
    STATE v. JOHN TAYLOR AND JIM KNIGHT.
    It is no ground to quash, an indictment, that it was found by a grand jury drawn from a venire in which there were no colored freeholders — the jury list, as constituted by the County Court in accordance with the law in .force at the time of its constitution, not containg the names of such colored freeholders.
    It is no ground of exception that a special venire was selected from the freeholders of the county without regard to color, no reference haying been had to the jury list constituted by the County Court.
    A freed woman is a competent witness against a freed man who claimed her as his wife while they were slaves, hut since their emancipatio n has refused to marry her.
    After the testimony for the State is closed and before witnesses for the prisoner are introduced, his counsel has no right, in stating the grounds of defence, to comment at length upon the evidence for the State.
    Evidence that a prisoner, after being committed to jail, had opportunity to escape and did not avail himself of it, is not admissible.
    The examination of a witness taken before a jury of inquest or an examining magistrate, is inadmissible as evidence in chief, unless it be shown that the witness is dead.
    In a case of murder, the deceased being a merchant and the evidence against the prisoner being circumstantial, an account hook showing entries by the deceased just before the murder was held admissible as evidence tending to connect the prisoner with the transaction.
    
      (State v. Owen, ante p. 425; State v. Samuel, 2 D. & B., 177; State v. David, 4 Jon., 353; State v. McLeod, 1 Hawks 344; State v. Valentine, 7 Ire., 225; and State v. Arthur, 2 Dev., 217; cited and approved.)
    Murder, tried before Fowle J., at Fall Term 1867 of tire Superior Court of Edgecomb.
    The prisoners, colored men, were indicted for the murder of one John A. Gutchin in the mouth of August 1866.
    1. The bill was found at Fall Term 1866 by a grand jury ■drawn from a venire summoned according to the course of the court at that time. The jury list from which the venire was selected did not contain the names of any colored freeholders, no jury list containing such freeholders having at that time, been constituted by the County Court. The counsel for the prisoners moved to quash. The motion was overruled and the prisoners excepted.
    2. The original panel having been drawn in the same way as the grand jury, the prisoners challenged the array. The State without admitting the cause of challenge consented to set aside the panel. The special venire was composed of one hundred freeholders, summoned under the order of the court, “without regard to color,” and consisted of freeholders of both colors. The prisoners challenged the array, because “they were not summoned from a list constituted by the County Court from freeholders without distinction of color and who in the judgment oí the County Court were qualified to act.” The challenge was disallowed and the prisoners excepted.
    3. On the trial one Lydia Taylor was offered as a witness - for the State. The prisoners’ counsel objected to her being examined, on the ground that she was the wife of one of the prisoners. Touching her competency it was in proof that some eight or ten years before, she and the prisoner John Taylor, while slaves, had lived together as husband and wife. John Taylor was then sold, and did not again live withJUydia until December 1865, when he took her to his home and they cohabited together. She requested him to marry her, but he refused to do so. The court admitted the witness, — the-prisoners excepted.
    4. After the State closed its case the counsel for the prisoners before offering evidence proceeded to state their grounds of defence, and in doing so commenced a minute criticism of the evidence of the State, and to argue the case at'length. Upon objection by the Attorney General the court ruled them to a statement of the character of the evidence they expected to introduce, adding that the rule was that “when the State has the right to the conclusion, it also has the right to open the argument.” The prisoners excepted.
    5. The prisoners offered to show that since they were confined in jail they had had several opportunities to escape; that the jail had been broken open in the night time and they might easily have escaped, but they did not avail themselves of the opportunities. The court ruled the evidence out as irrelevant. The prisoners again excepted.
    6. The prisoners then offered in evidence the examination of one Henry Wheeler taken before the jury of inquest and committing magistrate, as follows : “I went to Mr. Jno. A. Taylor with King and staid there an hour and a half or more. Then went to the widow Turner’s and remained there till past midnight, playing with George. George ' owed me some money. Then went to Buck Etheridge’s. While at Mrs. Turner’s saw four men pass, who asked me to go with them to Whitaker’s station for the dry goods. I told them I had no money and they said that made no difference. I refused to go. One of them was Peter Powell. I saw the four men at a late hour returning from the direction of Whitaker’s and one of them had a long white bag on his back, apparently filled with something.”
    It appeared that Henry Wheeler was in the county until January 1st, 1867, and was under subpama, but was absent at the trial, “no one knew where.” The Attorney General objected that his examination was irrelevant, but if relevant was incompetent. The court sustained the objection and the prisoners excepted.
    7. The evidence against the prisoners was circumstantial. The deceased was a merchant and was killed in the night time at his store house by a blow on the head with a hammer which broke his skull and from which he soon died. The counsel for the prisoners offered evidence to show that the murder was probably committed by a colored man named Scipio; that on the night of the murder Scipio said that he was going to the store to buy some tobacco &c., and walked off in that direction. The State offered to show in reply, that it was the habit of the deceased to enter the transactions of the day in an account book, and that this book was found on the counter when the murder was discovered, and was in the same condition at the trial as when so found. It was also in evidence .that early in the morning of the day oí the homicide, the prisoner Taylor went to the store, left some watermelons, and bought sugar and flour, and said he would call for the melons and pay for the sugar and flour; that Taylor had said that while in the store one Finch came in and bought some small articles, and offered a $2 bill in payment; that deceased could not make the change and he, Taylor, loaned the deceased the required change. The State then offered the account book in evidence, to show that Scipio had in fact bought the articles mentioned by him; that Finch had traded to the exact amount of $2 and paid for his purchases; that, though there were several entries after these, there was no entry of the trading with Taylor; and that all the entries were in the hand-writing of the deceased. The prisoners objected to the admission of the book; but it was admitted by the court, and the prisoners excepted.
    Verdict, Guilty; Rule for a New Trial discharged; Judgment, and Appeal.
    No counsel for the appellants.
    
      Atto. Gen., contra.
    
   Battle J.

In the bill of exceptions filed by the prisoners several errors are assigned, which we will proceed to consider in the order in which they appear.

1. The first is founded upon a motion made in the court below to quash the indictment because it had been found by a grand jury drawn from a venire in which there were no colored freeholders. His Honor refused the motion, because the jury list from which the venire was selected did not have upon it the names of any colored freeholders, the County Court not having constituted a jury list containing the names of such colored freeholders at that time. We think the motion was properly overruled. The jury list was constituted, and the venire drawn from it, in accordance with the law as it then stood, and .therefore no just exception could be made to it. See Eev. Code, ch. 31, sec. 25.

2. The second exception relates to the manner in which the traverse jury was formed, and is settled against the prisoners by our decision in the case of the State v. Owen, at the present term.

3. The third exception is founded upon the admission of Lydia Taylor as a witness for the prosecution. The allegation that she was the wife of the prisoner John Taylor, was clearly disproved by the testimony. While the parties were slaves she could not be recognized as the legal wife of the prisoner Taylor, and after they were emancipated he refused to marry her. She was in law nothing more than his concubine, and as such was a competent witness against him. State v. Samuel, 2 Dev. & Bat., 177.

4. The question of practice involved in the fourth exception was settled in the case of the State v. David, 4 Jon. 353, and nothing more need be said about it.

5- The fifth exception is, for the rejection of the evidence that the prisoners had one or more opportunities to escape from jail and did not avail themselves of them. The argument in favor of the exception is, that as the flight of an alleged criminal is admissible as evidence against him, his refusal to fly in the first instance, and his declining to escape after having been committed to jail, ought to be admitted as evidence in his favor. The argument is plausible but it has been settled to the contrary upon the ground that it would be permitting prisoners to make evidence for themselves by their subsequent acts. See People v. Rathbun, 21 Wend., 509; Campbell v. State, 23 Ala. R., 44; Whar. Am. Cr. Law, sec. 714.

6. The rejection of the examination of the witness Henry Wheeler, taken before the jury of inquest and examining magistrate, forms the sixth exception. The objection to the evidence was put upon two grounds, first, that the testimony was irrelevant, and, secondly, that it was not shown by the prisoners that Wheeler was dead, or what had become of him. His Honor rejected the evidence without stating his reasons for it. We are inclined to think that either ground of objection was sufficient, and we are entirely satisfied that the last was. The examination was, so far as we can see, offered as evidence in chief, and for that it was inadmissible without proof that the witness was then dead. State v. McLeod, 1 Hawks, 344; State v. Valentine, 7 Ire., 225.

7. The seventh and last exception is based upon the reception in evidence of the deceased’s book of accounts for the purpose of showing the last entries which he had made just before he was killed. The case depended entirely upon circumstantial testimony, and we think the book was clearly admissible for the purpose of showing one of the links in the chain of evidence. It was not only evidence, but very material evidence tending to connect the prisoner John Taylor with the transaction. It was one of those circumstances surrounding homicide, which though apparently trifling in itself, often connects with other circumstances, and leads-to the detection of the perpetrator, and so has given rise to the short but awfully impressive maxim that “murder will out.” State v. Arthur, 2 Dev. 217.

It must be certified to the Superior Court of Law for the county of Edgecombe that there is no error in the record, to the end that the court may proceed to pronounce the sentence of the law upon the prisoner.

Per Curiam There is no error.  