
    M. J. McGuire v. The State of Mississippi.
    1. Criminal law : jury : duty op court to see that the jury is impartial.— It is the duty of the court in a criminal trial, to see that an impartial jury composed of men above all exception is impanelled ; and .in the discharge of this duty, the court may without challenge by either party set aside an incompetent juror, at any time before evidence is given to the jury. See Lewis v. The State, 9 S. & M. 115; Whart. C. L (2d Ed.), 860; People v. Damon, 13 Wend. 351; Tooele. Commonwealth, 11 Leigh, 714; Williams v. The State, 32 Miss. R; 389.
    2. Same : same : what a suppioient ground to set a juror aside.- — That there is a reasonable ground, to suspect that a juror will act under some undue influence or prejudice, is sufficient to authorize the court in the exercise of its sound discretion, to set him aside.
    3. Same : same. — It is a valid objection to a juror in a criminal trial, that he is indicted and untried for an offence of the same kind as .that charged against the prisoner.
    4. Same : retailing : local act oe 1848 prohibiting retailing near the university. — A druggist who is prosecuted for a violation of the Act of 28th February, 1848, Rev. Code, p. 156, $ 4, prohibiting the retailing of vinous and spirituous liquors in less quantities than five gallons, within five miles of the State University, unless for medicinal purposes, cannot justify a sale in less than the prescribed quantity, upon the mere representation of the purchaser that the liquor was purchased for medicinal purposes, but he must prove that it was in fact purchased for that purpose. See Haynie v. The State, 32 Miss. R. 400.
    5. Same : high court : instructions : reasonable doubt. — This court will not reverse a judgment of conviction in a criminal case, for the improper refusal of the court below to give a correct instruction asked for by the prisoner, if it be manifest from the whole record that if the instruction had been given, the verdict would have been the same: and therefore, although the court should, when requested, instruct in all cases “ that if the jury have a reasonable doubt of the defendant’s guilt they should acquit,” yet its refusal so to instruct, is no ground for reversal in a case where the evidence establishes the guilt of the accused clearly and conclusively, and leaves no room for a reasonable doubt on the subject.
    ERROR, to the Circuit Court of La Fayette county. Hon. John W. Thompson, judge.
    The plaintiff in error was indicted for selling vinous and spirituous liquors in less quantities than five gallons, within five miles of the University of Mississippi, under the provision of the Act of 28th February, 1848. See Rev. Code, 156, § 4. The first section of this act prohibits the sale of vinous and spirituous liquors in less quantities than five gallons, within five miles of the University, and contains the following proviso: “ Provided, however, nothing herein shall be construed to prohibit the sale of vinous and spirituous liquors in loss quantities (than five gallons) from drug stores, for medicinal purposes.”
    After the jury was impanelled and sworn, the district attorney “objected to one Isaac Addington, one of the jury, for cause, and assigned for cause, that there is now pending in said court several bills of indictment against said Addington for retailing; and the court decided this to be good cause for setting aside Addington which was accordingly done, and a tales juror summoned in his stead.
    
      To this the prisoner excepted.
    On the trial, one Dunlap, on behalf of the State, testified as set out in the opinion of the court; which was all the evidence.
    The defendant asked the following charges, which were refused, by the court: — ■
    1. “ If a party buys liquor from a druggist in less quantities than five gallons, within five miles of the University of Mississippi, for a beverage, but if he, at the time he so bought it, represented to the druggist that he wanted it for medicinal purposes; and if the jury believe that the party purchasing it was such a person, and bought the liquor under such circumstances, as that a prudent druggist might have been deceived, and that the druggist was deceived by the purchaser, and believed he wanted it for medicinal purposes, such sale by a druggist is not a violation of the law.
    2. “ If the jury believe from the evidence, that the defendant sold the liquor to the witness in good faith for medicinal purposes, then he is not guilty, although the jury may believe that the witness imposed upon the defendant as to the object for which the liquor was in fact bought.
    3. “ The defendant is not responsible for what the witness did with the liquor after he obtained it, if at the time the defendant did not know that the witness wanted it for any other than medicinal purposes.
    4. “ If the jury have a reasonable doubt as to the guilt of the defendant, they will give the defendant the benefit of such doubt.
    5. “ The defendant is entitled to the benefit of all reasonable doubts arising out of the testimony in the case.”
    The defendant was convicted, and his motion for a new trial was overruled, and thereupon he sued out this writ of error.
    
      H. A. Barr, for plaintiff in error.
    1st. A juror- cannot be challenged for cause, and set aside, after the entire jury has been elected, impanelled, and sworn. 1. Arch-bold’s Crim. Pr. & PI. 163; 2 Hawk. PI. Cr. 568; 1 Chitty’s Crim. Law, 545; Wharton’s American Crim. Law, 971; 1 Coke Inst, book 3, ch. 9; MoQlure v. The State, 1 Yerger’s Rep. 206; Regina v. Frost, 9 Car. & Payne, 137; Gom. v. Knapp, 10 Pick. Rep. 477; Bratton v. Bryan, 1 Marsh. 212; King v. The State, 
      5 How. Rep. 730 ; The State v. Flower, 1 Walker, 318 ; Com. v. Jones, 1 Leigh Rep. 598; Beauchamp v. The State, 6 Blackford Rep. 299 ; Sootier v. The State, 4 Ohio Rep. 348; Manley v. The State, 7 Blackford Rep. 593 ; Morris v. The State, 7 Blackford Rep. 607; Williams v. The State, 3 Kelly Georgia Rep. 453; 4 Blackstone, 283.
    In the case of People v. Damon, 13 Wendel Rep. 355, a juror was set aside, after he was sworn, for gross incompetency, but before the jury was impanelled. Savage, J., who delivered the opinion, admitted that all the authorities were against it, but he “ apprehended” that it was a question of practice. I suppose that questions of practice ought to be controlled by the law of practice, instead of the arbitrary caprice of a judge.
    In South Carolina, by Statute of 1841, either party may challenge before the jury is charged. Klemback v. State, 2 Spear’s Reps. 418.
    2d. The fact that a juror stands indicted for a similar offence, never has been held to be sufficient cause of challenge. See causes of challenge enumerated by Wharton, 967, 968. ' It was error to set aside the juror for an insufficient cause! Boles v. State, 13 S. 6 M. 400, 401; 2 Cushm. 452.
    In the case of Ogle v. The State, 4 George Rep. 388, Judge Fisher was of opinion, that this court ought not to reverse, where the court below erroneously decided that a juror was competent, and the prisoner challenged him, and thereby had him set asidei This was the single opinion of Judge Fisher. Judges Smith and Handy, were of opinion that the juror was competent, and that the decision of the court below was correct. It is, therefore, no decision of this court. Besides, Judge Fisher himself gave a different opinion in the case of Cotton v. The State, 2 George Rep. 509.
    But the question in Ogle v. State, was entirely different from the question in-this case, and the case of Boles v. State. In this case, and in the, case of Boles v. State, the defendant was, against his consent, deprived of a competent juror j and thereby deprived of a legal right.
    In Ogle v. State, the defendant, according to Judge Fisher’s opinion, avoided the wrong by challenging the incompetent juror, and having him set aside.
    
      3d. It was error in the court below to refuse the fourth and fifth instructions ashed by the defendant. The ground upon which the court refused these instructions was, that the rule of" law, upon the subject of doubts, does not apply to misdemeanors. I have been unable to find any authority for such a distinction. In a case in Ohio it was said, that the rule of law on the subject of doubts, does not apply to crimes not punishable with death. See State v. Turner, Wright, 29.
    Wharton, citing this case, says: “ It cannot be doubted that in making such distinction, the learned judge was in error. Doubts as to a defendant’s guilt are to weigh in his favor, because the law presumes him innocent until he is shown to be guilty: and if such presumption exists at all, it exists in every case alike.” Wharton’s Am. Crim. Law, 330.
    Starkie says: “ In all criminal cases whatsoever,, it is essential to a verdict of condemnation, that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderant evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.” 1 Starkie’s Ev. 451. See also 3 Greenleaf’s E.v. §§ 30, 31.
    Greenleaf says: “ The jury, in civil cases, must decide upon the mere preponderance of evidence; whereas, in order to a criminal conviction, they must be satisfied of the party’s guilt beyond any reasonable doubt.” 1 Greenleaf’s Ev. § 537. See also 3 lb. § 29, to same effect.
    Burfill says: “ The jury are to be morally certain of the guilt of the prisoner, to the exclusion of every reasonable doubt;” Burrill on Cir. Ev. 198.,
    Roscoe says : “ It is an established maxim in criminal cases, that the jury are not to weigh the evidence, but in eases of doubt to acquit the prisoner.” Roscoe Crim. Ev. 14.
    Waterman says: “Every one is presumed to be innocent until the contrary is proved;- and if there is reasonable doubt of his guilt, he is to have the benefit of such doubt.” See Waterman’s note to 1 Archbold’s Crim, Pi\ and PL 118.
    This court said, “ that a juror ought not to convict, unless the evidence excludes from his mind all reasonable doubt of the guilt of the accused. This is doubtless the true and only practical criterion, by which the force of evidence in criminal prosecutions, sufficient for conviction, is to be determined.” Qieely v. State, 18 S. & M. Reps. 211.
    In all the foregoing authorities the rule is laid down, without limitation or qualification, as applicable to all criminal eases; and Blackstone says, that crimes and misdemeanors are synonymous terms. 4 Blackstone, 5. See also 3 Greenleaf’s Ev. § 1.
    4th. The court below erred in refusing the first, second, and third charges asked by defendant. These charges are clearly law, for they but direct the jury to take into consideration the intention of the defendant. “ The doctrine of the intent is one of the foundation principles of public justice.” “ There is only one criterion by which the guilt of men is to be tested.” “It is whether the mind is criminal.” “The act itself does not make a man guilty unless his intention were so.” 1 Bishop on Crim. Law, §§ 226, 227.
    5th. The error committed by the court below, in refusing to give the instructions asked by defendant, should reverse the case. If the jury had been permittted to consider the facts of the case, in the light of the instructions asked by the defendant, it is probable that the verdict would have been different. ■ At least it cannot be said that the verdict would have been the same, if the jury had been permitted to consider the intention of the defendant, and to give him the benefit of a' reasonable doubt of his guilt.
    
      T. J. Wharton, attorney-general, for the State.
    The first error assigned is, that Isaac Addington, one of the jury who tried the case, was set aside by the court after the jury had been elected, impanelled, and sworn, because he was under indictment for a like offence.
    There was no error in that proceeding. No testimony had been introduced when that occurred.
    The rule of law upon the subject will be found to be thus stated in the elementary works, and adjudged cases : “ After a juror has been sworn in chief, and taken his seat, if it be discovered that-he is incompetent to serve, he may, in the exercise of a sound discretion, be set aside by the court, at any time before evidence is given; and this may be done even in a capital case, and as well for cause existing before as after the juror was sworn.” Whart. Or. L. 860 ; Tooel v. State, 11 Leigh, 714, where it is held, “that after a juryman has been elected and sworn, the court may, in its discretion, allow the prisoner to challenge him for cause, and strike him from the panel.”
    
      People v. Pamon, 13 Wend. R. 352. In this case, the court said: “ Hawkins says there are authorities the other way, hut I apprehend no authority can be necessary to sustain the proposition, that the court may and should, in its discretion, set aside all persons who are incompetent jurors, at any time before evidence is given.” The counsel for plaintiff in error, remarking upon this case, says, that the chief justice, — Savage,—who pronounced the opinion, “ admitted that all the authorities were against it, but he apprehended that it was a question of practice.” Certainly, the language I have quoted from the opinion would not seem to imply such an admission, or even a doubt of the propriety of the rule established in the case: “ The court may and should, in its discretion, set aside all persons who are incompetent jurors,” &c.
    Court may set aside juror after he is approved, without objection to him by the State or accused. 9 S. & M. 115; 2 Mason, 91— 94-104 ; 6 Humph. 249 ; 8 lb. 597 ; 2 Dev. & Bat. 196.
    2. It is next assigned for error, that the court refused to give the fourth and fifth instructions asked by the accused. The fourth asserts: “ If the jury have a reasonable doubt as to the guilt of the defendant, they will give him the benefit of such doubt.” The fifth declares that the defendant is entitled to the benefit of all reasonable doubt ai’ising out of the testimony in the case.
    On this point, I am free to admit, without consenting to a reversal, that I have found but one case sustaining the action of the court: State v. Turner, Wright R. (Ohio), 29; where a distinction is taken between misdemeanors and all offences not punishable capitally, and cases which are punishable capitally; and the rule giving the accused the benefit of any reasonable doubt is applied only to the latter class of cases. In that case, the court said, referring to the principle of reasonable doubts being given to the accused: “ But that is a rule of law adopted in favor of life, and is, therefore, in this case, only applicable to the charge of murder in the first degree. It does not apply to either of the other offences embraced in the indictment. It is impracticable to attain absolute certainty in human affairs,” “ although the rule of law on the subject of doubts does not apply to crimes not punishable with death,” &c.
    This case is expressly repudiated by Wharton, in his Treatise on Criminal Law, who says, immediately after the quotation above: “ It cannot be doubted, however, that, in making such distinction, the learned judge was in error.”
    I submit that the verdict is fully supported by the evidence, and I leave for the court to say, whether the ruling was proper on the above points, and if not, whether the judgment shall be reversed, seeing that the same result would have occurred if the charges had been given.
   Handy, J.,

delivered the opinion of the court.

The plaintiff in error was indicted and convicted for unlawfully selling spirituous liquors in less quantity than five gallons, within five miles of the University of Mississippi.

Several bills of exception were taken in the court below, which present the grounds of error here assigned.

The first ground of exception was, that after the jury had been impanelled and sworn, the district attorney objected to one Adding-ton, who had been sworn on the panel, sitting as a juror in the case, because there were then pending in that court several indictments against him for retailing spirituous liquors; and the court sustained the objection, and set aside the juror, and caused another person to be summoned and sworn in his place.

It is held by this court, that the court below has the power to set aside a juror, without challenge by either party. Lewis v. The State, 9 S. & M. 115. This is upon the ground that it is the duty of the court to see that an impartial jury is impanelled, composed of men above all exception. Upon the same principle, it is laid down that after a juror has been sworn and taken his seat, if it be discovered that he is incompetent to serve, the court, in the exercise of a sound discretion, may set him aside, at any time before evidence is given. Wharton’s Amer. Criml. Law. 860 (2d edit.); People v. Damon, 13 Wend. 351; Tooel v. Commonwealth, 11 Leigh, 714; Williams v. The State, 32 Miss. 389.

As to the sufficiency of the objection to the juror, that is a matter which should rest, for the most part, in the sound discretion of the court, especially in cases of misdemeanor. It has been held to be a sufficient objection to the competency of a juror, that there are reasonable grounds to suspect that he will act under some undue influence or prejudice. Whart. Cr. L. 858. The fact that a juror stood indicted and untried, for the same kind of offence as that upon which he was called upon to try another person, would most naturally create a bias in his mind, and a disinclination to finding a verdict against the accused. For the verdict would, in a greater or less degree, have the effect of a precedent either for or against a conviction in similar cases; and the situation of such a juror appears to come fully within the principle, which requires the juror’s mind to be free from all bias and prejudice, and especially such as has relation to his own interest.

It does not appear that there was any objection to the competency of the juror sworn in the place of the one who was set aside, so that it must be taken that the case was tried by a fair and impartial jury. We think that this ground of error is untenable.

The next error assigned applies to the instructions asked in behalf of the accused, and refused by the court.

The second instruction is as follows : “ If the jury believe from the testimony, that the defendant sold the liquor to witness in good faith for medicinal purposes, believing, at the time, that witness wanted the liquor for medicinal purposes, then he is not guilty; although the jury may further believe that the witness imposed upon defendant as to the object for which the liquor was in fact purchased.” And the first instruction is substantially to the same effect, and the same idea is conveyed in the third.

The evidence in relation to the sale consisted of the testimony of James F. Dunlap, who testified that he had obtained spirituous liquor in quantities, never more than a quart at a time, as many as twelve times : that sometimes he wanted it for medicinal purposes, and sometimes not; that once he got it from the defendant when witness was intoxicated, but was not certain whether defendant knew he was intoxicated or not, but thinks he could have known it, because other persons could tell when he was intoxicated. That defendant always asked him if he wanted the liquor for medicinal purposes before he got it, and sometimes he told him it was for that purpose, and sometimes he answered, “ Of course.” That he did not tell him directly and positively that it was for medicinal purposes when it was not; but that he always replied to defendant’s question whether it was for medicinal purposes, “ Of course,” in an emphatic way. That witness was a married man and had a family; that defendant was a druggist, at Oxford, Avithin five miles of the University of Mississippi.

It has been settled by this court that, in prosecutions under the statute upon which this indictment is founded, a druggist selling spirituous liquor in the quantities and within the limits prohibited by the statute, cannot justify himself by the mere representations of the purchaser that the liquor was purchased for medicinal purposes, but that it devolves upon him to prove that it was purchased for that purpose. Haynie v. The State, 32 Miss. 400.

It is clear from the evidence, that some of the liquor in this case was purchased for other than medicinal purposes; and hence the instructions, which rely as a justification upon the belief of the defendant, founded on the statements of the purchaser that the liquor Avas for medicinal purposes, Avere properly refused. But, in addition to this, it it quite apparent, from the testimony, that these representations of the purchaser Avere mere matters of form; and the manner in Avhich they were made, clearly showed that they were understood not to show the real purpose of the purchase, and that the defendant could not have been deceived as to its real purpose. This is manifest from the fact that the sales were sometimes made to the party Avhen intoxicated.

These instructions were, therefore, properly refused.

The fourth and fifth instructions state the general rule, that if the jury had a reasonable doubt of the defendant’s guilt, they should acquit.

This, as a general rule of laAv, is unquestionably correct; and the instructions should have been given. But yet, the refusal of them is not necessarily error. As abstract propositions, it is true, they are correct. But did the refusal to give them prejudice the defendant ? It clearly could not have had that effect; for, upon the evidence, there was no such state of doubt as could be resolved in his favor. The sale was fully' proved, and there was an entire failure to show that it was made under the circumstances of justification stated in the case above cited. If the instructions had been given, there was not a state of case made to which they could have had any proper application; and they could not, therefore, have benefited the defendant. Hence the refusal of them is no ground of reversal.

The instructions granted at the instance of the State are error neous, for the same reason as those asked in behalf the defendant; in holding that the representations of the purchaser, in order to justify the sale, must have been such as to satisfy a reasonable man that the liquor was purchased in good faith for medicinal purposes. But this error was favorable to the defendant, and he cannot complain of it.

Upon consideration of the evidence, it is clear that the judgment is correct, and that the technical errors committed could not in law have operated to the prejudice of the defendant. The judgment is, therefore, afSrmed.  