As to a hypothetical opinion; 8 John., 445. Case in Virginia, 5 Am. Di., 181, sec. 120.

As to the necessity of the case; 1 Burr's Trial, 419.

Notice the opinion in the case of Flowers. Abuse of discretion, and no ground for writ of error.

BRIEF OF E. & F. HUSTON.

Making up and expressing an opinion as to the guilt or innocence of the prisoner, disqualifies a juror. In all the English books, this is laid down as a general rule. There is considerable contrariety of opinion as to its application to particular cases. This difference of opinion will be found, on examination, to grow out of the exercise of discretion in the triors or judges; a discretion now controuled by the emphatic language of our constitution-1 John. Rep., 316; 7 Cowen, 121; 1 Burr's Trial, 414; 3 Bacon, 756; 4 Hawkins, book 2d, chap. 43, sec. 28.

Favor, or ill will is not necessary to be proved-6 Cowens, 564; 7 Cow., 129.

Making up and expressing an opinion upon rumor, disqualifies, &c., 7 Burr's Trial, 370; 4 Wendall, 241.

Definition of impartiality, or indifference; 7 Cow., 122.

The law attaches the disqualification to the forming and expressing of an opinion; and does not go beyond, to examine the occasion, or weigh the evidence on which that opinion is formed-4 Wendall, 242, bottom of the page; 1 Burr's Trial, 419, bottom of page.

Expression of an opinion indicates bias; 6 Cow., 465; 7 Cow., 128. The disqualifying bias which the law regards, is one which, in a measure, operates unconsciously on the mind of the juror, and leads him to indulge his own feelings, when he thinks he is influenced by the weight of evidence 4 Wend., 215; 1 Ch. Cr. Law, 544; 3 Bacon, 756.*

Making up and expressing an opinion, a principal cause of challenge; and the judgment of the inferior court revisable on error-4 Wend., 240, &c.; 1 Cow., 432; 6 Cow., 564; 7 Cow., 121.

King vs. Edwards, 4 Barn. & Ald., 470, commented on, 6 Cow., overruled, 7 Cow., 125 to 129.

563;

6 Cow., 564, Colman & Hagarman, and Van Alstyn's trial. Judge Spencer's opinions reconciled, 4 Wend., 243. Zz

1 Burr's Trial, 370 & 419, commented on, and Marshall's opinion. quoted; 6 Cow., 565;4 Wend., 242.

Fries Trial & Opinion of Judge Iredell quoted, 6 Cow., 565.

Hawkins, commented on and explained, 4 Wend., 242.

Peter Cook's case mentioned, and opinion of ch. justice Ireby quoted; *7 Cow., 126.

3 Blac. Com., 360: "Common law required the juries to be brought from the vicinage; because they were supposed to know the facts, &c.But by statutory provisions, and legal adjudications, this is changed, because it is found that such jurors were apt to intermix their prejudices and partialities in the trial of right."

The inference to be drawn is that, as at common law, there certainly was a principal challenge allowed for express malice, or express favorSee 1 Co. Litt., 157, a.; 157 b.; Blac. Com., 363; 4 Wend., 229. The prejudices and partialities which arose from a knowledge of the facts; or, (7 Cow., 127,) a part of the fact; or from rumors, &c. (for all these may cause prejudice,) were held by Blackstone to disqualify a juror in his time.

Case in 8 John. Rep., page 445, commented on and explained, 6 Cow., 554; 7 do., 122.

The juror's expression of a willingness and capability to do justice, &c. not to be relied on. Where there is cause to suspect a bias of mind, &c., the law will not trust a juror, &c., 4th Wendall, 244, bottom of the page.

The question to be tried on challenge of a juror, is, whether he stands altogether indifferent, as he stands unsworn; 1 Ch. Cr. Law, 544; Co. Litt., 157, b.; 3 Bac., 756.

Quere-Whether, as the constitution requires absolute impartiality, the English distinction between challenges principal, and for favor, is not neeessarily destroyed in this country?

Better to trust a juror who has made up and expressed and opinion upon a knowledge of the facts, than one who makes it up on rumor, &c.; 1 Burr's Trial, page 370; 4 Wm.'s, 242, top of the page.

6 Cow., 565: The formation and expression of an opinion, by a juror, is, of itself, evidence that he does not stand indifferent.

OPINION OF THE COURT-BY THE HON. J. R. NICHOLSON. This case is brought before us by a writ of error to the circuit court of Greene county.

There are four assignments of error:

First, That the indictment is not drawn in conformity with the constitution, which requires that the style of all process shall be: "The state of. Mississippi," and all prosecutions shall be carried on in the name, and by the authority of the "state of Mississippi;" and shall conclude "against the peace and dignity of the same."

The second assignment is, that the words "then and there" are wanting before the words "feloniously, wilfully, and of malice aforethought," in the concluding part of the indictment.

The third assignment is, that it does not appear by the record, that a copy of the indictment, and a list of the venire was furnished the accused two days previous to his trial.

And the fourth assignment, which is embraced in the bill of exceptions, is, that the court erred in deciding that Matthew Moody was a competent juror to pass upon the trial of the prisoner.

A passing remark is a sufficient notice of the first assignment. The indictment commences with "the state of Mississippi," and concludes "against the peace and dignity of the same."

This has been considered sufficient, according to the practice of fourteen years under the constitution. This assignment I consider, however, as having been abandoned by the counsel, inasmuch as it was not insisted on in the argument.

The second assignment is equally untenable. If the words "then and there" precede every material allegation, it is sufficient; and, in drawing the conclusion from the preceding facts, these words may be omitted; 2 Chitty's Criminal Law, 736 & 7, and 751.

The third assignment is, That it does not appear from the record that a copy of the indictment, and a list of the venire was furnished the prisoner two days before his trial. But it appears from the record in this case, that on finding the indictment, the court ordered a venire of one hundred jurors to be summoned, returnable on Thursday following; that on Thurs

day, a venire of fifty more were ordered: after which, the case was continued till the next term.

At the subsequent term, on the first day of the term, a venire for thirty six jurors was issued, returnable on the next day. At the preceding term he had pleaded not guilty; and, although the trial began on Tuesday, and although this is a privilege which the law, in its benignity, extends to criminals in capital cases; yet it is a privilege which the prisoner may waive; and his pleadng not guilty, and not having claimed this privilege, amounts to a tacit waiver, and he cannot afterwards take advantage of it; for his pleading has caused the objection; Chitty's Crim. L., 405; 4 Hargrave's St. Trials, 746. There is no error, then, in the third assignment.

The fourth and last assignment of errors, is, that the court erred in deciding that Matthew Moody was a competent juror to pass upon the trial of the prisoner. The juror was sworn on his voir dire, and the court interrogated him os follows:

"Have you formed or expressed an opinion as to the guilt or innocence of the prisoner at the bar?"

Answer: "I have."

Question: "Have you formed or expressed that opinion from common report, or from the witnesses, or either of them?"

Answer: "Common report only. I have never heard any of the witnesses say any thing on the subject."

Question: "Will any thing you have heard or said respecting the prisoner have any influence on your mind as a juror, in the determination of this case?"

Answer. "It will not. I feel free to decide the case according to the evidence which may be produced on the trial."

Upon which the court decided that he was a competent juror.

of grave import;

The question which is raised by this exception is one not only to the accused, but to the community at large. The great difficulty of laying down a fixed and determinate rule in the selection of jurors, by which the guilty may be punished and the innocent acquitted, has agitated the courts for centuries back.

The old English authorities lay down the rule, that, to incapacitate a

juror from setting upon the trial, he must have formed and expressed his opinions against the accused, with malice or ill will. This rule has been much softened, and, indeed, such is not the doctrine in the courts of this union, although the common law is opposed to trying an individual by men who have prejudged his case; yet, in most of the states of the American union, we have constitutions which guarantee to the accused a fair and impartial trial.

Lord Coke has laid down the rule that a juror must stand indifferent, as he stands unsworn; Coke Litt., 155.

By the constitution of Mississippi, declaration of rights, section 10, a speedy public trial by an impartial jury of the county is given to the aecused. But how are we to ascertain the fact whether a juror stands indifferent between the parties? This must either be drawn from the juror on his "voir dire," or shown by evidence aliunde.

I believe the first important decision on this subject, in the American courts, is to be found in the trial of Col. Burr for high treason. The decision of chief justice Marshall in that case, has been looked to by the state courts as the pole star by which they were to be guided.

Judge Marshal says: (Burr's Trial I Vol. 44,) "that to have formed and delivered an opinion, was sufficient to exclude from the jury, but that slight impressions on the mind are not sufficient.

In the case of Vermilyea, ex parte, 6 Cowen, 563, justice Woodworth says,

"That to have formed and expressed an opinion from a knowledge of the facts is good cause of challenge." And the learned judge goes on and says, that it cannot be material from what source the opinion is derived, if the bias proceeds from a preconceived opinion, it equally affects the accused.

Chief Justice Spencer, in the case of Vanalstyne, decided, that if a juror had formed and expressed his opinion from a knowledge of the facts, or from the information of those acquainted with the facts, it was good cause of challenge: but if the opinions of jurors were formed on mere rumours and report, that such opinions were not sufficient to disqualify. On an application for a new trial in the case of Fries, judge Iredell put the question on this ground, "that whenever a predetermined