
    Conner vs. The State.
    It is not necessary that the venire facias should be spread upon the minutes of the circuit court; it is enough if the record shows the return of the venire, and the selection of a grand jury of “good and lawful men,” from among the number summoned.
    By the constitution, the judge may “state the evidence and declare the law.” This means that he is to charge the law upon the evidence so stated by him.
    The court is not bound to charge upon every principle of law insisted upon by counsel, however sound in the abstract they may be, unless it be applicable to the facts of the case.
    When two persons are fighting; and a third, unconnected with either, without any-apparent provocation, stabs one of the parties, whilst fighting, the law in such case will imply malice.
    . This is an appeal in the nature of a writ of error from the circuit court of the county of Gibson, upon an indictment for stabbing. The indictment charged that the plaintiff in error, the defendant below, on the 6th day of October, 1832, in and upon one Reuben P. Tyson, an assault did make, and then and there feloniously, unlawfully and maliciously, with a pocket knife, the said Reuben P. Tyson did stab, thrust and penetrate, and him the said Reuben P. Tyson then and there wound, stab and penetrate, contrary to the form of the statute in such case made and provided, and against the-peace and dignity of the State, &c. &c.
    On this indictment the plaintiff in error was arraigned and pleaded not guilty, upon which issue was joined; and at the October term of said court, 1832, the cause was submitted to a jury, who found the defendant guilty in manner and form as charged in the bill of indictment, and assessed the term of defendant’s imprisonment in the public jail and penitentiary house of this State, to two years; upon which the defendant moved for a new trial, and the same being overruled, he excepted to the opinion of the court, and tendered his bill of exceptions, &c. which it appears, upon the trial before the jury, the prosecutor for the State proved that on the day mentioned in the indictment, and at the county of Gibson, the defendant with other persons was at a grocery in said county; that some quarrelling and fighting took place at the grocery, between Reuben P. Tyson and William Edmondson; that whilst Edmondson and Tyson were engaged in the fight, the defendant, who had remained -at the grocery, at the request of Edmondson, seeing that Tyson had the- advantage of Edmondson, rushed in the room where they were fighting, drew his knife and stabbed Tyson in the back, ofothe depth of one. or two inches; that Tyson and defendant had no quarrel, but were friendly as far as any body knew; that Conner seemed to be drinking
    The counsel for the defendant requested the judge to charge the jury, “that if a stranger seeing two persons fighting, helps one, and kills the other, it is manslaughter;” and that “if two fight, and one of them break his sword, and a stranger gives him his sword with which he kills the other, this is manslaughter in both, and not murder;” and that drunkenness, though it does not incapacitate a man from forming a premeditated design to murder, but as it clouds the understanding, and excites the passions, it may be evidence of passion only, and not of malice and design. Upon which the judge charged the jury, that cases might arise where the principles requested to be charged applied, but that they had no application to a case circumstanced like this; that there must be some proof of the quantity of spirits drank by the defendant; that he must be so drunk as to be a maniac; that the stabbing being proved to have been perpetrated by the defendant, all the circumstances in extenuation must be made out satisfactorily by the defendant,, unless they grose out of the proof of the S.fote, or the jury must find the defendant guilty. Upon this evidence and charge, the jury found the prisoner guilty, and the court refused to grant a new trial. The venire facias was not spread upon the minutes of the circuit court, but the record showed it was returned, and the selection of a grand jury from the persons summoned.
    
      G. Garret, for the plaintiff in error.
    1. In this case it is believed that the circuit court erred, in failing to charge the jury that the stabbing must be done with malice aforethought; for if it be done otherwise than with malice aforethought, it is excluded from the operation of the act of 1S29, by the proviso to the 55th section of the act. See Hay. and Cobbs, 251.
    2. The judge in this cause charged the jury on the facts of the case, which is contrary to the 5th section of the 5th article of the Constitution of this State. Vide, also Cooke’s Rep. 499.
    3. The judge erred in refusing to instruct the jury as requested, and by stating to them that the principles of law upon which he was requested to charge, were wholly inapplicable to the case on trial. Whereas, the principles, if correct, were directly applicable, as they clearly prove, that had death ensued in this case, it would only have been manslaughter; and if so, malice, which is as essential an ingredient in the offence for which the prisoner was indicted, as in murder, is wholly excluded. 4 Com. Digest, 751, 752: 1 Hawkins’ P. C. 125, sec. 35: 12 Coke’s Rep. 87.
    4. The court erred in saying to the jury, that the fact of stabbing being proved, the jury were bound to find the defendant guilty, unless he satisfactorily proved the circumstances in mitigation or excuse, unless the circumstances arise out of the State’s evidence. Ridley’s Case, 3 Yerger’s Rep.
    5. The court ought to have arrested the judgment, be- ‘ cause the grand jury was not summoned according to law. The law requires twenty six to be summoned, and the record shows but twenty five. Hay. and Cobbs, 209: Act of 18.11, ch. 72: and 1821, ch. 54.
    
      Jl. B. Bradford, Attorney General 14th District, for the State, contended:
    1. That the testimony given on the trial of the cause, presents one of the most deliberate cases of implied malice that could be named. It was a dangerous stab, with a deadly weapon, without the slightest provocation; and if death had ensued, would have been murder. 1 Hawkins’ P. C. 184, sec. 3,185, sec 4: Poster’s Cro. Law, 290: 1 Russell on Crimes, 632, 633: Cornwell vs. the State, Martin and Yerger’s Rep. 159.
    2. The judge charged correctly when he stated to the jury, that the fact of stabbing being proved by the State, all circumstances in extenuation must be made out satisfactorily by the defendant, unless they arise out of the proof of the State. 1 East’s Crown Law, 224, sec. 12: 1 Hawkins, 98, ch. 13, sec. 32: 1 Russell on Crimes, 615.
    3. If the venire from the county court does not direct the proper number of jurors to be summoned, or if the proper number are not summoned, the circuit court have the power to fill up the pannel by summoning the bystanders, which it will be presumed was done in this case. The record need not show this fact. The court will be presumed to have done its duty.
   Green, J.

delivered the opinion of the court.

The first position assumed for the plaintiff in error is, that the record is defective for this, that it does not set out the venire facias at length.

It is not necessary that the venire facias be spread upon the minutes of the circuit court. It composes no part of the proceeding in that court. . It is enough if the record shows the return of the venire facias, and the selection of a grand jury of good and lawful men from among the number summoned and attending. Cornwell vs. the State, Martin and Yerger’s Rep. 147: M’Clure vs. the State, 1 Yerger’s Rep. 206.

The court will presume in favor of the regularity of the proceedings of the circuit courts. If, however, the record does set out the venire facias and show particularly and minutely all that was done in selecting and empannelling the grand jury, and by such record it appears that the statutes have not been pursued, a question wholly different from the present would then be raised. In such case, nothing would be left to presume.

The principal ground relied on by the counsel for the plaintiff in error is, that the judge who tried the cause, in his charge to the jury assumed the right to decide the facts of the case, and excluded from the jury the free exercise of their constitutional powers. In the part of the charge complained of, the judge in substance told the jury, that the principle of law read and relied upon by defendant’s counsel, that if a stranger seeing two fighting and helps one and kills the other, it is manslaughter, could have no application to a case like this. It is insisted that he here assumed the slate of facts presented by the evidence in this cause, and excluded the jury from an investigation of the facts, so as to ascertain whether they brought this case within the principle contended for. The judge may “state the evidence, and charge the law.” This means that he is to charge the law arising upon the evidence so stated by him. He is not to charge every principle of law which may be insisted upon by counsel, whether it have application to the case under consideration or not, how sound soever such principle may be in the abstract. If he were, he would be guilty of gross impropriety. Such a course would tend to the subversion rather than the attainment of justice. It is as important that irrelevant questions of law should be kept out of the view of the jury, as that they should not be permitted to hear irrelevant facts. In either case to encumber their minds with a mass of irrelevant matter, would tend to obscure the true matter of'inquiry, and lead them astray in the investigation of questions not before them. If a principle of law be stated and insisted on by counsel, which manifestly has no application to the case, it is the duty of the court to tell the jury it has no application, lest they be misled by it. It is a great mistake to suppose that a court in charging the jury, is to deal altogether in abstractions. His discussion of legal questions should be confined to such only as are directly raised by the evidence in the cause. From what has been said, it follows, that if the principle stated and insisted on by the defendant’s counsel, has no application to this case, the judge did not err in telling the jury so.

In this case the evidence shows, that two were fighting, and while engaged, the defendant rushed into the room, and without any provocation, inflicted on one of them a dangerous stab. He is no more excusable for this act, committed on one who was fighting with a man not at all connected with him, than he would have been, had he inflicted a like blow on one not engaged in a fight. In such case, the law would imply malice from the fact that he used a deadly weapon without provocation. So the law implies malice .here, for the defendant acted without provocation. The principle contended for by the defendant’s counsel, is only applicable to a case where the conduct of the stranger would be such as only to make a case of manslaughter, if the party slain were engaged in no fight previously; such is not this case, and therefore the judge did right in saying that the principle • had no application here. There are several other points made in this record, but as they are not considered important, and have not been insisted on at the bar, it is unnecessary to discuss them, firmed. Let the judgment be af-

Judgment affirmed.  