
    Alfred (a Slave) v. The State of Mississippi.
    1. Constitutional law: division op county foe iiolding circuit court.— The legislature of this State has the constitutional power to provide for a division of a county into two districts, and the holding of a Circuit Court in each'; and where this is done, it may also be provided that the grand and petit jurors for each district, shall be taken alone from that district in which the court is held in which they are required to serve, and not from the whole body of the county.
    2. Circuit law: juror: competency op: bias. — A juror is not impartial, and therefore not competent, who has formed an opinion in reference to the guilt or innocence of the accused, which it would require testimony to remove; notwithstanding, he may declare in his examination, that he has no fixed bias in his mind either for or against the prisoner. See Lewis v. The Slate, 9 S. & M. 119 ; Ohildress v. Ford, 10 Id. 30; Same v. The State, 13 Id. 189 ; Nelms v. The Stale, Id. 500; Ootlon v. The State, 31 Miss. R. 509; Williams v. The State, 32 Id. 398; Ogle v. The State, 33 Id. 383.
    3. Confessions : case in judgment. — A slave confessed to a stranger, in the absence of the master, that he had killed the deceased. In two or three minutes thereafter the master arrived, and the slave confessed the killing to him, stating his reasons for doing the act. Held, that the introduction in evidence against the slave of the first confession, did not authorize him to introduce in evidence, on his own behalf, the second.
    4. Criminal law : slavery : adultery with slave’s wipe, no defence to a charge of murder. — A slave, indicted for the murder of his overseer, cannot introduce as evidence in his defence, the fact that the deceased a few hours before the killing, had forced the prisoner’s wife to submit to sexual intercourse with him, and that this had been communicated to the prisoner before the killing.
    ERROR to the Circuit of Hinds county. Hon. John Watts, judge.
    The plaintiff in error was indicted in the court below for the murder of one Coleman, to which he pleaded not guilty. A special 
      venire was drawn, from which a jury was to be selected for the trial of the prisoner. The prisoner moved to quash this venire, “ because the same was not taken from the body of the county of Hinds, and for other reasons to be stated at the hearing.” On the trial of said motion, it was admitted by the district attorney that the names of D. Simmons, 0. Hardy, M. Blake, and S. Lenity, had been returned by the assessor of taxes, as persons liable to serve on juries in Hinds county, and had been deposited in box No. 1; and that in drawing said venire, these names were drawn, but by order of the court were rejected, and not included in said venire; that all of these persons were householders or freeholders of Hinds county, over twenty-one and under sixty years of age, and that none of them had been convicted of any infamous offence; .but that they all resided in township 5, range 1 east, which is that portion of the territory of Hinds county included in the district for which the Circuit Court is held at Jackson.
    Upon this proof the court overruled the motion, and the prisoner excepted.
    The court proceeded to impanel a jury for the trial of the prisoner. Peter Stubbs was tendered by the State to the prisoner as a juror. Pie was asked by the prisoner’s counsel “ if he had ever heard of this case ?” He answered that he had, “ several times, from rumors.” He was then asked, “ Whether or not the rumors he had heard had made such an impression, or fixed such an opinion in his mind, either for or against the prisoner, that it would require testimony of a character different from the rumors he had heard, to remove such impression?” To this he answered, “ That it would require such testimony to remove or destroy such impression or opinion.” Upon his examination by the court, before he was tendered to this prisoner, Stubbs stated, that the opinion he had formed “ had fixed no bias in his mind either for or against the prisoner.” Whereupon the prisoner challenged said juror for cause, and the court disallowed the challenge, and the prisoner excepted. Seven other persons were also tendered by the State to the prisoner as jurors, and each of them, upon being examined touching their bias or prejudice in the case, answered the same as Stubbs. The prisoner’s challenge for cause to each of these persons was overruled, and he excepted. Four of these persons were challenged peremptorily by the prisoner, and the remainder were accepted by him, “under protest, and reserving the exceptions aforesaid.” The bill of exceptions recites, that the prisoner, by reason of being forced to challenge peremptorily the four persons above-mentioned, exhausted his peremptory challenges before the jury was completed, and if he had challenged peremptorily the others, his peremptory challenges would have been exhausted before he reached the name of the last of said jurors challenged by him peremptorily.
    After the jury had been empannelled, and before the indictment had been read or any testimony offered, the prisoner objected to going on with the trial, “ because neither the special venire nor the regular venire, nor those tales jurors selected without being drawn, were any of them drawn or selected from the body of the county of Hinds, in this, that township No. 5, R. 1, East, was altogether excluded. This was admitted by the district attorney. He further objected to trial because the defendant “was not being tried by the Circuit Court of Hind’s county.” These objections were overruled, and the prisoner excepted.
    On the trial, Dr. James testified on behalf of the State, as follows : “ That some time in last February, precise date not recollected, about dark, he, in company with two other gentlemen, then in the employment of said Fondren, attracted by a noise they had heard, went from Fondren’s house to his stable lot, about two hundred yards distant. That when they got into said lot, witness saw the prisoner standing near the gate, and immediately asked him ‘ What was the matter.’ The prisoner replied, ‘I have killed the overseer.’ There was no other person except the prisoner, in sight when we arrived on the spot.”
    The State then introduced John D. Fondren, who, upon being examined by the district attorney, stated, that “ some time in February last, about dark, attracted by a noise, I went from my house to my stable lot; Dr. James, and the two gentlemen with him, preceded me but two or three minutes.” On cross-examination he stated that the prisoner confessed to him, that he had killed the overseer (Coleman), immediately after he, witness, arrived on the spot; and that this could not have exceeded two or three minutes after Dr. James’s arrival there. The prisoner then propounded this question to witness : “ If the prisoner had stated to him in that confession, and immediately after he had confessed the killing, that be (the prisoner) had killed Coleman ; and if so, state all he said at that time.” To this question, and any answer that might be made thereto, the district attorney objected; and his objection was sustained, and the prisoner excepted.
    The prisonér introduced as a witness in his behalf a slave named Charlotte, who stated that she was the wife of prisoner, and belonged to J. D. Fondren. Prisoner’s counsel then proposed to prove, by Charlotte, that about nine or ten o’clock in the morning of the day in which the killing took place, that Coleman “ had forced her (witness) to submit to sexual intercourse with him; and that she had communicated that fact to the prisoner before the killing. The district attorney objected to the introduction of this evidence, and his objection was sustained, and the prisoner excepted.”
    The prisoner was convicted, and sentenced to be hung, and therefore sued out this writ of error.
    
      B. F. Trimhle, for plaintiff in error.
    The plaintiff in error asks the court to reverse the judgment and grant a new trial to him in this cause, for the following reasons :
    1st. Because the court below erred in overruling his motion to quash the special venire drawn and summoned in his case.
    That motion was made on the ground that the special venire was not drawn and summoned from the body of the county, as the names of certain citizens liable to jury service under the general law, and who resided in township 5, of range 1, east, in Hinds county, were drawn by the clerk and sheriff, and thrown out and rejected, and not included in said special venire. The district attorney, on the hearing of the motion, admitted that said special venire was not drawn and summoned from the body of the county, and the court overruled the motion, acting under the provisions of a special act of the legislature, approved December 2d, 1858, the 7th section of which provides, among other things, that the juries, both grand and petit, in criminal cases, shall be drawn and summoned from the district in which the defendant is indicted and tried. See Pamphlet Acts, 1858, page 54, et seq.
    
    
      I respectfully submit that this section of the act referred to, in limiting the accused to any district less than the entire county, violates the 10th section of the bill of rights, and is therefore unconstitutional and void. That section, among other things, provides, “ That the accused, in all prosecutions, by indictment or information, hath a right to a speedy and public trial by an impartial jury of the county where the offence was committed.”
    This clause, rightly interpreted, forbids the legislature, I think, from restricting the accused to any district or territory, less than the county, and I will briefly assign my reasons for this opinion. The framers of the Constitution, in most of this section, were evidently intent on providing against a recurrence of the evils and abuses of the common law rules of procedure in criminal trials. The first clause of that section, in securing the accused the “ right to be heard by himself or counsel, or both,” aimed a deadly blow at an evil that had, at common law, been destructive of personal rights. The fourth clause of the section is no less destructive of a rule of the common law that had, in its time, produced incalculable mischief, and utterly prostrated personal rights. A vicinage trial, too, was among the evils of the common law rules in criminal cases; and while it is true that that practice may have originated in motives of tenderness to the accused, it was found to be destructive of the ends for which it was established; for, in bringing into the jury box, as it often did, the prejudices of the neighbors of the accused, it prevented an impartial trial, and became thereby destructive of his rights. If the framers of the Constitution, as they evidently did in the other clauses of the section referred to, intended thereby to protect the accused, in criminal cases, against a return of the gross mischiefs of the common law, is it not unreasonable to conclude that they intended less in this clause, when we consider that a vicinage trial was undeniably one of the evils incident to the common law mode of procedure; an evil so great, that the courts in Great Britain, without Parliamentary enactment, by gradual disuse, virtually nullified the rule; and when it was finally abrogated by act of Parliament, the statute was regarded by the courts as but little more than declaratory of a settled rule long before established by them. To give this clause a more limited construction or application, would be, as to it, employing a rule of interpretation the reverse of the one used in expounding the other clauses in the same section ; for while the court would not hesitate to declare that the obvious policy of the framers of the Constitution was the protection of the accused from the return of common law abuses, so far as the other clauses are concerned, it will be asked by the counsel for the State to construe this clause in a way that will give constitutional sanction to an evil as mischievous as any of the others which have been manifestly provided against. If this clause of the Bill of Bights is then to receive any aid, in its interpretation, from its context, the view I have presented is, in my opinion, conclusive.
    Besides, this section of the Bill of Rights having been manifestly designed to protect liberally the personal rights of the citizen, should receive, in the interpretation of all its clauses, the construction best calculated to promote the design of the framers of the Constitution. They have, in this clause of the section, expressly declared, that “ the accused hath a right to a speedy and public trial by an impartial jury,” &c. Which construction is the better calculated to secure to the accused “ an impartial jury ?” Manifestly the one which allows him the entire county from which to select his jury, and which does not limit him to any particular district of neighborhood, or fractional township, which is the case' in the “ Jackson district,” under this special law. If the other construction of this clause is to prevail, we may be precipitated at once into all the ancient evils of the common law practice, and be thereby prevented from having an impartial trial, which, at least, is an undoubted constitutional guaranty. Adopt the interpretation insisted on by the counsel for the State, and the guaranty of an impartial trial is the sheerest mockery, for you then place it in the power of the legislature to confine the accused to such narrow limits that he is forced, as a choice between evils, to change the venue to another county, and thus another guaranty, in the same clause, viz., that of a right to a trial in the county “ where the offence was committed,” is rendered virtually inoperative, and ceases to be any longer a protection to the accused.
    It is, therefore, plainly deducible, I think, from the foregoing considerations, that the construction I contend for is necessary, if a harmonious and consistent policy is to be imputed to the framers of the Constitution, and this construction is inevitably the proper one, if the authors of the Hill of Rights intended therein to secure to the accused, as far as possible, an impartial jury in the trial of their cases; for to allow the legislature to prescribe the limits within which the accused, is to be restricted to select his jury, may, as before argued, operate as a virtual denial of a trial by an impartial jury in his county at all, and in that way destroy a plain guaranty in the Bill of Rights. The court, I think, then, will be very loth to adopt such a view of this clause. Upon reason and principle, I think the interpretation I contend for is correct.
    But we are not left without judicial precedent in the investigation of this point. This court has decided this question in the case of Shaffer v. The State, 1 Howard, 238, and the principle I have contended for has been clearly recognized by the court. In that" case, the court below had directed the sheriff, in the venire facias, to summon the jury “ residing as near as maybe to the place where the murder was committed,” &c.; and Chief Justice Sharkey, delivering the opinion of the court, decided this to be an error, and reversed the judgment. The principle, that, under our Bill of Rights, the accused is entitled to a jury summoned from the body of the county, and not from any definitive portion of the county, to the exclusion of the balance, was recognized as the just and sound interpretation of that clause in our Bill of Rights; and that the court below, in limiting the sheriff to any particular vicinage, abridged the constitutional privilege of the accused. This authority I regard as settling this question, and if adhered to by the court is conclusive of the case on this point.
    As opposed to this view it will doubtless be urged by the attorney-general that the constitutional provision was only intended to secure the defendant in criminal prosecutions from being taken to any other county than the one where’the offence was committed for trial." While it is true that under this clause the accused cannot be forced to any other county for trial, it does not follow that this was the only security contemplated by the Constitution. Ex vi termini, this clause secures a man a trial at home, but this protection I do not think was the primary or only object of the provision. This consideration, as remarked by Judge Sharkey in the case referred to, “had no doubt due weight in the constitutional arrangement.” But it would be unreasonable to conclude that this was the prevailing or influential motive in the minds of the framers of the Constitution in enacting this clause. The common law at all times secured the accused a trial in the count y where the offence was corn-putted, for as courts of criminal jurisdiction were organized in England, no other county coidd take cognizance of the offence. This right had descendedlo us as a fundamental principle in criminal jurisprudence, and its integrity has never been assailed, either in England or the United States. Is it to be imagined, then, that the authors of the Constitution were only anxious to secure us in the enjoyment of a privilege that had never been threatened or assailed, and that they lost sight altogether of an evil that had prevailed in England to the utter prostration in many instances of individual rights. And yet this is the inevitable conclusion to which the arguments of the attorney-general lead us; and if it be contended that it is only intended to secure the accused against the bringing of a jury from another county, the foregoing argument applies with equal force.
    As proof of the fact that this was not the primary consideration with the framers of our Bill of Rights, we need not refer to the first Constitution of Mississippi, which, although it contained a section identical, in other respects with the 10th section in the present Bill of Rights, yet, in this clause, omitted the words “ where the offence was committed,” showing plainly that such a contingency as the taking of a man from the county where the offence was committed, did not enter into their minds at all, and that they were intent mainly on securing to the accused the important right of a trial by a jury of the county, instead of the vicinage as at common law; and the words “ where the offence was committed” were doubtless added in our revised Constitution only to indicate more clearly than before .in what county the trial was to be had. Besides, if its authors intended that this clause in the 10th section of the Bill of Rights should be limited in its meaning, as insisted by the attorney-general, why did they not employ the preposition 11 in,” instead of the preposition “of," preceding the words “the county.” The phrase “in the county” would certainly more aptly express the place of the trial, if that was all intended, than the phrase “ of the county.” We can scarcely suppose that the framers of the Constitution so far blundered in the use of a preposition, if they intended only what is insisted on by the counsel for the Statfe.
    Again : why should the words “ by an impartial jury” have been employed at all, if the argument of the counsel is correct ? Ther right of a trial byjury was amply secured in another section, and it was not necessary to repeat it there. See section 28 of Bill of Rights. The words, then, “by an impartial jury” were mere sur-plusage, if the construction contended for by the State is to prevail; for if the place of trial was the only thing to be secured, it could have been more aptly and clearly expressed by this phrase, “ a trial in the county where the offence was committed,” omitting the words “ by an impartial jury,” and substituting “ in” for “ of.” If we suppose then that the framers of the Constitution employed the most apt words and phrases to express their meaning, and that they intended to give effect to all the terms they used, then the construction urged by the attorney-general cannot be the correct one; for it is an invariable rule of interpretation that every word or phrase used in an instrument should have an appropriate effect.
    The second error assigned is the refusal of the court to allow the challenges for cause made by prisoner to certain jurors tendered by the State. .
    Six out of the eight jurors challenged by prisoner answered that they had an impression on their minds as to the guilt or innocence of the accused formed from rumor, which would require testimony of a character different from the rumors they had heard to remove. This certainly disqualified them, and the fact that they answered that they had no bias on their minds either for or against the accused, did not render them impartial, for an impression or opinion which it would require testimony to remove, necessarily affected them, and they could not be indifferent.. See Lewis v. State, 9 S. & M. 115; Childress v. Lord, 10 S. & M. 25; Same v. State, 13 S. & M. 189; Nelms v. State, 13 S. & M. 500; Cotton v. State, 2 George, 504 ; Williams v. State, 3 George, 390. Special attention is invited to the case of Nelms v. State, 13 S. & M. 500, as that is the leading case on this subject. The remaining two challenged by prisoner, answered that they had formed and expressed an opinion as to the guilt or innocence of the accused, and that it would require testimony of a different character from the rumors they had heard, to destroy such opinion or impression. This clearly disqualifies them. See cases above cited.
    The next point presented by the record, is the overruling of the prisoner’s objection to go into a trial, because neither the special venire, nor the regular venire, nor .those tales, jurors summoned without being drawn, were drawn and selected from the body of the county, in this, that Township 5, R. 1 East, was excluded, and that he was not tided by the Circuit Court of Hinds county. The first objection here stated has been fully argued, and I will, therefore, confine myself to an examination of the second objection, to wit, that he was not tried by the Circuit Court of Hinds county.
    The special act referred to established two Circuit Courts in Hinds county; for the jurisdictions of the two districts established by that act are as distinct territorially, as if they were in different counties ; and a reference to its provisions will show, that the court in one district has no more jurisdiction of a person in the other district, either in civil or criminal matters, than if he were a resident of a different county. The Constitution establishes a Circuit Court in each county, and a Circuit Court means one Circuit Court, and I take it, that the legislature is thereby prohibited from establishing any more. See Con. art. 4, section 15. The Constitution, art. 4, section 24, authorizes the legislature to establish such other inferior courts as may be deemed necessary, &c., but the grant of power to establish an inferior court is a denial of the power to establish a superior court of general jurisdiction, &e. The Circuit Court is certainly not an inferior court, within the meaning of the Constitution; besides, it is but just to infer that the Constitution, in organizing the Circuit Court, intended to exercise an exclusive power, and cannot fairly be presumed to have intended to divide with the legislature, which is the creature of the Constitution, the exercise of a power, which, as to the establishment of courts of general jurisdiction, should certainly be fundamental and organic. The establishment of courts of general jurisdiction is wisely withheld from the legislature, for they are not less important agents in the transaction of the public business, or in the preservation or enforcement of individual rights, than the legislature itself; therefore, in organizing the judicial department of the government, and in making it a co-ordinate branch of the same, it meant to make it independent of legislative encroachment or interference. Admit the position, that the legislature may establish courts of general jurisdiction, and you utterly destroy the harmony and independence of our entire system of government, for whatever it may establish it may abolish, and you thereby render the courts which are intended to be independent, the mere creature of legislative caprice. If this bo true, as the Circuit Court was established for the whole county, and as the law referred to divides the jurisdiction of that court, it destroys its integrity as it was established by the Constitution, and there is, therefore, now no Circuit-Court in Hinds county, as contemplated by the Constitution. It is demonstrated, then, that this law, in its whole scope, is violative of the Constitution, and, therefore, void. See 1 Yerger, 452 ; 2 lb. 599; 5 lb. 271.
    The next point is, the exclusion of the statement of prisoner to witness Fondren. The rule is settled beyond controversy, that when one part of a statement or conversation is introduced, it must all come out. The point now before the court' is, the extent of the application of the rule. I submit that the statement or confession of the prisoner to Fondren was, in effect and substance, but a continuation of the confession he had made to witness James, and if it is in effect, a technical rule should not be so applied as to exclude it. There could not have been more than an interval of one or two minutes between the time he made the confession to witness James, and the time he made it to witness Fondren ; and as the law has fixed no time that must elapse, and as the rule, that statements made at different times cannot be brought out because one is called for, is founded in the reason that the intervening time furnishes opportunity for deliberation and invention, cannot justly apply in this case, because the facts show that this could not have been the case, an application here would, in my judgment, violate the spirit and reason of the rule, and might operate grossly to the prejudice of the accused. The statement that he might have made, if allowed to proceed, might have, in the opinion of the jury,'amounted to justification of the deed, and if the door is to be closed on testimony in this way, by the application of rigid technical rules, without regard to their reason or spirit, the boasted humanity of the law would become a system of ingenious frauds. I think, therefore, the court erred in excluding the statement of the accused to witness Fondren.
    
      The next error assigned is the exclusion of testimony of witness Charlotte. This was clearly erroneous, for anything calculated to reduce the crime from murder to manslaughter, was undeniably legal testimony. It is no sufficient answer to this, that manslaughter by a negro is punishable with death as well as murder, and that this testimony, if admitted, could only change the degree of his guilt, without materially benefiting him. It would be usurping the province of the jury for the court to say that he would have been convicted of manslaughter if this evidence had been admitted. The courts are to determine the competency of testimony, but at that point their functions cease; the effect of testimony belongs exclusively to juries. Perchance the jury may have regarded this provocation as a justification; and while the court may say it could not legally have this effect, still the effect of testimony is exclusively with the jury, as before remarked. The mischief of the contrary rule is apparent, if we consider the effect of an acquittal by a jury in criminal cases. If this testimony had been admitted, and the jury had thought proper to acquit him, the courts would no longer have had control over him for this offence. And yet he would have been acquitted on legal testimony. If the admission of strictly legal testimony might have affected his case so materially, he certainly had a right to it, and it was error in the court to exclude it'. It will doubtless be contended that this testimony, if admitted, could not legally have had the effect of reducing the offence from murder to manslaughter, because our laws do not recognize the relation of marriage between slaves. This is true of marriage as a civil contract, and so far as it imposes upon the parties to it, obligations or duties ; and while it is inconsistent’with the master’s right of removing his slave any distance from his wife, or her husband, that he, or she, should claim the privileges of the marital relation; and while it is as clearly inconsistent with the master’s right to the receipts of all his toils, that the ,slave should be compelled to maintain his wife and children, still, the humanity of our law regards them as human beings, with lively emotions and social instincts, and regards with as much tenderness the excesses of outraged conjugal affections in the negro as in the white man. The servile condition of the negro has not deprived him of his social or moral instincts, and he is as much entitled to the protection of the laws, when acting under their influence, as if he were free instead of bond, and the white man degrades the species to which he belongs in denying them to him.
    The constitutional questions raised by the record and the argument of Mr. Trimble, were discussed in this court, in behalf of the State, by Mr. Wharton, attorney-general, Fulton Anderson, and W. P. Harris, Esquires, and as the arguments of these gentlemen were in substance the same, and are very lengthy, only one of them is printed.
    The record in this case presents the question of the constitutionality of the act of the legislature passed December 2,1858, dividing the county of Hinds into two districts for the purpose of holding the Circuit and Chancery Courts.
    I. It is contended by the plaintiff in error that the legislature had no power to'exempt persons, residing in the first district, from the duty of serving as jurors in criminal cases arising in the other district, which it is alleged is done by the 7th section of the act. It is insisted that the plaintiff in error was entitled to select a jury from the whole county, or, in other words, from the body of the county, and that he was deprived of this right by the action of the court under the provisions-of the 7th section aforesaid.
    The only provisions in the Constitution, bearing on the point, are as follows:
    In all proceedings by indictment or information, the accused hath a right to a speedy and public trial by an impartial jury of the county where the offence was committed. Art. I, sect. 10.
    The right of trial by jury shall remain inviolate. Art. I, sect. 28.
    As it is not pretended that the right.of trial by jury has been violated. in any other mode than by limiting the right of selection •to the district in which the offence was committed; and as, if the legislature did not have the power so to limit it, its action was a violation of the first provision quoted above, we shall confine our observations to the question of its right to do so.
    We perceive no force in the objection urged against the exercise of this power. The provision in question does not give to accused the right to select his jury from the “ lody of the county.” Its object and purpose evidently were only to secure- him the privilege of not being required to leave the county for trial, nor of being required to submit his case to persons more distant from the scene of the alleged crime than the courts of the county. For this purpose, an impartial jury of the county was required. That the jury should be impartial, and that it should be composed of residents of the county, and not of persons from other counties, are the only requirements made in this provision, and if they are complied with, it is manifest that, in all other particulars, the institution of the jury was and is subject to the supreme control and power of the legislature, except in so far as that it could not, under the provisions quoted, deprive it of the substantial and well-known features of a jury at the common law. Subject to these limitations only, absolute power and control over the subject belongs to the legislature. This is the rule adopted in most of the States. We quote a passage from Sedgwick on Statutory and Constitutional Law, referring it is true to the general provision, that the trial by jury shall remain inviolate, but showing the ground on which legislation has proceeded in reference to juries: “ But on the other hand, the guarantee is to be reasonably interpreted. It" was not intended by this provision to tie up the hands of the legislature, so that no regulations of the trial by jury could be made, and it has been decided that the provision is not violated, so long as the trial by jury is not substantially impaired, although it be made subject to new modes, and even rendered more expensive.” Sedgwick on Statutory and Constitutional Law, p. 447.
    In Connecticut, where a city charter provided that the jury should be taken from the freemen of the city instead of the body of the county, and it was objected that this was in violation of the 'clause that the jury trial should remain inviolate, it was held that the provision was constitutional, even admitting it to be an innovation upon the common law. Qolt v. Uves, 12 Conn. Rep. 243.
    The same court, in a previous case, held, that within the reasonable intendment of this clause of the Constitution, if the trial by jury be not impaired, although it might be subject to new modes, and even rendered more expensive, if the public interest demanded such an alteration, it would not be in violation of the Constitution. Beers v. Beers, 4 Conn. 535, 536.
    
      The case of Shaffer v. The State, 1 How. 243, is not a decision of the question; while the whole reasoning of the court is in favor of the position assumed by us.
    It might well have been held in that case, that when by the statute a venire was required to issue to the sheriff, commanding him in general terms to summon a given number from the county, it would be error in the clerk to insert a clause in the venire to summon them from persons residing as near as may be to the place of the offence, since by the statute passed, which was certainly not in opposition to the Constitution, the venire was to come from the whole county.
    But that is a very different question from that of the power of the legislature to exempt particular persons, or particular localities in a county, for reasons of public advantage and convenience, from jury service in the county at large.
    The whole legislation on this subject, both constitutional and statutory, as well as the rules of the common law, has proceeded on the idea that it was the privilege of the defendant to have the jury come from as small a space and number as possible, that space being the visne, and that number being the hundredors of the hundred where the offence was committed.
    Judge Sharkey, in the Shaffer case, says, “The common law was particularly careful in securing to individuals a trial by the jury of the neighborhood or visne ; and hence, it required that the jury, or a portion of them, should be of the hundred in which the cause of action or offence occurred; and if they were not, it was a cause of challenge.” “ The rule proceeded from the reason that the inhabitants of the neighborhood were more intimately acquainted with the merits of the cause of controversy, and therefore better prepared to decide.” And again, “ The rule of the common law evidently had its origin in a spirit of justice and humanity towards the accused party, and the abuse of its humane indulgence was one cause of the change.”
    And again he says: “ The taking of our citizens from their homes and friends to be tried by strangers, without the means of a fair investigation, had, no doubt, due weight in the constitutional arrangement.”
    Coke states the principle of the common law as follows: “ Wherein the most general rule is, that every trial shall be out of that town, parish, or hamlet, or place known out of the town, &c., within the record, within which the matter of fact issuable is alleged, which is most certain and nearest thereunto, the inhabitants whereof may have the better and more certain knowledge of the facts.” 3 Coke on Littleton, 505, b. 3, c. 9.
    We also extract a portion of the note of Mr. Hargrave on this text, to be found on the above page.
    “ Both in civil and criminal cases, the common law is very nice in requiring every issuable fact to.be alleged, not only within a county but also within a parish, town, or hamlet, or for want of either of these, some other known place of the same county, not being a hundred, which probably was excluded as too large a division, and if this rule was not observed, it might be pleaded in abatement or otherwise taken advantage of.”
    Again: “Nor is it difficult to account for stating a particular place in the county.” “ The principal reason was, that if issue was taken on the fact alleged, it might be tried by a jury of the' visne or neighborhood, which our ancestors conceived to be more likely to be qualified to investigate and discover the truth than persons living at a distance from the scene of the transaction.”
    Again: “And if at least four of the hundred in which the place was situated were not included in the panel returned by the sheriff, it was a good cause of challenge to the array or whole panel; or if four of such persons did not attend to be sworn, the polls or particular jurors might be challenged.” 3 Coke on Litt. 505, n. 8.
    The annotator then proceeds to give the history of the gradual relaxation of this privilege by legislation in civil cases, until the statute of 4 and 5 Ann, c. 16, directed that every venire facias in civil cases should be awarded from the body of the county ; none of these statutes, however, applied to criminal cases.
    He adds: “ However, though the ancient law continues in force as to trials for crimes, yet it hath long been deviated from in practice. Lord Hale, taking notice that even during his time, he never knew an instance of a challenge for want of hundredors in treason or felony.” 3 Coke 506, n. 8.
    It is plain, from this brief history of the matter, that the privilege of selecting a jury from the whole county was never known to the common law. It is equally clear that after, the legislation alluded to, although no challenge to the array could have been had for want of a jury of the visne, provided the jury were of the county, yet it certainly would not have been ground of challenge that the jury did come from the visne, especially in criminal cases.
    Certainly it is clear, also, from this brief account of the matter; that it has always been considered a privilege, especially of a defendant in criminal proceedings, to have the jury from the place, the scene of the transaction, and from the number of those most likely to be familiar with the transaction and also with him; but that it never was a privilege to have the jury from the whole of any county.
    In this view of the subject, the object of the constitutional provision clearly was to prescribe the limit within which the rule might be relaxed, that is to say, to provide that while the defendant should no longer be entitled to demand a jury of the visne, yet he should not be required to go from the county with his witnesses, nor to be tried by a jury from a greater distance from the scene of the transaction, than the county.
    It follows that if a party indicted obtains a jury which is of the county, that is not from a greater distance than the county, and from a body of men of the county, his constitutional privilege is preserved.
    That the legislature has always acted on this idea, is manifest. The system adopted for the selection of jurors, by drawing a certain number from the box, from whom the jury shall be empanelled, as well as the various exemptions, provided by our statutes, from jury service, are founded on the idea that a party is not entitled to. select his jury from the whole body of the county, and that his constitutional privilege is preserved when the legislature protects him from being tried by any other jury than one that comes from the county (whether the body of it or not), and that is impartial.
    Great numbers of persons who would otherwise be competent jurors are, by the general statute, exempted from jury service. “ All officers in the executive department of the government, all judges and officers of the several courts, members of the board of police, practising physicians, teachers of public schools, and ministers of the Gospel, actually engaged in their respective employments, postmasters, keepers of public mills, and ferrymen,” are so exempted. Code, 498, art. 127.
    And the legislature has frequently passed special laws for the benefit of various classes or bodies of persons, exempting them from jury service.
    So also all the names of persons, in any county, which are drawn from jury-box No. 1, to serve as' jurors at any court, and who, at said court, are empanelled on the jury, are withdrawn from box No. 1, and placed in box No. 2, and there kept until all the names in box No. 1 have, in process of time, been exhausted. And thus, under our system, it so happens that a person charged with a criminal offence never has had, and never can have, the selection of his jury from the whole body of the county. And it may happen, that when such a person is put upon his trial, a third, a half, three-fourths, or nearly all of the names in box No. 1 have been withdrawn and placed in box No. 2, so that he is forced to take his jury from the small number of those left.
    These laws, it is true, are all passed for the purpose of dividing the jury service of the county, but they do unquestionably deprive every litigant, whether in a civil or criminal case, of the privilege of laying his case before a jury selected from the whole body of the county; and yet their constitutionality is admitted. It may be observed that one of the main objects of the law in question, was to divide the jury service of the county, and to equalize it, or proportion it to the amount of business originating in the different districts.
    If, in the sense of the Constitution contended for, a party accused has the right to demand a jury from the whole county, and not a portion of it, he would equally have the right to demand that jury-box No. 1, before his venire is drawn from it, should have restored to it all the names in jury-box No. 2, and also all the names of persons who are by statute exempted from jury service; for there is no.difference in principle between an exemption on account of the place of. residence, and exemption on account of occupation, or for any other reason the legislature may think sufficient.
    It is manifest therefore, we think, that all that the Constitution intended to secure to the citizen is, that the jury shall be of the county, and not out of it, and that it shall be impartial.
    
      2. It is contended, in the second place, that the Jackson Court law is unconstitutional; and as the provision in reference to juries was made in furtherance of, and in subserviency to, this unconstitutional purpose, it must fall with the law, although the legislature might have the right to make the exemptions noted in the 7th section of the act.
    The only part of the Constitution referred to in support of this position, is the 15th section of the 4th article, which is as follows: “ A Circuit Court shall be held in each county of the State at least twice in each year.” We do not perceive how this clause is violated by the law in question. The county is divided'into two districts, and the Circuit Court, which consists of the judge, clerk, sheriff, .and officers of the court, presides twice a year in each one of the districts.
    That a portion of the time the court is to be held in Jackson instead of Raymond, can make no difference, unless it can be shown that Jackson is notin Hinds county, which seems to be the opinion of some of our friends, or that the clause in question means that the Circuit Court shall sit only in one place in the county, instead of in the county generally. In reference to the Circuit Court, the Constitution provides in section 13 of article 4, “ That the State shall be divided into convenient districts, and each district shall contain not less than three nor more than twelve counties.” In section 14 of article 4, “ The Circuit Court shall have original jurisdiction in all matters civil and criminal within this State,” &c. And article 15, as quoted above, “ That a Circuit Court shall be held in each county at least twice in each year.”
    
      “ It is to be observed that by these provisions it is a Circuit Court, not of the county, but of the State or district, and that it has jurisdiction in all matters civil and criminal ■within this State.”
    The requirement by the act that it shall he held in two different districts in the county, and that a citizen of one district sued in the other may have the venue changed, is no more a violation of the Constitution than the statute which authorizes any citizen of the State if sued out of his county to change the venue to the county of his residence. It is not a law affecting the jurisdiction of the court, which is general, but simply giving to the citizens of the two different districts the privilege of being sued at home.
    
      The attorney-general, in reply to the remaining assignments of error, argued the cause orally, and relied on the following authorities. Ogle v. The State, 38 Miss. R. 383; Clare’s case, 8 Grat-tan, 608; 3 Humph. 493 ; 1 Iredell, 81.
   Harris, J.,

delivered the opinion of the court.

The plaintiff in error was indicted, tried, and convicted in the county of Hinds for the murder of one Coleman.

Under the Act of the Legislature approved 2d December, 1858, dividing the county of Hinds into two districts for the purpose of holding the Circuit Courts of said county, the special venire drawn and summoned for the trial of said case, was composed of jurors residing in the second district of said county alone, the jurors residing in the first district having been excluded when drawn from said venire by the clerk and sheriff.

Before the case was called for trial, a motion was made by counsel for the defendant to quash the special venire, because the same was not taken from the body of the county of Hinds, and upon hearing said motion, with the admission and proofs of the facts therein stated, said motion was' overruled, and exceptions filed and allowed. And this constitutes the first ground assigned for error in this record.

It is insisted for the plaintiff in error that the Act of the Legislature creating two districts in the county of Hinds for holding circuit courts therein, and making provision for the drawing and summoning a special venire facias, for the trial of capital cases from a district of said county instead of the body of the county, is in conflict with the 10th section of our Bill of Rights, and therefore void.

This point has been very fully and ably discussed on both sides, and we deem it sufficient, without repeating the grounds and authorities upon which our judgment rests, to refer to the elaborate briefs of counsel for the State, and to say that we have no doubt of the constitutionality of the act of the legislature in question. There was, therefore, no error in the court below in overruling this motion.

The only other grounds of error necessary to be considered, are the rulings of the court in relation to the competency of certain jurors tendered by the State, and the rejection of the confession of the accused to witness Fondren, and the testimony of the witness Charlotte.

Among other jurors tendered by the State, Peter Stubbs was presented, and asked by defendant’s counsel, whether he had ever heard of the case. He said he had several times, from rumors. And upon being asked by defendant’s counsel further, whether or not the rumors he had. heard had made such an impression or fixed opinion in his mind, either for or against the prisoner, that it would require testimony of a character different from the rumors he had heard, to remove such impression, he answered, that it would require testimony to remove or destroy such impression or opinion; whereupon, defendant challenged said juror for cause, and the court disallowed said challenge. To which ruling of the court, exception was taken, allowed, and filed, and is now here urged as error.

Under the repeated adjudications of this court, we are not per^ mitted to regard this as an open question. It is well settled, that an opinion formed from rumor, so fixed as to require testimony to remove it, constitutes such bias as to render the juror not “impartial,” and, consequently, under our Constitution, to disqualify him for service. See Lewis v. The State, 9 S. & M. 118; Childress v. Ford, 10 S. & M. 30; Sam v. The State, 13 S. & M. 189; Nelms v. The State, 13 S. & M. 500; Collon v. The State, 31 Miss. 509; Williams v. The State, 32 Miss. 398; Ogle v. The State, 33 Miss. 383. This ground of error is, therefore, well taken.

We think there was no error in the rejection of the confession of defendant to Fondren, offered by the defence, nor in the rejection of the testimony of Charlotte.

For the error in the rejection of the challenge of juror Stubbs, let the judgment be reversed, cause remanded, and a venire de novo awarded.  