
    OCTOBER TERM, 1856.
    John Cotton v. The State.
    1. Juror : incompetent when. — A person who has formed an opinion from common rumor, as to the guilt or innocence of the accused, which it would require evidence to remove, is not an impartial and competent juror to try him, although the juror declare that he felt as free" to act in the matter as if he had heard nothing about the case; and if the prisoner object to him on that ground, it will be error in the court to require the prisoner to accept him, or challenge peremptorily. See Nelms v. The State, 13 S. & M. 500.
    2. Instructions : accuracy in. — When the court undertakes to give even unnecessary instructions in trials for murder, the safer rule is, that the instructions should not be so framed, as even by remote construction, to limit the free action of thé jury, in considering the testimony before them.
    3. Grand jury : initials of Christian names does not vitiate. — Where the record shows that the grand jurors were elected from the persons whose names appear on the venire, it will not vitiate the indictment that the Christian names of the grand jurors are abbreviated in the minutes of the court.
    4. Presumption : record. — If a grand juror be excused from serving, it will be presumed to have been legally done, if the record do not show the contrary.
    5. Homicide : self-defence. — To justify a party killing another, on the ground of self-defence, he must have a reasonable ground to apprehend a design on the part of the deceased, to commit a felony on, or do some great personal injury to the slayer; and there must be imminent danger, either actual or apparent, of such design being accomplished. But whilst it is necessary that the danger should apparently be imminent, yet it is not essential that it should be immediate and impending at the very moment of killing. A party may anticipate the Attack of his antagonist, and justifiably slay him, if, under all the circumstances of the case, such course be necessary to protect himself.
    6. Same : manslaughter. — The fact that the accused sought and brought about the difficulty, being armed at the time with a deadly weapon, with which he killed the deceased, does not necessarily render him guilty of murder; for if he commence the contest, intending at the outset to inflict little or no violence on his antagonist, he may justifiably slay the other party, if the danger of his own destruction be immediate and impending, and otherwise unavoidable; and where the necessity to kill does not exist, if the killing be not in pursuance of a premeditated design to take life, but on a sudden quarrel, it amounts to manslaughter only.
    Í. Same. — The peculiar character of the deceased, for violence or peace, is a fact for the consideration of the jury, in determining whether the accused acted in self-defence or not.
    
      8. Homicide: deadly weapon: right of citizen to wear. — By the law of this State, a citizen has the right to wear a deadly weapon; and the fact of his being so armed, though he may be the aggressor in a difficulty, amounts to no proof of criminality against him, unless he provided himself with it with the view of using it, if necessary, in overcoming his antagonist.
    9. Instructions : modification of. — The court may modify an incorrect instruction, so as to render it unobjectionable; but if it be correct as asked by counsel, it should be given without modification or amendment.
    In error from the Circuit Court of Yazoo county. Hon. E. Gr. Henry, judge.
    John Cotton, the plaintiff in error, was indicted in the Circuit Court of Yazoo county, for the murder of one John Smith. At the February term, a. d. 1854, of said court, he was tried and convicted of murder, and sentence of death pronounced against him, which judgment this court, on writ of error, reversed, and awarded the prisoner a new trial. At the November term, A. d. 1855, of said court, the prisoner was again tried and convicted, and judgment of death was pronounced against him.
    From this last judgment he prosecuted this writ of error.
    The first, second, and third bills of exception, taken by the prisoner on his trial, relate to the action of the Circuit Court in overruling his challenges for cause, to three jurors, and requiring him to accept or peremptorily challenge them. By the first, it appeared that when the name of James Blundell, one of the special venire, was called, he was accepted as a juror by the State, and tendered to the prisoner. Blundell being interrogated by the prisoner’s counsel, answered that he had formed an opinion in reference to the guilt or innocence of the accused; that this opinion was formed from having heard persons speak of the matter; that he did not know that he had ever spoken with any of the witnesses on the subject, and that the opinion he had formed was such that it would require evidence to remove it. Whereupon the prisoner challenged Blundell for cause. The court then asked Blundell “ if his opinion was fixed, or was it formed from rumor ?” He replied that it was formed from rumor. The court then asked him, “ if his mind was as free to act on the testimony as if he had heard nothing about the case?” He replied “that it was.” The court then overruled the prisoner’s challenge for cause, and tendered Blundell to him as a competent juror. The prisoner then challenged the juror peremptorily, and excepted to the ruling of the court.
    2. In substance the same questions were propounded by the prisoner and the court to James Sherrod, another one of the special venire, who had been accepted by the State, and tendered to the prisoner, and the same answers were given. The court ruled as in case of Blundell, and the prisoner challenged Sherrod peremptorily, and excepted.
    3. The same course was pursued in reference to J. J. Billing-ton, who made the same answer as the other two; and further, he stated in answer to an interrogatory propounded by the court, that his opinion was not fixed, but hypothetical, and that he could render an impartial verdict on the evidence.
    The evidence for the State was, in substance, as follows: — ■
    Greenberry Anderson stated, that in July, A. d. 1852, he, with several others, was in the store of one Frawley, in Yazoo City, in company with John Smith, the deceased. That the prisoner came in the room and he and Smith exchanged salutations. Prisoner then told Smith that he wanted to speak with him, to which Smith replied “certainly.” Prisoner then walked out, and Smith followed; both turned down the street and went about sixteen feet from the door of the store-room of Frawley. Witness soon after-wards heard Smith say “I did not say it.” Cotton replied, “that he believed Smith was a liar, and did say it, and that he could whip him.” Smith then said “if you think so, ‘pitch in.’ ” These words were spoken in an angry manner,, and witness thinking there was about to be a fight, went out into the street, and immediately heard -a blow struck by one of the parties, but he could not tell which one of them struck it. Smith was standing on the sidewalk, with his back towards the houses, and the prisoner was walking backwards across the street, in a direction from Smith. Witness then approached to within a few feet of the parties, on a line which would have led him between them; he then stopped; he then heard the prisoner say three several times, “draw it.” Witness looked at Smith, “but did not see him draw anything.” While prisoner was saying “draw it,” witness saw him pull a pistol put of his pocket and shoot Smith. This was about dark, and in Yazoo county, where Smith died on the same night. Witness went up to Smith after he was shot, and carried him across the street and laid him down in a house; he saw no weapons on him. Smith had blood on his mouth, which looked as if he had been struck.
    Upon cross-examination, witness stated that it was very dark that night — there was no moon, and it was a little cloudy; that it was so dark that he could not distinguish Cotton except by his voice; that he could not see what Cotton was drawing from his pocket until the pistol was fired; that he was nearer to Cotton than to Smith; that Smith was standing with his left side towards witness, and that he could not see his right hand, and did not know what he was doing with it; that Cotton was going backwards with his face towards Smith, from the time witness first saw him until he fired; that it was not more than two or three minutes from the time Cotton and Smith left the store until the pistol was fired.
    Dr. Leake, for the State, described the character of the wound of Smith, and stated that it caused his death.
    This was all the evidence — the prisoner offering none.
    The second instruction given on behalf of the State, was as follows:—
    That if the jury believed from the evidence, that the accused killed Smith, the deceased, and no accompanying circumstances appear in the evidence to excuse the act, the law presumes the killing was done maliciously, and that they will find him guilty of murder.
    The other instructions given on behalf of the State, which are necessary to be noticed, are fully set out in 'the opinion of the court.
    The first, second and third instructions given on behalf of the prisoner, with the modifications of the court, are as follows: — >
    1st. That unless the jury believe from the evidence, that the prisoner killed John Smith from a pre-meditated design, formed beforehand to effect his death, or the death of some other person, they cannot find him guilty of murder.
    
      The court refused to give this instruction as asked, but added to it the words, “but if it was premeditated, the law does not regard how short beforehand, the time was,” and with this addition gave it.
    2. That to kill a human being with a premeditated design, the mind must have acted in regard to the killing, before the killing was committed; and the mind must have settled down, resolved and determined to kill and murder; and that the killing was done with a deliberate mind and formed design of so doing.
    Which the court refused to give as asked, but added thereto the same modification as the one to the first instruction, and then gave it.
    3. That if the jury believe that Cotton killed Smith on a sudden quarrel, without a premeditated and formed design so to do, they must not find him guilty of murder.”
    To which the court added “unless he sought the quarrel and used a deadly weapon;” and with this addition gave it.
    To all which modifications and additions, so made by the court, the prisoner excepted.
    Other instructions were asked by the prisoner, and given by the court, but it is unnecessary to set them out.
    
      W. JE. Pugh, for the prisoner,
    Filed an elaborate brief, and cited and commented on the following authorities:—
    On the point that the court erred in overruling the challenge for cause, of prisoner, to Blundell, Sherrod and Billington. Sam V. The State, 13 S. & M. 189; Nelms v. The State, lb. 500.
    On the law of homicide. Whart. Am. C. L. 393, note; Shorter v. The People, 2 Comstock, R. 197; 27 Miss. R. 379; 2 Stark, Ev. 46; Roscoe, Crim. L. 290; 1 Bay, R. 351; 2 Wend. R. 497; 23 Miss. R. 322.
    On the point that the grand jury was defective. Mi Quillen v. The State, 8 S. & M. 597; 2 Pick. R. 550; 12 S. & M. 68; 23 Miss. R. 580.
    
      D. O. Grlenn, attorney-general, for the State.
   Fisher, J.,

delivered the opinion of the court.

The prisoner having been convicted at the last November term of the Circuit Court of Yazoo county, of the crime of murder, has brought his case for revision into this court.

The errors assigned relate: — First. To the action of the court in empanelling the jury by whom the prisoner was tried. Second. To the instructions given on behalf of the State, to certain modifications of the instructions asked on behalf of the prisoner, and, Third. To the action of the court in overruling the motion in arrest of the judgment. These several errors will be noticed in the order in which they have been assigned by counsel.

As to the first assignment. A juror being tendered by the State to the prisoner, was asked if he had formed or expressed an opinion as to his guilt or innocence. Answering that he had formed such opinion, the juror proceeded further to state that his opinion thus formed, was such that it would “require testimony to remove it,” whereupon the prisoner’s counsel challenged the juror for cause; but the court proceeding further to interrogate him, the juror stated that his opinion was formed from rumor, and that he felt as free to act in the matter, as if he had heard nothing about the case; thereupon the court held the juror competent, and forced the prisoner either to accept the juror or to challenge him peremptorily.

The same state of facts apply to two other jurors tendered by the State to the prisoner. This point underwent elaborate consideration by this court in the case of Nelms v. The State, 13 S. & M. 500; and the facts of that case, if not identical, are certainly not stronger than the facts of the case at bar. The juror in that case was held incompetent; and recognizing that decision as authority, we are compelled to hold that the jurors tendered to the prisoner, were incompetent, and should not have been forced upon him by the court.

Next as to the instructions of the court. It is said that the second instruction limited the investigation of the jury to the crime of murder, or to the defence of excusable homicide, and that they were not permitted to take into consideration the defence of manslaughter, which, so far as the crime of murder is concerned, may be regarded as a defence to the prisoner. The instruction was, no doubt, intended to leave the jury free to investigate according to the testimony, the degree of crime of which the accused, if guilty at all, was really guilty; but it must be admitted at the same time, that the instruction, if taken strictly according to its language, might warrant the construction given to it by counsel, and might have confined the jury to an investigation too limited. The jury, no doubt, without the instruction, would have clearly understood their duty, and the question is whether it tended to cramp their action? In answering this question, we think it barely possible that the instruction could have produced such an effect. Our conclusion upon this point, therefore, is, that while the instruction was wholly unnecessary, and while we are of of opinion that it did not, in the least, influence the jury, and we would not, therefore, reverse the judgment if this were the only error, yet the safer rule, unquestionably, is, that where the court undertakes to give even unnecessary instructions in this class of cases, the instructions should not be framed, so as even by remote construction, to limit the free action of the jury, in considering the testimony before them.

It is next said that the court erred in giving the fourth instruction, which is as follows: — “That to render the homicide justifiable by the law, on the ground of self-defence, it must appear from the evidence that Cotton, the accused, acted conscientiously upon reasonable fear, founded upon present overt acts of Smith, the deceased, to all appearances hostile, threatening a felony, or some great personal injury; and the danger of such felony being accomplished, or great personal injury being inflicted, to all appearances, must be immediate, pending, and unavoidable at the time of killing, though there really might be no actual danger.”

The party interposing the plea of self-defence, on a trial for murder, must be understood as undertaking to show, that in the perpetration of the deed he acted under a necessity, either actual or.apparent, forced upon him by the party killed; for if such were not the case, his defence can avail him nothing, or certainly not further than to mitigate the crime. The very defence itself presupposes danger to the party’s life or person, except in cases where he may act in defence of the life or person of another. When he assumes the defence, he at the same time undertakes to establish the danger, or what is the same thing, what appeared to be danger. The question presented by this instruction is, in what manner must the danger exist, to justify the party in taking the life of his adversary? The law says that there must be reasonable ground to apprehend a design to commit a felony, or do some great personal injury, and imminent danger of such design being accomplished. Hutch. Code, 957. Reasonable ground to apprehend the design, and imminent danger of its accomplishment, must both exist at the same time. What is reasonable ground to apprehend such design must always be as much, or, indeed, more a question of fact for the jury, than a question of law for the court; for while it is true in regard to inanimate subjects, where the fact is the same, the law must also be the same; this is not true, even as a general rule, in this class of cases. The hostile demonstrations of two men, may in every respect be the same; yet the party threatened may be placed in imminent peril from the conduct of one, and feel not the slightest apprehension of danger from the other. A design to commit a felony, or to do some great personal injury, may be apprehended in the one case, and it may have no existence whatever in the other. One may excite fear and the greatest apprehensions of danger, while the same demonstrations on the part of another may only excite mirth and ridicule. The question is in both cases the same — was there imminent danger to the life or to the person of the party threatened? As part of the means of arriving at the truth of this fact, the peculiar character of the hostile party is as much a fact for the consideration of the jury as any other fact in issue; and the jury must determine from the hostile demonstrations, whether there was such danger of this party’s executing his felonious design, as to justify the party killing ; in doing so, although there may have been no actual danger from the deceased at that very moment of time, the question in such case is, whether, by the delay, the danger is not increased; as, for instance, suppose the party threatened is in the upper story of a building, and the ground to apprehend the design to take his life, or to do great personal injury, is there, for the first time, discovered, and his adversary leaves for the purpose of arming himself, and taking a favorable position at the foot of the stairs, with the known and avowed purpose of committing the deed while the party is descending to make his way out of the building, would a few moments, or even ten minutes, make any difference in the killing in such a case ? The very act of allowing the hostile party to escape might prove fatal to the party threatened, and deprive him of all means of self-defence. It may be said that this is putting an extreme case. Grant it. It nevertheless serves the purpose for which it is intended, of showing the impropriety of laying down a rule, within the operation of which the court declares a person, without regard to the peculiar circumstances of the case, must bring his defence, in order to be successful. Whether the danger must be immediate or unavoidable at the time of killing to justify the party in the act, must depend upon the facts and circumstances of the case. This is the only general rule which a court can with any safety lay down on the subject. The jury must of necessity be the judges, whether reasonable ground to apprehend the design contemplated by the law existed, and whether there was imminent danger, from all appearances, that such design would be executed. In arriving at their conclusion on this subject, they are expected to avail themselves of such knowledge as they possess in regard to human transactions from their intercourse with society. The right of self-defence is not derived from the law. All the law attempts to do on the subject is, to prescribe rules of caution and prudence to be observed by persons before exercising the right, by ascertaining whether the danger exists, and whether it is imminent; and, as already remarked, whether it must be immediate and impending at the very time of killing, will depend upon the facts and circumstances surrounding the transaction.

But it is not necessary to pursue this subject further, and we proceed next to notice the seventh instruction as follows: — “That if the accused was armed with a deadly weapon, and sought and brought about the difficulty with the deceased, and killed the deceased in the difficulty, wiih such weapon, he is guilty of murder.” The fact of a man’s being armed with a deadly weapon, though he may be the aggressor in a difficulty, amounts to nothing, unless he provided himself with the weapon, with a view to using it if necessary in overcoming his adversary. It may be a man’s habit, as it unquestionably is his right under the law of this State, to carry a deadly weapon, and whether he is permitted to use it or not, must depend upon the nature of the difficulty in which he may be involved. A man may begin a difficulty intending to inflict no violence, or next thing to none, on his antagonist, and may be so closely pressed as to be forced to use his weapon in self-defence. The rule is stated thus by Blackstone: “If the slayer has not begun the fight, or (having begun) endeavors to decline any further struggle, and afterwards being closely pressed by his antagonist, kills him to avoid his own destruction, this is homicide, excusable by self-defence.” 4 Bl. Com. 184. In such case, the party having commenced the difficulty, he can only use his weapon in self-defence or take the life of the other party, when the danger is immediate or impending, and unavoidable.

The first and second instructions, asked on behalf of the prisoner; simply announce, as a legal proposition, that to make out the crime of murdei’,.it must appear that the prisoner “acted from a prer meditated design, formed beforehand, to effect the death of the deceased.” These instructions ought to have been given as asked.; as they were entirely free from objection. The court may modify an instruction to make it correct, but if it be already correct, it ought to be given as asked by counsel.

The qualification by the court, made to the third instruction, is clearly erroneous. The instruction is in substance, that if Cotton killed Smith, not in pursuance of a premeditated design, but on a sudden quarrel, the crime of murder is not made out. The modification made is, “ unless Cotton sought the quarrel, and used a deadly weapon.” The question was, whether malice prompted the accused to kill. He interposed, as his defence, by the instruction; “ no design to hill, and that the killing was on a sudden quarrel.” The court say to him that this is no defence, not even to mitigate the crime, if you sought the quarrel and used a deadly weapon. Now, he may have done both without being guilty of murder; for he may not, by seeking the quarrel, have intended the slightest personal injury to the deceased, and he may, from sudden provocation, have used his weapon, or he may have been forced to do so in self-defence, although he was the aggressor in the quarrel.

The modification amounts to this, that although there must be a formed design to take life, to constitute murder; yet such design is not necessary where the party killing seeks the quarrel, and uses a deadly weapon.

There must.be proof of malice, in some form; the seeking of the quarrel and using the deadly weapon, may be evidence for this purpose. But this is what the defendant below was endeavouring to meet, by showing no design to take life, because the killing occurred on a sudden quarrel. The modification virtually declares ithis to be no defence, if the party sought the quarrel.

We will briefly dispose of the last error assigned — the motion in ¡arrest of the judgment.

The venire from which the grand jurors were taken, contains .their names in full; but their Christian names, that is, of some of them, are abbreviated on the minutes of the court; as, for instance, the name of Fountain Barksdale appears in full on the venire, and it is F. Barksdale on the minutes. We do not think this error can prevail, when the record shows that the grand jurors were taken from the persons whose names appear on the venire.

It is next said that one of the grand jurors was excused, and the record does not show upon what ground. The record shows that the excuse was, by the court, considered sufficient. This must be treated as a legal excuse.

Judgment reversed, venire de novo awarded, and cause remanded.  