarations of Price. Arch. Cr. Pl. 156; 24 How. St. Tr. 753; 1 Greenl. Ev. 509.

4. On motion for new trial. He cited 3 How. 429; 1 Greenl.

Ev. § 160, and note; 2 Ev. Pothier Ob. 256, 5. With reference to misconduct of jury. How. 426, and cases cited; 4 Humph. 251; 5 Mis. 535; 1 Chitty, Cr. L. 632, 633, 634; and cases cited.

(294) App. No. 16. 5 Pickens, 296; 3 Stewart v. Small, Graham on N. T.,

6. As to verdict being against evidence. He argued that the proof sustained the verdict; that the case presented a conflict of testimony, which can alone properly settle it, and contended for the rule that an appellate court will never interfere with the verdict in a criminal, or in a civil case, unless it is manifestly against evidence, or palpably without evidence, or unless the

Nelms v. The State of Mississippi.

evidence greatly preponderates against it, and quoted Pattison v. Ford, 2 Grattan, (Va.) 245; Hill v. Comm. Ib. 692, 693; Weinzorpflin v. State, 7 Blackf. 198; Sims v. State, 2 Bailey, (S. C.) 35; Jeffreys v. State, 3 Murph. (N. C.) 480; Jones v. State, 1 Kelley, (Geo.) 618; Cassels v. State, 4 Yerg. (Ten.) 149; McCune v. State, 2 Rob. R. (Va.); 2 Erskine's Speeches, Defence of Rights of Juries, p. 152-209.

Mr. Chief Justice SHARKEY delivered the opinion of the court. The prisoner was indicted and found guilty of the murder of Jesse Price. He brings up his case on eight bills of exceptions, seven of which were taken on points ruled during the progress of the trial, and the last to the decision of the court in overruling a motion for a new trial, in which the testimony is set out, and seven reasons assigned in support of the motion.

The several points raised were thoroughly investigated by counsel, and the arguments on both sides were so lucid and forcible, that the labor of deciding is rendered comparatively light.

The first exception was taken to a refusal to sustain a challenge for cause to a juror. When called to answer questions, he stated that he had formed and expressed an opinion from what he heard one Mansfield say some of the witnesses had told him, though the juror had not heard any of the witnesses say any thing on the subject; that his opinions were not such as would influence his verdict, but he would be governed by the evidence.

This point is not, certainly, free from difficulty. The question is one of very frequent occurrence, and the decisions are numerous, though not entirely consistent. It is a question on which it seems difficult to lay down a definite and precise rule, which can be applied as a test in all cases. The great principle is, that every man who is accused, has a right to demand a trial by an impartial jury of his country; a jury whose minds are free from prejudice and from bias. Cases may arise in which it is next to impossible to procure a jury of this description, but even in such cases, the nearer we can approach to the

Nelms v. The State of Mississippi.

principle, the better. It seems to be generally conceded, that an opinion formed and expressed on common rumor, will not disqualify a juror. Strictly speaking, this is a departure from the true principle, but it is a departure which may be rendered necessary in certain cases. It should be avoided, however, if possible. The mind which has received impressions from any source, cannot be said to be entirely free and impartial, since the false impression must be removed, before the true one can be made. It may often happen that a crime may be of such a character as to become a matter of general notoriety throughout a whole county. In such cases, it may be absolutely necessary to take jurors who have formed an opinion on mere rumor. But if an opinion be formed and expressed on information derived from a reliable source, the juror is certainly objectionable. An opinion from having heard the evidence, or from having conversed with the witnesses, is of that character. And an opinion formed on the information of one who heard the witnesses testify, or speak of the subject, may be equally a ground of objection, if the juror had confidence in the statement he received. An opinion so formed is not based on common rumor. In Vermilyea's Case, (6 Cow. 562,) Judge Woodworth said it was good cause of challenge, that a juror had formed and expressed an opinion from a knowledge of the facts. The juror had heard the testimony on a former trial, and was held incompetent. And in the same case, reported in 7 Cow. 108, it was said that the mind of the juror should be in a state of neutrality as to the person and the matter to be tried. In the trial of Aaron Burr, Chief Justice Marshall said it was one of the clearest principles of natural justice, that a juryman should come to the trial of a man for life with a perfect freedom from previous impressions; and he accordingly held that jurors who had formed opinions from newspaper publications, and common rumor, were incompetent. On this ground many of the jurors were set aside, and many of them had formed opinions only from current rumor. 1 Burr's Trial, 370. In Mather's Case, (4 Wend. 229,) a juror was set aside who had formed and expressed an opinion from newspaper publications, and from common rumor, although he declared that he was pre

Nelms v. The State of Mississippi.

pared to weigh the evidence and decide accordingly. In this case all the authorities are reviewed, and the rule settled, on what was regarded as the weight of authority. In McGowan v. The State, 9 Yerg. 184, the court laid down this rule, that if the juror has heard the circumstances of the case, and believing the statements to be true, has formed, or formed and expressed an opinion, he is incompetent. In that instance the juror had formed his opinion, not, as it was said, upon rumor merely, but from a detail of circumstances by persons in whom he confided. This question was very fully considered at the present term in Sam v. The State, when jurors were held incompetent who had formed decided opinions, one from common rumor, and the other from having heard the case argued by counsel. In the case of Johnson v. The State, Walker, R. 392, it was decided that an opinion formed on common report did not disqualify the juror, though the court evidently regarded the point as worthy of great consideration, and leaves the inference that an opinion formed otherwise than on common report would be sufficient cause of challenge. On these authorities, and in view of the principle above noticed, we do not feel prepared to approve the decision of the court in holding that the juror was competent.

The second bill of exception raises this question: Was it competent to discredit a witness by introducing his statement made on the trial of a habeas corpus, as taken down by the vice-chancellor, before whom the trial was had? The statute does not make it the duty of the judge, on such a trial, to take down the evidence unless one of the parties desire it, and then he is only required to take down the material facts. Hutch Code, 1001. We do not think an examination taken down under this statute can be read for such a purpose, unless it be read over to, and signed or approved by, the witness. 1 Phil. 293.

The third bill of exceptions relates to the declarations of de-, ceased, made in extremis. They were made under all due solemnity. The deceased declared that he knew he could live only a few hours at most, perhaps not more than an hour. The de

Nelms v. The State of Mississippi.

clarations were made to Ostun, who asked the deceased who shot him. Deceased replied "that Nelms shot him;" when some one standing by asked if it was Samuel H. Nelms, to which deceased replied "yes." The question was repeated, and deceased indicated assent by a forward inclination of the head. The witness, Ostun, was then asked, "If deceased did not so express himself as to convey the idea that it was a mere opinion, and not a thing within the actual knowledge of the deceased?" and he was asked also, "What Jesse Price had said to him before on the subject?" To these questions the district attorney objected, and the objections were sustained. The question is, Should the court have permitted the witness to answer these questions?

Evidence of this description is classed under the head of hearsay evidence, though perhaps it stands somewhat on a different footing. The awful situation of the party in prospect of immediate dissolution, is supposed to be as powerful on the conscience as the obligation of an oath. Such evidence is only admissible under a rule of necessity, and constitutes the only case in which evidence is admissible against the accused, without an opportunity of cross-examination. The leading rules in regard to the admissibility of such evidence, are laid down in Note 453 to Phillips' Evidence, and in 2 Starkie's Evidence, 366, 367. It is said the court must try the competency of the deceased, and the jury his credibility. Various questions may arise after the court shall have admitted the evidence. The jury may question its credibility, and consider its effect. As it is given and received under peculiar circumstances, great caution is called for in the application and use of such evidence. To this end, it is important that all attending circumstances should be well weighed by the jury. The degree of self-possession, of observation and recollection of the deceased, should be ascertained. The state of mind arising from a sense of his critical situation, added to his suffering condition, may produce indistinctness of memory, and all these may tend to shake the confidence of the jury. It is said by an eminent writer, cited 2 Starkie, 366, that "sometimes the declaration is of a matter of judgment, of inference, and conclusion, which however sincere may be fatally erroneous. The

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