
    State of Wisconsin, vs. Peter W. Cameron.
    On a (rial for Murder, it was competent toprove the dying declarations of the decedent while he is in extremis, and fully sensible of approaching death. If such declarations were reduced- to writing, at the time by the person who heard them, they should'.be produced and read on^the tri$l,.< being the best, evidence of the fact., Such declarations, however, can only bo recorded to show the, cause of death, they can show no other fact.
    Under the Constitution, Art. 9 § 1, the State has concurrent jurisdiction on all Rivers and Lakes bordering on it, so far as- such'Rivers and Lakes form a common boundary. A trial for aprime qommit-ted within such limits, may be had in the county within this State,, bordering- upon such waters and opposite thereto.
    After the panel of the Jury is complete, and no objection is made at 'the time the individuals eopjposing."'it were called,-though not sworn, it is incompetent for the party on trial to challenge a Juror, though his right of peremptory challenge is not exhausted.
    It is incompetent for a party who anticipates being presented to the, Grand Jury for crime, to question the Jurors as to any matter of disqualification, except such as is recognized and enumerated by the laws of the Stato.
    It is not a good cause of challengo^to the array of Grand. Jurors be-,, causo the Sheriff, by the order of the Court, summoned fifteen ad-, ditional Jurors on a new venire issued for that purpose, to complete, the Jury, though the deficiency of Jurors, was ascertained by the. Court, by making inquiry of the Sheriff, as to the numbor present, of the Jury previously summoned, and from such inquiry alone aa-< certaining the deficiency.
    Jt is not a good cause for challenge to the array of Grand Jurors that; the Sheriff who summoned them is the son of the prosecuting Attorney, Nor is it good cause for the challonge.of.tho Potit Jurors. who make the panel for the trial of the person charged with crime, unless it should be first shown that tho Sheriff was not indifferent.
    Where an indictment for murder, in ono... count charges A with giving tho mortal wound, and B with being present, aiding and abetting; and in another count charging B with giving the mortal wound and A with being present aiding and abetting, thore is no incongruity in the counts. Both aro. thereby charged as being principals.
    This case came before, the Ceprt on the report,of-the Judge holding the Circuit Court for Crawford County, before whom Cameron, the party defendant, was tried for murder, and convicted of Manslaughter. The Judge having doubts as to some of tho questions raised on the trial, and decided by him adversely to the'accused, desired to be instructed and advised in regard thereto, by the Court; and had in the mean time suspended judgment.
    
      F. J. Dunn, counsel for the defendant,-
    Cameron, raised and discussed the following points:
    1st. That the organization of the Grand Jury was erroneous, in this, that the Judge ordered a new Venire to be issued upon the supposition merely that there were not, in attendance upon the Court, a sufficient number to constitute a legal Jury. That no, act was done by the Court, to ascertain such fact; and all the evidence which he could have had was the report by the ¡Sheriff, that eight Jurors only were in attendance, which the counsel insisted did not invest the Judge with authority to order a new Venire to complete the panel. That the Judge should have ascertained the deficiency, if any there was, by directing a call to be made of such Jurors as were present; and thus have ascertained, in the only way he could, judicially, have been informed of the fact. That the report of the Sheriff upon the number of Jurors present, was not within the scd'pb of his ministerial duty or authority, and could not make evidence of d fact upon which the Court Could exert its judicial functions. That until a deficiency ‘of Jurors had been ascertained by other means, the ordering the issue of a new Venire was erroneous, and impeached the-judicial integrity of the indictment found by the Jury thus organized. He referred to the following authorities in support of his position. Old Revised Statutes, 510 and 511; 2d Blackford’s Rep., 477; 3d Wendell, 314; 9th Massachusetts Rep., 10d and 107; 1st Blackford’s Rep., 317;
    2d. That the Judge should have allowed a peremptory 'challenge of a Juror notwithstanding the Juror had been questioned, (but not under oath) as to being indifferent, provided, as the fact was, that the right of peremptory challenge had not been exhausted. — 5th Leigh’s Virginia Rep., 714 and 715; 10 Pickering’s Rep:, 478. 1st Denio Rep., 304.
    He also claimed that the admissióii in evidence of the dying declarations of the deceased, under the ¡circumstances disclosed, ought to have been rejected, and cited. 14 Common Law Rep.\ 495; 19 dó 518.
    He also claimed that it was not sufficiently aterre'd in the indictment where the niortal wound Was given, fo give jurisdiction to the Court. The very place should have been stated so as to have given jurisdiction. — 2d Virginia cases, 205.
    
      C. James and B. C. Eastman, in behalf of the State, ánd acting for the Attorney General,
    in his absence, hi-gue'd that where a Juror, in a capital case', is called and examined, and found, upon such examination, to be indifi-ferent, he could not be peremptorily challenged, at a subsequent time 'and after the whole pahel had heen completed. That the right of 'ch'allehge 'should be exercised seriatim as the Jurors were called, until the right of challenge should have been exhausted. They 'denied the ap-* plicability of the case cited for the defendant from Leigh’S Reports — and cited in their own behalf in support of their position. 4th Mason's Rep., 158; 7 Metcalf’s Rep. 500; 18 Connecticut Rep., 166.
    They also claimed that the right of peremptory challenge must be exercised before the Juror is examined in regard to his prejudice against the accused, and that point cited — 2d McLean’s Rep., 611.
   By the Court.

Whi'ton, J.

This case comes here on the report of the Circuit Judge, before whom it was tried. The defendant was indicted for murder, and by the Jury found guilty of Manslaughter. The Judge having doubts as to the correctness of his ruling’, upon some of the questions which arose át the trial, reported the :cás'¿ to this Court, according to the Statute.

The first point to be decided, is in regard to the correctness of the ruling of the Judge, in admitting proof of thé dying declarations of the deceased.

It appears from the report of the Judge, that a witness waá introduced by the prosecution; and interrogated as to these declarations. The questions Were objected to by the defendant’s counsel, on the ground that no foundation had been laid for the introduction of the testimony, by showing that the deceased was conscious, when h<3 ^made the declaration; that he could not survive.

The. witness was then questioned upon that subject, and answered that the deceased was conscious at the time, that he could not survive. The Judge then decided that the declarations might be proved. Before the witness testified further in regard to th.em, it appeared that they were reduced to writing at the time they were made; the counsel for the defendant then objected to the evidence concerning them unless the writing was produced. The writing was then produced and went to the Jury as evidence.

We think the ruling of the Judge upon this subject was correct. The general doctrine in regard to the admissibility of dying declarations in evidence, is well settled. When made under -a sense of impending death, they are proper testimony to go to the Jury, to show the cause of death, but are not evidence of any other fact.

It appears further from the report of the Judge, that after the evidence upon this subject had gone to the Jury, other testimony was introduced, in regard to the condition of the deceased when the declarations were made, and the circumstances under which he made them. Upon this subject the Judge charged the Jury in substance, that if the deceased, at the time he made the declarations, was conscious that he could not survive, they were evidence for the Jury to consider; but if he was not conscious of impending death — if he had then a hope of recovery, they must be excluded from the consideration of the Jury. The Judge also charged the Jury, that they were to consider whether the deceased at t.he time when the declarations were made, had such possession of his reasoning faculties, as entitled his declarations to credit.

^Sfe think the charge of the Judge uppn this subject was correct. The question as to whether the declaration's shall go to the jury, is one for the Judge to determine, Rex vs. Hucks; 1st Stark. R. 521, and in order to make i I them admissible, the case on trial must be one of homi-1 cide, when the death of the deceased is the subject of j the charge,~ahd the circumstances of the death are the/ subject of the dying declarations.” — Rex vs. Mead, 2 B. & C. 605.

In this case a witness testified before proof of the declarations was received, that they were made when the deceased was conscious that he could not survive.

This was sufficient to lay the foundation for proof of them, and afterwards, when further testirhony upon this subject had been received-, the Judge properly left it to the Jury to determine what weight should be given to the declai’ations, in view of all the circumstances under which they were made. Greenleaf’s Ev., 160.

The Judge further reports that he was asked to charge the Jury as follows: “That if there is a doubt whether he died in this county or in the county of Wabashaw and Territory of Minnesota, that this doubt should be resolved in favor of the prisoner. That so far as the above point is concerned, it is immaterial whether the Courts of this State have jurisdiction over the entire Mississippi, or not —that the allegation that the death took place in this County must be proved by the prosecution, or the defendant will be entitled to an acquittal.” This the Judge refused to do, but upon this subject, charged the Jury as follows:

“ As to the venire, I think, although it is so far as I am aware, a new question in our Courts — it would be suffi-'■cieut, if-it be proven that the mortal wound was given in this county, if the deceased died) any where upon the Mississippi, within the jurisdiction of this State, and neither above nor below the county line bordering upon the river.”'

We think the. charge of the Judge correct The Constitution of the State, Act. 9, §• L, provides that this State shall have concurrent jurisdiction on all rivers and lakes bordering on this State, so far as such rivers or lakes shall form a common boundary to this State and any other State or Territory.

The Judge further reports, that before the Jury had been sworn, but softer they. h,ad been accepted by the counsel fqr thes prosecution, and b,y the defendant, the defendant asked lea,ve to challenge peremptorily, a Juror, he not having challenged the number allowed by the Statute, This the Court refused, to permit him to do.

A majority of this Court think that this ruling was cor^ rect. The cases cited by the. counsel for the prosecution show that in two of the states the practice is not to allow U- defendant in a criminal prosecution to challenge a juror peremptorily, after he had been accepted; while in Massachusetts it appears, that the privilege must be exercised before the juror is examined. Commonwealth vs. Rogers, 7 Met. R. 500. An examination of the authorities, shows, that the practice is different in different states, and has. not been uniform in the same Courts.

The Judge further reports, that he refused to permit the defendant to put certain questions to. the Grand Jurors, for the purpose of establishing a cause of challenge for fav.or, and restricted him to the Gauses of challenge enumerated in the statute. The statute referred to, (Laws pf ^Vis. Tor. 269, §14) provides that a person held to answer to any criminal charge, may object to the competency of a Grand Juror before he is sworn, on the ground that he i§ a prosecutor or a witness on the part of the prosecution.

The question which the defendant proposed to put to the Jurors, did not relate to either of the causes of challenge mentioned in the statute, and the Judge decided correctly, in refusing to allow them to be put to the Jurors. Tucker’s case, 8 Mass. R. 286.

The Judge further reports, that he refused to allow the defendant to challenge the array of Grand Jurors for the reasons, set forth in his motion, which are, that fifteen Jurors were, summoned by the Sheriff, by order of the Court, to supply a deficiency in the regular , panel; that the Court did not order the list of Grand Jurors called, for the purpose of ascertaining how many were in attendance, but ascertained from the report of the Sheriff that only eight were present; that the Jurors thus summoned were taken from the County at large, and that the Sheriff was the son of the prosecuting attorney. We think that the decision of the Judge was right. It is not claimed that in point of fact there was not the deficiency of Jurors to be supplied, which the Judge ordered the Sheriff to supply, but it is. said that he did not ascertain the deficiency in a proper, manner.

The statate provides that in case of a deficiency of Grand Jurors in any Court, writs of venire facias may be issued, &c. If the deficiency in fact existed, and the Judge was satisfied of its existence, it was his duty to award a venire facias, as was done in this case. The statute is silent as to the mode of proceeding, to ascertain the deficiency. It is no objection that the Jurors Who were summoned by the Sheriff, 'were hot drawn, but were taken from the County at lai’ife. The "statute was complied with, if the pérSdhs :surnraonecl were such as were qualified'by Ihw to servé; ndr'So we think that the fact, that the sheriff who summoned them was the soil of the prosecuting attorney, constitutes an irregularity which would justify the challenge.

The Judge further reports, that he refused to permit the defendant to dhallenge the array of petit jurors, for the reason that the Sheriff who summoned the ju'rors was the son of the prosecuting attorney, and as was alleged by the defendant, not indifferent between him and the prosecution. The fact that the Sheriff was the son of the prosecuting attorney, is of itself no cause of challenge, and we. are not informed that any proof was offered to the Judge to show that the Sheriff was not indifferent'. A challenge to the array of petit jurors, for the reason of the partiality of the Sheriff who summoned them, unaccompanied by any offer to prove the partiality-alleged, it was clearly the duty of the Judge not id allow.

There is another matter reported by the Judge, and that arises upon the indictment

It appears that objection was taken to the indictment, because it charges the defendant Cameron, with giving the mortal wound, in two counts, and one David Lefly with being present aiding and abetting; while in another count, Lefly is charged with giving the mortal wound} and Cameron with being present aiding and abetting. It "will be seen that they are both charged as principals, and there is no incongruity in charging the offence in this way. 1st Chit. Crim. Law-, 256. We see no reason for arresting the judgment.

The Chief Jústice.

While! 'approve in!the main'of'the ’’rulings of the Circuit Judge in this case, "I cannot sanction the refusing of the prisoner his peremptory challenge of'the pdtit juror.

I have always supposed, and such has been my whole '-observation and experience, that'the right 6n the pkrt Of 'the prisoner, of peremptory challenge in Capital 'cases, within the prescribed number, existed until the actu'al ’swearing of the juror. I have seen this right often exer’cised e'ven after the oath had been partly administered, and I have never known it disputed. The VOry swearing, in such case's, of jurors separately, and the last solemn admonition, Juror, look upon the Prisoner! Prisoner,'look up On the Juror ! I shppose are intended to call the prisoner’s attention, at the last moment, to the person of his trier, and to give him ah opportunity, to 'the last, of excluding an objectionable one. The Court of Appeals of Virginia, a tribunal second to none in our country for ability, have with entire unanimity, decided the question, in a case precisely similar to the one at t he bar, and have allowed “the challenge: Commonwealth vs. Hendricks, 5 Leigh 709. We have been referred, however, to the syllabus of a 'Connecticut case, the report not being here, which indicates a different ruling. I never like to receive a reporter’s rhemorandum for the decision of a Court; and I very 'riiuch doubt whether the Supreme Court of Connecticut ever made the decision represented. If, however, it has, I prefer that of Virginia, as being the more correct exposition of the old practice. And that practice, I take it, is to control. The trial by jury as it existed of old, is the trial by jury secured by our National and State Constitutions. It is not granted by these instruments: it is more —it is secured. It is no American invention. Our fathers brought it with them to this country more than two centuries ago; and, by making it-a part of the Constitution, they intended to perpetuate it for their posterity : and neither Legislatures nor Courts have any power to infringe even the least of- its privileges. And I think it becomes us to be particularly captious on this subject, in capital cases, at a time when a sensitive, but in my opinion a mistaken, humanity, has succeeded in abolishing the death penalty in several States, and is constantly assailing our own legislature for the same purpose.

In my opinion the refusing to allow the prisoner his peremptory challenge was erroneous, and- for this reason I am in favor of granting a new. trial.

Conviction affirmed.  