
    James W. Head v. The State.
    1. Homicide — Manslaughter—Constitution—Statute—Juries-Qualifications.:—, Art 1, § 13 of the constitution, and the act of 20th July, 1S70, p. 88, abolish property < qualification for jury service, and impose that duty on all citizens alike, and who are not specially exempt; but the previous laws regulating the manner of selecting, summoning and empaneling juries, and preferring objections thereto, still apply 5 unless abrogated by the constitution and said act.
    2. Grand jury — Mode of objecting — Practice.—By Rev. Code, 499, art. 131, no objection by plea or otherwise, shall be raised to empaneling the grand jury ; but the empaneling shall be conclusive evidence of its competency and qualifications - land after it is organized and charged, it is too late to prefer objections, although any person whose conduct may be the subject of inquiry or investigation “may challenge or except to the array for fraud.”
    3. Same. — By Rev. Code, 613, art. 260, the courts are instructed to regard all the modes of selecting, summoning and empaneling all jurios, as directory, merely. After they are empaneled and sworn, though it be in an irregular or informal modo, they must be deemed legal and competent, in both civil and criminal proceedings.
    4. Same. — It is the duty of the court to superintend the selection of the jury, in order that a fair and unbiased jury may be had ; and heroin, the court has a very large discretion; and the action of the circuit court in this behalf, will not be subject to reviow here, unless a violation of law, or a grossly injurious exercise oí discretion is shown. 41 Miss., 641.
    6. Declarations oe defendant — Res gestae — Confessions_The declarations of the defondant made at tho time ot shooting, as to the effect of his shot, are not “ confessions in the technical sense,” but connect themselves with the act and form part of the res gestee, and are clearly admissible in evidence.
    6.' Impeachment of testimony — Credibility—Evidence—Practice.—To discrodit a witness, it is competent that he had made discordant statements at other times and places ; hut to re-establish his credibility, or to support what he has deposed on tho trial, it is inadmissible to prove that he has made the same statements to third persons.
    7. Competency of evidence — Rights of witness — Duty of court — Practice.—It is competent for the defendant to put to the state’s witnesses the interrogatory, “ what is your avocation?” and the state has no right to interpose an ohjootion to the answer; the witnoss may decline to answer; where it would fend to criminate him or bring him into disgrace or reproach; but this is the privilege of the witness, and of which it is tho duty of the court to advise him.
    8. Instbtjctions — 'Verdict—New tbial — Peaotice.—Tho yordict of the jury will not he disturbed for any supposed error in the instructions, where it is manifestly right on the evidence, and it does not appear that the defendant was prejudiced by any ono of the charges of che court. 31 Miss., 350. Nor is it error to refuse instructions asked; whoro the true principios of law applicable to the ease, are embraced m these already given.
    9. Ebboneous instbuctions — Law oj? homicide. — The instruction that, “It is incumbent on the state to prove the allegations in the indictment, or to mako out its case. Where a killing has boon proved, the-burden of proof changes, and it is thon incumbent on the defendant to show excuse or justification, etc., and it be has failed to do this, the jury may find him guilty,” is erroneous ; the true proposition of law is, “if thore he no excuse or justification for the homicide by the defendant, shown in the evidonco adduced by the state, then he is guilty of murder, unless he has, by his evidence, proved excuse or justification.
    
      ■ 10. Deadly weapons — Pbesumptions.—The law presumes a man to intend the ¡necessary consequences of his acts; hence, the use of a deadly weapon is prima facie evidence of malice; unless it be used to disablo an adversary in tho very act of making a murderous and malicious assault, and then the presumption of malice is overcome.
    11. Self-defense — Appkehension of dangee_Every man is justified in protecting his life and limb at whatever hazard ; but the danger must be present, imminent and immediate ; a mere fear or apprehension arising from previous throats eommii. nicated, afford no excuse, unless, at the time of the killing, an effort was being made to put the threats in execution; and a real or apparent necessity existod at the time to slay, in order to prevent it.
    12. 0 ABB YINO DEADLY WEAPONS — RESPONSIBILITY FOB USING THEM. — It was not BITOT to refuse to instruct the jury, that “if an armed person (not armed with reference to a controversy with the deceased), become involved in a difficulty with deceased, and took his life with such weapon, that malice cannot be inferred, simply from the fact of the use of such weapon.” Tho mere fact that the law permits a man to hear arms for self-defense, does not in the slightest degree dimmish their responsibility for an improper use of thorn.
    Error to the circuit court of Lauderdale county. Leacii-man, J.
    At the August term, 1870, of the circuit court of Lauder-dale county, the prisoner, Head, was jointly indicted as principal, with one Smith as accessory, for the murder of Benjamin Doak. At the same term prisoner, Head, filed to said indictment his plea in abatement, alleging that the body preferring said indictment did. not constitute a legal grand jury.
    ,1st. Because they were not selected according to the requirements of the constitution and laws of the state.
    
      2d. Because they -were selected from the freeholders and householders of said county over twenty-one years of age and under sixty years, etc., whereas, by the law, no distinction shall be made among the citizens, etc., in drawing, selecting, or empaneling, etc., and prayed that said indictment be quashed. This plea was overruled by the court.
    At the same term, motion was made to quash the special venire in the case, because a number of names were drawn to serve on the same, but who were rejected and not placed on the panel, without any or sufficient cause. This motion was overruled.
    On the trial of the case, the state introdu6ed A. 0. Jackson as a witness, who says he lives in Meridian; was informed the night of April, 1870, that his step-son, Benjamin Doak, had been killed about one and a half miles from Meridian, near Mrs. Parker’s ; sent out some young men with a wagon to bring in the body; recognized it as the body of said Doak; it was lifeless when brought in ; a shot or ball had entered the body a short distance above the left nipple ; had seen Doak on the evening of that day, in apparently good health.
    W. M. Nix testified: Saw. said Doak at 5 or 6 o’clock on evening before his death; he informed witness that he was going to Mrs. Parker’s to a party; saw defendant, Head, and one William Smith, and others, same evening, all of whom said they were going to same place. About 11 o’clock same night, Jackson, step-father of Doak, requested witness and others to take a wagon and go out to Mrs. Parker’s and bring in the body of said Doak; went out and found Doak’s body fifty or sixty yards from the house, life being extinct ;• did not examine body until it was brought to Meridian ; found he had been shot about as stated by witness, Jackson.
    Wm. McDuffie went out with said Wm. Nix; found the body as stated by him; that between the body and Mrs. Parker’s house, the bushes were pretty thick, and about four feet high; that one standing at her house could not see more of a man’s body than from the breast upwards, where the body was found. Deceased was in his shirt sleeves — shirt of purple color; was about of same height as defendant, Head found no arms or weapons on or about deceased’s person; his shirt was burnt around where the ball had entered the body; that the muzzle of the weapon must have been within three or four feet of the body when it was discharged ; the night was pretty dark, had to light a candle to put the body in the wagon.
    Mary Anderson testified she was at the house of Mrs. Parker, the night Doak was killed near there; she and others were there to a party ; the moon was light; that said Doak came up about 7 o’clock; he was quite drunk; said that defendant, Head, had stolen his money, and that he, Doak, intended to kill him ; saw no arms about him ; that about an hour after this, defendant, Head and one Bill, alias f ji. Smith, came up; one Burtee told defendant that Doak was in the house and had threatened to take defendant’s life, whom he accused of stealing his money, and advised him not to go where Doak was. Defendant replied, ‘‘ I will go and see Mr. Doak about it; ” saw in one hand a pistol, and a pocket knife in the other; he went around to the other side of the house where Doak was. Doak said to defendant, let us take a walk; they went off from the house fifty or sixty yards and stopped; heard Doak say to defendant “ you stole my money, .you are a G — d d — d puke; ” defendant said “ you are another ; ” Doak replied “ you are a G — d d — d liar; ” about that time heard report of pistol, and saw the flash’ where they were standing; about ten minutes afterward heard Doak say to defendant, Head, “ you have arms and I have none, you have stole my money, I don’t want to live, kill me d — n you ; ” that she then heard the report and saw the flash of another pistol and heard the shot; saw Doak fall, and afterwards saw Head stooping over him; shortly afterward saw defendant and Mr. Smith going towards Meridian; about thirty yards from the house, a Mr. Opelt approached Head) and said halt, Jimmy; and asked him if he had killed Doak; defendant replied “I have shot red hot,” (objection was made to his answer, and overruled) witness continued, “ red hot water out of him,” Mr. Smith was standing at the corner of the house when the first shot was fired, but went to the place of difficulty before the second shot.
    On cross-examination by defendant’s counsel the witness was asked what her vocation was. The state objected to the question, and it was sustained by the court.
    J osephine Bar tee : Was at the house of Mrs. Parker on the night of the killing of Doak; he came there drunk and said Head had stolen Ms money, and that he intended to kill him. The testimony of this witness was substantially the same as that of the preceding witness. The same questions on cross-examination being asked and overruled.
    Oynthia Parker testified: Is daughter of Mrs. Parker, near whose house the killing occurred; her testimony is substantially the same in chief as that of the two. preceding witnesses. On cross-examination to the question by counsel for the defendant, “ what is your vocation, ” replied, “ I make my living by sleeping with men, that is it, if you must know how I make my living; ” that Mollie Andrews and Joe Partee, who had been sworn as witnesses for the state, were her associates. Witness was talking with Doak when Head came up to him. Doak had his coat off; saw no weapons about his person; when Head came up Doak said, Jim, “ you have gone back on me,” and placed his arm around his neck, and asked him to take a walk; Head had a pistol in his hand.
    Major Mims testified, that in April last, he was city mar-shall of Enterprise; that one or two days after the alleged killing of Doak, he arrested Head and Smith at Enterprise, as suspicious persons, and put them in prison. They inquired for a Meridian newspaper, and on being handed the Mercury, containing an account of the killing of Doak, they read it and seemed much .excited over it. In obedience to a dispatch from Meridian, he ironed and sent them to Marion jail, Lau-derdale county.
    Jennie Pullum corroborated substantiatly the testimony of the witnesses Mollie Andrews and Josephine Partee before sworn and examined.
    
      The state next introduced said William Smith : He testified, that on the night of the killing he went with Head to Mrs. Parker’s ; Head said he had had a fuss with Ben. Doak; if Doak said anything to him he intended to kill him; some one told Head that Doak was there drunk, and had said defendant had stolen his money, and not to go round where Doak was. Head said, “ I will go around and see him; I reckon there will be no fuss. ” Defendant had at the time a pistol in his hand and knife in his belt; he and witness went round to Doak, who was very drunk. Doak said to defendant, “ you have gone back on me, ” and asked defendant to take a walk with him; threw his arm around his neck, and they went off, some fifty yards; witness followed behind; they sat down on a log, and after some words, a scuffle ensued, and a pistol was fired off; Head had a pistol in his hand during the scuffle; could not see what caused the pistol to fire off; the parties then separated; witness returned to where the parties were; .they were two or three steps apart, quarreling; Doak said to defendant, “you have gone back on me, I don’t care to live, kill me, d — n you, you are armed, and I have none, shoot and be d — d, if you want to; ” defendant then fired his pistol at deceased, who then fell; defendant then said, “ die you son of a b — h. ” Witness then went towards the defendant, who said, “ don’t approach me, or I’ll shoot you ; ” defendant then said, “ is that you Bill ? ” Witness then asked, “have you killed Doak ? ” (objections to this question were made, overruled, and witness proceeded) defendant replied, “ yes, I have shot the red-hot out of him. ” Witness and defendant then came to Meridian, and next day were arrested at Enterprise. Witness stated that he had been indicted jointly with Head, as accessory, but the case to him had been dismissed in order to make a witness of him for the state.
    Defendant then introduced, as a witness, one J. P. Allen, who certified that in May or June of this year (1870), he went into the prison at Marion, in this county, where defendant and William Smith were confined; that said Smith voluntarily stated to witness that he was present at the killing of Doak, which took place in this manner: defendant and Doak took a walk into the bushes, fifty or sixtyyards oif from Mrs. Parker’s house, about nine or ten o’clock at night, in April last; that they got into a quarrel; that Doak tried, in a scuffle that ensued, to take Head’s pistol from him; that in the scuffle, after Doak had got hold of Head’s pistol, and while the same was in Doak’s hand, it was accidentally discharged, and thus Doak shot himself; that Head, the defendant, was present at this statement, and said if Smith should be a witness for him he had no feax-s if Smith would swear the truth. Smith further stated, that he was defendant’s brother-in-law, having manned his sister.
    The state then introduced as a witness, one Willis Meadow, to show that Smith’s testimony on the stand was consistent with what he had stated previous to the trial and duiing the term of court. Defendant objected to this testimony, but it was overruled by the court. Witness then testified: Was bailiff of the court; was present at an interview between the district-attorney and Smith, at the present term; district-attorney asked Smith what his testimony -would be, and to state the truth; that Smith said that if let alone he would swear the truth, and went on then, and his statement -was about the same as he had testified to on the stand; and district-attorney then said, if such was his testimony, he would dismiss as to him. ■ Defendant moved to exclude the testimony of Meadow from the jury, it being illegal; motion was overruled by the court.
    The court then gave the following instructions to the jury, on behalf of the state :
    2d. The laws of the state define murder to be the killing of a human being without the authority of law, by any means, or in any manner : 1st. When done with deliberate design to effect the death of the person killed, or of any human being; 2d. When done in the commission of an act imminently dangerous to others,- and evincing a depraved heart, regardless of human life, although without any premeditated design to effect the death' of any particular individual ; 3d. When done -without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, arson, or robbery, or in an attempt to commit such felonies.
    3d. While it is true that the defendant is entitled to the benefit of any reasonable doubt, it is also true that absolute metaphysical demonstration certainty is never required; and that Which amounts to mere probability or supposition is not what is meant by reasonable doubt.
    4-th. While it is true that every defendant is presumed to be innocent until the contrary appears, and that it is always incumbent' on the state to make out its case; yet it is also true that when the state has made out a prima facie case, that is, as in this case, when the killing has been proved, the burthen of proof changes, and it is then incumbent on the defendant to show sufficient excuse or justification for the killing; and if the defendant has failed to do this, the jury may find the defendant guilty, as charged. _
    5th. In order to justify the killing of a human being, there must be some overt act upon the part of the person slain, indicating a present intention to kill the slayer, or to do him some great personal injury; and the danger of such design being accomplished must be imminent, that is to say, immediate, pressing and unavoidable at the time of killing.
    6th. A bare fear that a man’s life may be in danger from the violence of another, however well formed, and whatever may be the character of the man feared, unaccompanied by any. overt act or demonstration, indicating an intention immmediately to kill such party, or to do him some great personal injury, will not justify him in killing the other, by Way of precaution, if there is no actual danger at the time of killing. Both the design to commit a felony, or to do such person some great personal injury, and the imminency of tho danger of such design being carried into execution, must both exist, to justify the-man then in fear of his life, to kill; and this imminency of danger means danger at the time of killing.
    
      7th. To make a homicide justifiable on the ground of self-defense, the danger must be actual, present and urgent; or the homicide must be committed under such circumstances as will afford reasonable ground to the party charged, to apprehend a design to' commit a felony, or to do him some great bodily harm, and that there is imminent danger of such design being accomplished; hence, the mere fear, apprehension or belief, however sincerely entertained by one man that another designs to take his life, will not excuse or justify the killing of the latter by the former.
    8th. When the danger is neither real nor urgent, to render a homicide excusable or justifiable within the meaning of the-law, there must be at least some attempt to execute the apprehended design, or there must be reasonable ground to apprehend that such design will be accomplished, and the danger of execution imminent. A person may have a lively apprehension that his life is in danger, and believe that the apprehension is great and reasonable; but if he act upon them, and take the life of a human being, he does so at his peril; he is not the final judge of the reasonableness of Ms grounds of belief upon which he acted, but that is a question alone for the jury to determine.
    9 th. Mere threats to take the life of a party, or to do him some great bodily harm, furnish no justification or excuse for the commission of a homicide, unless from the character of the party making such threats; and the circumstances under which they were made., they are calculated to put the party threatened' in a just and well-grownded fear that he is in danger of his life, or of some great bodily harm, and then to excuse or justify the homicide, the party making such threats must oiler to put them in execution at the time of the killing.
    10th. Unless the jury believe, from the evidence, that the defendant, at the time he killed the deceased, was in imminent danger of his life, or of some great bodily harm, or th at he had a well-grounded apprehension of great danger to Ms life or limb, from some overt act on the part of the deceased, made at the time, and that he acted upon such at the moment of the killing, then he was not justified in taking the life of the deceased; and if the jury believe, from the evidence, that the defendant did not act at the moment he killed the deceased, from such well-grounded fear of immediate and pressing danger of his life or limb, they may find him guilty as charged in the indictment.
    11th. Malice is an essential ingredient in the crime of murder, but malice may be either express or implied, and when there is no direct, positive and express proof of malice, it may yet, in many cases, be inferred from other circumstances in the case, and the jury may alwajrs infer malice from the deliberate use of a deadly weapon.
    12th. While malice is necessary to constitute the crime of murder, it yet matters not how short a time before the commission of the oifense, the malicious purpose .was conceived, and the jury may look alone to the instrument used, and to the manner of using it, as evidence of the malicious intent, without any proof of previous malice.
    13th. The jury, in arriving at a verdict, should look to all the evidence in the case as a whole, and if they believe the material and substantial parts are sufficiently proved to establish the guilt of the defendant, they may make up their verdict upon the proof of such facts alone, and may wholly disregard any variance or contradiction in the testimony of the witness about matters which are not, in the opinion of the jury, material or necessary to the .issue.
    14th. Manslaughter may be defined by the laws of the state, to be the killing of a human being without malice, in the heat of passion, but in a cruel or unusual manner, without authority of law, and not in necessary self-defense ; or the killing of another in the heat of passion' without malice, by the use of a dangerous weapon, without authority of law, and not in necessary self-defense.
    15th. The testimony of the witnesses introduced by the state, not being impeached, and no evidence being offered' by the defendant to impeach them, their evidence is compe. tent for tbe state, and the jury cannot reject it, but should give it such weight as admissible evidence is entitled to under all the circumstances, in which it was offered to the jury.
    To all of which instructions the defendant objected,> and excepted at the time.
    The defendant then asked the courtto give sundry instructions to the jury in his behalf, which were given, to the number of fifteen; but the following were refused, which action of the court, so refusing, defendant there and then excepted.
    1st. The courtis asked to instruct the jury, that under the evidence in this cause they are authorized to find the defendant “ not guilty.”
    2d. The jury should not convict the defendant upon the testimony of an accomplice, or accessory, alone, and without corroboration in some point material to the issue.
    3d. That by the laws of this state each man has the right to bear arms about his person, and if Head had on his person a deadly weapon, but had not armed himself for the purpose of using the same against Doak or any other person-, unless it became necessary in his self-defense, and being thus armed he became involved in a difficulty with Doak, and took the life of Doak with such weapon; then malice cannot be inferred simply from the, fact of his- using such deadly weapon,
    4th. That it is the actual - exclusion of every other hypothesis which invests mere circumstances with the force of truth.
    5th. That mere circumstances will not authorize a conviction, unless they are so strong as to exclude every other hypothesis but that of the defendant’s guilt.
    6th. That although the jury may be satisfied, from the evidence, that the prisoner killed the deceased, yet if the jury are satisfied, from the evidence, that the prisoner had reasonable grounds to apprehend a design on the part of the deceased to take the prisoner’s life, or to do him some great bodily harm, or great personal injury, and 'that there' was imminent danger of such design being accomplished, then they must find the prisoner not guilty.
    7th. That the evidence must exclude every hypothesis or supposition except that of the guilt of the prisoner; and every conclusive form of evidence must be consistent with his guilt, and inconsistent with his innocence, or they must find the prisoner not guilty.
    8th. That it devolves upon the state to make out to the satisfaction of the jury, all the material allegations of the indictment; that mere preponderance of evidence in favor of the state will not authorize a conviction, unless such preponderance satisfies the jury to a moral certainty, of the guilt' of the prisoner ; and if the jury are not satisfied, from the evidence, to a moral certainty of the truth of every material allegation in the indictment, they must find the prisoner not guilty.
    9th. That unless the evidence against the defendant should be such as to exclude to a moral certainty every supposition but that of his guilt of the offense imputed to him, then the jury must find him not guilty.
    11th. That the jury must be satisfied from the evidence, beyond a reasonable doubt, that the prisoner killed the deceased, and the killing was done with malice aforethought; that is, that it was a premeditated killing, or they must find the prisoner not guilty.
    Whereupon the jury returned the following verdict, indorsed upon the instructions which had been given them, to-wit: “We, the jury, find the defendant guilty of. manslaughter in the first decree;” the verdict not being signed by any one as foreman of the jury, or by any member of the jury.
    A motion for a new trial was overruled, whereupon the prisoner was sentenced' to the penitentiary for a term of seven years. To reverse this judgment the prisoner- sued out this writ of error, and for error-assign the following :
    
      1st.' The court below erred in not sustaining tire plea filed to the legality of the grand j ury which preferred the indictment ; and also, in overruling the motion to quash the indictment for the reasons set forth in the plea, and in the motion to quash.
    2d. The court erred in not sustaining the plea to the special venire.
    3d. The court erred in not quashing the special venire.
    4th. The court erred in its ruling on the plea to quash the special venire.
    5th. The court erred in refusing a continuance of the case.
    6th. the court erred in its ruling upon the admissibility of evidence.
    7th. The court erred in admitting the statement and confession of the defendant, without a proper predicate showing they were free and voluntary.
    8th. The court erred in not permitting the defendant to prove what was the “ vocation ” of certain witnesses, “ their business,” how u they made a living,”- and who were their “ associates.”
    9th. The court erred in admitting the testimony of the witness Meadow. .
    10th. The court erred in admitting illegal evidence to corroborate or sustain the evidence of witness Smith.
    11th. The court erred in giving the several charges, on the part of the state.
    12th. The court erred in refusing the several chargs asked for by the defendant.
    13th. The court erred in pronouncing sentence on the verdict, or what purpoted to be a verdict, of the jury.
    14th. The court erred in pronouncing sentence upon, the defendant without asking him if he had anything to say why -sentence should not .be pronounced.
    15th. The court erred in pronouncing sentence in the absence of the prisoner.
    16th. The court erred in refusing a new trial of the cause.
    17th. The court erred in allowing the state to oject to answers by witness Smith, on the grounds that such answers would criminate him.
    
      Ooleman <& JSoierts, for plaintiff in error.
    The court erred in overruling the- plea in abatement, and the motion to quash the indictment. In support of this plea and this motion, see act of legislature, July 20th, 1870, p. 88; 1 Lead. Grim. Oases, 267, and cases there, cited. The constitution of 1869 abrogated all qualifications previously existing as to grand or petit jurors. See, also, Barney v. the State, 82 Miss., 73. The record shows that the grand jury who found the indictment were not selected from the entire class of persons made eligible as such. Const., artl, sec. 13; act of July 20th, 1870, p. 88; McQuillen v. the State, 8 S. & M., 596,607; Portis v. the State, 23 Miss., 580; Stokes et al. v. the State, 24 Miss,, 623; Leathers v. the State, 26 Miss., 77.
    The court ought to have quashed the special venire. Rev. Code, 620, art. 205, which prescribes the manner of drawing the venire, allows the officer no discretion to throw out the names of any person drawn by him; and the statute of 1870, already cited, page 88, provides that no distinction shall be made among citizens in selecting, juries. See Boles v. the State, 24 Miss., 454.
    If the court erred, as we think it did, in these rulings, the prisoneris entitled to his discharge. See Constitution of 1869, art. 1, sec. 5; Hurt v. the State, 25 Miss., 378; Slaughter v. the State, 26 Humph., 410; 22 U. S. Dig., 83, § 19 ; 20 U. S. Dig., 124, § 14; 11 Iowa, 350; 18 U. S. Dig, 93, § 5; 4 Gal., 376; 13 Ú. S. Dig., 71, § 1; 1 Swann, Tenn., 14, 35 ; 2 Law Times Dig., 25.
    On the question of the admission of the confessions of defendant, see 40 Ala., 58; State v. Rice Miller, Goodloe, and Patrick, and State v. Davies, 17 Ala., 414; also U. S. Grim. Dig., 160; Bush N. C., 239.
    That the witnesses should have answered the questions put to them as to what was their respective avocations, etc., see 1 Greenl. Ev., § 454-5-6-7-8-9, and note ; and even if the answer would criminate the witness, the privilege to decline is merely personal with the witness. 37 Miss., 402-3-4.
    The illegality of the testimony of the witness, Willis Meadow, seems too clear to require either argument or authority.
    The charges given on behalf of the state were erroneous, especially charge number four. Here the court invades the province of the jury, by assuming that the killing was done by defendant, ignores the venue altogether, and tells the jury they may find the defendant guilty. This charge also announces an erroneous principle of law. The true principle is, that when the killing is proved, the burden of proof is changed, unless the evidence which proves the killing also furnishes the excuse. 28 Ala., 89; 37 Ala., 142; McDaniel v. the State, 8 S. & M., 117.
    The charge number five is likewise erroneous. The principle governing is,- u the circumstances must be such as to create a reasonable belief in the mind that such necessity exist.” 26 Ala., 23 ; Carroll v. the State, 17 Ala., 587. And the conclusion of the sixth charge is similarly erroneous.
    Charges eight, nine, ten are erroneous, especially the latter, which assumes the killing by the defendant, and ignores the venue of the killing altogether. It does not leave it to the jury to determine whether the defendant killed the deceased or not, or under what circumstances, or when the killing may have occured.
    Charge thirteen deprives the defendant of the benefit of a reasonable doubt. What constitutes murder is a question of law, the belief of the jury is another question. They should be informed what constitues sufficient material and substantial facts ; the'jury are not competent to deiennine what facts are material and necessary to the issue.
    Charge fifteen invades the province of the jury, in assuming that the witnesses for the state were not impeached and that no evidence was offered to impeach them, and declaring that the evidence for the state was competent. The witness, Smith, was directly impeached by proving statements made out of court, totally at variance with his sworn testimony? and which he swore he never made. Besides, this charge is in direct conflict with charge nine, given at defendant’s request, and the court cannot say which charge may have influenced the jury.
    The court erred in refusing the first charge refused by the court on the part of defendant. It does not assume that in giving it, the court authorize the jury to find “ net guilty ; ” it declares to the jury that, by virtue of authority vested in them, they have the right to find “ not guilty,” not that they are authorized by the court to do so.
    In support of the second charge refused, see 1 Greenl. Ev., § 380-1. In support ©f the third charge refused, see ex parte Wray, 30 Miss., 679, 680; Cotton’ v. the State, 31 Miss., 504.
    In support of the fourth charge refused,' see Algheri v. the State, 25 Miss., 584.
    In support of the fifth charge refused, see Mickle v. the State, 27 Ala., 20 ; under the sixth charge refused, see Cotton v. the State, 31 Miss., 504; under the seventh, Commonwealth v. McKee, 1 Lead. Grim. Cases, 295; Commonwealth v. York, ib., 322, and'dissenting opinion of Wild, J.
    In case of felony, it is well established that the record must show that the prisoner was present in court when sentence was pronounced, and was asked by the court if he had anything to say why sentence should not be pronounced on him. 1 Parker’s Grim. Rep., 474, citing Blackstone and Chitty in its support.
    
      J. S. Morris, attorney-general.
    The first question presented by this record is, can excep- ‘ tion be taken to a grand jury after it was sworn and empaneled? This question, it is submitted, is entirely disposed of by the statute. Rev. Code of 1857,499, art. 131, and the act of the legislature of 1870.
    And although the constitution of 1869 may have changed the qualifications for grand jurors, it is submitted that the rule and practice, prescribing the time and manner of exception to a grand jury, remain unchanged.
    
      But suppose that this grand jury were in fact an exception to the general rule, and that objection could be taken and considered under a plea in abatement or motion to quash the indictment in this case, or by motion in arrest of judgment (which is denied), was this grand jury, in fact, illegally constituted ? The only ground relied on to establish its illegal constitution is the assumption by counsel that its members were not selected “from the entire body of persons liable to jury service in the county,” but from.“householders and freeholders ” alone; and to prove this, a copy of the order of-the board of ^ípervisors of the county, appointing the grand jurors, is embodied in the bill of exceptions, and quoted, or rather misquoted, as showing that such was the fact. And all the arguments and authorities urged upon this point, are made to depend upon this assumption and misquotation of that order.
    It is most remarkable, that learned counsel should be betrayed into such a mistake. The order of the board of supervisors shows no such thing, but the very reverse. The order is as follows :
    “ Ordered, by the court that the following named persons be, and are hereby appointed grand jurors for the August term of the circuit court of said county,” etc. Not one word is said about freeholders or householders, or any other qualification or description, except that they are described by their names and as persons of the respective-“ beats ” from which they were respectively selected. Hence, all this part of the assignment of errors vanishes, and the arguments and citations of authority have no application.
    It is true that the clerk of the circuit court in the venire fcooias, and the entry on ,the minutes, refers to the persons selected as “ free or householders ;” but this is mere form, resulting probably from the habit and .practice in his office under the former statute, and may be likened to the habiti still very common, of describing defendants in indictments by the addition of “ yeoman,” “ laborer,” or “ spinster,” after the old forms, but without any reference to the facts. Or it may have actually occurred,.that although selected from all the competent persons in the county, those selected were, by accident,' all freeholders or householders. In any event, as the record does not show any misconduct in the sefection of the members of the grand jury by the board of supervisors, or by the circuit court in examining, securing, elécting or empaneling them, the grand jury, even if subject to exception and objection in the manner and at the time it was adopted in this case, must be presumed to be a good, regular and valid grand jury. In support of this position, see the following familiar cases: Dowliifg v. the State, 5 S. & M., 664; Oody v. the State, 3 How., 27; Thompson v. the State, 5 How., 20 ; Easterling v. the State, 35 Miss., 210 ; 2 Porter, Ala., 100; 3 Grah. & Waterman on New Trials, 717 ; Stewart v. State, 1 Ohio, 66.
    2d. The next question is as to allowing the counsel for the defense to ask female witnesses for the state, on cross-examination, questions respecting their own “occupation” and “ associations.” These questions are shown from the statements of the witnesses in the case, and from all the circumstances, to have been asked solely for the purpose of degrading, embarrassing and exposing the witnesses under cross-examination to a criminal prosecution; and, whether asked for such a purpose or not, the question necessarily would have this tendency and effect, besides the questions were totally irrelevant to the issue before the jury; and under these circumstances it was the duty of the court to interfere, even without objection, to prevent the questions being answered. See U. S. v. Dickinson, 2 McLean, 325 ; TJ. S. v. Van Sickle, ib., 219 ; Johnson v. People, 1 Com., 379 ; Howell v. Com., 5 Gratt., 664 ; Eoscoe’s JVisi Prims Ev., 175; Com. v. Churchill, 11 Mete. Mass., 538; Com. v. Moore, 3 Pick., 194; Smith v. Casths, 1 Gray, 112; People v. Mather, 4 Wend., 251, 257; Barnes v. State, 19 Conn., 398.
    3d. As to the instructions for the state, objected to because bearing on the weight of evidence, and thus “ invading the province of the jury.” The objection in this case must cert-ainly be disallowed, as falling within the principle laid down to the case of Wesley v. the State, 37 Miss., 350.
    4th. In respect to objections to other instructions, it is sufficient to say that all the instructions, when construed together as a whole, contain a fair and correct exposition of the law applicable to the case; and this is all the defendant had a right to claim. Childress v. Ford, 10 S. & M., 29 ; Mask v. the State, 36 Miss., 91, 94, and authorities cited in the opinion of the court.
    '5th. The verdict and judgment are clearly right and proper under the proof. Indeed, it can scarcely be denied that the sentence is far less severe than the accused could have reasonably expected considering the magnitude of his crime, and the facts and circumstances under which it was perpetrated, and even “ error in instructing the jury, is no ground for a new trial, if it is manifest that the verdict is correct.” Cameron v. Watson, 40 Miss., 191. And a righteous verdict cures the error of admitting illegal testimony. Mary Washington v. McIntosh, 37 -Miss., 660 ; Josephine v. State, 39 Miss., 614.
   Simeall, J.:

It is claimed first, that the indictment ought to have been quashed, because the grand jury was not constituted in accordance with the law, to-wit: Art. 1, sec. 13, of the constitution, and the, act of July 20th, 1870, pamphlet, page 88. The combined effect of these provisions is to abolish property qualifications for jury service, and impose the duty on all citizens alike, who are electors, and not within some special exemption. In all other respects, as to the mode of selecting-,' summoning, empaneling-, and preferring objections, the previous laws not abrogated by the constitution and act of 1870 apply.

The judicial records of the country . furnish mortifying-testimony, that many culprits have gone free, unwhipt of justice, because of technical' exceptions taken to the grand jury who preferred the indictments. For remedy for this sore greviance, the legislature in 1857, made two important amendments of the law: 1st. No objection by plea or otherwise, shall be raised to empaneling the grand jury; but the empanelment shall be conclusive evidence of its competency and qualifications. Eev. Code, 499, art. 131. When the body has been organized, sworn and charged, it is too late to prefer objections. Any person interested, whose conduct may be the subject of its inquiry and investigation, “may challenge or except to the array for fraud.” This completely cuts off the plea in abatement, challenging the fitness and qualifications of the body or of any of its members.

2d. Art. 250, Eev. Code, 613, instructs the courts to regard all the laws of the state relating to the mode of selecting, drawing, summoning and empaneling all juries as “directory” merely; and after they are empaneled and sworn, though in an irregular and informal mode, they must be esteemed legal, and competent to perform all the duties belonging to juries; and this applies in both civil and criminal proceedings — to grand and petit juries. The cases referred to by counsel for the plaintiff in error, occurred prior to the adoption of the Eev. Code, and doubtless suggested to the legislature the necessity of a reformation of the law. It follows that the exception -taken to the grand jury ought not to prevail.

8d. It is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons ; large discretion must be confided to the court in the performance of this duty; nor will the action of the circuit court in this behalf be the subject of review here, unless some violation of law is involved, or a gross and injurious . exercise of discretion is shown. The primary object is to insure a fair, unbiased jury. Brown v. Gilliam, ex’r, 4S Miss., 641. The objection to the special venire is not well taken.

4th. It is next urged that the confession of the prisoner ought not to have been admitted, because he was not warned of the probable consequences, and it did not appear to have been voluntary, etc. There does not appear in the record such formal confession as the cases cited by counsel refer to. The witness, who was within a few paces of the parties at the time of the shooting, and ran and heard vrhat was done and said, deposes as to the response of the defendant, as to the effect of his shot. This response was heard by a female witness, some thirty or forty yards off. The statement connects itself with the act, and forms part of the res gestee. It was clearly admissible.

Por the purpose of discrediting a witness, it is competent {.o prove that he made discordant statements, at other times and places, but to re-establish credibility, or to support what he has deposed on the trial, it is inadmissible to prove that he has made substantially the same statements, to a third person. Many years ago the British courts received such testimony; afterwards its propriety was doubted, and finally repudiated. The weight .of authority and reason is against it. Parker’s case, 3 Doug., 242; 1 Stark. Ev., 187; Brazier’s case, 1 East, 444; Barb., 410; 34 Wend., 465; 13 Vern, 208; Conrad v. Ariffey, 11 How. S. C., 490. The testimony of the witness Meadow, detailing the narrative made by the witness Smith to him, ought to have been excluded.

4th. The interrogatories put to the female witnesses were-doubtless for the purpose of presenting them as infamous characters and casting more or less suspicion on their testimony. We think the questions were legitimate. The witness may decline to answer the question, which may tend to criminate him or her, or bring them into disgrace and reproach; but this.is the privilege of the witness. It is the duty of the court to advise the witness of this privilege, to answer or not. The state cannot interpose the objection, nor does it follow if these females were of the character shadowed forth, in the testimony, that they must be discredited. The jury is the judge of the credibility of a witness. If the law esteemed a class of persons untruthful, because of the vocation, reprehensible and immoral, it would exclude them alto, gether. The manner, freedom from bias, consistency and general bearing and deportment of a witness, are all subject to the scrutiny of the jury, affording generally abundant indications for a proper weight of testimony..

We esteem it not impertinent, to venture the suggestion to those representing the public justice in important trials, not to raise and press objections to testimony, especially on collateral and not vital points, unless clearly inadmissible. It is manifest that the answer to the interrogatories objected to by the state attorney, wouldliave had no material influence on the issue before the jury. The state has no right Lo exclude the answer, if the witness is unwilling to give it. In such cases it is the duty of the court to admonish the witness of the situation and privilege.

We would not disturb a verdict for any supposed error in the instructions, when the verdict is 'manifestly right on the evidence, and it does not appear that the accused was prejudiced by any one of the charges of the court. Wesley v. State, 37 Miss., 350. Nor has the accused a just ground to complain, if prayers for instruction are denied, when the true principle of law is embraced in those already granted. The court should charge the jury on all the points included in the written prayers; provided, they are applicable to the case. When the law upon a particular subject has been fully stated to the jury, the court may well decline to go over the same ground again, at the instance of either party.

There is some confusion in the fourth instruction granted ior the state. It- is incumbent on the state to prove the allegations of the indictment, or as it is phrased in the instruction, “make out its case.” The burden of proof rests upon the prosecution throughout the trial. “When a killing has been proved, the burden of proof changes, and it is then incumbent on the defendant to show excuse, or justification, etc., and if he has failed to do this, the jury may find him guilty.” Such is its language. But suppose the excuse or justification arise out of the facts attending the killing, brought out in the state’s evidence, must the jury convict? The true proposition of law is, if there be no excuse or justi* fication for the homicide by the accused, shown in the evidence adduced by the state, then the accused is guilty of murder, unless he has, by his evidence, proved excuse or justification. Generally, the circumstances immediately surrounding and attending a homicide, give it complexion as criminal, excusable or justifiable, and the proof of these fixes its character. These circumstances.generally, as in this case, are developed by the testimony for the state, whilst establishing the main part of the killing. It tends to mislead the jury and involve them in confusion, by separating the single fact of death by violence at the hands of the accused from the other concomitant circumstances, and deducing from the killing alone, a presumption as to its character.

The use of a deadly weapon is prima facie evidence of« malice, because a man must be taken to intend the neces-| sary and usual consequences of his act. To shoot or stab, oij strike with a bludgeon, indicates a purpose to take life ; but if the one or the other be employed to disable an adversary, in the very act of making a murderous and malicious assault then the presumption is overcome. The proof of the use, in the case hypothecated, of the deadly weapon, with attending circumstances, would show the excuse. Where the circumstances of the killing are known, and in evidence to the jury, the deductions and inferences should be made from all the facts. Where the death ensues from a gun-shot wound, or a stab, or other violent means, but no witness saw the act done, and the circumstances are unknown and unproved by the state, here the mode of killing raises a strong presumption of malice. If the act is traced to the accused as the guilty agent, that presumption continues until he overcomes it by evidence showing excuse or justification. If he offers no explanation of the killing 5 if he fails to show that it was an act of necessity, done se defmiendo, the inference of malice, from the use of the deadly weapon, remains. What we mean to affirm is, that where the mode, manner and circumstances of the killing are in evidence to the jury (although life was taken by a deadly weapon), the character of the act, whether criminal or not, and then its grade, whether murder or manslaughter, or whether excusable or not, is to be gathered from the entire body of the testimony. Tó use a deadly weapon justifies the inference, that the accused meant to kill, but whether he was excusable, on the ground of se defendeudo, depends on the facts and circumstances with which he was environed at the time. The law'esteems the-life and limb and bodily safety of every human being equal; therefore, every man may protect his life and limb at whatever hazard, but the danger must be present, immediate and imminent. A fear or apprehension, arising from previous threats, which have been communicated, afford no excuse, none whatever, unless at the time of the killing ah effort was being made to ,• carry the threat into execution, and a necessity, apparent or real, existed at the time to slay, in order to prevent it. We discover no substantial objection to the other instructions granted for the state.

The first instruction refused, at the prayer of the deceased, invited the court to charge the jury as to the weight or effect of testimony, and was properly refused.

The second instruction, whilst true as an abstract proposition, was inapplicable to the case. The accomplice was supported in many, if not all of the material parts of his testimony. The female-witnesses, one of them especially, proved the shooting. It was by no means a case where conviction depended on the unsupported testimony of an accomplice.

The third instruction was also properly refused. The fact that a man is permitted by law to carry arms, and the further fact that many persons do bear about on their persons deadly weapons, do not, in the slightest degree, diminish their responsibility for an improper use of them. We cannot, and do not sanction the proposition, that because the evil habit to some extent prevails of carrying deadly weapons, and the risk is thereby increased of an unlawful use of them, that, therefore, the law should look with more tenderness upon homicides committed by this class of persons. The excuse for the practice is, that it is done for self-protection. If, however, instead of this, they are used for offense, and upon persons unarmed, there is no reason, grounded either in correct sentiment or in the principles of law, which, would demand any relaxation or loosening of the criminal jurisprudence. It was always the doctrine of the law that if aman arms himself for the fight, and draws his adversary on to the conflict, and slay him, it is murder. In what better light does h'e stand, who is habitually armed, and upon a sudden quarrel and fight with an unarmed adversary, slay him, that is, if he push the quarrel on and, invite the blow. A previous arming, as preparation for a renconter, evinces deliberation, and is proof of express malice. But we repudiate, with the circuit court, the idea contained in this instruction, “ that if an armed person (not with reference to a controversy with the deceased), become involved in a difficulty with deceased, and took his life with such weapon, “ that malice cannot be inferred simply from the fact of the use of such weapon.” This would give very large immunity to those who habitually„go armed, and would apply a different measure of responsibility for the results and consequences of their difficulties, from those who go about unarmed. We have said that the law; infers from the use of a deadly weapon, an intent to kill; and if the facts and circumstances do not show excuse and justification, it is criminal and malicious; if the weapon be drawn-from its accustomed resting place in the belt or pocket, it in no degree mitigates or relieves the' act. The question still1 remains — was the homicide necessary • was there excuse or justification ?

The court had .already fully instructed the jury as to the character of doubt which will warrant an acquittal, and might properly decline the prayer of defendant on that subject, as presenting nothing additional to guide the jury. The samé remark applies to the next succeeding instruction, which had been fully explained to the jury, and in much ampler terms.The next two charges asked, contain correct principles, and ought to have been given. The principles in the last three charges refused, are embraced in others which were given and it was not error to decline to repeat them.

For the errors herein indicated, the judgment is reversed'., and cause remanded for a scire facias.  