
    McGowan vs. The State.
    The judge who tries a prisoner is, under our system, the trier of the competency of jurors.-
    If a juror has heard the .circumstances of the case, and believing the statement he has heard to he true, lias formed, or formed and expressed an opinion, that is, has made up his mind as .to the guilt or innocence of the prisoner, he ought to be rejected.
    But where the piisoner challenged a juror for cause, and his objection was overruled by the court, and the juror in fact was incompetent, and the prisoner afterwards challenged him peremptorily, it was held, that unless the record showed that the prisoner exhausted his peremptory challenges, it was not an error for which this court will reverse the judgment. ’
    As a general ruíe, where a statute creates a felony, all present aiding and abetting, arc guilty as principles.
    Under the act of 1829, not only the person who1 actually deals the cards at faro is guilty of felony, but the owner of the funds and house, who receives the profits, and is present managing, aiding and assisting, is also guilty as a principal.
    The circuit court in a criminal case charged the jury, “that tlic court was the judge of the law, and the jury exclusively judges of matters of fact, and it was the duty of the jury to receive the law as laid down and expounded by the court, and that the jury were not the exclusive judges of the law: Heldrthatin this charge, taken altogether, there was no error, although the court were of opinion the first of it was laid down too strongly.
    As the jury have the right, and if required byj'the prisoner, are bound to return a general verdict upon the issue of not guilty, they must necessarily in the discharge of this duty decide such questions of law as well as of fact as are involved in this general question, and there is no mode in which their opinions upon questions o£ law can be reviéwed by this or atty other tribunal. But this does not diminish the obligation of the court to explain the law.
    The instructions of thecourt,in criminal cases, may safely guide the consciences of thejury, unless they know them to be wrong.
    When the jury in a criminal case undertake to deckle the law, in opposition to the advice of thecourt, they assume a high responsibily and should be very careful to see clearly that they are right.
    When a party was indicted for dealing faro, and the game played was denominated by some, forty eight, by others faro, and it was proved that it was substituted for faro by withdrawing from the pack four cards, it was held, if the principle of the substituted game was the same, and it was substantially the game of faro, the party would be guilty of dealing faro, notwithstanding such alteration in the game.
    Changes and modifications in the game of faro, which did not materially alter th'e nature and Charactar of the game, do not destroy its legal and statutory identity.
    The indictment in, this case was found several years after the passage of the act of 1829, making dealing at faro, felony. Upon this the circuit court charged the jury, that if thegame of forty-eight was substantially a different game from old faro, but was commonly called and well known by the name of faro in this State and at Nashville, at and before (he finding of the bill of indictment, it would be faro within the meaning of the law, if it was within the mischief, to reme* dy which the act was made:1' Held that the charge was clearly erroneous,
    The act of 1829, making dealers at certain kind of games, guilty of felony, is not, like the oidinary acts against gaming to be construed remedially.
    A statute was passed, authorizing the courts to construe all statutes against gaming remedially. At that time all kinds of gaming were indictable as mis demeanors The legislature subsequently, marie dealing faro and some other games, felony: Held, that it would not be proper to apply to the latter statute, *he rule of construction created by the fpruipy.
    The plaintiff in error was indicted at the May term, 1832, of the circuit court of Davidson county, for dealing faro. The cause was tried at the May term, 1834, of said oourt, at which term the jury returned a verdict of guilty. A new trial w-as moved for and refused, and a writ of error prosecuted to this court.
    During the trial several bills of exceptions were taken to the opinion of the court in relation to the competency of jurors, from whichit appears, that Joseph Link, Charles J. F. Wharton, Anderson Tucker and Mathew Barrow, were put to the prisoner as competent jurors. Upon their examination they all slated in substance, that they had formed, and some of them ^ey ^Ia(^ formed and expressed their opinions as to the or innocence of the defendant: that they had formed such opinion from public rumor, and not from conversing with, any ofthe witnesses. Wharton stated that in addition to public rumor he had heard the circumstances detailed from different persons, but that they did not profess to be eye witnesses of the transaction.
    The jurors were challenged for cause by the defendant, but the court decided they were- competent jurors; whereupon the defendant challenged them peremptorily.
    The record showed that a traverse jury was made up, without the defendant having' exhausted all of his peremptory challenges.
    The defendant amongst other grounds of defence, insisted first, that he did not deal at any game, and secondly, that if he did, the game he dealt at was not faro, but a different game called forty-eight.
    It was proved that the dealing charged in the indictment, was done in a room in the house of defendant, that he was frequently in the room giving directions; that he furnished the candles, liquors, &c. And that upon one occasion, when the dealer appeared to be somewhat awkward, he took the cards from him with the intention of showing him how to deal, and made a turn or two upon the cards, and handed them back; that upon the turn ox-two so made by him, money was lost and won, though the witness stated that it was not the defendant’s intention,"as ho understood from what occurred, to deal for money. It was also proved that the game dealt was sometimes called faro, and at other times ‘.‘forty-eight”; that it differed from old faro, by having the four sevens taken out of the pack, and there being no “pot”, as it is termed, nor hockely nor splits. Numerous-witnesses were examined by the defendant, to prove the games different, who went minutely into a detail of the difference between the two games, in the manner of playing, in the chances, &c. The State also examined a number of witnesses to prove that the principle of the games were identical, that withdrawing the four sevens made it a stronger game for the dealer; it is not however deemed important to state minutely the testimony, as the opinion of the court was wholly based the charge of the judge.
    Amongst other things not excepted to, the court charged the jury,
    1st. That “'the court was to be the judge of the law, and the jury exclusively the judges of matter of fact, and it was the duty of the jury to receive the law as laid down and expounded by the court, and the jury were not the exclusive judges of the law and the facts, except as the law was expounded by the court.”
    2nd. “That if the jury should believe from the proof, that defendant, together with Moses Whitesides, did deal for money or bank notes at faro, or, if Moses Whitesides dealt the cards and the defendant did not himself deal, but was present aiding,, abetting, or assisting such dealing, that would render the defendant guilty under the law. If the jury believed they united in the design of dealing faro for money or bank notes, and that to prove this the jury must look to all the testimony, and if they believed the defendant furnished the houses, the cards, the table, the candles, or that he kept the game, paid and received money, these facts, if they existed were all circumstances to which the jury might look and regard as evidence to show such aiding, assisting and abetting.”
    3rd. “That if the game played was substantially a different game from faro, and not a species of it, then defendant could not be found guilty; but if the game was not substantially different from, and was a species of faro, but differing in some particulars only, it would be faro if it was'within the mischief of the act under which he was indicted.”
    4th. .“That if the game of forty-eight was substantially a different game from old faro, but was commonly called and well known by the name of faro in this State, and at Nashville, at and before the finding of the bill of indictment against McGowan, it would be faro within the meaning of the law, if it was within the mischief to remedy which the act was made.”
    5th. “That the acts of Assembly against gaming were to be construed remedially and not strictly, and if the game of forty-eight was within the mischief and meaning of the act, it was sufficient to embrace this case, if that was the game at defendant played, or aided Whitesides, in playing or # 1 • * dealing.”-
    
      J. S. Yerger and James Campbell, for plaintiff in error-.
    We contend that this judgment is erroneous in many particulars and should be reversed.
    1st. The jurors Matthew Barrow and others, were clearly incompetent and should have been rejected. One great object injury trials is impartiality. To secure this, a certain number of peremptory challenges are given-to the accused, and certain causes of challenge exist, for which the jurors will be set aside if ascertained, without compelling the accused to spend his challenges upon them. He has a right to have a panel of unprejudiced and imparttial jurors. This he can never have, if a juror who has formed or expressed an opinion is ruled to be competent. It is no matter upon what data he has formed his opinion, if it be upon the swearing of witnesses, or their statement, he is not so incompetent as if upon mere idle rumors he had formed or expressed his opinion. 1 Yerg. Rep. 432: 6 CowenRep. 559: 7 do. 108: 1 John. Rep. 316': 1 C'owen R. 432: 1 Burr’s Trial 419: 4 Wend. 241 to 245.
    The disqualification attaches to the juror because he has formed and expressed an opinion; not to the means and manner of forming it. The law in such case presumes that there is- partiality or prejudice operating on his mind, and “that he will,” as Chief Justice Marshall observes, “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 weigh the testimoney as well as one whose opinion is not made up in the case.” 4 Wend. 242, 243, 245: 1 Burr’s Trial 419: 1 Chitty’s Cr. L. 443: Bac. Abr. tit. Juries E. 5.
    2nd. The judge erred in charging the jury that though McGowan may not have dealt faro, yet if he was present, and furnished candles, room, tables &c. to the dealer, it would be aiding and assisting, and constitute him a dealer within the statute. This offence is one entirely of statutory creation; and no person can be convicted of it, but he who is named. The 1egislature contemplated punishment to the person who actual-jy dealt, and not to an accessory, or aider and abetter. The act operates upon the person doing and not the thing done, consepuently he only who is named can be guilty. Thus in England it has been ruled, that where it is felony for one to enter a dwelling house and steal, no body being therein, without benefit of clergy; that one who is present aiding, to wit: standing- outside and watching for the other, is not within the act, and is therefore entitled to his clergy. The reason is that the act operates upon the person and not the offence. Cro. Car. 473: 2East Cr. L. 700: 1 Hale’s P. C. 527, 528: 11 Co. Rep. 37: 1 Hawk. P. C. 116, c. 33, § 98: Foster 357.
    So for private stealing from the person. 2 East Cri. L. 700: 1 Hale’s P. C. 528, 529.
    So under the statute against stabbing. 1 Hale’s P. C. 468, 527, 528: 4 Burr 2076.
    This construction is fortified by a reference to the penal code of 1829, (1 Hay. and Cobbs 252.) It will be seen by such reference that this- offence is created by the sixty-fifth section, aud that by preceeding sections, to wit: sixty-two and sixty-three, the only cases allowing of accessories and aiders and abetters, in which they are punishable as principals-are specified, 1 Hay. and Cobbs.252, § 62, 63, 65.
    3rd. The judge-erred in charging that the act of 1829, (1 Hay. & Cobbs 252,) against dealing faro was to be remedially construed, and was embraced by the act of 1824, c. 5, (1 Hay. and Cobbs 132.) That act can have ño operation upon it.
    1st. Because that act can only apply to laws then existing, or .which might pass, against gaming asa misdemeanor.
    2nd Because no statute can be construed to control one that was not in existence at its passage, particularly when the offence is created a felony, and a severe penalty attached to it. 1 Saunders on Uses and Trusts 242: 19 Yin. Abr. 523: 11 Co. Rep. 27: 2 Ld. Ray 1028: 22 Yin. Abr. 210: PI. 7: 6 Durn. and E. 286.
    It would be pulling down the rule of law which requires that statutes must be construed strictly when they are penal, and putting an equitable construction upon this very penal act. The rule that penal statutes must be construed strictly, is too , v , , , , , , , , , . well establislied to be shaken, and the manner ot their construction is shown in 2 Wheat. 119: G Ter. Rep. 286: 4 Car> and p 572; i9 Eng. Co. L. R. 633.
    4. The court erred in charging “that if the game played was a species of faro, and not the real game, it was within the act. There is nothing clearer than that the proof must correspond with the allegation. This charge destroys the rule.
    Thus this court at last term, held if the indictment charged a taking of money in usury and the proof showed a taking of .bank notes, the variance was fatal. State vs. McJiuly,- reported 7 Yerger 526. So in Johnson vs. The State, Mar. and Yer. 129: Garner vs. The State, 5 Yer. See 2 Wheat-119: 6 Term 286.
    This, though it may have been a species of faro, was not within the statute if construed according to the rules of law in reference to penal statutes. Trustees of Camp. Jtcad. vs. Martin and others at this term.
    Thus stealing a lamb is a species of sheep stealing, yet it does not support an allegation of stealing sheep. So decided in England.
    5. The court erred in charging the jury, “that though the game played may not have been known and commonly called faro, at the passage of this act; yet, if it was generally known and commonly called faro before the finding of the indictment» it would he within the act of 1829.”
    It cannot be the law that an act not known, or a thing not called by the name used in the statute, can by subsequently acquiring the name used, become so highly criminal. Any game at cards now known may, by the operation of whim, caprice or fashion acquire the name of faro, and according to this construction would be within the act. That would be to make the statute act upon the name and not upon the thing. It would be punishing a man for doing an act which the legislature could not by possibility have been providing against. Such construction would be worse than the tyranny of Caligula, who declared penalties for violating laws which from the place in which they were published could not be read and known to the people. This rule of construing statutes is quite No man can be safe if such latitude is too severe and harsh, given in the construction of statutes.
    6. The court erred in charging the jury, “that the court and not the jury was the judge of the law, and that they could only pass upon it as expounded by the court.”
    In this country the jury are the judges of the law and the fact. The fact that they are sworn to make a true deliverance between the State and the accused; that if they decided a* gainst the opinion of the judge, no new trial can be granted shows this incontestably. They have the power to render a general verdict of not guilty; and having the power they have the legal right, for in this case legal right and power are the same, as no tribunal can call them to account for the manner in which they discharge the trust. I think the rule to be, so far as the state is concerned, that the courtis the exclusive judge of the law, because, if the verdict is for the state, the court can control it; so far as the defendant is concerned the jury are the judges of the law, because the court cannot control their find^ ing, if against its opinion. The jury should not exercise this right rashly, but should listen with respect and deference to the opinion of the court; but when they believe the court to be wrong, should find against its charge. Unless this be so, great oppression might grow out of judicial power being vested in corrupt judges. 10 Pickering 496: State Const, art. 6 §5: 1 Hay. & Cobbs 404: Bill of Rights, § 6, 9, 10: 1 Hay. and Cobbs407: American Citizen, 269,271, 276, 277,279,280, 281, 282, 283,285,286,287; 288,296, 297: 1 Thom. Co. 500: N. 7: Kneeland’s case 25, 26, 27, 28 el Seq. 2 Wilson’s..Works 368, 369, 370, 371, 372, 373, 374: Er. skin’s Speech in Dean of St. Araph’s case, 219: State Trials 922, 923, 924, to 926, 927: Bearcrofi’s Speech, same case, 935: same book 971: Mr. Hamilton’s Speech 278, 285 in 3 vol. Eloquence U. S. Fries’case 2 vol. Chase’s Trial (Appendix:) Calender’s case 1 Chase’s Trial 188: 1 Chitty Or. L. 409: Dana’s Case 5 Munf. 363. Burke vs. Preston, Gil-R. 303. State vs. Mitchell, 5 Ferg.: 6 vol. American Jurist page 237 to 267.
    To deny that the jury are the judges of the law and fact, is to deny' the accused the right of full defence by counsel. if the jury are not to judge the law, counsel cahribt argue it bé-fore them, 6 vol. American Jurist 237 to 267
    This right has never been denied even in England, except by the judges in the cases of libel, which were considered anomolous cases differing from all others.
    The Bill of Rights in our courts, § 19, gives the jury the right to try the law and fact in libel, as in oilier cases.
    
    
      David Craighead and James Rucks,
    
    who were appointed by the court to argue this case on behalf of the State; (the Attorney General not being competent from having appeared as counsel for the accused in the court below,) argued this case very ably and elaborately upon all the questions raised, but not having furnished any memorandum in writing of their argument, it is omitted.
   Reese J.

delivered the opinion of the court.

The first enquiry arising upon this record is, did the circuit court err on the trial, in putting to the prisoner as competent jurors, and imposing upon him the necessity of accepting of challenging, peremptorily, Joseph Link, Charles J. F. Wharton, Anderson Tucker and Matthew Barrow, all of whom stated that they had formed opinions of the guilt or innocence of the prisoner, some of them, that they had formed and expressed such opinión in each instance upon public rumor, and in one instance, that of Wharton, in addition to public rumor, upon a detail of the circumstances from persons, however, Who did not profess to have been eye witnesses of the transaction. The jury having in their hands the life or liberty of the prisoner, on the one side, and the duty of vindicating the violated law, on the other, it has always been deemed of high importance that they should as far as possible, stand indifferent between the supposed criminal and the State. Amid the crowded population and busy pursuits of a community like England, divided too, into classes, which take, perhaps, no very lively interest in each other’s fate or concerns; and it may be added, where the frequency of crime deprives it of the power to produce much public excitement, it may not be very difficult, perhaps, to find a jury unaffected by rumor; but in an agricultural community like ours, of sparse population, identical pursuits, equal siation and infrequent crime, it lias-always been found a matter of much delicacy and difficulty, if not altogether impracticable to procure a jury entirely miaiiected by rumors touching the transactions of a criminal nature upon which they are called to pass. This, it is probable, lias produced a practice upon this subject, very general it is believed with our circuit courts, such as was adopted in the case before us. It is not improbable, also, tuat this practice was fortified by some unreported decisions of our supreme court. Bo this as it may, it becomes our duty to lay down some rules on the subject, which, while they adhere to the ancient principle that a jury must be omni exceplione majoris, shall be adapted to the character and circumstances of our community, and to the just, impartial, and successful administration of the laws; and ■the rule is this; if it appears to the judge, who under our system is the trier of the competency of the juror, that he has heard the circumstances of the case, and believing the statements he has heard to be true, has formed, or formed and ex1pressed an opinion, that is, has made up bis mind as to the guilt or innocence of the prisoner, he ought to be rejected.

This in substance, we believe has been the rule and course, with considerable uniformity, adopted and enforced within the State. In one of the instances excepted to, that of Wharton, the juror seems to have formed his opinion and belief, not upon rumor merely, but upon a detail of circumstances from persons in whom he seems to have confided, and we think he ought to have been rejected for cause. But the record does not show, that the prisoner exhausted liis list of peremptory challenges, and if he did not, and he elected a jury omni exception majoris, leaving peremptory challenges unexhausted, we are of opinion that it does not constitute an error for rvhioh we ought to reverse the judgement,

2. Can aiders and abetters, present and assisting in the dealing at faro, be found guilty of this statutory felony, or can he only be guilty within the meaning of the statute, who does the manual act of dealing. It is argued by the counsel for the prisoner, that this offence of dealing at faro, and of course, also, those of playing with thimble, and exhibiting the grand-mo-irick’ so calle<3> created by the same statute felonies'*leaving by the act of 1827, been rendered infamous, can only ha committed by the one individual who may hold in his hands the cards or thimbles; and they are attempted to be assimilated to the cases mentioned in Hale 468, 527: 4 Burrows 2076, and 2 East 700, arising under the statutes which take away clergy from the offences of stabbing, stealing privately from the person, entering and stealing from dwelling houses. These statutes do not create the offence or the felony, but take away clergy; their object was to capitally punish him, whose hand held the knife, picked the pocket, or him who actually entered the house; the aider and abetter was still punished as a felon, but had his clergy; such are those decisions. We are not aware of any principle in the criminal lav/, which establishes the provision, that where a statute creates a felony, those present, and aiding and abetting cannot .be charged and convicted as principals. In faro, in thimble, in the grand-mother’s trick, for aught we know, the manual act may be performed by a machine, a slave, a servant, a reckless or half-witted mendicant, whose poverty, as much as ir.s will, consents to the deed, and whom the law would scarcely choose to punish, while the owner of the house¡ of the funds, of the profits* the manager of the whole affair, in short, may be present, aiding, abetting, and superintending the entire concern. Such an one, we think a dealer within the meaning of the statute, and in this part of the charge, we think there is no error.

3. In the charge to the jury, the judge said, “that the court was to be the judge of the law, and the jury exclusively the judges of matters of fact, and it was the duty of the jury to receive the law as laid down and expounded by the court, and that the jury were not die exclusive judges of the law.” This point of the charge is excepted to, and may perhaps be wanting in precision. It might bo inferred from it, that the counsel for the prisoner, had urged upon the trial, that the jury in criminal cases, arc the exclusive judges of the law. If this were contended for in a sense, which implied that it was not the duty and office of the judge so to lay down and expound the law to the jury, and highly proper in them to receive irem the court the law, with attention, wih deference, with respect, and to give effect to it as expounded, unless in their conscience they believed him to be wrong, the argument, if such were used, was not well founded. Of course, the position that they were the exclusive judges of the facts related to their present power of finding a verdict, for however exclusively for that purpose they might judge, if they judged against the weight of testimony and against the prison, cr, also, it would have then been the duty of the judge ⅛ have set asido their verdict, upon his judgment of the facts. On the other hand, when the court says, “that the court was to he the judge of the law, and that it was the duty of the jury to receive the lavr ns laid down and expounded by the court, the proposition is made perhaps, somewhat too strongly. The long contest in England on the law of libel, and the relative powers and duties of courts and juries in those cases which took place between judges, lawyers, and statesmen, and which resulted in an act of Parliament, which was the evidence of the triumph of the liberal and popular side of the question, produced, perhaps, the clause in our bill of rights, which declares the jury to be judges of law as well as facts, in libel cases, as they were in all others. Upon this point we adopt the language and opinion of the court in the case in 10 Pick. Rep. 496: “As the jury have the right, and if required by the prisoner, are bound to return a general verdict of guilty or not guilty, they must necessarily in the discharge of this duty, decide such questions of law as well as of fact, as are involved in this general question, and there is no mode in which their opinions upon qiiesíions of law can he reviewed by this court or any other tribunal. Bui this does not diminish the obligation of the court to explain the law. The instructions of the court in matters of law, may safely guide the consciences of the jury, unless they know them to be wrong; and when the jury undertake to decide the law (as they undoubtedly have the power to do) in opposition to the advice of the court, they assume a high responsibility, and should he very careful to see clearly, thailhey are right.” But although these abstract propositions are put by the judge, some of them perhaps inaccurately, and others it may be too strongly, yet taken in the aggregate, and with reference to their bearing upon the case, we are unab]e ⅛0 gome to the conclusion, that they constitute ground of error, upon which we ought to reverse.

4. The court charged the jury, that if the game proved was not substantially different from, and was a species of faro, hut differing in some particulars only, then in contemplation of law, it would be faro, if it was within the mischief of the act under which he was indicted. This part of the charge is also, excepted to. It seems from the proof, that up to the end of the year 1827, a game was played with fifty-two cards, which was universally called faro, by gamblers and the public. Attheendof the year 1827, or in the year 1828, old faro was abandoned, or rather, some changes took place in it; some cards were subtracted, but the principle of the game remained the same, it was a stronger game in favor of the dealer, and against his adversary. It was called forty-eight, by some dealers and gamblers, but most generally by the public, as before, faro. This modification of the game, and attempt to change the name proceeded no doubt, from the act of 1827, having made those guilty of dealing faro, playing at thimbles, and exhibiting the grand-mother’s trick, subject (o pillory and infamy. And when the act of 1329, passed according to the proof in this case, the old game of faro with fifty-two cards had ceased to be played and forty-eight, or the new faro, commonly then known by the name of faro, was in existence, or more frequently used, invented no doubt, to elude the act of 1827. We think the charge of the court upon this point correct. If the principle of the game remained, and the game substantially continued the same, changes and modifications which did not materially alter the nature and character of the game, would not destroy its legal and statutory identity.

5; But the court further told the jury, “if the game of forty-eight, was substantially a different game from old faro, but was commonly called and well known by the name of faro, in this State, and at Nashville, at and before the finding the bill of indictment against McGowan, it would be faro, within the meaning of the law, if it was within the mischief, to remedy which the act was made.” This proposition in the charge is excepted to, and we think it clearly erroneous. If the charge had been upon this point, in the identical terms of the above proposition, substituting only the words, at or before the age of the act of 1829,for the words, at and before the finding of the bill of indictment, the proposition would have been not only correct, we think, in point of law, but relevant also, to much testimony in the cause. A substantially different game, it is here said, from that intended in the act, but which acquires the same name subsequently, if it fall within the mischief to remedy which the act was made, becomes indictable under it. If this be so, it must be by the offence falling within the mischief, and cannot arise, from the acquisition ol the name. It is unnecessary to argue, that if a statutory felony be created, different offences from that created by the statute, but falling within the mischief to be prevented, cannot be considered and punished as identical with the statutory felony.

6. To this, another proposition intended to sustain it is annexed, in the charge of the court, namely, “that the acts of Assembly against gaming were to be construed remedially, and not strictly, and if the game of forty-eight was within the mischief and meaning of the act, it was sufficient to embrace this case.” That a statute creating a felony, shall have a remedial construction, is a principle no where established. An act of Assembly in 1824, directed that all statutes made for the suppression of gaming, should be remedially construed. Every species of gaming then punished by law, was considered and treated as a misdemeanor. But when faro, in 1827, was rendered infamous, and in 1829 a felony, will it be proper to apply to it, the rule of construction created by the act of 1824, and applicable only to misdemeanors. We think not clearly.

For the reasons herein stated, the judgment of the circuit cou;t will be reversed, and the cause be remanded to the circuit court to be there tried again.

Judgment reversed.  