
    Green Durrah v. The State.
    1. Homicide — Mueder—G-eand juey — Pmsa'in abatbsient — StjpébVisóes.—Aplea",.' In abatement to an incfictment for murder, alleging tlitít tlie grand fjiiry-winj found its • •were an. illegal body, because they were selected by an illegal board of .supervisors-,.; . is bid; the acts of a board who are only’de facto, being as valid as to third pert-sons, as those of a board cfo jure.>' '• , ' ‘ ’•■ ■ ■' ■' ,v
    Sam; — Practice.—The empaneling of a grand-jury, is made.,by statute1 concbigiv'e evidence of its’ qualifications and competency; and after it has been organized and ■- sworn, no exception can-betaken to-its legality as’a whole, or to the qualifications of its constituent members. ..Headv.. the State..-And it is'.not,error'’to refusB tfaé de- : i fendant leave to withdraw his plea of not guilty, and to .plead in, abatement to. the.; indictment, unless he presents matter 'in abatement true in point of fact," and valid ., in law, . •• - ’ ; ■ 1 ■ ! " ' - -: -é- y f: ■: C-.'j n . V; -
    3. Special vehibe — Motion to quash — Amen ronoBs.TT-It.is. no g’r^trad Jo. quatjh 'a " .- special venire in a criminal case, that one of the jurors named in it, was not a citiy zen’of the unitéd States ; that yyouldhavebeen good cáüse ’'of personal- 'challenge’' or of ehallenge.-to-the;poll, but it ismot a*defeet inthewrit, p : ’ >;
    
      i. Same. — ’The causes for which a venire facias maybe, quashed, must be- either..,.,, some fraudulent míscímduc’t of the Officer, ór soniá mamfest’érrór in selecting^ drawing -or summoning, -in violation -of law;. ■' • •: -
    5. Same — Seevice oe os defbhdajtt — PEAOTfCE,—1That »-,copy of thte verfire had -,y not been served on the prisoner or his counsel a sufficient time before,the trial, would be no ground to quash the -mit, although it knight We ground-for postponing’ ‘ -the trial until he should bj¡.ve speh time, and if -he-does ¡not object-for. s’üeh - re'ason but goes into trial, he will be taken to have waived the objection.- , . ,
    6. Instructions — VeEdict—New trIae. — Instruction's ‘sho-uld’have reference to’ the facts in evidence,; and’lay'before tile: jury-theh law-applicable-'thereto'-;-'a*ncHf the conviction is right on tho,evidence^ and the-jjury could not, haye'been- misled bjy.the'- j instructions to the prisoner’s prejudice,’ looking to the tenor of all the instructions, ■ then the-verdict'ought noVto' be disturbed-; and it is only--when it app’eais’ by the’’whole .recor.d that injury has' been, dime, -or', may have’ been-done the. defendant1,! that tho-eourt will interfere to correct the error. ....
    Error.to the ^circuit .court of Noxubee- comity. ‘ Ore. J. :
    The deféñdaiít was indicted’ at the June term1 of - the, circuit,} court of Noxubee county, 1§70,' for flip murder of one tiewis.'Jy Nichols. To’this’indictment he pleaded not , guilty, ,at the . .. August'term, 1870,' The special venire facias . was 'returned on the 10th of August, and a copy thereof was delivered to defendant’s counsel, on the 8th. Defendant asked leave to withdraw the plea of not guilty, and to file a plea in abatement, wherein he alleges that the grand jury was an illegal body, having been di’awn and selected by a board of supervisors who were themselves an illegal body, not residents of the respective beats from which they were respectively appointed ; and also, for leave to file his motion to quash the special venire, because a copy of the same had not been delivered to him or to his counsel one entire day before the day of trial, and, because one' of the persons summoned on said venire, was, and now is, a subject of the queen of Great Britain. These motions were overruled by the court, and the leave asked refused. It appeared in evidence on the trial, that the defendant and the deceased were both freedmen, in the employment of Messrs. Kinkead and Gilmore, planters in Noxubee county; that the defendant was the body-servant of Gilmore, and the deceased, that of Kinkead. The defendant was seen early in the morning, apparently in a great passion, inquiring for the deceased, at Kinkead’s house, and was told that he was at Harrison’s cabin ; he then started for that house, and, as some of the witnesses say, his manner, as he passed them, was exceedingly violent — was muttering curses, etc., and that, on getting near Harrison’s house, he pulled off his coat and threw it and his hat on the ground, and called for Lewis, the deceased, “ to come out there that deceased came out, and defendant pushed him and said, “ Lewis, this matter has got to be settled, or we have got to fight, damned quick.” Some words passed between them, and they passed on back in the direction of Kinkead’s house, defendant leaving his coat and hat where he had thrown them on the ground; defendant bursting open the gate and passing out first; deceased stopped and shut the gate ¡defendant pushing him in a rude manner, as he, deceased, did so. The two passed on about two hundred yards, when the defendant was seen to raise his hand twice, and let it fall toward deceased, when he, deceased, immediately halloed for help, and went, in a bent position, toward the bouse; and the defendant immediately turned back toward the cabin, in a brisk walk. Witness went to the deceased, where he had fallen at the gate at Kinkead’s house, and found him bleeding from a wound in his stomach, which appeared to have been made with a knife or dirk. Deceased died that evening.
    The state then asked the court to give certain instructions to the jury, which were accordingly given, to the number of fifteen; but, as only the last three were discussed in the argument, they, alone, are stated here, and are as follows :
    1st. If the jury believe, from the evidence, that Green Durrah provoked a fight with the deceased, having previous malice against him, and in the fight, used a deadly weapon, while the deceased was unarmed, and killed the deceased, he is guilty of murder. If, under these circumstances, he killed him without malice, but in the heat of passion, he is .guilty of manslaughter.
    14th. That if the jury believe, from the evidence, that the defendant killed Lewis Nichols in a mutual combat, having fought with no unfair advantage, and did the killing with a dangerous and deadly weapon, the law is for the state.
    15th. That no definite time is required for the mind of the slayer to form such a design to take the life of the deceased as would make the killing murder. If the malicious intent was there at the time of the killing, the slayer is guilty of murder.
    The charges asked on behalf of the defendant, to the number of seven, were given by the court, but were qualified by the court, to which qualifications the defendant excepted. They are as follows :
    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 such deliberation and formed design of so doing; and if the jury believe, from the evidence, that the defendant killed the deceased on a sudden quarrel, without a premeditated and formed design so to do, he is not guilty of murder ¡ — qualified—but may be guilty of man- ■ slaughter, and the malice necessary to constitute murder may bé formed but an instant before the killing.
    To the subsequent charges for the defendant, the . court added this qualification: “If the jury believe, from the evidence, that the wife of the deceased, 'or the witness, Kjnkead, gave the defendant a great provocation, or made the defendant exceedingly angry, and the defendant acted on such provocation or anger, the killing is murder. ,
    The jury found defendant guilty of murder in the first degree, and thereupon he moved for a new. trial, which motion was overruled, by the court, and exceptions taken.
    The prisoner assigned the following errors :
    1st. The court erred, in granting the charges asked by the state on the trial.
    2d. The court erred in making and giving the qualifications to the charges asked for the defendant.
    3d. The court erred in overruling the defendant’s motion to set aside the verdict; and to grant a new trial. ■
    4th. The court erred, in overruling defendant’s motion for leave to withdraw his pléa of not guilty, and to file his plea in abatement.
    5th. The court erred in refusing to quash the special venire . facias for the reasons assigned on the motion.
    
      Jarnagin & Rives•, for defendant. ’
    Insisted that it was error to refuse leave to withdraw the plea of not guilty; and'to-file the plea in abatement. The grand-jury who found :the indictment'was an illegal body, because the board of supervisors who drew it, was itself an illegal body, being constituted of members who were nonresidents of- the beats -for whic’h- they were respectively chosen. ■ ■ ■ 1 . ■ :
    Again, the court efred in refusing to quash the spécial venire. By article 294, Revised Code;-620, a party indicted for-a capital offense has a right to be furnished'with a 'copy of the special venire,. and list of those’who have been summoned by virtue thereof,, one entire day before the time set . for trial.. In this case defendant received only a copy of the-, special venire, and of the list, of names drawn to be sum- ; moned.' Neither the letter nor spirit of the statute was com-,plied with in this respect. Again,, the defendant had a right to be tried by his .peers, citizens of the United,States, and, of' the State of Mississippi. Phillips, one of those summoned,.' was not his peer, not .a citizen of the United-States, nor of•. the State of Mississippi, but..was a subject of the que.en-of Great Britain. . . ..
    As to the charges in behalf of th.©'state, from two to seven,., inclusive, although,they may state, the simple, propositions of . law correctly, they are .too abstract, and.are not applicable ■■ to r the facts and. circumstances of this case, and are not calculated to guide the minds of the jury to a correct.determinar •• tion.~ The state had made but a single allegation against the. • defendant, that of murder; and to,tell the jury, that on a-, given, state of facts, the law was for the state, was. tantamount to telling them .that defendant, was guilty of, murder... And these objections apply with equal force to. the qualification - to'the second charge for the state, , . , , ...
    The general .qualification, at the, conclusion of the fourth. - charge takes from the consideration of..the.-jury .-everything . done by the deceased himself, or of. what was reported to -.. defendant by the wife of the.deceased.
    
      J.-S. Morris, attorney-general:
    1st. All the errors complained of are merely forma,! and technical. None of them relate to the merits. , Without.attempting to examine in extenso,the first objection preferred.to in.the'argument, in regard to the want of legal qualification in one of the'members of the board of supervisors,, by which , was elected the grand, jury who presented flip indictment, it • will he sufficient upon that, point to .apply to the .question raised' the two statutory provisions regulating, one .of Them, the official acts of defaoto officers, and the other- the .organi- .. zation of, and the time and mode of objecting to grand juries. Rev. Code, 138, art. 194 ; ib., 499, art. 131. See also State v. Borroum, 25 Miss., 203. And see also Rev. Code, 613, art. 250.
    2d. The accused is entitled to a list of the names of the jurors summoned on his special venire facias, to be delivered to him as soon as that list shall be properly made out. If the copy thus required to be served is to be delayed till it be ascertained whether the officer shall find and summon all the persons whose names have been drawn, and then serve a copy of the list who have been summoned, such a practice will produce great and unnecessary delays. But be this as it may, there are, in the present case, two reasons why the defect, if it be one, cannot await for the purpose of a reversal. 1st. Because all the provision of the code, and all other laws having relation to the mode of selecting, drawing, summoning, and empaneling all juries, are directory, merely, and shall be deemed legal after the jury shall have been empaneled and sworn. Rev. Code, 613, art. 250. And 2d. because no exception was taken or bill of exceptions tendered upon that particular point in the court below at the time the motion to quash the venire facias was overruled, and the objection cannot be made available by excepting to the judgment of the court overruling a motion for a new trial after a verdict of guilty. Hamilton v. State, 35 Miss., 217. And the venire falias is no part of the record’ unless made so by bill of exceptions. 37 Miss., 607; Haynie V. State, 32 Miss., 400; Brown v. State, ib., 434.
    3d. In respect to the exception taken to the judgment of the court in giving and refusing instructions to the jury, and which are somewhat voluminous, it is sufficient, if, on the whole, they contain a substantially correct exposition of the legal rules and principles applicable to the case, which we submit that they do, when considered as a whole. Mask v-State, 26 Miss., 77 ; Olivier v. State, 39 Miss., 526 ; Josephine v. State, ib., 613.
   SlMRALL, J. :

The first error assigned is the refusal of the court to permit the defendant to withdraw his plea of “ not guilty,” and, plead in abatement to the indictment. The matter in abatement, as set out in the plea tendered, was, in substance, that the board of supervisors was illegally constituted, and the grand jury which preferred the indictment, having been selected by it, was an incompetent body. It might be a sufficient answer to say that the incumbents of the board were de facto officers, discharging their functions ; and that their acts as such, so far as third persons are affected, are as valid as if they were officers de jure; so that if the exception stated in the proferred plea was true in point of fact, it would not avail the plaintiff in error. But there is another more conclusive answer. The empaneling of the grand j ury is made by statute conclusive evidence of its qualification and competency. After it has been embodied sworn and charged, no exception, by plea or otherwise, can be taken as to its legality as a whole, or to the qualifications of its constituent members. James W. Head v. State, supra, 731.

It would, therefore, not be error in the court to decline to allow the plea to be filed, when the matter of the plea would b.e of no benefit to the accused. When the case had progressed to that stage that, according to the practice, the true for pleading dilatory pleas had passed, a party cannot ex-, pect, and ought, not to ask, that his plea to the merits may be withdrawn, unless he presents matter in abatement, time in point of fact, and valid in law. The court in adjudging upon such an application favorably to the accused, ought to be satisfied that the plea is sufficient and valid.

Ought the motion to quash the venire facias to have been sustained for the reasons stated: 1st. That it was not delivered to the accused or to his counsel one entire day before the trial; 2d. Because the jurors were not qualified, one of them being a subject of the kingdom of Great Britain, and not a citizen of the United States. The general policy of the jury laws is to discourage exceptions to the entire body of the venire, trusting to the examination on voir dire into the qualifications, and the challenge for cause, and perenip-' torily, as. ordinarily ample ¡to insure the- selection' of an-unbiased jury. ..Hence, the statute makes.-all law's relating to drawing,.summoning and. empaneling-jurors- merely -directory.- Rev. O.ode, 500, ,art. 142, forbids a challenge to the" array, except for fraud, “ñor shall-any- venire facias, except' a special venir e facias,-. in. a criminal - case-, be quashed 5 for-any-cause whatever.”’ Array is the .¡whole'-body - of persons summoned to-, attend a court, as they, are- arrayed "or arranged- '' on .the panel.- . Comyn’s: Dig.-, ¡Challenge,- B..; Venire facias ju(Uoationis.is the writ by which-the sheriff caúses’to -come ;' from.the body, of his. county,•„ a •. certain-number <0f qualified citizens'who .are to act as, jurors in -the :courib -Steph. on PL; : 104. A challenge to-the array is,-an irregular'form of -plead- -- ing by which exception .is made to'all the jurors upon-the venire for, some original .defeefin making'the return thereto-' 1 Chift. Crim. Law., 53.7. -It-must relate', -to some - defect or= ■ partiálity in.,arraying-the panel.- Ooke-on Litt., -Mi • The special ‘' venire was returnable on the.-LOth-day of-August, anda copy was delivered-.to..the counsel.-of the accused on the 8th day ’ of,the .month,.so tha-f-one entire day:did> elapse between the service of the,'.copy., and th’e trial.- Shaffer v. '■ the State, 1 How., 242.

2d. Itis no ground-for quashing -the reñire’ that one of the jurors named in-it,, was not .a - citizen of the -United States ; that, would have, -been a.good cause: of. personal '-challenge. It would b.e ,a challenge- to, the poll-,and - not-a-defect in" the' writ. The, sheriff wus bound to. execute, the writ according to its:cpmmand;;.no..discretton isentrusted-toffiirn toetrikeout or substitute names, or to ■ omit -service, .because . in his judgment, particular-persons are incompetent jurors-. The statute-, is silent ,as-„.to th.e ..causes for which-: a venire facias may be-quashed; ;it.must be. either *,for sOmé misconduct in ■ the officer, which would be fraudulent, -or-it'must be founded on some.manifest -error -committed.in.-selecting; drawing, or sum-moping the jurors by npt pursuing the-law.' :It > is - notpre-tended that.there was error in.the selection,'drawing ar-sum-moiling of. the Jurors, nor is partiality or corruption imputed to the officer. If. .the , mnir&. had not:, be’en. -, served o.n the 'defendant a,t a proper time, that would hav,e-been good reason to .postpone the -triql pntil the. accused- had-the time allowed by. law to examine and purge the panel..- • Bat-it would mot be good reason for .quashing- the : writ, if it ^yere otherwise unobjectionable... As saij by the court, ip Loper v. the State, 3 How., 432; “the.statute.r.equires service of- copy of tenirej to enable the prisoner to prepare.his defense, and his-- chai--lenges to thg. polls.’.’ -If he doesmot.object, to a. trial for this reason, and ash an enlargement of time, he will be taken to waive the objection, ..The return of the .sheriff is conclusive nhless contradicted Woodsides v. the State, 2 How., 655; Shaffer v. the State, 1 How., 247.

The instruction given.to the. jury should have reference to-the special state of the.facts in evidence,-with-a view to lay. before them the law applicable to the, -facts., -.-The doctrine, was announced jn Wesley v.-.the State, 37,Miss., 357, “ that-if the conviction,is .clearly .right on the evidence,.and the jury-, could not have been misled by the . court to, the defendantls-prejudice, looking to. the tenor of .all. the instructions, the: judgment ought to.have beenaffirme.d.”,. The language of, the court is, .“it is not for. every: error ooipmitted by. the cir--cuit courts in granting or refusing, . to .charge-the- jury,-that-this, court will reverse, It is .only .after - an -.examination of-, the. whole record,. and when it appears-, that the.pa-rty com-; plaining has either been injured,-or may .have been injured,, that this court will interfere and. correct, the error.V Wei should be very, slow and reluctant to disturb .the verdict .if' the-law was correctly ex-ppunded to .the..-jury, in-..refe,rence to, the main and material facts developed in the evidence;,, although there may have been error on some point; collateral, and not touching .the material and- -vital.-merits,of the. case. Error is predicated. of all- the- .instructions given at the ¡ instance of .the prosecution,but,in the ..argument,..objection is only taken to the last three. To have in the mind the facts to which they point, it is proper to sum up the leading and undisputed circumstances immediately preceding and attending the killing. The deceased, early in the morning, displayed in the yard and near the dwelling house of Kinkead, a boisterous, angry humor, directed toward the deceased, most probably excited by some communication recently made to him by a woman. He immediately started in pursuit of deceased, and found him in one of the houses at the quarter. On sight, he, in an angry manner, accosts him with the declaration that “ this must be stopped ” or there must be a fight; the parties walk off some distance, when the accused stabbed the deceased, from which he shortly after died.

The 13th charge states to the jury as law, that if accused had malice against the deceased, and provoked a fight, and used a deadly weapon, whilst the deceased was unarmed, and killed the deceased, it is murder. There is no evidence of any violence or demonstration of violence by the deceased, at or just preceding the stabbing. The thrust with the dirk knife was the first and only blow given. There is not the shadow of pretence in the evidence that excuse existed for the use of a deadly weapon. There may have been, and perhaps was, a willingness on the part of the deceased to go out and fight on equal terms, that is, without arms, for he had none. The jury were warranted in infering that a resolution had been formed to take life, before the fatal blow was struck, and that the stabbing was in pursuance of such purpose. Under the facts in evidence it matters not whether the accused was in the habit of carrying the dirk knife, the implement of death, or whether he prepared himself with it for the special occasion, he was the aggressive party. He sought out his adversary and invited him to the conflict. He employed his weapon on the first onslaught, when in no danger of harm to life or limb, and from the circumstances of its use, the law implies an intent to kill with malice pre-pense, because there was neither excuse nor justification.

If, on sudden provocation, parties begin a conflict on equal terms, and when one party is sorely pressed and overcome, and, at the same moment, his life is endangered, he may be excused in seizing any means within his reach to ward off the impending danger. But this is only in sudden quarrel and fight when there is no malice, but momentary passion is the exciting cause. If, however, the one who uses the deadly weapon has that advantage over his enemy towards whom he has a grudge, or entertains malice, and brings on the fight with the intent to use it to slay his adversary, then it is murder.

The 14th charge, as a general proposition, is too broad ; it ought have been accompanied with a statement of the condition and circumstances which make a killing with a deadly weapon in mutual combat criminal, either as murder or manslaughter, but those conditions are so fully stated in the previous instructions that the jury could not have been misled. The last charge correctly expounds the law on the subject of malice prepense, or the deliberate design in order to constitute a homicide, murder.

Wherefore the judgment is aifirmed.  