
    George W. Oliver v. The State.
    1. Instruction : not erroneous ie substantially correct.- — It is no ground for reversing a judgment in a criminal case that an instruction given in behalf of the State is pliilologically inaccurate, if substantially the -law be correctly expounded in it.
    2. Same : instruction must be applicable to the case. — Instructions should have reference to the case made by the evidence, and explain the law clearly with reference to it: it will be error, therefore, if the court, in charging the law in reference to a hypothetical case supposed in an instruction, exclude from the consideration of the jury a material question presented for their consideration by the evidence.
    3. Same : same. — Instructions which are inapplicable to the case made by the evidence are erroneous.
    4. Master and slave : right oe master to reduce rebellious slave to submission. — Unconditional submission on the part of the slave is due to the lawful authority of the master. The master may therefore use just such force and means in reducing his rebellious slave to lawful submission to his authority as are necessary to effect his purpose, even to the destruction of the life or limb of the slave.
    5. Same: same: right oe master to correct slave) — The right of the master to correct his slave, submissive to his authority, for a fault, and the right of the master to reduce his rebellious slave to submission, are distinct: in the exercise of the former right the master must not use instruments or means likely to produce death or to do his slave great personal injury, nor must he inflict cruel or unusual punishment: the exercise of the latter right is bounded only by the means necessary to overcome the resistance.
    6. Same : same. — If the master, in correcting his submissive slave, use cruel and inhuman means, endangering the life or limb of the slave, and thereby induce resistance on the part of the slave necessary to save his life or limb, and in overcoming such necessary resistance the master kill the slave, he will he guilty of murder.
    Error to tbe Circuit Court of Lafayette county. Hon. John W. Thompson, judge.
    The plaintiff in error was indicted in the court below for the murder of his slave John. On the trial he was convicted of manslaughter. His motion for a new trial being overruled, he tendered a bill of exceptions, and sued out this writ of error.
    It appears from the evidence that the deceased was a violent, turbulent, and rebellious slave, and that, on the morning of the 14th March, A. D. 1859, he with several other slaves was put to shelling corn on a corn-sheller in the corn-crib of Oliver; that, in working said corn-sheller, a stick, about five feet long, about two and a-half inches in diameter at the large end, and gradually tapering to the other, was used in pushing the ears of corn down into the shelter, and that it was the business of a slave named Dick to use this stick, and that deceased was never allowed to use it on account of his awkwardness. On the morning aforesaid said Dick was as usual using the stick in pushing the ears of corn down, and the deceased engaged in another department of -the shelling. The witness then left the crib, and on his return about fifteen minutes thereafter he found that the accused, Oliver, was in the crib, and he heard him say, in a quiet and unexcited tone, “ Give up the stick;” and then in a short time he said, violently, “ Give up the stick.” By this time witness reached a point where he could see what was going on. He saw deceased and accused struggling together for the possession of the stick before described, both having hold of it. The countenance of the deceased at the time had a very vicious and savage look. Very soon the accused succeeded in Wresting the stick from the hands of deceased, and he immediately struck deceased with the same on the head, and deceased fell and almost immediately expired. Immediately upon his falling accused struck in rapid succession two other blows at deceased, but neither of them struck him.
    The deceased had been guilty, on the day before, of an act of disobedience, which was usually punished on the plantation by whipping.
    It was also proved that John was a very stout and strong man, and the accused a weak and feeble man.
    Testimony was also introduced on behalf of the accused which tended to show that he was subject to fits of mental derangement, and in the opinion of two of the witnesses — one of whom was a physician — who saw him the day of the killing, he was then not in his right mind, and could not distinguish right from wrong.
    The instructions given on behalf of the State, which are noticed in the opinion of the court, are as follows:
    4. “ That manslaughter is the unlawful killing of another without malice, either express or implied, in the heat of passion, in a cruel and unusual manner, without authority of law, and not in necessary self-defence.”
    6. “ That when a man kills another in the heat of passion, without malice, in a cruel and unusual manner, and not in necessary self-defence, the law reduces the crime from murder' to'manslaughter, upon the ground that reason for the time is dethroned and obliterated; and if the jury believe that the defendant killed the deceased at a time when his reason was dethroned by passion, then they will find him guilty of manslaughter only.”
    
      7. “That when death ensues from the correction of parent, master, and others having lawful authority, and such correction be considered nothing more than reasonable, the death will be considered accidental; but where, however, the correction exceeds the bounds of due moderation, either in the measure of it, or in the weapon made use of for the purpose, it will be murder or manslaughter, according to circumstances. If done with a cudgel or other thing not likely to kill, though improper for the purpose of correction, it will be manslaughter. But if it is done with a dangerous weapon, likely to kill or maim, as a pestle or great staff, it will be murder.”
    8. “ That a master has no right to slay or inflict what the law calls great bodily harm upon his slave; and if the slave has reasonable ground to believe that his master is about to slay him, or do him some great bodily harm, he has a legal right to resist his master, and if the master kills the slave in consequence of such resistance, it will be a felonious homicide, and either murder or manslaughter, according to the circumstances.”
    9. “ The ninth instruction was to the effect that a master has no lawful right to correct his slave with a pestle, or great staff, or handspike; and that the slave has a legal right to resist the attempt of the master to correct him with such instrument as is likely to produce death.”
    The eleventh and twelfth instructions asked for by the defendant are as follow:
    11. “ It is the duty of a slave to obey his master in all lawful things, and to submit to the authority of the master to the full extent that the master has lawful authority over him; and it is the privilege and duty of the master to exercise and enforce his authority, and if the slave resist the lawful authority of his master, and a struggle ensue, in which the master strikes a blow which is necessary to meet and overcome the resistance to such lawful authority on the part of the slave, and death ensue from such blow, such homicide is not manslaughter, but excusable.”
    This instruction was given by the court, after adding thereto the following modification: “ But that the master, in enforcing his authority, must do it by lawful means and lawful instruments of correction, and not with a staff or such means as are likely to kill or maim, and also with due and proper caution.”
    12. “ If the jury believe from the testimony that the defendant killed his slave in lawfully attempting to overcome the resistance of the slave to the lawful authority of the defendant, they cannot convict the defendant, unless they are satisfied beyond every reasonable doubt that it was not necessary for defendant, in order to meet and overcome such resistance, to strike the blow which produced death, provided such reasonable doubt arises out of the evidence in this case.”
    This instruction was given, but with the following modification: “But it is for the jury to determine from the evidence whether or not the slave (killed) did make any resistance to the lawful authority of defendant; and whether, if deceased made resistance, it was, or was not, to save his life or protect himself from great personal injury.”
    The defendant excepted to the giving of the instructions on behalf of the State, and to the modifications of the instructions asked for by him.
    Several other exceptions were taken to the action of the court— in reference to the competency of jurors; the admission of illegal evidence on behalf of the State and its subsequent exclusion from the jury; the instructions in relation to the defence of insanity, &c.; but as the opinion of this court does not refer to these exceptions, a statement of them is omitted.
    
      Hugh A. Barr, for plaintiff in error.
    In the. first place the- court allowed the State to prove by Cook and Strickland that Bramel told them, on the morning of the killing, that Oliver had killed his negro; and when they asked him why he did it, he replied, “ for nothing” — “ that the negro was in the corn-crib shelling corn, and that he did not seem to work fast enough, and Oliver told him to work faster and the negro didn’t do it, and Oliver took the shelling-stick from him and killed him with it.”
    The testimony of Cook and Strickland remained before the jury as evidence until after counsel for the State had closed an opening argument to the jury — an hour and a half in length — in which he, at some length, relied upon the testimony of Coolc and Strickland, as impeaching the testimony of Bramel, as to the circumstances of-the hilling. The court, then, upon the application of counsel for the State, allowed the testimony of Cook and Strickland to be withdrawn, (or rather to be considered withdrawn,) and directed the jury to disregard it.
    I do not believe that the annals of criminal jurisprudence afford an instance in which a greater outrage was perpetrated upon the rights of an accused. Bramel was a witness for the State. In violation of that long and well-established and well-known rule, that the party calling a witness cannot afterwards impeach him, the court allowed the State to introduce testimony impeaching that portion of Bramel’s testimony which was favorable to Oliver, and then sought to preclude the defendant from any benefit from the error by ruling the impeaching testimony out. But when was it ruled out ? Not until after counsel for the State had made his argument upon it, and impressed its-poisonous influence upon the mind of the jury, but before counsel for the defendant had had an opportunity of being heard upon it. It was ruled out just at that point when the State had made all the use of it that it could have desired, and when the act of ruling it out estopped counsel for the defendant from even alluding to it, for it must be presumed by this court that counsel would not have been permitted to discuss that which was not before the jury. To suppose that the jury formed no opinion of the case, from having heard the testimony of Cook and Strickland, and the argument of counsel for the State upon it, different from the one previously entertained by them, is to suppose that their minds could not be impressed or influenced by testimony at all. And if it be admitted that a juror was disqualified by an opinion based upon rumor, how could the whole panel be qualified to render an impartial verdict after being impressed with an opinion based upon illegal testimony ? Is there any consistency in holding that the testimony in a case will be powerless to divest the mind of a juror of an opinion based upon rumor, and at the same time to hold that the whole panel will be able to discard an opinion based upon that which went to them under all the sanctions and solemnities of testimony, and which had been confirmed and impressed upon their minds by argument of counsel ?
    “ The reception of illegal evidence should vitiate the verdict, without inquiry as to its probable effect in any given case. Its inevitable tendency is to mislead, and the extent of the mischief it may have done cannot always be calculated, or even guessed at. It is reasonable to suppose that in the majority of instances it will work injustice. Besides, policy requires that the violation of fundamental rules of practice should be discouraged; and this can only be done successfully by annexing to every such violation the sure infliction of a penalty.” 2 Graham & Waterman on New Trials, 613.
    
      “ Where the illegal testimony is such as to be in gross violation of the well-settled principles which govern proof, cl early giving to the party who offered it an unlawful advantage, its adoption has been held per se a ground for a new trial, whether the jury were directed to disregard it or not.” Id.
    In Penfield v. Carpenter, 13 Johns. 350, illegal testimony was admitted, and the court told the jury to disregard it. But the judgment was reversed, the court saying: “ The admission of such testimony was illegal and dangerous, and no subsequent caution, or advice by the judge, that the jury ought to disregard what the witnesses had sworn, can cure the irregularity. The law forbids such testimony, because it may have an influence upon honest jurors, who are unconscious of the impressions which they retain, notwithstanding the effort of the court to obviate them.”
    And in Irvine v. Cook, 15 Johns. 239, where hearsay evidence was given, but not admitted to the jury as evidence, the court held that improper evidence ought not to be allowed to be given in the' presence of the jury, although they were afterwards directed to disregard it; and reversed the judgment.
    In Marquand v. Webb, 17 Johns. 89, illegal testimony was admitted, but, although there was a preponderance of testimony in favor of the verdict, it was set 'aside, because, said the court, “this court is not authorized to say that the jury disregarded the improper evidence.”
    In Osgood v. Manhattan, 3 Gowen, 612, the judgment was reversed, because, said the court, “ it is well settled that if improper evidence be given, although it may be cumulative only, the judgment must be reversed; for we cannot say what effect such evidence may have had on the minds of a jury.”
    In State v. Allen, 1 Hawks, 6, it was said that, although sufficient legal evidence be before the jury to justify the verdict, yet, if improper testimony be admitted after objection, a new trial will be ordered; “ because it cannot be known on which the jury relied.”
    And to the same effect is the case of Anthoine et al. v. Goit, 2 Hall, 40.
    In Or addock v. Or addock, 8 Litt. 77, illegal testimony was admitted, but there was a preponderance of legal testimony in favor of the verdict. The court reversed the judgment, saying there was sufficient legal evidence to support the verdict, but that it was not conclusive, and amounted only to that which is denominated probable, the weight of which belonged exclusively to the jury to determine.
    It has been held in a number of cases that the verdict will not be disturbed on account of the admission of illegal testimony, where the court can clearly see that, wholly irrespective of the illegal testimony, the finding of the jury is plainly, obviously, and undeniably justified by the legal testimony, and that another trial could not produce a different result. See State v. Engle, 1 Zabriskie, 347; Stephens v. Grawford, 1 Nelly, 574'; McMullen v. Mayo, 8 S. & M. 298 ; Allen v. Parrish, 3 Ohio R. 107.
    According to these cases, where illegal testimony has been admitted, the question is not whether there is a preponderance of legal testimony in favor of the verdict, but whether it is manifest and clear that the verdict is correct beyond all cavil or doubt, irrespective of the illegal testimony. Surely no sane mind can reach the conclusion that the record of this case presents a verdict so supported by legal testimony. On the contrary, I submit that the verdict is wholly unsupported by legal testimony, and is manifestly attributable to the influence of the illegal testimony and other errors committed by the court; and that the ruling out of the illegal testimony at the time, and under the circumstances when it was ruled out, so far from curing the error of admitting it, was an aggravation of it, and that, if such a proceeding is to be countenanced, it will be a precedent fraught with the most dangerous consequences. It would be a suitable and inviting precedent for a corrupt judge, who might desire to mislead and influence the prejudices of the. jury.
    The modification appended to the fourth instruction asked for by defendant was erroneous, and calculated to mislead the jury. The coming up of the overseer during the struggle between Oliver and the slave is one of the things — and the most important thing — mentioned in the modification as a matter to be considered by the jury in determining whether Oliver might not have overcome the slave without using the stick. Whether the overseer did come up during the struggle, and whether Oliver was aware of it, and might have called upon him for aid instead of' using the stick, were questions not submitted to the determination of the jury, but taken for granted and assumed to be true, and made the basis of the instruction; and that, too, in the face of the testimony showing that Oliver could not have been aware of the coming up of the overseer. The proof is, that his back was towards the overseer during the struggle. Dougherty and wife v. Vanderpool, 6 George, 171; Wesley v. The Slate, not yet reported.
    The eleventh instruction, as asked for by defendant, is as follows : "It is the duty of the slave to obey the master in all' lawful things, and to submit to the authority of the master to the full extent that the master has lawful authority over him, and it is the privilege and duty of the master to exercise and enforce his authority; and if the slave resist the lawful authority of his master, and a struggle ensue, in which the master strikes a blow which is necessary to meet and overcome the resistance to such lawful authority on the part of the slave, and death ensue from such blow, such homicide is not manslaughter, but excusable.”
    The court gave this instruction, with the following modification, to wit: “But that the master, in enforcing his authority, must do it by lawful means and lawful instruments of eorreetioii, and not with a staff, or such means as are likely to kill or maim; and also with‘due and proper caution.”
    
      If the doctrine contained in this modification — to wit, that a master must overcome resistance with lawful instruments of correction, and has no right to use a staff, or such means as are likely to kill or maim in enforcing his authority — had been applied, and limited to a mere case of correction, where the slave made no resistance, it would not have been objectionable. But its language is unqualified and unlimited. It covers every imaginable case in which a master may be called upon to enforce his authority. No matter how violent or how desperate may be the resistance of the slave, according to this modification, the master is confined to lawful instruments of correction, and shall not enforce his authority with a staff, or any thing that will be likely to kill or maim. Besides, the modification was expressly and directly applied to a case of resistance by the slave to the authority of the master, and must have been understood by the jury to apply to such a case, for it was given to modify a charge enunciating the rights of the master when his slave resists his authority.
    It is not strange that, under this exposition of the law, the jury found the defendant guilty of manslaughter; for, no matter what they may have thought of. the resistance of the slave/ they were in effect told by the court that the master had no right to overcome it by using the stick which he did use.
    But is it the law of this State that the master has no right, in overcoming the resistance of his slave, to use a staff, or any other means likely to kill or maim ? In many instances it is impossible for the master to enforce his authority, and overcome the resistance of his slave, without using such means as are likely to kill or maim. And if the master is not permitted to use such means, it is only necessary for a slave to carry his resistance to an extent which will preclude the master from subduing him without using means likely to kill or maim, in order to throw off the authority of the master entirely. .The result will be the supremacy of the slave. The slave population will be incited to insubordination and rebellion, the land will be filled with violence and bloodshed, and the institution of slavery yvill become a curse.
    It is universally admitted that unconditional obedience and submission, in all things lawful, is the duty of the slave, and authority and power, in all things lawful, is the right of the master. See The State v. Crank, 2 Bail. 66; Jacob v. The State, § Humph. 513. To say that authority and power belong to the master, and at the same time deny to the master the means of enforcing and maintaining his authority, is a virtual denial of the authority itself: it is a contradiction — it is a solecism. The right to use the means necessary to maintain authority necessarily grows out of the right of authority itself; for every man has a ■right to use the means necessary to maintain and enforce the position that he rightfully and legally occupies. Thus, an officer clothed with the authority to arrest a party has a right to use such means as are necessary to complete the arrest, and if resisted when so employed, and the party resisting be killed in the struggle, such homicide is justifiable. Wharton’s Grim. Law, 470.
    And so it was held in Alabama, that, in a case of resistance by the slave, -the master has the right to employ such means, and so much force to any extent, as will be effectual to subdue him, even to the extent of taking life or limb. Dave v. The State, 22 Ala. R. 23. See also to the same effect Mann's case, 2 Dev. 263 ; and Will's case, 1 Dev. Bat. 121.
    The modification to the State’s tenth charge enunciates an erroneous rule, which misled the jury. The conclusion of the modification is as follows: “ and that this proof (of insanity) the defendant is bound to make clearly to the-jury; and that the doctrine of reasonable doubts as to this alleged insanity is a doctrine that does not apply to this matter of defence.”
    To constitute in law a crime there must combine a wrongful act and a wrongful intent. 1 Bishop’s Crim. Law, secs. 253, 254. A most important question, therefore, in every criminal case is, Was there the criminal intent ? There can be no criminal intent where the accused is mentally incapable of entertaining it. The jury must find the wrongful act and the wrongful intent before they can declare the accused guilty. But the law, in tenderness to the citizen, requires that, if there be a reasonable doubt as to his guilt, he shall have the benefit of it, and be acquitted. If the defendant gives evidence of mental incapacity to an extent sufficient to raise a reasonable doubt in the minds of the jury as to whether there was a criminal intent, how can the-jury declare that they have no reasonable doubt of the guilt of the accused? The jury must not only be satisfied as to every fact and every intent necessary to constitute the guilt of the accused, but they must entertain no reasonable doubt as to every such fact and intent; for, if they do entertain a reasonable doubt as to any such fact or intent, they cannot say that they have no reasonable doubt of the guilt of the accused, because a reasonable doubt as to any element requisite to constitute guilt necessarily creates a reasonable doubt as to the guilt itself. The true rule is, that if the jury, on the whole of the facts on both sides, doubts the guilt of the accused, the benefit of the doubt must be given to him. Gom. v. Kimball, 24 Pick. 366; Gom. v. Dana, 2 Metcalf, 339, 340.
    The cases opposed to this view are based upon the false idea that the defence of insanity is an affirmative fact set up by the accused by way of confession and avoidance. A confession and avoidance of what ? Surely it is not a confession and avoidance of a crime or of guilt. So far from confessing crime or guilt, it is set up to show that crime or guilt is impossible — that the accused was incapable of committing a crime — that, being insane, he could not entertain a criminal intent, and.could not therefore be guilty of crime. Besides, it is an absurdity to talk about confessing and avoiding a crime. No such plea is known in criminal jurisprudence. A confession of a crime is necessarily followed by the penalty of the law, and I know of no way of avoiding it except by executive clemency.
    The defendant was entitled to have the law on this subject correctly declared by the court to the jury. Staten v. The Slate, 1 George, 619. It was a material element in the defence. The testimony of Denton and Smith shows that insanity is hereditary with the defendant; that for a number of years he has exhibited marked symptoms of insanity; and that he has especially been laboring under a delusion in regard to his negroes, imagining that “low white people” were "tampering” with them, and “ putting deviltry in their heads.” So strong was this delusion that it had become his almost constant topic of conversation, and his apprehensions were so great that he was afraid to venture out of his house at night without a pistol, or some other weapon to protect himself. To his mind, laboring as it was under this delusion, even an ordinary act of disobedience on the part of the slave would probably have assumed the form of rebellion, and the actual resistance of the slave was doubtless overwhelming. In fact, so great was the shock produced by his conflict with the slave that, in the evening of the same day, he was, according to the testimony of Denton and Smith, and in their opinion, entirely deranged, and incapable of distinguishing right from wrong.
    A man is not responsible, if he insanely believes a certain thing to exist, and acts as he would be justified in doing if what he believes were real. 1 Bishop on Crim. Law, sec. 295; McNaghten's case, 10 Cl. F. 200; Opinion on Insane Criminals, 8 Scott N. R. 595; Oom. v. Rogers, 7 Metcalfj 500.
    The mind may be cognizant of the distinction between right and wrong, as regards the act committed, and yet, by reason of some delusion overmastering the will, there may be no. criminal intent. In the language of Mr. Erskine, “ Reason is not driven from her seat, but distraction sits down upon it, along with her, holds her trembling upon it, and frightens her from her propriety.” Roberts v. The State, 3 Nelly, 331.
    
      T. J. Wharton, attorney-general, for the State,
    Argued the case elaborately on all the errors assigned, and, in reference to the action of the court below on the instructions, be insisted that the instructions and modifications were correct; and, if any one of them were wrong, the law was correctly expounded to the jury, taking all the instructions together, and that this had been held sufficient. Mash v. The State, 36 Miss. R. 77.
   Harris, J.,

delivered the opinion of the court:

Plaintiff in error was indicted in the court below for the murder of his slave, and convicted of manslaughter. Many errors are assigned here, for reversal, which we do not deem it necessary to notice, in the view we take of this case. We shall confine our opinion to the instructions complained of.

Tbe first objection urged by tbe plaintiff in error to tbe instructions of the court related to tbe omission of tbe qualification, “ and not in necessary self-defence,” in tbe latter clause of tbe sixth instruction given for tbe State. It is evident that this was •the idea intended to be conveyed by tbe• instruction, though, perhaps, for greater certainty and accuracy, it would have beebetter to repeat tbe qualification in tbe last clause of tbe instruction.

It is further insisted that this instruction assumes that tbe killing was in a cruel and unusual manner.” While, in this respect, tbe instruction may not be philologically accurate in using tbe word “when” for “if” in tbe beginning of tbe sentence, we yet think it was so intended, and substantially conveys tbe same idea.

It is still-further urged that this instruction was erroneous because it excluded from tbe consideration of tbe jury the question, whether the blow inflicted on the negro slave ivas or not necessary to overcome the resistance of the slave to the lawful authority of the master. This qualification we think was not only material, but relates to tbe most important inquiry involved-in tbe case.

Tbe seventh instruction given for tbe State, in relation to tbe doctrine of “ correction,” by tbe master, we think was erroneous, at least, because, inapplicable to tbe facts shown in this record. There is no evidence (as tbe case is now presented by tbe record) tending to show that tbe master was intending or attempting to correct bis slave, submissive to his authority, and exceeded tbe bounds of due moderation in tbe exercise of that undoubted right.

If it is a case of resistance and rebellion, then tbe authority and power of tbe master is only to be limited by tbe necessity occasioned by unlawful resistance to lawful authority. If, without necessity, or apparent necessity, in reducing bis rebellious slave to subjection, tbe master wantonly take bis life, be would certainly be guilty of murder or manslaughter, according to tbe circumstances. Or if tbe master, by inhuman or brutal treatment, endangering tbe life or limb of the slave, induce resistance necessary on tbe part of bis slave to save bis life or limb, and tbe master, in tbe further prosecution of bis unlawful conduct, take tbe life of tbe slave in such conflict, it is equally certain that the master would be guilty of murder. But if the master, in the exercise of lawful authority, in a lawful manner, be resisted by his slave, then the master may use just such force as may be requisite to reduce his slave to obedience, even to the death of the slave, if that become necessary to preserve the master’s life, or to maintain his lawful authority.

Unconditional submission and obedience to the lawful commands and authority of the master is the imperative duty of the slave, as well as the undoubted right of the master. And the wisdom and origin of this rule is to be traced to the humane reason that upon its proper observance the happiness and welfare of both races, in that relation, necessarily depend.

The eighth instruction given for the State asserts the proposition, without qualification, that the master has no right to slay, or inflict what the law calls great bodily harm upon his slave,” &c. In self-defence, or in the exercise of necessary and lawful force in order to secure obedience, he may do both, as we have already seen.

The ninth instruction for the State refers to the doctrine of “correctionwhich we have just said is inapplicable to the facts of this case as presented in this record.

The modification of the fourth instruction given for the defendant is clearly erroneous, because it assumes, as proven, facts which the jury are to examine and determine for themselves.

The modification of the eleventh instruction given for the defendant is also erroneous, because it limits the right of the master, in subduing resistance and rebellion on the part of his slave, to the use of “lawful instruments of correction,” and prohibits the use of a staff or such means as are likely to kill or maim,” without regard to the circumstances or necessities which might demand the use of either or all to make his authority effectual.

The modification of the twelfth instruction for defendant is a clear and correct exposition of the law on the subject to which it refers.

Let the judgment be reversed, cause remanded, and venire de novo awarded.  