
    John and Jesse Lewis v. The State.
    1. Criminal Law. Empanelling jury. Court may, for cause, reject a juror, before the jury is sworn. The Court, even in a capital case, has the discretionary power to reject a juror, before being sworn, for improper conduct, or other sufficient cause.
    2. Same. Same. Number of the panel after a juror is discharged. If, after the .jury in a criminal case is selected, one of the number is discharged by the Court, the prisoner is not entitled to a full panel of jurors out of which to fill the vacancy. He is only entitled to the number allowed if the juror had not been selected.
    3 Same. Peace officers may arrest on suspicion. Code, § 5037. Murder. By the common law, a peace officer may make an arrest on a charge of felony, upon a reasonable cause of suspicion, without a warrant, although it should afterwards turn out that no felony had in fact been committed; and if such officer is slain in attempting to make the arrest, by the party charged, it will be murder.
    4. Same. Same. Not bound to make known the cause of arrest. When a party is taken in the commission of an offence, or upon fresh pursuit, or when the officer is violently assaulted upon coming up with the accused the officer is not required to make known his authority or the cause of the arrest, and if he is slain it is murder.
    6. Same. Same. Same. Code, $ 5038. This principle of the common law is not changed by force of the word “escape” used in the Code. It is not here used in its technical, but in its popular sense, which is to “flee from,” &c.
    
    6. Same. Murder in the first degree. Premeditation. The distinctive characteristic of murder in the first degree is premeditation. Premeditation involves a previously formed design, or actual intention to kill. But such design, or intention, maybe conceived and deliberately formed in an instant. It is not necessary that it should have been conceived, or have pre-existed, in the mind any definite period of time anterior to its execution. The length of time is not of the essence of this constituent of the offence.
    7. Same. Same. Mitigating circumstances. Commutation of punishment. Code, ?¿ 5257. Section 5257 of the Code changes the rule by which the opinion of the jury finding mitigating circumstances was made obligatory on the Court; and leaves it, upon the recommendation of the jury, in the sound discretion of the Court, upon an unbiased and discriminating survey of the whole case, to give effect to that recommendation, or to refuse to do so, as the ends of public justice may seem to dictate.
    FROM ANDERSON.
    The plaintiffs in error were indicted and found guilty of murder in the first degree, before Judge Brown. The jury found that there were mitigating circumstances, and recommended the prisoners to the mercy of the Court. His Honor, the Circuit Judge, refused to commute the punishment, and the prisoners appealed in error. After the opinion of the Court was delivered, the counsel for the prisoners presented a petition for a re-hearing. The principal grounds relied on in the petition will be found at the conclusion of the brief of the counsel. The Court refused the application for a re-hearing.
    Heiskell & Trigs, for the plaintiffs in error, argued: 
    
    1st. The juror John C. McKamey, having undergone the usual examination to test his competency, and the Court having decided that he was a competent juror, and put him to the prisoners, the right of the prisoners to elect or challenge the juror immediately attached; and it was error to withdraw him from them upon the suggestion of the Attorney General. The degree of the juror’s intoxication, if he was so in fact, was not shown to be such as to render him incapable of attending to business, or performing the duties of a juror. It is evident that he could not have been much under the influence of ardent spirits, else the Court would have observed it in the original examination.
    2d. The jurors Alfred Duncan, Alex. L. G-albreath, - Farmer, and Thomas Yarnell showed themselves clearly incompetent, and should have been rejected. The jury have a most important duty to perform, having in their hands the life, or liberty of the prisoner; and it is not only desirable, but a matter of the highest importance, that they should, if possible, stand indifferent between the accused and the State. It is the constitutional right of the accused to be tried by an impartial jury, and the ordinary claims of humanity demand that prejudice — an unfit associate of justice — shall have no part in determining his fate. Why has the law provided that the accused shall be entitled to challenge, peremptorily, a certain number of jurors; and that, for certain existing causes, the jurors shall be rejected Avithout being put to the accused ? It is for the purpose of securing to the accused, if possible, what the common law, common sense, common justice, and the Constitution would all seem to demand — -an impartial jury. It is not a matter of favor, but of right, that he shall have a panel of unprejudiced and impartial men by whom to be tried. If the jurors, or any of them, have formed or expressed an opinion as to the guilt or innocence of the accused, it is eAÚdent_ they cannot be impartial; and if one or more who, on that account, would be incompetent, should be put to the accused, and he be compelled to challenge, the means provided by laAV to secure that object would become ineffectual. His having formed or expressed an opinion is what disqualifies the juror ; for the law in such case presumes that there is partiality and prejudice operating on his mind. It is not contended that an opinion formed upon any’ data, no matter what, is sufficient to disqualify the juror; but, on the other hand, if the data upon which the opinion is formed be reasonable, and relied on as true, then the disqualification attaches; for in such case the prejttdice exists; the juror, as it is expressed in some of the decisions of this Court, has “made up his mind,” and “ayíII listen with more favor to that testimony which confirms, than to that which would change his opinion. It is not to be expected that he will Aveigh the testimony as well as one whose opinion is not made up in the case.” It is the character of the opinion formed in the mind, and not the source from Avhich it is derived, that furnishes the test of the juror’s competency. And so we understand the rule to he settled in the case of Moses v. The State, 10 Hum., 456. In delivering the opinion of the Court in that case, his Honor, Judge McKinney remarks, “ that in testing the fitness or competency of a juror,, the character of the impression made upon his mind, and the influence upon his conduct likely to be produced by it, are of much greater consequence than the source whence such impression may have been derived.” In that ease, the juror had formed an opinion from rumor, and did not know whether his information was derived from any of the witnesses or persons who knew the facts, but said he could do justice to the prisoner, if the proof turned out differently from rumor. The Court decided that the juror was not indifferent, and was, therefore, liable to challenge for cause, and reversed the judgment of the Court below. The case in 2 Swan, 585, does not eonflict with this view.
    A comparison of that case (in 10 Hum.) with the present, will disclose a great preponderance against the fitness or competency of at least two of the jurors mentioned: above.
    Alfred Duncan states explicitly that he had formed an opinion from rumor, and that he had heard persons tell over the circumstances of the case, and he believed them, and formed his opinion. It is true, he states, that those persons did not profess to know the facts except from information; and he (the juror) did not know whether they professed to state them from mere rumor, or by hearing them stated by some one who professed to know them. But the ignorance of the juror as to the source whence his informants derived their information cannot, surely, alter or change the character of the impression made upon his mind, if he believed in the truth of the information communicated to him, as he states he did.
    This presents a very strong case, and of itself would seem sufficient to reverse this judgment, when tested by the ruling of this Court in the case referred to in 10 Hum. But the ruling of the Court below upon the competency of the juror, Thomas Yarnell, is, if such a thing be possible, more in conflict with the rule established in such cases, than that before named, in reference to Duncan. Yarnell had made up an opinion in the case, from hearing men talk about it, who told him the facts — they talked like they believed what they said, and he believed what they said, and made up his opinion. Whether the men who told him the facts wrere witnesses, or persons who knew them, does not appear — nor is it material. It is enough that the facts were detailed to him, and he relied upon them as being true, and so formed his opinion. This statement of the juror discloses no “ mere hypothetical opinion, or vague impression,” which may be easily removed by evidence; but it evinces a “ positive and deliberate opinion, formed upon a rational ground of belief.” The rules established by this Court for testing the competency of jurors, embrace within their principles the cases above named, if not also that of the other jurors, Gralbreath and Farmer. McQ-owan v. The State, 9 Yer., 192; Moses v. The State, 10 Hum., 456 ; Mor-ses v. The State, 11 Hum., 232.
    If, however, the exception to the jurors above named should not fall within the principles of the rules, or either of them,, as established in the cases cited, their examination, at least, shows that it was doubtful whether they had formed such an opinion as would render them unfit to be jurors, and on that ground they should have been rejected. Henry v. The State, 4 Hum., 210.
    3d. The Court erred in discharging the juror Landrum, after the panel had been made up, without an examination of him, or calling upon him for an explanation of his conduct,. The parties making the affidavit upon which the Court acted, state that by nods, shaking of the head, &e., the juror made unmistakable signals to Warrick to refuse certain jurors ten.-dered, and to accept others who were also tendered.
    The purpose for which the nods, &c., were made by the juror might have been mistaken by the affiants, and upon an examination of the juror, and hearing his explanation of it, the Court might have become satisfied that they proceeded from no corrupt motive.
    
      But granting that the Court did right in discharging the juror, then we insist that the prisoners were entitled to their full number of challenges in the selection of another, and that the Court erred in refusing to allow that number to them.
    In the case of Grarner v. The State, 5 Yer., 160, one of the jurors became sick during the trial, and had to be withdrawn, and another was called in his place. The defendant insisted on his right of challenge, and did challenge the juror; but having exhausted his challenges in the first selection, the Court overruled his challenge, and directed the juror to be sworn. This Court decided that the Court below erred, and that the defendant was entitled to the whole number of challenges applicable to the offence.
    In that case, the jury had been sworn; and in that respect it differs from the present case. But it is submitted that the reasoning in Garner’s case will apply with equal force to the one under consideration.
    In both cases the jury was made up, and that is the fact of importance in testing the application of the rule contended for on behalf of the plaintiffs in error in this case. Out of the number of jurors submitted to the prisoners, they had elected twelve to compose the jury by whom they were to be tried ; and, so far as concerned the right of challenge in the prisoners, what conceivable difference could it make with them whether the panel thus elected was broken before or after they were sworn and charged-with the cause ? After the panel was made up, by the election of the prisoners from the list <of jurors presented to them, the jury was, in law, impanelled; and was as much the jury, for the trial of the cause, before ■being sworn, as it was afterwards. And this being so, all the •rights secured to the prisoners in the selection of that jury were, functus officio; and, ipso facto, the remaining jurors summoned and submitted to the prisoners, were discharged; and the challenges, if any remained to the prisoners, were annulled, — the ends for which they were originally allowed having been attained. Before the passage of the act of 1817, ch. 99, by the withdrawal of a juror during the trial, the panel was broken up, and an entire new selection had to be made. That act provides for the case of a juror too unwell to serve, and directs that another be summoned instanter, sworn, and the trial proceed de novo. But the act, as was decided in Grarner’s case, does not take away the right of challenge ; and as the right remains, it remains to the whole extent.
    It is to be observed that the act aforesaid only provides for the case of a juror who becomes too unwell to serve, and does not provide for any different proceeding than what existed before, when the panel should be broken by the discharge of a juror for any other cause. And although it might with reason be argued that a gap occasioned in the panel from any cause might, by analogy to the case provided for in the act, be supplied in the same way; yet the right of challenge, as it existed before the act was passed, remains intact, and the prisoners would be entitled to their full number.
    The provision in the Code, sec. 4028 — referred to in sec. 5218 — is substantially the same with that provided by -the act of 1817, ch. 99 — and is the only case in criminal proceedings provided for by special legislation. In civil cases, the power is enlarged. Sec. 4007.
    In the case now before the Court, the juror was not set aside for the cause mentioned in the statutes referred to, but upon a ground of incompetency discovered after his election by the prisoners; which, of course, is not embraced within the letter of said acts.
    But it may be insisted that the juror was discharged before the prisoners had exhausted their challenges, and that upon the principles stated in the case of Grarner, before mentioned —and also in the case of Sines v. The State, reported in 8 Hum., 597 — it was competent for the Court so to discharge him, and to restrict the prisoners to their remaining challenges.
    In the case of Sines v. The State, the Court say, that if the Court below “were arbitrarily to discharge a juror after he had been duly elected, without any sufficient reason for so doing, it would be error, and would entitle the defendant to a 
      venire de novo.” That is to say, that by such act of the Court, the whole proceeding would be vitiated, and have to be commenced anew.
    But Hines’ case does not settle the rights of the prisoner, in relation to his challenges, in the case of a juror withdrawn or discharged after the jury has been made up. The juror’s incompetency, in that case, was discovered before he had even taken his seat upon the jury, and the ground of error insisted upon was very different from that we are considering.
    And so far as Garner’s case sheds any light upon this question, it is favorable to the view insisted upon by us, for in the opinion of the'Judge delivering the opinion of the majority of the Court, it is said: “ Admitting that there may be challenges, there is no mode of proportioning the number so as to meet the case of the particular juror or jurors withdrawn; it ceases to become a matter of calculation; and as the right remains, it remains to the whole extent.”
    But, if the rule be established, that when challenges remain to the defendant at the time the juror is withdrawn, that he is restricted to the number of challenges so remaining, still it could not be properly applied to the ease before the Court. For the record shows that the prisoners challenged separately, that the juror in question had been the first elected, and that at the time he was discharged, the challenges of one of the prisoners had been exhausted. So that one of the plaintiffs in error, at the time the juror was withdrawn, had no right of challenge, and the effect of the ruling of the Court below, was to compel him to abide the election of the other party, and thus, in restoring the broken panel, he was wholly denied the right of challenge, and thereby “ deprived of a very sacred right.” If, in such case, the application of the rule would be proper, and the prisoner thus forced to submit his fate to the keeping of one juror, in whose selection he had no voice ; so, upon the same reasoning, might he, by an act of the Court, be deprived of any number of the jurors selected by him, and in effect, wholly denied his challenges. To suppose that a majority of the jurors elected might be withdrawn by an act of the Court, is probably supposing an extreme case, but, the principle 'being the same, whether it he one or eleven, it serves to illustrate how great injustice may be done to the accused by the establishment of such a rule.
    4th. It was error in the Court below to admit any evidence an relation to the passing, or offering to pass, counterfeit bills, by the plaintiffs in error, previous to the time when the bill of $20 was offered to the witness, Laban Sharp, and for which the parties slain, 'Gibson and Queener, were attempting to arrest the prisoners at the time of the killing. And, also, in admitting the evidence of Thomas Bledsoe, in relation to the bills stated to have been found by him near to the plaee of the killing, and about one month after the killing took place.
    5th. We insist on behalf of the plaintiffs in error, that 'his Honor has erred in several particulars in the charge which he delivered to the jury.
    
      First: He charges, that “a killing not superinduced by passion, &e., deliberate and premeditated, is murder in the first degree, though deliberated and premeditated, but a moment.” This part of the charge, and that on the following page, which declares, that “the lavr knows no specific time within which an intent to kill must be formed, so as to make the killing murder, &c.,” seems to have been taken by his Honor from the ease of The State v. Anderson, 2Tenn., tí-9.
    We submit, that his Honor, the Circuit Judge, has wholly misconceived the seope and bearing of the decision of this Honorable Court in that case. There the Court was distinguishing or defining the difference between murder and manslaughter, simply, and not between the grades of the former. ■“ If the act,” says the Court, “ be accompanied by a volition or intent to kill, that implies malice prepense, and removes the very basis upon which manslaughter is founded.”
    It is the intent which accompanies the act, that generates the ingredient of malice, which is essential to constitute the act, murder; and it is that intent or will, the forming of which, the law knows no specific time; and if it be formed a moment antecedent to the act which causes the death, it will make the offence murder. But we submit- that the intent to do an act, is one thing; and the deliberation and premeditation with which it is done, is another, and quite a different thing.
    The Court below charged that the killing would be murder in the first degree, though deliberated and premeditated, but a moment. The terms deliberation and premeditation, imply reflection, a weighing in the mind and forming the design to kill, and considering the consequences, before the act by which death is produced, is performed. If the intent be formed, and the will accompany the act, though hut a moment intervene, the law, as settled in the case of The State v. Anderson^ makes the killing murder; but, to- declare that deliberation and premeditation, but for a moment before the act is performed, would make it murder in the first degree, seems to us-a manifest contradiction of the plain import and meaning of the terms, and an utter annihilation of all distinction between, the grades of murder, as defined by the statute.
    But after the jury had been considering the case, they returned into Court and asked for further instructions upon this-point, and his Honor charged, that “ no time was required, by the law, for the deliberation and premeditation necessary to constitute murder in the first degree, so that the purpose and intent to kill accompany the act.” This part of the charge-seems to us so manifestly erroneous, that the mere statement of it is sufficient. Mitchell v. The State, 5 Yer., 340; Judge-Catron’s opinion, 347.
    Second„• The Court erred in charging the jury, that “if the plaintiffs in error were making their escape, that is, leaving the jurisdiction of the Court, in order that they might not be arrested for the offence o-f passing counterfeit bills, that the sheriff had the right to arrest them on the charge without informing them of his authority, &c.”
    Section, 5038, of the Code, provides expressly, that “the-officer shall inform him of his authority, and the cause of his arrest, &c., except when he is in the actual commission of the-offence, or is pursued immediately after an escape.” See, also;» sec. 5040.
    
      We insist that the term “ escape,” is here used in its legal and technical sense, and if so, that the charge of his Honor is manifestly wrong, and must have misled the jury.
    “An escape, is where one who is arrested gains his liberty before he is delivered by the course of the law'.” 1 Russell on Grimes, 416, 418.
    
      Third : That part of the charge instructing the jury, “that in order to establish the counterfeiting by the defendants, it was competent for the State to show that they had counterfeit, money in their possession, &c., before the alleged offering to pass counterfeit money to witness, Sharp, &e.,” we think exceptionable, and calculated to mislead the jury, if it is not altogether erroneous in the way in which it is stated.
    6th. The jury having found in their verdict that there were, in their opinion, mitigating circumstances, it was the duty of the Court, as we think, to commute the punishment to imprisonment, in the penitentiary, for life. Sec. 5257 of the Code, as we contend, made it obligatory upon the Court to commute, in accordance with the finding of the jury, and did not intend to leave it discretionary with the' Court upon such finding. The section, 5257, is a substantial repetition of the act of 1838, which required the Court to commute the punishment upon a similar finding of the jury. The words may and shall have been held by this Court to be convertible terms. In the section preceding the one referred to, the power to commute in petit larceny, is expressly confided to the discretion of the Court, but it is not so in the case of murder.
    7th. The verdict is not supported by the evidence.
    The following, in substance, are the principal grounds presented in the petition for a rehearing of the cause:
    The first point to which counsel ask attention, because the most important, arises on the following clause of the opinion of the Court. After stating the points arising upon the effect of the suspicion to justify the arrest, the Court say: “ In this view, tbe evidence adduced to show that the note passed to Sharp was not a genuine note, and all of the collateral circumstantial evidence offered of finding counterfeit notes at the place of the homicide, and of the previous acts of passing counterfeit notes, for the purpose of showing guilty knowledge, and that a felony had in fact been committed by the prisoners, was unimportant, and may therefore be dismissed from our consideration of the case, together with the numerous and somewhat vexatious questions raised upon it, without any expression of opinion upon it.”
    Not to discuss the importance, in a legal point of view, of this evidence, as throwing light upon the animus of the prisoners — a point fully discussed at the bar, and, of course, considered by the Court — we will submit whether the decision of this question does not necessarily result in a reversal. Taking it as settled by the judgment of the Court, that this evidence is unimportant for the purpose of showing a guilty knowledge, it follows that it was not relevant for any purpose to the issue, and that it was error to admit it. Mr. Grreenleaf (vol. 1, § 51,) says: “ It is an established rule which we state as the first rule governing the production of evidence, that the evidence offered must correspond with the allegations, and be confined to the point in issue. (§ —.) This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference' as to the principal fact or matter in dispute, (see also § 448 ;) and the reason is, that such evidence tends to draw away the minds of the jury from the point in issue, and to excite prejudice and mislead; and, moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it. (§ 53.) In some cases, however, evidence has been received of facts which happened before or after the principal transaction, and therefore their admission might seem, at first view, to constitute an exception to the rule. But these will be found to have been cases in which the knowledge or interest of the party was a material fact.” He proceeds to instance cases of passing or possessing notes, &c., and facts relating to other notes, to show tbe scienter, and concludes: “ cases of this sort, therefore, instead of being exceptions to the rule, fall strictly within1 it.” The same rule is laid down in 2 Starkie’s Ev., p. 381, § 4, title, Collateral Facts; see also ib., 380. This rule, is stated in Wharton’s Am. Or. Law, ch. 2, pp. 299, 300, with many illustrations conclusive of this question. But these cases are still further illustrated by cases in Tennessee. In the case of The State v. Shaio, 3 Sneed, p. 88, a witness was allowed to say that the prisoner “ told him to notice where the man he borrowed from kept his money.” This, the Court held, was error. “ The evidence had no relation to the charge against the prisoner. But it is easy to see that it may have had a most prejudicial influence upon the minds of the jury,” &c.
    Where a prisoner, in the act of committing an offence, proposed to a witness the commission of other offences, it was held error to admit the evidence of such proposition, on the ground that “it is well settled that no proof of the admissions of one distinct, substantive offence shall be received upon a trial for the commission of another; a fortiori shall not statements^ of an intention to commit it. The only tendency of such testimony necessarily is to prejudice the minds of a jury, as it can by no possibility establish or elucidate the crime charged.” jKinchelow v. The State, 5 Hum., p. 12. In Stone v. The State, the same principle is stated as unquestionable law. So, also, of the case of Powers v. The State, where the evidence was admitted as proper evidence on the ground that it was important to show the guilty knowledge ; but it was held that, independent of that, it would have been error to admit it. The Court say: “Although, therefore, the gambling, as a substantive transaction, without any connection with the base coins, could not have been given in evidence, yet, as here introduced, it forms part of the transaction of passing the coins, and, as such, may be spoken of in detailing that transaction.” 4 Hum.; 274, 275.
    The cases and authorities establish the major proposition that no evidence of substantive collateral transactions is admissible against a prisoner, unless it be material to show a guilty knowledge. The opinion of the Court shows that the evidence in this case is not material to establish a guilty knowledge. It follows that the evidence is not admissible, and a reversal is inevitable.
    But counsel further respectfully submit, that the charge of the Court below ought not to be allowed to pass, as is done in this case, with an effort to reconcile it to the law, as more fully and correctly stated in this opinion. If the law had been stated, as it is in the concluding announcement of the summing up of it by this Court, it might have been unexceptionable. If the jury had been told that the question of vital importance was whether the minds of the prisoners were sufficiently free from excitement or passion to reflect and to act with cool deliberation of purpose, it certainly would have been a most important element of their inquiry, -which was left entirely out of view in the statement made by the Court below'. It may be, too, that, upon the construction given by this Court to the charge, it may be subject to but little criticism \ but the question is not whether it admits of a proper construction, so much as whether it is a clear and lucid statement of the law, which is not only correct in itself, but not likely to mislead the jury. It will not be denied that the distinctions are somewhat difficult to be comprehended and stated, even by trained legal men ; but by unlettered jurors it is exceedingly hard of comprehension.
    This Court has said, in another case, that a prisoner is entitled to a correct and distinct expression of the law as to the several grades of offence involved in the charge of murder; and it is not always safe to speculate as to the effect of error in this respect, or to assume that the prisoner was not injured thereby. Quarles v. The State, 1 Sneed, 410.
    The counsel, in view of the importance of the principle involved, beg leave to add a word on the principle announced in this opinion. It is said that the new and distinctive characteristic of murder in the first degree, introduced by the act of 1829, is premeditation. Now is not this word the exact equivalent of prepense-aforethought. Meditation beforehand and thought beforehand cannot he very wide apart in their signification. To think and to meditate are equivalent. But it is submitted that deliberation is the distinctive word, the new feature, and this is, in effect, admitted by the last clause on that point of the opinion, where the test is put clearly upon coolness and absence of excitement, so that the party is in a condition to deliberate. That word, derived from libera, the scales, to weigh, to consider in its relations and consequences, is surely the leading word in the act of 1829. And though the Courts of Pennsylvania have most manifestly repealed their act, from which ours is derived, we are not hound to follow, blindly, a bad precedent of judicial legislation, and hang our fellow-men, not upon the legislation of Tennessee, but the judicial usurpation of Pennsylvania. We do insist with the utmost confidence that deliberation is not the work of an instant, The intent may be formed in an instant; but unless it is formed upon deliberation which has taken place before the intent is adopted, the intent has not been meditated and deliberated so as to constitute murder in the first degree. All conclusions of the mind are finally resolved upon in an instant — at some moment of time — every intent is so formed; but the intent so adopted may have been hasty or it may have been deliberate. It is the former which the law intended to define as the lower grade of murder; the latter, murder in cold blood, which was to be punished with the highest penalty.
    W. Y. C. Humes, for the State.
    Head, Attorney General, for the State.
    
      
       In consequence of the importance of this case, and the ability and zeal displayed by the counsel for the prisoners, I have felt it due them to insert their brief, and the reasons assigned for a re-hearing. Esportee.
    
   McKinney, J.,

delivered the opinion of the Court.

The prisoners were jointly indicted in the Circuit Court of Campbell, for the killing of S. D. Queener and Travis Gibson. And at the July Term of the Circuit Court of Anderson — to which the venue was changed — they were jointly tried and convicted of murder in the first degree. The jury in their verdict expressed their opinion, that there were mitigating circumstances in the case; but the Court disregarded this expression of opinion, and pronounced judgment of death upon the prisoners; from which judgment they jointly appealed in error to this Court.

It is insisted that various errors exist in the proceedings and judgment, the more important of which will be considered.

1st. After the full number of jurors had been selected and placed in the jury-box, but before they were sworn, the Attorney General moved the Court to reject William D. Landrum, one of the twelve jurors, on the ground of his improper conduct, in the presence of the Court, after being chosen as a juror. It was fully proved, by the testimony of five members of the bar, — and the matter had, in part, attracted the attention of the Court, — that after Landrum (who was the first juror chosen by the prisoners) had taken his seat, he placed himself in such a position as that he could command the eye of one Warrick, the brother-in-law of the prisoners, who was seated in the bar by the counsel of the prisoners; and that during the progress of the selection of the other jurors, Lan-drum busied himself in indicating to Warrick, by motions of the head, and other significant modes, who to accept and to reject as jurors, as they were respectively put to the prisoners.

Upon this ground, the Court ordered that the name of Lan-drum be struck from the panel, and that he be discharged as a juror.

In making up the jury, the Attorney General had exhausted ■ the challenges of the State; but there remained to the prisoners six peremptory challenges. And for the selection of another juror in the place of Landrum, the Court directed an additional list of seven jurors to be furnished, which was done. The prisoners exhausted their six challenges without choosing a juror; and, thereupon, one Partwood, who was tried and found qualified, was ordered by tbe Court to take bis seat as a juror, in the stead of Landrum.

In this proceeding there is no error. The discretionary power of the Court to reject a juror, before being sworn, even in a capital case, for sufficient cause, cannot at this day be questioned. Nor can it admit of doubt, that the discretion Avas properly exercised in this instance. It would be a ridiculous mockery of justice to permit such an unfit person to act as a juror. All that can be justly said against the action of the Court is, that it did not go far enough. Such unabashed effrontery and corruption, acted out in the presence of the Court, should have been made an example of by the Court

The position, that, upon the rejection of Landrum, the prisoners were entitled to a full panel of jurors, is wholly untenable. By the action of the Court, in rejecting the juror, they had lost no challenge; and the additional list of seven jurors, was all they had a right to demand.

2d. The murder was committed in the attempt to arrest the prisoners, for the alleged crime of passing a counterfeit bank note, to one Sharp. The persons slain were the sheriff of Campbell county and his deputy, who accompanied him as an assistant. The supposed felony Avas not committed in the presence of the officers ; and in attempting to make the arrest, they acted without a warrant, and merely upon the charge made against the prisoners by Sharp.

The proof shows, that the killing took place on the third day of August, 1858. It appears that the prisoners staid at the house of Sharp, some five miles east of Jacksboro’, the night preceding the murder. In the morning, Jesse Lewis handed to Sharp a tAventy dollar bank note, purporting to be on the Bank of Hamburg, South Carolina, (which was believed to be a counterfeit note,) out of AA7hich to take their bill of $1.25, and said that was the “least money he had.” Sharp returned him the note, saying that he could not change it, but that he would go with them to Jacksboro’ and get it changed for them; and, accordingly, started with them. On the way to town, the conduct of the prisoners was suspicious. They sometimes fell behind, and at other times rode before Sharp, conversing with each other in a low tone of voice. On reaching town, Sharp rode up to the house of one Gary, to consult with him in relation to the matter, and the prisoner, Jesse, followed him, and said it was not worth while to go farther, that they had the change,” and handed him the dollar and twenty-five cents. The prisoners then inquired where they could get liquor, and where they could get a horse shod. They were pointed to a grocery and blacksmith shop at the upper end of town, and they started in that direction.

Steps were instantly taken, by Sharp and some others, to procure a warrant for the arrest of the prisoners, for passing said counterfeit note. The Justice, however, declined to issue a warrant, for the reason that the Christian names of the prisoners were not known. By this time it was discovered that the prisoner’s had not gone to the grocery or blacksmith shop; but, without stopping at all, had taken the road leading to Scott county, which crosses Cumberland mountain a short distance north of Jacksboro’, riding at a pretty rapid gait. Queener and Gibson happened to be in town, and they were informed of all the facts, and were urged to pursue and arrest the prisoners. They accordingly set out in the pursuit, some twenty minutes or more after the prisoners left town, and overtook them on the mountain, some three miles from Jacksboro’. Queener and Gibson were both unarmed. All that is known of the circumstances of the attempted arrest, and the terrible tragedy that ensued, is gathered from the dying declarations of Queener, who lived for several hours after the mortal wound inflicted upon him by the prisoner, Jesse. Gibson died instantly.

The substance of Queener’s statement is, that on overtaking the prisoners, he laid his hand on the shoulder of one of them, (Jesse,) and said to him, “ I take you as a State’s prisoner,” and he had hardly got the words out, when the prisoner placed a pistol against his breast, and snapped it, and instantly shot again, as he, Queener, was in the act of getting off his horse, the ball taking fatal effect in his left breast. After being shot, however, he saw Gribson engaged with the other prisoner, some short distance below the road, and went to help him, and the prisoner, Jesse, followed after, and commenced “ cutting that was the last he knew of Gribson. The proof shows that Gribson was fatally stabbed and cut in the neck; and Queener was also cut on the head, breast, and shoulders, in addition to the pistol wound.

It also appears from the proof, that about a month after the murder, a person passing near the place of the rencounter, found a parcel of counterfeit bank notes, amounting, in all, to $175. These notes, and the facts connected with their finding, were admitted in evidence to the jury. The witness, Sharp, was also permitted to state, that, from appearances, he-was of opinion that one of said notes was the note passed to him. To the admission of all this evidence respecting said notes, exception was taken.

The Court, also, admitted evidence of previous acts of pass^ ing counterfeit notes, by the prisoners, or one of them, at dif^ ferent times, more or less remote from the act of passing the note to Sharp, and purporting to be on various banks, without the notes being produced, or their loss accounted for, or notice to the prisoners to produce them. This evidence was, also, excepted to.

Upon the foregoing facts, several questions are raised. It is insisted that the attempted arrest of the prisoners was unauthorized and illegal; first, upon the ground that there was no sufficient evidence that any criminal offence had been committed ; and, therefore, a homicide committed in resisting such arrest, could not be murder in the first degree.

This position assumes that the fact was not established, that the note passed to Sharp was really a counterfeit note. And this seems to have been regarded on all hands, in the Court below, as the main point in the case.

If the fact were to be admitted, that the note passed to Sharp was not shown to have been a counterfeit, and consequently, that no felony was committed, it would by no means follow that the arrest was unauthorized or illegal. Whatever doubt may have formerly existed on the subject, we understand the law to be now well settled, that a peace officer may make an arrest on a charge of felony, upon a reasonable cause of suspicion, without a warrant, although it should afterwards turn out that no felony had, in fact, been committed. 1 Russell on Crimes, (Am. Ed. of 1853,) 595, 596, 597; Wharton’s Law of Homicide, ch. 5, p. 54. And this principle of the common law is distinctly incorporated in our Code, sec. 5037.

Such being the rule of law, there can be no doubt as to the authority of Queener and Gibson, upon the information communicated to them, to arrest the prisoners. The facts upon which they acted, in our opinion, furnished a reasonable cause of suspicion ” that a felony had been committed ; and this was sufficient for their justification; they haying acted in good faith, upon that belief, as the proof sufficiently establishes.

In this view, the evidence adduced to show that the note passed to Sharp was not a genuine note, and all the collateral circumstantial evidence offered — of the finding of counterfeit notes at the place of the homicide; and of previous acts of passing counterfeit notes by the prisoners — for the purpose of showing a guilty knowledge, and that a felony had, in fact, been committed by the prisoners, was unimportant; and may, therefore, be dismissed from our consideration of the case, together with the numerous and somewhat vexatious questions raised upon it, without any expression of opinion thereon.

It is insisted, secondly, that the arrest was illegal because the officer did not inform the prisoners of his authority, and the cause of the arrest, as is supposed to have been necessary by section 5038 of the Code.

This conclusion is not tenable for two reasons — the one of fact, ■the other of law. First: the extreme suddenness and ferocity .of the murderous assault made upon the officer, denied him the opportunity of giving this information, if it had been requisite, under the circumstances, to have done so. But, in ■ the second place, the law did not require that the officer should inform the prisoner of his authority, and the cause of the ar-xest, in a case like the present. The principle is settled, that, where a person is taken in the commission of an offence, or upon fresh pursuit afterwards, notice is not necessary; because, in either case, he must be supposed to know the cause of his arrest. 1 Russell on Crimes, 623; Wharton’s American Law of Homicide, 60. And the exception in the Code, (sec. 5038,) in accordance with the common law, expressly dispenses with such notice, where the person “ is in the actual commission of the offence, or is pursued immediately after the escape.”

But it is argued that the common law principle is changed, by force of the word “ escape,” used in the Code. This is not so. The term escape ” is not to be taken in its technical sense, which would imply, as is argued, that the person was previously in custody of the officer, and had eluded his vigilance. It must be understood in its popular sense, which is, “to flee from, to avoid, to get out of the way,” &c. This is placed beyond doubt, when we refer to section 5043 — which provides for an arrest by a private person — in which, instead of the words, “is pursued immediately after an escape,” the language used is, “ or when arrested on pursuit.”

3d. Exceptions are taken to the instructions of the Court. The only part of the charge which we consider necessary to notice, is the following : Upon the return of the jury for further instructions, “ the Court charged, that no time was required by the law, for the deliberation and premeditation necessary to constitute murder in the first degree, so that the purpose and intent to kill, accompany the act.”

This statement is supposed to be equivalent to saying, that no intervening time is required between the formation of the purpose to kill, and its execution. Such is not the fair construction of the charge. This would be absurd; for, the volition, or mental act of forming the purpose to kill, must, of necessity, precede the physical act by which the death is caused; but yet, the latter act may succeed the former so quickly, that there may be scarcely an appreciable pause, or intermission, between.

I The distinctive characteristic of murder in the first degree, is premeditation. This element is superadded, bj the statute, to the common law definition of murder. Premeditation involves a previously formed design, or actual intention to kill. But such design, or intention, may be conceived, and deliberately formed, in an instant. It is not necessary that it should have been conceived, or have pre-existed in the mind, any definite period of time anterior to its execution. It is sufficient that it preceded the assault, however short the interval. The length of time is not of the essence of this constituent of the offence. The purpose to kill is no less premeditated, in the legal sense of the term, if it were deliberately formed but a moment preceding the act by which the death is produced, than if it had been formed an hour before. The mental state of the assailant at the moment, rather than the length of time the act may have been premeditated, is the material point to be considered. The mental process, in the formation of the purpose to kill, may have been instantaneous; and the question of vital importance is — was the mind, at that moment, so far free from the influence of excitement, or passion, as to be capable of reflecting and acting with a sufficient degree of coolness and deliberation of purpose; and was the death of the person assaulted, the object sought to be accomplished — the end determined upom) Dale v. The State, 10 Yer., 551 Swan v. The State, 4 Hum., 136; Bishop on Cr. L. secs. 628, 658, and cases referred to.

In this view of the law, that part of the charge excepted to is subject to but little criticism. All that can be said is, that the general expression, “no time,” should have been qualified by adding, no definite time. But no prejudice or misapprehension could have resulted from this omission; for the principle had been twice fully and correctly stated in the preceding part of the charge.

4th. It is insisted that the Court erred in disregarding the finding of the jury, that there were mitigating circumstances in the case.

This has been, to us, the point of greatest difficulty in the case. It is argued, that the provision of the Code, (sec. 5257,) should be held, in favor of life, to he imperative on the ■Court to commute the punishment; and not merely as conferring a discretionary power, that may or may not he exercised, as the Court may deem proper and just in view of the circumstances of each particular case.

The substance of the provision is, that in cases of conviction of a eapital offence — where the jury in their verdict state that they are of opinion that there are mitigating circumstances in the case — “ the Court may ” commute the punishment from death to imprisonment for life in the penitentiary. This section of the Code is an almost literal re-enactment of one of the provisions of the act of 1838, eh. 29, with this important modification, that, by that act, it is expressly declared, that “it shall be the duty of the Court” to commute the punishment.

It is trae that the word “ may ” is sometimes held to have the same sense, or to mean the same thing, as the word “shall,” and it will be so interpreted whenever the obvious reason or intention of a statute requires that it should be so understood. The general rule, however, is, that the words of a. statute are to be taken in their natural and ordinary signification and import. 1 Kent’s Com., 462.

Is there, then, any ground on which it can be supposed that the framers of the Code intended that the word “ may,” in the connection in which it is used in the section under consideration. should he understood in a sense different from its ordinary signification ? We think not.

It will be observed, that the law on the subject of the commutation of punishment is materially changed by the Code, both as respects the executive and judicial departments of the government, as will be seen by comparing its several provisions with the statutes previously in force. The power vested in the Governor, by the Code, to grant “ commutations,’’ is an unqualified and discretionary power, different from that formerly possessed. So the power given to the Courts to com. mute the punishment in cases of petit larceny, is, in express terms, a discretionary power — without the recommendation of the jury, as was formerly required. It is manifest that the authors of the Oode, in revising the act of 1838, contemplated a change of the law. This is demonstrable from their dropping the imperative words of that act, and substituting language of a different import and signification. This conclusion is placed beyond doubt, by reference to sec. 41 of the Oode, by which it is provided, among other things, that all public and general acts, passed prior to the session of the General Assembly of 1857-8, are repealed; consequently, the act of 1838, ch. 29, is repealed; and the only rule for our government, upon this subject, is that prescribed in sec. 5257 of the Code.

We are of opinion, therefore, that the object and intention of this section was to change the rule, by which the opinion of the jury was made obligatory on the Court; and to leave it in the sound discretion of the Court, upon an unbiassed and discriminating survey of the whole case, to give effect to the opinion of the jury, or to refuse to do so, as the ends of public justice might seem to dictate. And in view of the responsibility resting upon us, we cannot forbear to say, that, in our judgment, it was a wise and salutary change of the law, demanded by the highest considerations of public policy, and, regard for the lives of the community. Experience has fully shown, that such a discretion intrusted absolutely to juries, is subject to abuse ; and that its exercise is sometimes so indiscriminate and improper, as to defeat, in some degree, the objects of criminal punishment. The present case is an illustration of the fact, that such an expression of opinion by the jury is only to be accounted for, in some instances, on the supposition of undue influence, or a false sympathy, or as a compromise.

As respects the sufficiency of the proof to support the conviction,'there can be no reasonable doubt. From all the facts of the case, the conviction is forced upon the mind, that the prisoners had set out upon a course of crime, with the deliberate and desperate determination not to suffer themselves to be brought to justice; and that in pursuance of this resolution, the cruel and unmitigated murder of which they have been convicted, was committed.

There is no error in the judgment, and it will be affirmed.  