
    The State v. John Fisher.
    Unless a verdict is clearly and manifestly against evidence, or wholly without evidence, the Court will not set it aside.
    That which was a cause of challenge to a juror, shall not he made the ground of a new trial.
    Tried before Mr. Justice Goi.cock, at Charleston, May Term, 1819.
    The defendant was indicted for highway robbery, and on the trial it appeared that one John Peoples was travelling from the city to the upper country, with his wagon, accompanied by a youth of about sixteen years of age, by the name of Zachariah Oarwell; that upon their arrival at the six mile house, they stopped to water their horses at a well near the house : while in the act of doing so, a negro came out of the yard of the house, and demanded the bucket, which they were using, which was their own, for the purpose, as he alleged, of watering his horse. The prosecutor refused to give it to him, and some words ensued, upon which a number of persons came out of the house, at least ten, as the witness supposed, armed with guns, pistols and sticks. The prosecutor seeing them approach in this hostile array, took an old gun out of his wagon, upon which the lad called to him that she was not primed. The party instantly rushed in upon him, knocked him down, and beat him most severely ; among these, was the prisoner Fisher, and one Howard. After they left the prosecutor, he got into *his wagon, and the boy drove slowly on; when they had r*of2 passed about 200 yards from the house, they were overtaken by the <- pi’isoner and Howard. All were armed. They asked for the prosecutor, and when they learned that he was in the wagon, they ordered him to dome out, threatening to take his life. He came from under the cover of the wagon, and seated himself on the side of it; Howard had rode to the head of the foremost horses, and stopped them; the prisoner had dismounted, and Howard snapped his pistol at the prosecutor, and, as the boy thought, once flashed it; Fisher pulled the prosecutor down, and carried him about twenty steps behind the wagon; Howard put his hand in his pocket, and took out his pocket book, the prisoner holding the prosecutor by the arm. In opening the pocket book, some small silver dropped out, and Howard threw out some papers. The prosecutor begged for his papers, and he was ordered to pick up the silver, which he did and handed it to Howard. The prisoner searched his pockets, but the prosecutor assuring them that he had no more money, they rode off and left him, and returned into the yard of this house. The prosecutor had about $40 or $50, which he had received for freight; the whole of which was taken. On the next day the prosecutor came to town, and on the Sunday after, he went to the gaol to see these persons, when he pointed out Fisher and Howard, as the men that robbed him, and he recognized some of the others who were of the party that beat him, but he was mistaken as to one of them. No names were mentioned until he identified them. On the trial, the prisoners were ordered to stand up, and he again swore positively to Fisher, but was mistaken in supposing that he had seen Sterret in gaol. All the important facts were corroborated by the testimony of Carwell.
    On the part of the prisoner, Andrew Hard, Martin Bergin, and Zilphea Miller, were sworn, who testified that they were at the house when the affray *2631 tock place; that they remained there until the prisoner and *Howard J set off to town, which was about half an hour after, and they accompanied them to town, and never, during the time, lost sight of them for five minutes. They also contradicted the testimony of the prosecutor, as to some part of the prisoner’s dress.
    Upon this evidence the jury found the prisoner guilty, and a new trial was moved for on the followiug grounds, as stated in the brief offered by the prisoner’s counsel:
    1. That the evidence did not warrant the verdict, inasmuch as the robbery stated to have been committed, was alleged by all the winesses to have sprung out of a quarrel and fight that took place at a well.in that neighborhood, relative to watering horses, and it was clearly proved by the three witnesses, on the part of the prisoner, who were present at the time, that he never left the six mile house or followed the prosecutor up the road to the place where the robbery was stated to have been committed, thereby clearly establishing an alibi.
    
    
      2. That the prisoner’s person was not identified, there having been essential variations in the description of his size and countenance, and the dress he wore on the day of the alleged robbery, between the witness who testified on the part of the State, and thost who testified on the part of the prisoner.
    3. Because one or more of the jurors, who were empanneled and sworn, and who tried the cause, did not pay, nor do pay taxes, according to the Act of Assembly, and were, therefore, not legally qualified to sit as jurors in this case.
   The opinion of the Court was delivered by

Colcock, J.

The two first grounds relate altogether to the insufficiency of the evidence, and it is only necessary as to them to repeat what has so often been said on this subject; unless a verdict is clearly and manifestly against evidence, or wholly without evidence, the Court will *2641 n°k se^ as^e- It is the peculiar and *exclusive privilege of the I jury to decide on the weight of evidence, and also on the decree of credit to which the witnesses shall be entitled. The testimony on the part of the State was positive, and the prosecutor’s not being able to identify one of the persons whom he saw in the jail, and mistaking one of those at the bar for one whom he had seen in the jail, were circumstances too trifling and unimportant to impugn his testimony, particularly as it was corroborated by another witness who swore to all the material facts; both of the witnesses swore positively to the identity of the prisoner; both recognized him at the first sight. As to the witnesses on the part of the accused, the account which they gave of themselves; the manner in which they gave their evidence; and, above all, their being considered as the associates of the prisoner, were circumstances which, no doubt, tended to discredit them in the estimation of the jury-

The last ground is one of some importance, and, if it had not been repeatedly decided in our Courts, would have merited some observation. In the case of the State v. Joseph Quarrel, 2 Bay, 151, it was decided by the unanimous opinion of the bench, that that which was a cause of challenge to a juror, shall not be made the ground of a new trial. That the prisoner had a right to the panel, and a copy of the indictment three days previous to his trial; the end and design of which was to enable him to ascertain the character and qualifications of the jurors who were to sit on his trial, and if he would not do so, he should not be permitted to take advantage of his own negligence. I cannot forbear to add, that if this were not the law, that I am satisfied, from my experience, that justice would be laid prostrate at the feet of the offenders.

The motion is discharged.

Bay, Nott, Johnson and HtjgeR, JJ., concurred. 
      
       Ante, 79, 172.
      10 Rich. 267; 2 Bay, 152; Josey v. Wilm. & Man. R. R. Co., 11 Rich. 2d trial.
     