
    
      The State v. Patrick M’Elmurray.
    
    It is not necessary that the names of the jurors should be embodied in the writ of venire facias; it is sufficient if they be arranged in lists below the signature of the Clerk.
    The writ of venire facias is merely a precept to the sheriff to summon a jury according to a list of the names, or “ panel” annexed. — 10th sec. of the Act of 1839, copied from the Act of 1731 — P. L. 124.
    The facts of the writ of venire facias not having been issued within twenty days after the adjournment of the Court, nor returned within fifteen days before its sitting, do not afford sufficient ground for arrest of judgment. The important object of obtaining an impartial jury, is secured by tlie manner of drawing them, which is not in the least aifected by the mode of summoning them.
    A seal to the venire is necessai-y in compliance with the law which requires all judicial process to be issued under the seal of the Court; but it is not necessary that the impression of the device should be manifest on the seal.
    A divorce, by the law of Georgia, being grantable in a Court of Record, can be proved only by the record of the Court in which it may have been granted. That a witness was allowed to testify, who had heard the opening of the ease, and who, being the first sworn, was not separated from the other witnesses of the State until after the close of his examinaron, affords no ground for a new trial; it defeated in no particular the object of separating witnesses.
    It is within the sound discretion of the presiding Judge, to allow a juror to leave the jury box for a brief time, even during the trial of a capital case. — State v. Anderson,, 2 Bail. 565.
    A slight variance as to time between the affidavit before the Magistrate, and the testimony on the trial, of a witness who is an ignorant person, and whose attention may not have been called to the importance of exactness, is not sufficient to invalidate the truth of her evidence.
    Where a fact stated by a witness at the trial is not contradicted in her affidavit before the Magistrate who issued tlie warrant, and the rest of the affidavit which sets out the material facts is in strict conformity with the testimony of the witness at the trial, the statement of that fact is not an inconsistency which will impair the evidence.
    A memorandum of the testimony of the witnesses examined before a Coroner, taken by a person who was present, is not competent evidence, even if it bo proved.
    When the jury have found upon the testimony of witnesses, of whose credibility they were the only competent judges, and their verdict is confirmed by circumstances direct, consistent and cumulative, there is no ground on which t© remand the case for anew trial.
    
      Before Frost, J. at Barnwell, Spring Term, 1848.
    JUDGE’S REPORT.
    On Friday night, the 24th of December, the prisoner and his wife were at Tobin’s. Some time in the evening, Cochran, Turner, Grubbs, the deceased, and young Stallings, also went to Tobin’s. They took supper and drank freely till about midnight. While at Tobin’s the prisoner was asleep in his chair and Stallings waked him — he jumped up and said he would kill Stallings. To bin spoke to the prisoner, and told him Stallings was not mad with him — the prisoner and Stallings afterwards made friends and took a drink together. Before the party left Tobin’s, the prisoner’s wife requested Mrs. Tobin to dissuade him from going home, because the prisoner had said he was going home, and if Stallings went, he would kill Stallings. All the party, including Tobin, started out — either before or after they set out, the prisoner invited them to go to his house; they all went except Grubbs and young Stallings. The prisoner’s wife remained at Tobin’s. They reached the prisoner’s about midnight and commenced drinking. Cochran and Tobin said they staid a short time; reached home before daylight, slept a short time and got up to breakfast. They left Turner and Stallings and the prisoner drinking and friendly. Turner went to Tobin’s about an hour after sun rise, and went to bed. Sarah McDaniel, the reputed wife of the prisoner, left Tobin’s a short time before Turner returned — she met him in the path to her house. About 12 o’clock on Saturday, Tobin and Cochran, Grubbs and Dyas started from Tobin’s to get a jug of liquor and look for Stallings. They stopped at the prisoner’s — Tobin went in — the others stood out in the yard — he did not ask for the prisoner. They went on about 150 or 200 yards and found the body of Stallings in the prisoner’s enclosure, near a fodder stack, and lying very near the foot path from the prisoner’s house to Jack Scott’s. He lay with his forehead resting on his arm, and his head chopped open with three chops of an axe. Cochran and Grubbs returned to the prisoner’s house and found his wife sitting in the room. Asked for the prisoner — he was abed. They called him up and asked, what has become of Stallings. The prisoner sprung out of bed and replied, Stallings had gone off in the morning, and he had not seen him since he left the house. Cochran said to the prisoner, Stallings is found dead in your enclosure; and you cannot leave until we find some one else. The prisoner’s clothes had blood on them; on the breast and collar, and generally in front. They returned to where the body was lying. The prisoner seemed loth to go with them. He approached within five or six paces, squatted down and sat there some time. He was asked, are you sure that is the last time you saw him, alluding to what was said in the house. The prisoner showed a track through the field, near where Stallings was lying, and said he (the prisoner) had come along that track from Scott’s and saw the deceased; and that was the last time he had seen him. The body lay 8 or 10 yards from the track. The prisoner was asked for his axe —he gave no answer for a minute or two, and then said, I have been chopping fresh meat with my axe. Cochran said, I did not ask that, but for your axe. The prisoner replied he did not know where it was. After the prisoner was arrested, Cochran and Grubbs found the axe and it was bloody. The blood, mixed with hair, was clotted near the handle, and forced into a crevice between the handle and eye of the axe. The axe was carried to the prisoner, and he was asked if that was his axe. He did not answer immediately. (Tobin said, the prisoner at first denied the axe to be his.) Tobin said it is his axe; I sold it to him. The prisoner then said yes, it is my axe. The prisoner had on the same clothes in the morning which he had on the night before. While the prisoner was in the house, before the Magistrate came, he seemed very uneasy, walking back and forth; and when his back was turned, was observed to be picking the blood off his clothes. The prisoner said his nose had bled, to account for the blood on his clothes j but Tobin said the blood was there before his nose bled. When the prisoner was carried to where Stallings’ body lay, he said he had seen Stallings there when he came from Scott’s. The deceased was struck on the back of the head ; two blows on the sides and the severest in the middle. The coat and -vest of the deceased were lying at his feet. Several witnesses deposed that the prisoner had, before this act, threatened t© have revenge against Stal-lings. These threats were made about 18 months before, when the prisoner and Stallings had a scuffle, and Stallings had struck the prisoner a severe blow with a weight.
    
      Mrs. Tobin testified that about 10 or 11 o’clock, she sent her nephew to Scott’s, and he not returning as soon as the witness expected, she went to look for him. The witness saw the prisoner going from his house to David Scott’s, “ toating something,” but the witness was not near enough to distinguish what it was. He dropped it down, and chopped with an axe, in the field, between his house and Scott’s, and near the path, in a broom sedge. She saw two blows— heard no report from the blows. She was in the road and the prisoner in the field. She did not know the distance. After the body was found she went where it was lying, and it was in the place she had seen the prisoner chopping.
    
      Sarah McDaniel or McElmurray, the reputed wife of the prisoner, testified that she returned home from Tobin’s about an hour after sun rise, and found the prisoner and deceased sitting by the fire — she got breakfast about an hour after-wards. Stallings was singing a song about old maids. The prisoner said there was not a maid in the settlement above ten years. Stallings replied that is a d — d lie. After breakfast the prisoner said to the witness if he could get a gun he would kill Stallings. He told the witness to go with him. They left Stallings in the house and went first to Dave Stott’s, a colored man, to get a gun. The prisoner found one, put in some powder, but it would not fire. He then went to Aleck Scott’s and asked for a gun or pistol, but got none. The witness and prisoner returned home by the foot path through the field. They saw Stallings lying near the path. The prisoner said to witness, “ look there” — they went on home. The prisoner shut the door towards Stallings; took Stallings’s hat, jacket and vest and threw them out of the door, telling the witness he was going to carry them to Stallings, and directed her not to open the door until he returned. When he went out, the witness opened the crack of the door, and saw the prisoner between the house and the fodder stack going towards it. When she next saw the prisoner, he was going across from where Stallings’ body was, to the fence. he got to the fence he pitched something over-, he got over and picked it up; came round the fence to an old log; split off a piece of lightwood, and stuck the axe in the ground, by the side of the log. He brought the piece of lightwood into the house; laid it down and went to bed. He did not get up again until Cochran and Grubbs came and waked him.
    It was objected to the competency of Sarah McDaniel, that she was the wife of the prisoner. An issue was directed to try this fact. It was proved that the prisoner was married to Sarah McDaniel by a Magistrate, about three years before the trial. The Magistrate had heard that the prisoner had another wife; but the prisoner said he had been divorced in Georgia. Several witnesses testified that the prisoner and Sarah McDaniel lived together as man and wife. She bore his name and was recognized by the witnesses as his wife. Mr. Myers proved that he had married the prisoner to Adeline Griffin, the 7th April, 1833. The date he obtained from a book he kept, but had it not in Court. It was proved that by the law of Georgia, divorces may be granted by petition to one of the Superior Courts. The jury was instructed that no proof of a divorce had been produced, which could only be proved by the record of the Court which might have granted it. They found that Sarah McDaniel was not the wife of the prisoner.
    The counsel for the defendant had required the witnesses to be separated before the jury was empanneled. Cochran, one of the witnesses, was a juryman, and when the other witnesses were removed from the Court, he remained, to answer as a juryman. When the jury was empanneled, and after the Solicitor had progressed in his statement of the evidence, the counsel for the defendant called attention to Cochran’s presence in Court, and objected that he should testify. The objection was overruled, because the counsel for the prisoner had declined to have the witnesses put into the custody of the sheriff, but was content that they should be kept separate ; and since Cochran and another juror had remained in Court to answer to the challenge of the prisoner, of which his counsel had notice, it was incumbent on the counsel to have him sent from the Court before the case was opened.
    One of the jurors asked leave of absence and it was granted. He returned in a short time, and it was objected that he could not resume his seat, bcause he had left the box without the consent of the prisoner.
    The first, second, sixth, seventh and eighth grounds of appeal present matters which did-not appear on the trial. — Respecting the seals to the venires, I have a confident impression that they were exhibited to me, and should have no doubt of that fact, if it was not stated to be otherwise in the first gr0und of appeal.
    The defence was principally maintained on alleged discrepancies jn the statements of the witnesses. My notes supply the particulars of evidence which the report may not present. The objections to the testimony did not appear to me to affect, in any material degree, the proof of the facts implicating the prisoner. With every degree of care, the objections and evidence by which they were supported, were presented to the jury. It is not improbable that my own impressions were, at the same time, conveyed to them.
    The defendant was found guilty.
    The prisoner moved in arrest of judgment on the following ground:
    Bee,a use the writs of venire facias for the grand and petit juries, were not issued in due time, nor returned in due time, nor in due form, nor under the seal of the Court, as required by law, which has been discovered since the trial.
    And for a new trial:
    1. Because the Court admitted the testimony of Sarah McElmurray, who was the 'prisoner's wife, and not his concubine, as alleged by the State.
    2. Because the Court admitted the testimony of James Cochran, who (contrary to the order made by the Court,) remained in the Court room after the case was opened, and a statement of facts to be proved made by the prosecuting attorney.
    
    3. Because a juror left the box pending the trial, without the knowledge or assent of the prisoner or his counsel.
    
    4. Because his Honor charged the jury against the prisoner more strongly on the facts than is consistent in capital cases with the province of the jury and the rights of the accused.
    
    5. Because the testimony of the witnesses in behalf of the State was contradictory and insufficient.
    6. Because the testimony of James Cochran and the prisoner’s wife was not consistent with their affidavits before the Magistrate who issued the wafrant.
    
    
      7. Because of a written document discovered during the trial accidentally, viz: a statement of the testimony taken before the Coroner’s Inquest, which paper was in the possession of the physician who attended the inquest, and who during the trial handed the same to the Solicitor, and the Solicitor handed the same immediately to the prisoner’s counsel, who, however, (seeing it for the first time) could only use it as a guide in the cross examination — for the physician having been in Court and heard the testimony of several witnesses, could not be made a witness to verify and prove the contents of the paper, which was the more vitally important inasmuch as the Magistrate, acting as Coroner, had very strangely neglected and failed to make any report of the testimony at the inquest, although required by law so to do.
    p L 134#
    x 0h;tty Cr_ Law, 507 & 8. '
    Harp. 91.
    
      8. Because the verdict was contrary to evidence.
    9. Because the verdict was contrary to law.
    
      Bellinger, for the motion.
    
      Edwards, Solicitor, contra.
   Frost, J.

delivered the opinion of the Court.

One of the objections made to the venire, in the first ground in arrest of judgment, is, that it was not in due form. This was explained in the argument to mean that the names of the jurors were not embodied in the writ, so as to be certified by the signature of the Clerk; but were arranged in lists below his signature. By reference to the books of practice, it will appear that the writ is merely a precept to-the sheriff to summon a jury, according to a list of the names or panel, annexed. The 10th section of the Act of 1839, copied from the Act of 1731, requires the panel, or roll of the jurors drawn, to be annexed” to the writ. The writ in this case conforms to the law and usage for more than a century.

The 10th section of the Act of 1839 directs the Clerk to issue the venire within twenty days after the adjournment of the Court. By the Act pf 1731, he was directed to issue it “ forthwith,” after the jury was drawn. The 2d section of the Act of 1799, which has not been altered, requires all judicial process to be made returnable, within fifteen days before the sitting of the Court. In the Courts at Westminster, the kind of process to be issued to summon a jury differs according to the Court from which it is awarded. In some cases there must be a particular precept to the sheriff, or writ of venire facias; in others, a general precept will suffice; or the whole may be merely a command to the sheriff to return a jury, ore tenus. The justices of jail delivery may have a panel returned by the sheriff, without any writ to warrant the process; and so may the King’s Bench, as to all indictments actually found in the county in which it is holden. Without inquiring into the changes of this practice, made by our Statute, it may be assumed that the writ should be returned within fifteen days before the sitting of the Court. In the case of the State v. Crosby, for horse-stealing, the venire was not delivered to the Sheriff until a few days before the sitting of the Court; and after the jurors had been summoned. In the judgment of the Court it is said, the important object of obtaining an impartial jury, is secured by the manner of drawing them, which is not, in the least, affected or controlled by the mode of summoning them; and it is obvious that, in prescribing the mode, the Legislature had nothing more in. view than to procure it promptly done. The writ of venire was the authority of the sheriff; and as the process 0f ()ourt secured the attendance of the jurors, I am unable to see how the prisoner is affected by any irregularity in reSpeCf;, The objections to the issue and return of the venire in this case are thus completely answered.

2 Speers, in: ’

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S im'

Another objection is, that the impression of the seal of the Court is not apparent on the wafer and paper, affixed to the writ, as a seal. The case of the State v. Dozier only decided that the venire is part of the record, and that the omission of the seal was a defect in the process, sufficient to arrest the judgment. No seal, of any description, had been affixed to the writ. A seal to the venire is necessary only in compliance with the law which requires all judicial process to be issued under the seal of the Court. The Act of 1839 made no novel provision when it directed that “ the Clerk of each office should be provided with a seal of office, with a proper device and a screw;” and that all writs and process should be tested under the seal of the Court. The Act of 1792 contained the same provisions, except that a screw is not mentioned. Yet it has never been held that the impression of the die should be manifest on the seal of the Court, affixed to process, though, in this respect, it has been uniformly defective. By common consent it seems to have been deemed unnecessary, with such formality, to authenticate, for domestic purposes, the acts and proceedings of the Court. For the exemplification of the proceedings of the Court into other States only, has the pressure of the screw been applied to make such an impression of the seal, as may plainly identify it, should it be called in question. It would cause great practical inconvenience, without utility, if it were required that the seal of the Court should be impressed, by the screw power, so as to exhibit its device, on every writ of capias, sub-pcena, and execution, as well as venire, which may be issued from the Court. Chicanery would be encouraged to the detriment of justice, if inattention to such a mere technical form were permitted to arrest the proceeding of the Court. In Smith v. Allston, it was objected, when the case was called trial, that the seal on the writ had not the impression of the die, by which it might appear to be the seal of the Court. The objection was overruled because it was made too late. Judge Nott, who delivers the opinion of the Court, adds— But if the objection had been made at an earlier period, I think it ought not to have been sustained. The impression made by a seal, in the ordinary, hurried course of business, is frequently very slight, never indelible, and always liable to be effaced by time and accident. Its genuineness is more certainly determined by the manner of its authentication, than by the characteristic and distinguishing emblems, left upon its face. The duty of the Clerk of the Court is to affix the seal of the Court to every judicial process. This duty he is sworn to perform. He has by his attestation declared that the seal affixed to the process, is the seal of the Court; and the Judge below was authorized to conclude it was so.” This opinion, though the judgment of the Court was not ed upon it, has always since been recognized as law and followed in practice; so that the seal, affixed to the process, has been recognized and admitted as the seal of the Court, though the impression of the device may not be apparent.

Rileys Casea,

8 Eagt ^ 1 ’

2 Bail, 505.

The objection that the names of the grand jurors were not inserted in the indictment, was conclusively settled in The State v. Cook.

The testimony of Sarah McElmurray, alias Sarah McDaniel, was not admitted until an issue was tried by a jury and they found that she was not the wife of the prisoner. So much only of the evidence was required by the ground of appeal, as was necessary to present the single point of law on which the jury were instructed that a divorce by the law of Georgia, being grantable in a Court of record, could be proved only by the record of the Court in which it may have been granted. This point, Lord EUenborough, in the case of the King v The inhabitants of Castell, briefly decided by affirming, It cannot be argued that a record can be proved by any witness.”

Cochran was the first witness sworn for the prosecution, and was separated from the other witnesses of the State, when his examination was closed. He could not be aided in giving his testimony, by their statement; nor they, by his. The object of separating witnesses is to prevent their hearing the testimony of each other and being thereby assisted in preserving consistency in a fabrication. By the presence of Cochran in Court when the solicitor opened the case to the jury, with a brief outline of the evidence he expected to produce, the defendant was not deprived of the means of detecting inconsistencies in the testimony of the witnesses for the State; nor his security against combination impaired.

In the State v. Anderson, the Judge permitted the jury, in a capital case, to be discharged from the adjournment of the Court, one day, until it was convened, the next. That is sufficient authority for the Judge to permit one juror to retire, for a brief time, from the jury box.

The affidavits of Cochran and Sarah McDaniel were not produced at the trial, — and that of Cochran has not been here presented to the Court. This would, in ordinary cases, be a sufficient answer to the 6th ground for a new trial; but it is proper, in favor of life, to consider the objection. Sarah McDaniel, in her testimony, did not fix the time when the prisoner and herself left their house to go to Scott’s. But she said, on her way home from Tobin’s, she met Turner; and it was about an hour after she got home, that the prisoner and herself set out for Scott’s. Turner said he got to Tobin’s about an hour after sunrise. In the affidavit she says it was “about eight o’clock” they set out for Scott’s. The variance is, between 8 o’clock and two hours after sunrise. In her testimony, the witness said that when they set out to go to Scott’s, they left Stallings standing in the room; and on their return, they found him lying asleep near the fodder stack, by the path from the prisoner’s house to Scott’s. In the affidavit, it is said Stallings “ went from the prisoner’s towards Scott’s, and before he got to Scott’s, he lay down.” The want of precision, as to the time, in the witness’ affidavit, who is an ignorant person, and whose attention may not have been called to the importance of exactness, is not sufficient to impeach the truth of her evidence. The fact that Stallings was at the prisoner’s when the witness and the prisoner set out for Scott’s, and that they found him lying near the fodder stack, when they returned, is not contradicted by the affidavit. The statement in the affidavit that Stallings went from the prisoner’s towards Scott’s, and before he got to Scott’s he lay down, does not necessarily imply, as has been argued, that Stallings left the house before the witness. The rest of the affidavit, which sets out the material facts, is in strict conformity with the testimony of the witness, at the trial.

The memorandum of the testimony of the witnesses, examined before the Coroner, taken by a person who was present, would not be competent evidence, if it were proved. The witness was not offered at the trial, though he was present in Court; and it would be relaxing the rules of evidence to a degree entirely inconsistent with the administration of the criminal law, if it may be assumed, in behalf of the prisoner, that the witness, if offered, would not have been admitted, and the omission to offer him be allowed as a cause for a new trial.

In support of the 5th ground, that the testimony of the witnesses was insufficient and contradictory, it has been chiefly urged, that the testimony of Sarah McDaniel is not to be credited, because falsified in a material circumstance, when she stated that, on the prisoner’s return from the fodder stack to the house, he threw something like an axe over the fence; and it is said there is no proof of any fence between the house and the fodder stack, which was about 300 yards from the house. Sarah McDaniel certainly affirms, in the statement impeached, that there was a fence; and no witness has said there was not. It is not improbable the house of the prisoner may have had a space around, enclosed by a fence. The denial of the existence of such a fence rests entirely on the assertion of the counsel, who does not affirm any knowledge of the fact beyond what the evidence discloses.

The uncertainty respecting the time when, by Sarah Me-Daniel’s statement, the prisoner left his house and went to the fodder stack, and also respecting the precise time when Mrs. Tobin saw him chopping at the stack, was much insisted on in the argument below. The jury were advised that, in this particular, it was indispensable that the testimony of the witnesses should coincide ; because the proof of the prisoner’s guilt, so far as it depended on the testimony of these witnesses, depended on their agreement. Sarah McDaniel got home about an hour after sunrise, which on the 23d Deer, was said to be 10 minutes after 7 o’clock. She was absent an hour getting breakfast. It was after breakfast, they set out for Scott’s. They were absent about half an hour, or three quarters, when they returned home. The prisoner then went to the fodder stack, where Stallings was asleep. Mrs. Tobin said it was 10 or 11 o’clock that she sent her nephew to Scott’s ; and he not returning as soon as she expected, she went to look for him. It was then she saw the prisoner chopping near the fodder stack. All the particulars of the evidence affecting this question were carefully submitted to the jury.

Apart from the testimony of these witnesses, the circumstances proved bear hard against the prisoner. The caution given to Mrs. Tobin, at her house, respecting the prisoner’s declared intention to kill Stallings; — the threat renewed, when suddenly awakened, at his own house; the blood spattered on his clothes; his declaration that he had not seen Stallings after he left the house, — the dead body found in his enclosure ; his reluctance to go where it was, and his emotion in its presence; his contradiction there, that he had last seen Stallings at that place; his hesitation or denial to own his axe, until charged with it by the witness who had sold it to him — his declaration that he had cut fresh meat with it,— the blood and hair which the axe exhibited, — his agitation when carried back to the house, and the attempts to pick the blood off his clothes, when his back was turned to the persons present; — these circumstances present strong evidence of guilt. When to them is added the direct testimony of Mrs. Tobin and Sarah McDaniel, if they are credible witnesses, of which the jury were the only competent judges, the verdict is confirmed by evidence, so direct, consistent and cumulative, that the Court can discover no ground on which to remand the case for a new trial.

The motion is refused.

O’Neaul, J. and Evans. J. concurred.  