
    Burrell Cornwell vs The State of Tennessee.
    It is sufficient, that the caption of an indictment state, that the grand jurors were good and lawful men. If they be such — they must be freeholders and householders.
    It is not even necessary, that the qualifications of jurors should appear in proceedings in the superior courts.
    To produce the reversal of a judgment of the court below, refusing to continue a cause, it must clearly appear that that court erred.
    Insanity, or a fixed habitual madness, which is the result of long continued drunkenness, will excu se ; but insanity, oravwant of reason, which is the immediate result of intoxication, affords no excuse for crime.
    At the May term, 1827, of the circuit court of Davidson county, Burrell Cornwell and Moses M‘Clanahan, were indicted for the murder of Owen Hughes.
    The following state of facts, is extracted from the record in this cause: “At a circuit, begun and held for the county of Davidson, &c.; present the honorable William E. Kennedy, one of the judges of the circuit courts of law and equity, for the state aforesaid; proclamation being made, the sheriff returned into court the venire facias to him directed, &c. — whereupon the following persons, &e., good and lawful men, of Davidson county, were elected, empannelled, sworn and charged, as a grand jury of inquest for the body of the county of Davidson, &c.” At the samé f-erm? M‘Clanahan was arraigned, tried and acquitted. Cornwell, after plea upon affidavit, continued the cause as t° bimself, until the November term thence succeeding; at which term an affidavit was filed by Cornwell, for a further continuance of the cause, on account of the absence of the same witness, whose absence had been the ground of continuance at the former term; who resided, in the language of the affidavit, in the state of Kentucky, out- of the jurisdiction of the court, and whose evidence was material in his defence — that the witness had promised to attend, but had failed: he expected to procure his attendance at the next term of the court. This affidavit referred to the one filed at the May term; in which it was alleged that by the absent witness, he would be able to prove his former good character; and that the effect of ardent spirits upon the prisoner, was derangement and insanity, &c. The motion for a continuance was overruled, and a trial ordered.
    In the progress of the cause, Lewis Carter was introduced, who swore, that on the evening of the homicide, and about two hours previously, the prisoner and M^lanahan, came to the house of witness, and M‘Clanahan asked witness, whether he had seen a man by the name of Hughes, after which he called for liquor, which he and the prisoner divided between them, touched glasses and drank, after which M‘Clanahan took a knife out of his pocket, and observed to witness, that there was but one man against whom he had enmity, and struck his knife several times into the banister, and said if he caught him that night, he would give him first hell — he then said to the prisoner, let us go. To the admissions of the declarations of M‘Clanahan, as evidence against him, the prisoner, by his counsel, objected, but the objection was overruled, and the evidence admitted. It -was proved, that the prisoner was intoxicated, and that a free use of ardent spirits, on the part of the prisoner, produced partial insanity.
    The court, after some remarks upon the subject of malice, charged the jury, “that if, at the time the homicide was committed, the prisoner had not sufficient understanding to distinguish right from wrong, and was in a state of insanity, it would be excusable — but that must be proved; hut if his insanity, or bad conduct, arose from drunkenness, it was no excuse. There may be cases, where insanity is produced by long continued habits of intoxication; but it must be a permanent insanity. Insanity, which is the immediate effect of intoxication, is no excuse — the party is fully responsible for all his acts.”
    The counsel for the prisoner requested the court to charge the jury, if they believed all the circumstances of the case, that the prisoner, at the time of slaying, labored under a temporary suspension of reason, although intoxication might have been the exciting cause — it is a circumstance of excuse or mitigation, and more especially, if intoxication were not intended at the time of drinking, but the same was accidental, or a consequence not intended or apprehended. But the court refused to charge, except as above.
    The jury found the prisoner guilty of murder — upon which finding, judgment was entered, that he be hanged, &c. A rule for a new trial was obtained, which, upon argument, was discharged, and the case brought by the prisoner to this court, by appeal in the nature of a writ of error.
    
      Batch, Duncan and O. B. Hayes for appellant.
    
      A. Hays (attorney general) and Grundy for the state.
   The opinions of Whyte, Catron and Crabb, judges, (Peek, judge, dissenting,) was delivered by

Cb.abb, J.

One question made by the plaintiff in error, is, as to the caption of the indictment.

1. It is said to be insufficient, because it does not there appear that the grand jurors were freeholders or householders. One answer to this objection is, that it does appear. They are said to be good and lawful men; and to be so, they must be freeholders and householders.

2. Another answer is, that it is not necessary that the qualifications of jurors should appear, even by the English practice, in the case of proceedings in the superior courts. (1 Chit. Crim. Law 333; Hawk. P. C. ch. 2, sec. 17; Rex vs. Darly, 4 East’s Rep. 175.)

3. But it may he remarked, in this connection, that the reasons for favorable presumptions, as to qualifications, are much greater here than they are in England. There they depend for a judicious and legal selection of a jury on a single individual: a mere ministerial officer. Here the jurors are chosen by the county court, a judicial tribunal of extensive jurisdiction.

This subject has received an attentive examination in all its bearings. The British cases, and all our own acts of assembly, have been minutely examined. But it is unnecessary to do more here, than to state the result of our inquiries.

Another objection has been thought worthy of consideration, particularly on account of the impression it has made on the mind of one of the members of the court. It occurred to the judges in the consultation.

It appears from the caption, that William E. Kennedy held the court for the county of Davidson, in the fourth judicial circuit, and he is judge of the sixth judicial circuit. It is thought that it should appear on the face of the caption, how the judge of the sixth circuit came to hold a court in the fourth. A satisfactory answer to this objection, in the opinion of three members of the court, is, that his authority to do so, is found in a public law of the land. Without referring to any other act of assembly, the act of 1825 expressly required judge Kennedy, as a judge of the sixth circuit, to hold this very court.

It is also alleged, that the court erred in refusing to continue the cause at May term, 1826. The circuit court exercise a sound discretion on the subject of continuances. They have a full.view of the circumstances which ought to influence them indisposing of motions for that purpose; but it is difficult to communicate those circumstances for the inspection of a court above. Although this court,from its peculiar practice in this respect, revises what other tribunals do, in relation to continuances, yet, to induce it to reverse a judgment on that account, it must clearly appear that the court below erred. Instead of being thus satisfied that they improperly refused this continuance, enough ap* pears to convince us, that they acted correctly. It was a second motion for a continuance.- It was founded upon the affidavit of the defendant alone. The only plausible ground laid, was the absence of a witness, living out of the state, whose absence had constituted one ground of the prior continuance. But what is of itself conclusive, that which was expected to be proved by the absent witness, was necessarily susceptible of proof by others, if true. He wanted him to show his previous good character and inoffensive conduct, except when he drank too much, which was attended or followed by derangement, &c. Can it be possible that such facts could be proved but by one absent man?

But the objection which has been most earnestly pressed by the counsel for the plaintiff in error, is to the admission of Lewis Carter’s testimony. It is urged that what M‘Callahan said or did, might be evidence against himself, but cannot against Cornwell. The counsel admit, that acts of a person, first proved to be an accomplice, may be received as evidence against the defendant. But they deny that M‘Callahan was in this case proved to be an accomplice; and they deny that what he said was, in the legal sense, a part of the act, so as to authorize it to be proved.

Reasoning is not necessary, at this day, to demonstrate, that where two men are shown to have had a community of purpose, an unity of design, with regard to a particular object, what one of them did in the pursuance of their plan, towards the attainment of that object, tends to explain their common motives and their joint movements. And this rule applies, whether the act of one was done in the presence of the other or not. This sort of evidence is oftener needed, in prosecutions for high treason, from the peculiar nature of that offence in all countries, especially in England. But it is constantly received in all cases where the principle applies. (Phillips’ Ev. 73; East's Cr. Law 96.) And it is immaterial, whether they be civil or criminal cases, or criminal cases of one sort or another. (Swift's Evidence 155.)

Before Carter’s statement was offered, some other testimony was introduced, with a view of showing, in technical language, a conspiracy between Cornwell and M‘Callahan¿ It was previously proved, that about three months before the homicide of the deceased, M‘C'allahan and Cornwell met him in a house of ill fame; that they quarrelled and fought — the two latter being associated against the former* M’Callahan had struck Hughes and knocked him down, and Cornwell stamped upon him. M’Callahan and Hughes were proved to be together at the place where the homicide occurred — Hughes and Cornwell quarrelled — Hughes proposed to fight Cornwell the next morning — Cornwell and M’Callahan stepped a little back, and seemed to be conversing — Cornwell pulled M’Callahan’s hat off his head and put it on his own, and put his own hat on the head of M’Callahan; then stepping up to Hughes, and asking him if he had said he would whip him or any of his friends, struck backwards with a small knife and killed him. The prisoner and M’Callahan left the spot together. The prisoner went to several places after the rash act was done — - boasted every where that he had killed a man, and M’Callahan was constantly seen with him. ■ This court are of opinion, that there was abundant evidence to authorize the court below to admit the acts of the latter to be heard by the jury on the trial of the prisoner. It cannot be expected that a witness will often be produced, who can prove that he heard two individuals agree together to do an unlawful act. This certainly is the most conclusive evidence of conspiracy. But it is scarcely more satisfactory, than that produced on this occasion. Here are two men, friendly, intimate with each other, and having a common enmity against a third person. They are seen a short time before the melancholy catastrophe, making common cause in a quarrel, and even fight with that third person. They are found on the night of the fatal deed, together at the spot. They talk together privately, exchange hats — one commits homicide, the other stands by and abets him; and, after the act is committed, which would fill every well-regulated mind with horror, he stands by his friend, and listens without disapprobation, to nis boasts of what he had done. M’Callahan may not have been an accomplice, and we hope he was not, for it is said he was acquitted by a jury. But the court below were well warranted, by the evidence on this record, in so considering him, for the purpose of admitting the proof in question. It must be remembered, that the fact of conspiracy, like other facts, may be established by circumstantial'testimony. (M'Nally 633; East’s Cr. Law 96; Swift's Evidence 156.)

The evidence of another’s.acts, may be obviated after his introduction by counter proofs or it may he disbelieved by the jury. Its effect is left with them by the judge. They know, and were, or would have been, upon request, told by the judge, in this as in other cases, that they were the exclusive judges of the question of fact. If the court below had perceived, after hearing the whole case, that, con? trary to his expectation, the evidence in- question had' tended to fix the guilt of another upon the prisoner, with whom he was connected, he ought to have granted,a new trial. He did not think so, nor does this court. If a doubt was left on the mind, as to the two being accomplices, it at once vanishes before this evidence of Carter. Carter tells us, in substance, that only about two hours before the homicide, these men came to his shop together,, M’Callahan asked witness if he had seen the deceased, and called for ardent spirits. M’Callahan and Cornwell touched glasses and drank. M’Callahan said there was but one man that he had any animosity against, and struck his knife several times into the banister, and said if he caught him that night he would give him first hell — then said to Cornwell, let us go. Why did they go to this shop together? Why does one buy spirits for both to drink, with all the evidences of yitipacy? Why does one ask for- Hughes, and the other express no curiosity to know what he wanted'with him? no surprise at his inquiring far the very man with whom they had jointly, fought a short time before? Why no, questions asked,as to the person intended, and no approbation or disapprobation expressed when the vengeful threat was made that was to. go into effect that night? Why, when it was made, did they leave the shop together? Combine, then, the previous quarrel and fight, and what soon followed, and you have a mass of evidence of conspiracy, that is irresistible.

' ' But it is objected, that what M’Callahan said, is not evidence, if what he did be so considered. The answer is, that his inquiry, his thx-eat, are a part of the act. They accompany, they explain it. It is a great mistake to suppose, that the res gesta, in the legal sense, is, in a case of murder, confined to the fact of thrusting the knife iüto the body, and thereby depriving of life. The res gesta is the murder, and the m.urder is made up of the homicide and the intent with which it was committed. Actions, therefore, which serve to demonstrate the quo animo, are a part of the res gesta. And words, which are a part of those actions, are admissible. No instance is known, where the words of an accomplice, under such circumstances, have been rejected; words spoken in the presence of the person charged, the guilt of which would be more or less affixed to him by the jury according to all the evidence in the case.

Difficulties, as to the acts and declarations of an accomplice, being proved, have usually arisen, where they occurred in the absence of the person on trial.

But, it is said, that the quarrel at the house of ill fame, had been adjusted. It is a sufficient answer to this suggestion, that no evidence of this kind had been offered to the judge when he heard Carter’s testimony, and, when the jury had heard the whole of it, they doubtless did not believe that there had been a sincere reconciliation.

It is believed to be very clear, that the court committed no error by receiving Carter’s testimony.

■ It is also contended, that the court below erred in their charge to the jury, and in refusing to charge as requested. The bill of exceptions presents us with what the judge said, as follows: “The court, in charging the jury, after defining the crime of murder, stated, that the fact of killing being proved, the law presumes malice; and, it lies on the defendant to show from proof, circumstances of excuse or alleviation, unless they otherwise appear. Malice is express or implied; and,.when there is no previous grudge, it is implt ed when one kills another with a deadly weapon, not having been previously assaulted, in which case, it is murder; you will inquire whether there was express malice, or whether there was a previous assault. If, at the time, he had not sufficient understanding to know right from wrong, and was in a state of insanity, it would be an excuse; but that must be proved. But if his insanity, or unusual bad conduct, arose from drunkenness, it is no excuse. There may be cases where insanity is produced by long continued habits of intoxication, but it must be a permanent insanity. Insanity, which is the immediate effect of intoxication, is no excuse; he is equally responsible for all his acts. The counsel for the prisoner, requested the court to charge the jury} if they believed, from all the circumstances of the case, that the defendant, at the time of the slaying, labored under a temporary suspension of reason, and was insane, although intoxication might have been the exciting cause, it is a circumstance of mitigation or excuse; and more especially, if intoxication were not intended at the time of drinking, but the same were accidental, or a consequence not intended or apprehended. But the court would not so charge, but said, insanity thus produced, was no excuse.”

Three cases of conviction for murder have been brought before this court at the present term; in two of which, the prisoner was defended, in the court below, on the ground of madness, occasioned by drunkenness; and yet, in neither, does it seem to us, was there a colorable foundation for such a defence. This court would b'e remiss in the performance of their duty, if they did not, under these circumstances, declare the law explicitly on this most important subject. In the argument of these causes, very untenable positions have been assumed, and very dangerous doctrines have been advanced by counsel. And from what was stated by some of those counsel, these doctrines have been repeatedly urged, and sometimes sanctioned in the courts below.

It has become fashionable of late, to discourse and philosophize much on mental sanity and insanity. New theories have been broached, and various grades and species of mania have been indicated. Some reasoners have gone so far as to maintain, that we are all partial maniacs. What-eyer differences of opinion there may be, as to the construction and operations of the mind of man; whatever difficulty in discovering the various degrees of unsoundness, it is only necessary for us to ascertain the kind of prostration of intellect, which is requisite to free a man from punishment for crime by the law of the land. It is with this alone we have to do. “What the law has said, we say. In all things else we are silent. We put our feet in the tracks of our forefathers; — Non mens hie sermo, sed quaprmcepit Offellus. Let us then, for a moment, resort to the sages of the law of difierent ages, and learn from them, whether that species of phrensy, which is produced by inebriety, constitutes any excuse for crime, and what sort of insanity it is which will serve this purpose?

The good and the great, the humane, yet firm, Sir Matthew Hale, in his history of the Pleas of the Crown, divides madness (dementia) into, three kinds, idiocy, accidental or adventitious madness, and drunkenness. “The second species, when it amounts to a total alienation of the mind, or perfect madness, excuses from the guilt of felony and treason. And further, persons afflicted with accidental madness, whether temporary (as in the case of lunacy) or continued, if they are totally deprived of the use of reason, cannot be guilty, ordinarily, of capital offences; for they have not the use of understanding, and act not as reasonable creatures, but their actions are, in effect, in the condition of brutes.” (Page 30.)

“The third sort of madness, is that which is dementia af-fectata, namely, drunkenness.. This vice doth deprive man of the use of reason, and puts many men into a perfect, but temporary phrensj; but, by the laws of England, such a person shall have no privilege by this voluntarily contracted madness, but shall have the same judgment as if he were in his right senses.”

In the case of Reniger vs. Fogossa, in Plowden 19, we have a rule laid down, which has been approved again and again, from the early day in which it was advanced, to the present .time, “that if a person that is drunk, kills another, this shall be felony, and he shall be hanged for it; and yet, he did it through ignorance — for when he was drunk, he had no understanding or memory, but, inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he shall not be privileged thereby.” Here we have the strongest case put; a case of a total deprivation of understanding by drunkenness. Yet it is held to form no excuse.

Lord Coke, in his Commentaries, page 247, A. says, “as for a drunkard, who is voluntarius dasmon, he hath no privilege thereby; but, what hurt or ill soever he doth, his drunkenness doth aggravate it.” And we are told in Beverly’s case, 4 Rep. 125, “that although he who is drunk, is, for the time, non compos mentis, yet his drunkenness doth not extenuate his act or offence, nor turn to his avail.”

Hawkins, in his Pleas of the Crown, (b. 1, ch. 1, sec. 6,) says, “that he, who is guilty of any crime whatever, through his voluntary drunkenness, shall bepunished for it as much as if he had been sober.” The erudite commentator on the laws of England, writes as follows on this subject: (4 Black, ch. 25-6,) “As to artificial, voluntarily contracted madness by drunkenness or intoxication, which, depriving men of their reason, puts them in a temporary phrensy; our lawjooks upon this as aggravation of the offence, rather excuse for any criminal misbehavior. The to counterfeit this excuse, gh real, will not suffer

In the above extracts, we see the law in this respect. A con(-rary doctrine ought to be frowned out of circulation, if it has obtained it, by every friend to virtue, peace, quietness and good government. The history of criminals and criminal trials shows, that he, who has not learned betimes to restrain the evil inclinations of our nature- — envy, malice, revenge and their kindred passions — but has a sufficiency of moral sense left to deter him from the commission of enormity while sober, will often “screw his-courage to the sticking point,” by the free use of ardent spirits, and thus made able to silence the twinges of his conscience, will voluntarily imitate the daemon. But let courts once approve the doctrine now contended for, and it will not be resorted to as a plea, by persons of this description alone; but even the cold-blooded, calculating assassin, will never be a sober homicide: he will always exhibit himself at the bar of a court of justice, as a specimen of insanity, produced by drunkenness. And thus this degrading and disgraceful, yet too common vice, instead of being hunted from society, as the bane of good morals, and social and domestic happiness, will be converted into a shield to protect from punishment the worst of crimes. All civilized governments must punish the culprit who relies on so untenable a defence; and, in doing so, they preach a louder lesson of morality to alUbose who are addicted to intoxication, and to parents^|^HL guardians, and ito youth, and to goiuMMfedHi^^^^^HHkcold abstract from pulpits.” In order to be strongest:

This court entirely concur with the circuit court in the charge given to the jury.

Parts'of this opinion may appear to partake of the cha-racier of a moral lecture. It is believed to be called for by the occasion. We have seen before us this day, three fellow beings who are about to be ushered into the presence of their maker, two of whom may probably attribute his unnatural exit from this world, to the immoderate use of ardent spirits. Disagreeable as it is, the solemn duty is devolved upon the court of pronouncing, in this instance also, the sentence of the law, that the judgment of the circuit court be affirmed.

Peck, J.

(dissenting) delivered the following opinion: Out of the many objections made, to the sufficiency of the proceedings against the prisoner, to justify his execution, I shall notice two; 1st, the question made by the bill of exceptions, on the admission of the declarations of M’Callahan at Carter’s, as proved by Carter the witness, about two hours before the homicide. M’Callahan and the prisoner, being together, called for whiskey, divided it between them, touched glasses and drank. M’Callahan askfed for the deceased and drew his knife, said there was but one man in the world he had any enmity against, and expressed the idea (in rude and profane language,) that he would be revenged. M’Callahan said, come let us go, and the two departed. Was this legal evidence, as a circumstance to show a previous concert between prisoner and M’Callahan, to commit the murder? The court overruled the objection and admitted the evidence.

This point being spoken upon with great confidence on the part of the prosecutor, as well as on the side of the defendant, it has been examined with solicitude. Trials for treason, as given in the English books, are well calculated to lead the mind astray from the question in other cases. In treason, words of intention are evidence of the crime, because the crime maybe committed by merely intending the death of the king, or the overthrow' of his government. Cornwell and M’Callahan may have intended to commit the murder, two hours before its perpetration by Cornwell; but they are not indicted for a crime, consisting of intention alone. It is for an act committed. If the conspiracy existed before the act, was it not urged in the commission of the crime? If to be used at all, then the words would be signs, creating a circumstance in the case, which might heighten the crime to murder; whereas, without the words as proof of malice, it would be only manslaughter. But M’Callahan, at the time this evidence was received, stood acquitted of the charge altogether. That circumstance made him a competent witness, to prove what was the intention of the prisoner at the time M’Callahan used the threat proved by Carter.

Circumstantial evidence is not admissible, where the case is susceptible of positive proof of the fact in the power of the party. The presumption attempted to be raised, is, that M’Callahan and Cornwell had one mind touching the enterprise. Therefore, the whole fact, if it was so, could have been made out by positive proof, by calling M’Callahan to the point. Being governed by the rule, that the best evidence shall be adhered to in all cases, and heretbeing better evidence behind the proof offered, was, in my opinion, inadmissible. The declarations of a person, who might have been produced as a witness, are inadmissible. (11 John. Rep. 185.) But let us take another view of the question. One circumstance may be used to rebut another. Corn-well said nothing; the words were used by M’Callahan. They are jointly charged in this indictment, and M’Callahan is acquitted. Has the circumstance any foundation in fact to rest upon? If the previous declaration weighed with the judge, ought it not to have been balanced by the other fact — the acquittal of him who made it? Surely, if the threat of M’Callahan, who was present at the homicide, weighed nothing in Ms case, it ought to have weighed less in the case of him who made no threat. Say, for the sake of argument, that M’Callahan was particeps in the crime, and that in giving this evidence he would have accused himself, and therefore could not be compelled to answer. To this it maybe replied, that he stood acquitted- and, by the constitution, was shielded from being called to answer a second time. Being, therefore, released from liability, and his interest at an end, none but himself could make the objection,, even if he could. (Phil. Ev. 223.) Is this hearsay evidence? Carter proves what he heard M’Callahan say (not what the prisoner was heard to say,) some time before the homicide. On authority then, how is the question settled? There is no act ^et done, therefore the threat is no part of the res gesta; and the furthest the books go.on the subject is, to authorize hearsay evidence when it makes part of the thing done. (Phil. Ev. 218.) What a dying person says, may also, in some specified cases, be received. What a dying accomplice has been heard to say, in the immediate prospect of death, has been received against the principal felon. But this is admitted on the sole ground, that the awful condition of the dying man, gave to his declaration all the solemnity of an oath; (Phil. 217.) and this is conclusive to show what the rule of law is. Its being admitted only on the principle, that he acts as on oath, proves that, were he living, nothing short of his oath would be received. A late writer on evidence, in commenting on the rule res inter alios, uses this strong language: “that no man shall be concluded, or even prejudiced, by the acts, declarations or conduct of strangers, as it is founded in the most simple principles of natural justice, has ever been regarded by the law as sacred and inviolable. Every man, as a moral agent, is accountable for his own acts.” (3 Starkie 1300.)

Why should the prisoner have spoken at the time of the threat by M’Callahan? M’Callahan did not addresss him, did not accuse or implicate him. From any thing the prisoner said, from any thing he acted or looked, if I may so speak, may it not as well be intended that he went, when leaving Carter’s, rather to prevent M’Callahan, than to commit the crime himself? For whatever bad feelings had once existed between deceased and prisoner, if we believe the evidence, had been removed. But by an arbitrary law of the'mind, because the homicide was after the scene at Carter’s, there is given to it an expost-facto criminality against the intendment of law, that a man should rather be presumed innocent than guilty. Had there been no homicide committed, who would have dreamed that the prisoner had even a wicked intention that night?

But there is another consideration. Even if it was conceded, that the evidence was rightfully received, should not the judge, either at the time of admitting it, or in giving his charge to the jury, have left it to them to apply or reject, according as their minds were satisfied or not satisfied, with the proof of combination? The judge, because his mind was satisfied, let in the proof. Is that conclusive? and if not observed upon by the judge, are not the jury to take it from him as conclusive? and if so to receive it, is it notan opinion expressed-by the judge on the fact? This may be esteemed a new consideration, but if it is so, it naturally arises out of the constitution; for the same principle, which forbids the judge from charging on the fact, establishes the caution I am now going to insist upon. This is a fit case to illustrate the principle: let us see how it will operate. Without the circumstances judged of by the court, which, if offered for any thing, was to show malice, the crime might possibly have been reduced to manslaughter. But the judge has weighed and admitted it without any qualification; is he not then the sole arbiter of the fate and life of the prisoner? If so, the jury is useless. On this point, I am not without authority. In Fields and Webber vs. the state, Peck 142, the court gave an express opinion, that the evidence shall be cautiously received, and shall be accompanied with such observations as legally characterize it. All the books characterize presumptive evidence. It is admissible, and may justify conviction, but it is received with caution, and is least to be trusted, for at best it is one thing proved from which the mind supposes the existence of another thing. (Norris Peake 45; Swift 136.

Secondly; the caption to this indictment will not, on authority, in my opinion, justify any judgment on these proceedings.

There is no place shown in the record, except in the county of Davidson, where the grand jury were called together, sworn and charged, or found the indictment. The bill was found in May. At the November term following, the court met at the court house in Nashville, and there tried the prisoner. It may be inferred, that they met at the court house in Nashville in May; but the record ought to have said so; and for the want of this, see 1 Chitty Crim. Law 329; 3 Bac. Abr. Indictment I. The caption, after naming the judge, does not say, “assigned to hold, &c.” This is fatal; (3 Bac. Abr. 572, Indictment; 1 Chi. Cr. Law 332; 1 Saun. 263.) It does not show where, nor by what authority, the jurors were called. (Peck's Rep. 166, 310.) The venire facias, at the end of the record, is improperly there. It is no part of this record. When, or how, it got into the office, does not appear. The case of Lusk vs. the state, as it has been reported to me, is directly in point. There the affidavit used bn the motion for a new trial, although on the file, would not be heard in the court above, because not made part of the record by the bill of exceptions, and the man was executed. The rule will, in this case, work as strongly in favor of life, as it did in the other case against it.

So far my remarks apply to the caption, as'first presented by the record on which the errors were assigned. But a certiorari having been sent, and a more perfect record being now before us, I am still of opinion, that these objections lie to the captions, viz. 1. That it does not appear, that the judge, ffm. E. Kennedy, was assigned to hold the court; and second, it does not appear that the jurors were “then and there sworn.” Both these will be now considered.

In the late American edition of Comyn's Digest, vol. 4, p. 672, title Indictment, in note (h) 1, the form, authorities and reasons for strictness, are brought together and considered. The caption, according to this author, consists of seven parts, each of which has its office. 1. The county, where the indictment is taken, that we may know by the proof that the offence was there to be tried. 2. The court before whom taken, that it may be seen there was competent authority in the court. 3. The place where the court was holden: if the statute requires the court to be holden at a. place, that place must be named, or the omission will vitiate. 4. The time of holding the court-, and in stating the time, if inconsistent or impossible dates are introduced, it will be fatal. 5. The members of the court, and that they were assigned to the duty. 6. The jurors, who must be of the county, and then and there sworn. And, 7. The fact, whatever,it maybe, is presented.

The application of some of these rules to our circuit courts will show, that as much strictness is required under our policy, as under the policy pursued in Great Britain. Some courts there are constituted for the crown for special purposes, and the commission specifies the authority, as “to inquire of all felonies, &c.” Courts here, though acting under a general commission, do not, at all their sessions, have the same powers. The legislature, by sundry acts, authorizes and orders special courts, special terms of courts, for the trial of civil causes; special terms for the trial of civil and criminal causes, and special terms for the trial of criminal causes only. It also authorizes interchanges of judges to hold the courts of whole circuits, and of circuit courts of counties or parts of circuits. These propositions naturally draw the mind to the conclusion, that all circuit judges, holding circuit courts, have equal powers. Sometimes the power extends only to a course of civil proceedings; so that if inference could be resorted to, on general principles, to presume from the general power, that all the circuit judges are judges of the state, that presumption is met by the special authorities referred to.

The forms long established become the law, and ought not to be departed from, even in civil proceedings where left to the court alone. The legislature may dispense with them, it is true, except where the constitution forbids it, and when done, it should be by express provision, not by an inference deduceable from an act of the legislature; and this remark should apply, in an especial manner, to criminal, proceedings. This idea gains strength, from the provisions of the constitution, copied from Magna Charta, that “no freeman shall be put to answer any criming! charge, but by presentment, indictment or impeachment,” and that “his trial shall be by an impartial jury of the county, district, in which the crime shall have been committed.” How these provisions have been understood in that country, where, though liberty is regarded, yet not in a higher degree than with us, will be seen by the rules established and adhered to, from remote antiquity down to the present time, as well in times of heat, when the crown seemed to demand vengeance, as when no fervor excited prosecutions. Our policy, so far from discarding the principle, has embraced it in every case where it has been presented and pressed to the court. One reason obviously is, that often the duty is limited and expired.

But precedents are resorted to, for the purpose of showing, that persons have been executed, where captions, tested by the. foregoing rules, are found defective. Though nothing in the record, or reported case, shows that the objection was noticed or urged, precedents against law are never admitted, on a principle too plain to require its being stated; that reason and truth (and law is founded in both,) are safer guides than error or falsehood. I will not say, that the prisoners in these cases waved the objection, for they are supposed to wave nothing; and if disposed to do so, I question whether the court ought to have permitted it. Suffer me to say — and I think it a full answer to the argument of precedent — that all it proves is, that the course of the court has been both ways; the law is on the one or the other side of the question; I think I have shown it to be with me, and in all the late cases it has been so followed. Thus law, and the modern authority of this court, sanctioned my opinion. Do I say too much, when I suggest, that in this country legal science has been on her march to higher eminence, through the industry of an enlightened bar, and the labors of one now no more; who first gave impetus to a doctrine at once safe, because legal — (being based on the constitution,) merciful, because it does not sanction execution without form — and just, because the state, by her officers, should not be permitted to slumber, and make that the pretext for departure from the certainty required at her hands, in a cage afJeCting life?

If I could doubt, on the score of our system and policy being in some respects different from those of the country whence we derived our common law, that doubt would be wholly removed, when I should find myself supported by such a man as judge Kent of New York. That judge has viewed the subject, and has given the opinion of the whole court— that in a caption, stating that the grand jury were sworn and charged, the omitting of the words then and there, was fatal after verdict, and-the judgment was arrested. What adds strength to this case, is the consideration that it was not a capital case, being for extortion. All the cases, ancient and modern, were considered, and the modern conflicting with the principles there established, overruled, because against law. (People vs. Guernsey, 3 John. Cases 265.)

But it is assumed, that in North Carolina, in the case of the state vs. Warden, for perjury, the caption was dispensed with altogether; (2 Taylor's Rep. 163,) and this partly on the ground, that an act of assembly dispensed with the form, and partly on the false premises, that a court of general jurisdiction can judicially be known as such. In three subsequent cases, however, (State vs. Sutton, 6 Mur. Rep. 281; state vs. Strect, Id. 156; and state vs. Haddock, 2 Hawk. Rep. 471,) it was otherwise decided, and the correct rule restored. The arguments used in the state vs. Warden, viz: that the circuit courts are courts of general jurisdiction, and that we are judicially bound to know their powers, fall at once to the ground, when we find it to be express law, as applicable to the court of king’s bench in England, that all this strictness in captions shall be observed (4 Bl. Com. 266,) as to the power of the court, and (4 Chitty Crim. Law 194, 1 do. 328,) as to the form. So of the quarter sessions in England, (4 Bl. Com. 271,) which is a court of as general jurisdiction as our circuit courts in criminal cases. In Andrews 178, 3 Sol. R. 138, the reason for this strictness is given, “that we may see the court had jurisdiction, and proceeded regularly.” (4 Com. Dig. Am. ed. 572.) Let us apply the reason here given, to the case before the court. I am told that, judicially, I am to know the judge of the circuit where this indictment is taken. .Tn-dicially, then, I am to know, that Thomas Stuart is the judge. Then let me ask, how am I to know, that William E. Kennedy is the j udge of the same circuit? If I am told that he may interchange ridings with the judge of that circuit, then I answer, this record does not show that he did so. I cannot suppose it, for that would be, to proceed alone by intendment. How can I judicially know, that an understanding with judge Stuart, privately made in pais, gave to judge Kennedy the authority to take this indictment? So far from it, I cannot even judicially know judge Stuart to be the judge: and it is obvious, that without its being shown on the record, I cannot know judge Kennedy as having the authority assumed. I add, further, on this subject, that even in civil proceedings, I cannot judicially know the judges of any other court, than that to which I belong, further than I learn from the record. Andrews 74, Str. 1226, 2 Saun. Rep. 175, note 2, are express authorities to prove the position. (Chitty on Pl. 225.)

Washington and Craighead for appellant.

A. Hays (attorney general), for the state.

I give no opinion on the guilt or innocence .of the prisoner. My authorities and reasoning only show, that he, and all such as are placed in his condition, should be remanded for a trial, where form and substance shall be pursued. It is my business to arrest the stroke of the. sword, until the victim shall be brought to the altar prepared.  