
    Thomas Dowling vs. The State of Mississippi.
    Where a grand jury was empanelled, of which, twelve persons were taken from the regular venire, and that being then exhausted, two other persons were taken from bystanders summoned by the sheriff; held, that the grand jury was properly organized. Sharkey, C. J. dissenting.
    
    Whether objections to the personal qualifications of grand jurors, or to the legality of the returns, can affect any indictments found by them, after such indictments have been received and filed by the court. Query ?
    
    Where bystanders have been summoned by the sheriff to complete the panel of the grand jury in the absence of a sufficient number of the regular venire, and the record does not affirm that such bystanders had the requisite qualifications, the law will presume, until the contrary be made to appear, that they had the proper qualifications.
    The statute, (How. & Hutch. 674, sec. 46,) which limits the number of peremptory challenges in capital cases, on the part of the prisoner, to twelve, is not an infringement of the clause in the constitution which provides “ that the right of trial by jury shall remain inviolate.”
    The trial by jury is by twelve free and lawful men, who are not of kin to either party, for the purpose of establishing, by their verdict, the truth of the matter which is in issue between the parties ; any legislation, therefore, which merely points out the mode of arriving at this object, but does not rob it of any of its •’ essential ingredients, cannot be considered an infringement of the right.
    D. being indicted, and on trial for the murder of a slave, and it being proved that D. was acting in the capacity of overseer for B., a witness on the part of the state was permitted, notwithstanding objections on the part of the prisoner, to testify as to the prisoner’s general habit, as overseer, in punishing slaves upon the plantation of the owner of the slave killed ; held, by this court, that such evidence was inadmissible, being calculated to prejudice the jury against the prisoner, and not being responsive to any charge made. //
    
    In error from the Warrea circuit court, Hon. George Coalter, judge.
    The record in this case commenced as follows :
    “ State of Mississippi: Pleas before the Honorable George Coalter, judge of the first judicial district of said state, at a circuit court held in and for the county of Warren, at the courthouse thereof, on Saturday, the 24th day of May, in the year of our Lord one thousand, eight hundred and forty-five.
    
      Be it remembered that heretofore, to wit, at a circuit court begun and held in and for the county aforesaid, on the twenty-first day of October, in the year of our Lord one thousand eight hundred and fortyt-four, a grand jury of inquest for the body of this county was empanelled, -viz. John G. Parham, Daniel Dyer, Joab W. Hunt, Thomas Hackett, Nicholas T. Blanchard, Isaac Elmore, John A. Durden, James Hogan, John G. Cline, George Richards, William E. Bolls, and John W. Estes, of the regular venire, which being exhausted, the following persons, bystanders, were summoned by the sheriff, to wit, Robert L. Matthews and Thomas Rigby. The court thereupon appointed John G. Parham foreman; said grand jury were then sworn according to law, and having received their charge, were sent out of court to consider of indictments, &c.”
    On the 30th of October, 1S44, this grand jury thus constituted, brought into the court below, an indictment against Thomas Dowling for murder, “a true bill.”
    This indictment charged Dowling with having, on the 27th day of August, A. D. 1844, “ in and upon one Dick Smith, a negro man slave, (the property of one Rice C. Ballard) in the peace of God and our said state, then and there being, feloniously, wilfully, and of his malice aforethought, made an assault, and that the said Thomas Dowling with both his hands and feet the said Dick Smith, negro man slave, as aforesaid, to and against the ground, then and there feloniously, wilfully, and of his malice aforethought, did cast and throw; and that the said Thomas Dowling, with a certain wooden paddle” inflicted divers mortal bruises and wounds upon the head, stomach, back, sides and legs of the said Dick Smith ; of which mortal bruises and wounds he languished until the 6th day of September, of the same year, when he died of them; and so the grand jury pronounced him guilty of murder.
    A bench warrant was awarded and Dowling placed in custody on the 13th of April, 1845.
    At the April term, 1845, a special venire facias of fifty men was ordered, and a jury empaneled out of them. In organizing this jury, Dowling having peremptorily challenged twelve of the panel, further peremptorily challenged Elijah Grammar, who was tendered to him as a juryman by the state. This challenge was objected to by the district attorney, and the objection sustained by the court, and the challenge overruled, and Grammar received and sworn as one of the jurymen; to which exception was taken and filed.
    On the trial, Walter R. Puckett, a witness on the part of the state, was asked by the district attorney, “ Did the accused ever tell you what was his usual and general habit of punishing slaves on Ballard’s plantation ? ” This question was objected to, but the court below permitted it to be answered; and the witness stated that the prisoner told him, his usual habit was to punish slaves with a paddle, which the witness stated was a piece of white oak timber about two and a half inches thick, and as broad as his hand. To this question and answer, exceptions were taken and filed.
    Another bill of exceptions was taken, which recites “ that the only proof offered to the jury that the slave Dick Smith was the property of Rice C. Ballard, was the testimony of one Dickson, a witness on the part of the state, who in reply to the following question propounded to him by the district attorney, to wit: ‘ Do you know the slave Dick Smith, the property of Rice C. Ballard? ’ said ‘Yes;’ and the proof that Dick Smith was on the plantation of Rice G. Ballard at the time of the alleged beating and wounding, and had been there for several months previous; and had been attended to while in his last illness on the plantation, and had died there.”
    The jury brought in a verdict in the following words : “ The said Thomas Dowling is not guilty of murder as he stands indicted, but he is guilty of manslaughter in the second degree.”
    After the verdict the prisoner moved for a new trial and in arrest of judgment, because; 1st. The court had permitted Grammar to be sworn upon the jury. 2d. Because the testimony of Puckett was improperly admitted. 3d. Because the grand jury were not organized according to law. 4th. Because the petit jury was not empanelled according to law.
    These motions were both overruled and exceptions taken.
    
      The court below sentenced Dowling to five years imprisonment in the penitentiary, and he prosecuted this writ of error.
    
      John J Guión and S. C. Cox, for plaintiff in errorv.
    The defendant was, by the verdict of the jury, found guilty of the crime of “manslaughter in the second degree,” and has brought his writ of error to this court, to reverse the judgment of thecircuit court of Warren county, for thefollowing errors, to wit:
    1st. The grand jury was not organized and empanelled according to law; the grand jury could be selected from the original panel or venire only; the court had no power to summon bystanders and add them to the twelve persons of the original venire in attendance, for the purpose of forming a grand jury; the statute laws of the state prescribe the mode in which a grand jury shall be constituted, and its requisitions must be pursued. How. & Hutch. Statutes, p. 490, sec. 44, 45, and 492, sec. 49. Byrd v. The State, 1 How. Rep. 163. By the same statute, it is provided, that “if none of the regular jurors summoned to such term attend, it shall be the duty of the court to award forthwith a special venire to bring in a sufficient number of freeholders or householders to serve as jurors at such term of the court.” How. & Hutch, p. 498, sec. 66. These are the only statutory provisions on the subject. The statute requires that jurors should be freeholders or householders. It is a privilege to the citizen, and a protection against false and frivolous prosecutions by indictment, that substantial men, having an interest in the affairs of the country, should constitute the grand inquest, by whom charges affecting his life and liberty are originated. If any one of the grand jury who returned the indictment into court, was not possessed of the legal qualifications of a juror, the indictmént was void. 1 Chitty’s Crim. Law, 307; 4 Bacon’s Abridg. title Juries, 525; The State v. Bennet, Mart. & Yerg. R. 135 ; The State v. Duncan and Trott, 7 Yerg. 271; Byrd v. The State, 1 How. 163.
    The two bystanders placed upon the grand jury, may or may not have possessed the legal qualifications of jurors.. Upon the non-appearance of a sufficient number of the regular venire to constitute a grand jury, it was the duty of the court to have issued compulsory process to bring them into court. The court had ample power by common law to do so. 4 Bacon, title Juries, 528 ; 2 Hale, P. C. 265; 2 Hawk. 565. The right to be tried by an impartial jury is regarded as an invaluable privilege, and guarded by our laws and protected by the courts with great strictness; but how easy would it be for a corrupt and prejudiced judge or sheriff to violate this sacred right with impunity, if grand juries could be formed of persons standing around the court room, brought there for the purpose.
    2d. The second error assigned, and upon which the prisoner relied as a_ reason why the court should have granted him a new trial, is that the court allowed him to challenge only twelve of the jurors tendered to him to try his case. The legislature of this state, in 1836, reduced the number of peremptory challenges in cases of capital prosecution against white persons to twelve. How. & Hutch. 674. That act deprives a citizen accused of a capital offence, of a most valuable and important constitutional right, and is therefore void. The constitution of the United States guaranties to the citizen a speedy public trial by an impartial jury. General Provisions, sec. 6. The constitution of this state declares that, “ the right of trial by jury shall remain, inviolate.” Declaration of Rights, sec. 28. What constitutes this right which shall remain inviolable 1 To ascertain what it is, we must refer to the legal and generally received understanding of what was the trial by jury at the time of the adoption of the constitution. By the common law, a party accused of a capital crime was entitled to challenge peremptorily thirty-ñve of the panel. 4 Bac. Ab. tit. Juries, 569; 2 Hale, P. G. 268; 2 Hawk. P. C. ch. 43, sec. 5; but by statutory regulations of Henry Till, and Philip and Mary, the number of challenges peremptory was reduced in all capital cases, except treason and misprision of treason to twenty ; and thus stood the right of trial by jury according to Euglish law, at the time of the adoption of the federal constitution. By the constitution of this state when admitted into the Union, the right of trial by jury was guarantied to the citizen, and the legislature immediately passed laws upon this subject, by which in all capital cases, the right to challenge peremptorily twenty of the panel was secured to the accused, and thus the law remained until the passage of the law of 1836, before referred to. At the time of the adoption of the present constitution, and for several years afterwards, this right remained unimpaired. In the case of The State v. Mercer Byrd, before referred to, the court clearly recognize the right of trial by jury, as it existed at the time of the adoption of the constitution. In that case, the following language is used by the presiding judge, who delivered the opinion of the court: “ The framers of the constitution must have meant therefore to secure the right of trial by jury as it existed in England, either by the statute or common law and the constitution, in the absence of all subsequent legislation, would have secured to the citizen this mode of trial and all its incidents, not incompatible with the republican form of our government.” One of the incidents, and a most important incident of the trial by jury in capital cases, at the time of the adoption of our constitution, was the right to challenge peremptorily twenty of the panel. It was an incident of the trial according to English law, and according to our statute law, and it is fairly inferable from the plain and forcible language used by the framers of our constitution, that they meant to secure the right of trial with all its incidents, as it was then established by law. The language used is peculiarly forcible and explicit. “ The right of trial by jury shall remain inviolate.” If they did not mean to preserve the right of trial as established by law, their language is not susceptible of any sensible construction which would afford to the citizen any guaranty whatever; for if it were competent for the legislature to reduce the number of peremptory challenges to twelve, they might take away the right altogether from the accused, and allow the state any number, and thus utterly defeat a fair and impartial trial.
    The third error apparent on the record is, that the court permitted proof of the general habit of the accused in punishing the slaves on Ballard's plantation, to go before the jury for the purpose of establishing his guilt in this particular case. This was clearly contrary to the well-established rules of ■ evidence. The general rule of evidence is, that all manner of evidence should be rejected which is foreign to the point in issue, and is more rigidly enforced in criminal than in civil cases. 1 Phil. Ev. 178 ; Greenl. 61, 62. The general character of the accused as a cruel master or overseer, was not in issue. On the trial of an indictment, it is not permitted to show that the prisoner has a general disposition to commit the same kind of offence as that -charged in the indictment. 1 Phil. Ev. 181. The general character of one accused of a crime, cannot be given in evidence to establish his guilt. Greenl. 61, 62. For improperly allowing this evidence to go to the jury, the court should have granted a new trial. On this point, see Roscoe’s Grim. Ev. 57, and note 1. General cruelty to slaves is a distinct offence, for which the accused was indictable. Norris’s Peake, 13, 14; Bui. Nisi Prius, 296 ; Rose. Ev. 89; 2 Mass. Rep. 317; 7 How. 631; Cow. <fc Hill’s Notes, 459-l.
    4th. The fourth error'assigned, and which the accused relied upon in support of his motion for a new trial, is that there was not sufficient proof before the jury of the slavery of Dick Smith, the party alleged to have been murdered, or that he was the property of Rice C. Ballard. Every material averment in an indictment must be established by legal and sufficient evidence. Was the averment, that the accused had killed “ Dick Smith, a slave, the property of Rice C. Ballard,” a material averment 1 I maintain that it was. It was a necessary averment to identify the party killed, in such a manner, that a convictioh or acquittal upon the indictment, might be plead in bar of a subsequent prosecution for the same act. An averment in an indictment which is not impertinent or foreign to the cause, though a prosecution without such allegation might be supported for the same offence, must be proved, and the court will be more strict in requiring proof of the matters alleged in a criminal than in a civil case. Roscoe’s Grim. Ev. 76 ; United States v. Porter, 3 Day’s Oases, 283. Descriptive averments must be proved as laid. Roscoe’s Grim. Ev. 78, 82. It was necessary to prove the averment as laid in the indictment. Was it sufficiently proved to the jury to authorize the finding of a verdict of guilty 1 I think it was not. The evidence would not have sustained an action of detinue for the slave alleged to have been killed, if one had been brought by Rice C. Ballard to recover him from a third person.
    
      Sanders and Price, on the same side.
    The errors assigned and relied upon question the correctness of the finding of the jury; the refusing the peremptory challenge made by the accused of the juror “ Grammerthe admitting the testimony of the witness, Walter R. Puckett; the refusing a new trial, and the overruling the motion of the plaintiff in error, in arrest of judgment.
    We consider the finding of the jury defective and erroneous. Yielding that in the English practice, on the trial of an indictment for murder, if the prisoner appears to be guilty of manslaughter that the jury may find him guilty of the latter offence, yet under our constitution, which gives to the accused the right “ to demand the nature and cause of the accusation,” and exempts him from accusation, arrest, or detention, except in cases ascertained by law, and according to the forms which the same has prescribed, and the laws of the state, which affix a different punishment for manslaughter, dividing it into different degrees, and affording to the accused different rights, necessarily, in our opinion, prohibits such practice or right in the jury to find the party guilty of any other offence than that directly charged. In England, murder and manslaughter were alike punishable with death. And the courts there, which always favored the crown, allowed the finding for manslaughter in doubtful cases, so as to save to the king the forfeited effects of the accused. The reason of the rule not existing here, by a familiar maxim, the rule itself ceases. The finding of the jury, “ but guilty of manslaughter in the second degree,” without other qualification, cannot be maintained upon any principle; it should have been qualified by some reference to the indictment, or to the person slain.
    The court erred in refusing a new trial for the causes aforesaid, and because the court admitted illegal testimony, as detailed by the witness, Walter R. Puckett. If the accused had voluntarily confessed the fact of killing the slave, and had detailed the manner, it would, under our practice, have been competent testimony against him. But the detail of a conversation with the accused, touching his usual or general habit of punishing slaves on Ballard’s plantation, was clearly irrelevant, foreign from the issue, and was in its nature calculated to excite a prejudice against the accused. The accused was the overseer of Ballard, he was but the agent of his employer, and his usual and general habit of punishing the slaves of his employer, must be regarded as authorized and directed by the proprietor, and not so much the conduct of the overseer. Such testimony could not?legally raise a presumption of his guilt, for it is a well-settled rule, that “ with regard to the presumptive evidence which may be admitted against a prisoner, it may be observed that it must arise in general from the facts in issue, and cannot be deduced from any other part of the defendant’s conduct, in order to prove him guilty.” Ghitty’s Grim. Law, 564.
    If this evidence had been offered, even as rebutting testimony of character, of which there is no pretext, still it would be exceptionable, for even “ where the defendant thus opens the discussion, of character, the prosecutor can ask no questions as to particular facts, but must confine himself simply to general reputation and character.” Ibid. 575, and authorities there cited. The same author lays it down “ as clear, that the prosecutor can adduce no proof of the defendant’s general character, unless that is the very scope of the charge against him.” Ibid. 573. Buller’s N. P.; Hawkins, b. 2, c. 46, § 206. Declarations of a party, criminally prosecuted, are received with great caution, even when pertinent, “for they are in their very nature so liable to suspicion,” (especially when others are implicated,) “ and so liable, like all hearsay evidence, to be misrepresented and changed in the narration.” Chitty’s Grim. Law, 571. In regard to hearsay evidence Buller says, “ Hearsay is not evidence, for no evidence is to be admitted but what is upon oath, and if the first speech was without oath, another oath that there was such a speech, make it no more than a bare speaking, and so of no value in a court of justice.” Buller on Trials, 294. And because there was no proof in the cause that the deceased slave, Dick Smith, was the property of Rice C. Ballard, “it is now settled that the prosecutor must prove every statement which enters into the substance of the charge.” 1 Chitty’s Crim. Law, 556, 557, and authorities cited. Indeed, this is a proposition so familiar to every practitioner, that it would but unnecessarily occupy the time of the court to refer to authorities.
    The ownership of the property was material, not only as an essential and important part of its description, but in respect to the rights of the party charged with its distribution, material as regards his responsibility.
    We further insist that the circuit court erred in refusing to grant a new trial, on the ground of denying to the accused the peremptory challenge of the juror Grammar.
    The constitution of the state declares, that “ the right of trial by jury shall remain inviolate.” Art. 1, § 28. What was this right at the time of the adoption of the constitution in 1832 7 We had adopted so much of the common law, and laws of England, as did not conflict with the previous constitution, the constitution of the United States, and legislative enactments, as the basis of our jurisprudence. At common law, in all capital cases, the prisoner could challenge thirty-five peremptorily; afterwards, by statute 22 Henry YIII. chap. 14, § 7, made perpetual by 32 Henry VIII. chap. 3, it was enacted “ that no person, arraigned for any petit treason, murder, or felony, be admitted to any peremptory challenge, above the number of twenty.” 3 Bacon’s Abridgment, tit. Juries, 263, 264, which yet remains the law of England. The act of the legislature of this state, passed June 14, 1822, declares “no person, indicted for a capital offence, shall be allowed to challenge peremptorily, above the number of twenty persons of the jury, and if any person shall desire to challenge above the number aforesaid, the same shall be allowed for lawful cause shown, only.” H. &H. Digest, 667, § 17. Thus it is made manifest at the time of the adoption of the constitution, the party prosecuted for murder had a right of peremptory challenge of twenty jurors. If the constitution intended the right of trial by jury to remain inviolate, would riot any law that impairs that right be a nullity 1 Clearly so. Is not the privilege of peremptory challenge a most important and essential incident to the right of trial by jury 1 Most unquestionably.' If the law-making power can prune this right to' thfelve, could they not to one, of even deny it altogether 1 Most assuredly. And could they not as well declare that a jury should consist of six, or even a less number? Deprive the prisoner of one from the vicinage where the offence was committed 1 Or provide any other mode of selection or qualification, than that which existed at the time of making our present constitution 7 If the legislature have the power to do the one, it has equally the power to enact the other. This court has, in effect, in the case of Byrd v. The State, 1 How". 163, decided that the legislature cannot change any substantial right Of the trial by jury, as it existed at common law. For which reasons, we contend that the act of 1836, reducing the number to twelve, is ih direct conflict with that provisión of the constitution, and is therefore inoperative and void.
    Lastly, we insist that the circuit court erred in refusing to arrest the judgment, as well upon this particular finding of the jury, as for the defect in the indictment, particularly in its caption.
    This court has decided, in the case of Thomas v. The State, 5 How. 20-32, that “it is the business of the caption of ah indictment, to state with sufficient certainty, not only the style Of the court, the judge then presiding, but the time and place, when and where it was found, and the jurors by whom it was found.” The court will perceive that the statement of the clerk, at the commencement of the record of this case, certifies the proceedings had in this cause before the Hon. George Goalter, judge of the first judicial district of said state, held in and for the county of Warren, at the court-house thereof, on Saturday, the 24th day of May; in the year of our Lord, 1845. This cannot be brought to aid the record, or caption of the indictment, which attempts to show the empaneling the grand jury, and which commences as follows: “ Be it remembered, that heretofore, to wit, at a circuit court, begun and held in and for the county aforesaid, on the 21st day of October, in the year of our Lord, 1844, a grand jury of inquest, for the body of the county was empanelled, viz., giving their names, &c. Now neither this recital of the record, nor the caption or introductory part of the indictment, show before what judge or at what place the said indictment was found, which makes it fatally defective, the words, “ for the county aforesaid,” cannot have reference to subsequent proceedings. It does not appear that the jurors were drawn as required by law. Nor is it shown, anywhere in the record, that it was indorsed, a true bill, and signed by the foreman, as required by law; from all which, we insist that the judgment should be arrested, and that this court should pronounce the indictment insufficient, and discharge the prisoner.
    Baker, on the same side.
    Before proceeding to notice the errors in the record of the proceedings had in this case in the court below, we will lay down the following premises, viz.: 1st. That, in order to effect a regular conviction, all the requirements of the law, applicable to the case, must be strictly observed in the court below. 2d. That it is the office of the record to show, that it should show, and is presumed to show, everything material which trans^ pired during the progress of said cause, from its inception to its final result in the inferior court. 3d. That this court will prer sume that the circuit court kept a true and faithful record of every material thing that was done therein relative to said case, and that the transcript, or the record, as certified to this court by the clerk, and under the seal of the court below, is true and correct. 4th. That, if the record does not show that everything material and necessary to a regular conviction, has been observed in the court below, or if it show error in the ruling of the court in any material matter, then this court will pronounce the conviction irregular, and will reverse the judgment of that court.
    The errors which we shall notice, and which are fully embraced in those already assigned, are,
    1st. The grand jury, by whom the indictment in this case purports to have been found, Avas not summoned or organized according to law.
    The law requires the clerk and sheriff to draw from a box, containing the names of persons liable to perform jury duty, the names of the requisite number of persons to serve as jurors; and directs the clerk to enter the names of the persons so drawn, upon the minutes of the court, and to issue a venire facias, accordingly, returnable to the next term of the court; and makes it the duty of the sheriff to summon the jurors named in the venire facias, at least five days before the term, and to make due return of the same. H. <fc H. 492, § 48, 49. The statute further provides, that, from the whole number of jurors so drawn and summoned, there shall be drawn by lot not less than thirteen, nor more than eighteen, who shall constitute the grand jury, &c. Now, we contend, that in order to put a party upon his trial, there should have been a sufficient indictment found and returned into court by a grand jury, regularly and legally organized; and farther, that, in order to constitute a regularly organized grand jury, these preliminary steps should have been taken. Were those steps so taken? Upon the presumption that the court kept a correct record of all its proceedings in the premises, and as that record is silent upon the subject, this court is bound to presume that none such were taken. It was necessary that the clerk should, immediately after the drawing of the jurors, issue a venire facias, returnable to the next term of the court, by virtue of which the sheriff should summon those whose names were contained in the venire, because the statute required it; so, likewise, was it necessary that the sheriff should summon the jurors, and make due return of the venire facias; and, as these things were required by the statute to be done, it was not in the power of the court to dispense with them.
    
      The principles which we contend for have been recognized by this court in the case of The Thomas v. The State, 5 How. 32. The court there say, “ Little as we feel disposed to entertain objections to form, yet we feel constrained in cases, highly penal like this, to insist upon the observance of those rules which the constitutional law of the state has prescribed. No court is authorized to put the most humble citizen upon his trial for any capital or infamous crime, until a grand jury of the proper county, organized as the law directs, has preferred a formal accusation against him.” There is nothing in the record to show that the grand jury were drawn by lot, or how they were drawn. The record, after the caption and term of the court, simply states that, “ A grand jury of inquest, &e. was empanelled, viz.: John G. Parham, &c. of the regular venire to the number of ten, which venire being exhausted, the following persons, bystanders, were summoned, to wit, Robert L. Mathews, &c.” This is all that the record shows relative to the organization of the grand jury. Will this court say that it is sufficient? If so, then why should the statute require a different course to be pursued ?
    2d. Although the record shows an order of the court for a special venire facias for fifty men to serve as traverse jurors in the case, yet no such venire appears by the record to have been issued by the clerk, or returned by the sheriff; nor does it appear by what authority said traverse jurors were brought into court. By our statute, (How. & Hutch. 673, sec. 45,) it is made the duty of the court, where any person shall have been arraigned, charged with any felony, the punishment of which is death, to award forthwith a special venire, which shall be issued by the clerk, commanding the sheriff to summon from the county any number which may be directed by the judge of said court, “ requiring them to attend on a particular day, to be mentioned in said venire,” &c. In this case, no such venire appears by the record to have been issued.
    That such venire should have been issued in obedience to the order of the court, and in accordance with the express directions of the statute, cannot be doubted. It has been decided by the supreme court of New York, whose statute upon this subject is very similar to our own, but not so strong, that in a capital felony a special venire facias is necessary to authorize the summoning of a petit jury to try the case, and that if the record does not show that one has been issued, and duly served and returned, the judgment will be reversed. The People v. McKay, 18 Johns. 212. The attention of the court is particularly directed to this case, as it is believed to apply as strongly to the omission in the case of the regular venire as to the special. See also 2 Hawk. P. C. book 2, ch. 41. sec. 1; 2 Hale’s P. C. 260, 261; 1 Chitty’s Cr. L. 505.
    The record should show all necessary facts, otherwise it will be presumed the court below proceeded without proper authority. Carpenter v. The State, 4 How. 168.
    3d. The court erred in permitting testimony to be given to the jury on the trial of the case, as to the defendant’s usual mode of punishing slaves on R. C. Ballard’s plantation. The testir piony of the witness Puckett, had not even the slightest or most remote tendency to prove the issue between the state and the defendant, but it had a tendency to create an unfavorable impression in the minds of the jury towards the prisoner, apd was therefore improper, and should not have been admitted.
    4th. The evidence introduced to prove that the boy, Dipk Smith, charged to have been murdered, was the property of R. C. Ballard, as alleged in the indictment, was not sufficient to authorize the jury in finding the prisoner guilty; .and therefore the court erred in overruling the motion for a new trial. There were but two witnesses who testified as to the matter of ownership. Dickson, to the question by the state, t! Do you know the slave, Dick Smith, the property of Rice G. Ballard 1 ” an? swered “yes,” and “that at the time of the alleged beating, &c. the said Dick was on the plantation of Rice C. Ballard, and had been for several months.”
    Now what does this answer prove % Two things and nothing more, viz., that he, witness, knew the boy, Dick Smith, and that -said Smith, at the time of the beating charged, was on the plantation of R. C. Ballard. He does not say he knew the boy Dick to be the property of Ballard, nor was the question put to him. The district attorney, however, chooses to assume it as a fact, and then asks the question, “Do you know the boy Dick Smith 1 ” &c. The testimony of the other witness, Puckett, has not the remotest tendency to prove the ownership of the boy in R. C. Ballard. What is the evidence of this witness 1 Unquestionably nothing that has a tendency to prove ownership in Ballard. Witness says, that “he heard the testimony of the witness, Dickson; that he knew the boy, Dick Smith, spoken of by Dickson, and that he had visited him during his last illness, on the plantation of Ballard, and administered or prescribed medicine to him there.” The assumption, by the district attorney, of ownership in Ballard, is no evidence of the fact, and there is, therefore, no proof to support that allegation in the indictment. The whole testimony, therefore, upon this point, would not have satisfied an intelligent jury upon the trial of a mere right of property in a civil action; and how it could have satisfied the minds of a jury, in a case highly penal like the one under consideration, is a matter which we are not able to understand. Had Dowling been indicted for stealing the negro Dick, as the property of said Ballard, and there had been no other evidence of ownership than the above, there is not an enlightened judge in the state that would have hesitated a moment to direct an acquittal. Hence we insist that the court erred in refusing to grant the prisoner a new trial.
    5th. The court below erred in overruling the motion in arrest of judgment, when it appeared by the record that no prosecutor was marked ou the indictment. The statute, in explicit terms, requires it; and this court has decided,, in numerous instances, that without a prosecutor so marked, the proceedings are irregular, and the indictment bad. See Cody v. The State, 3 How. 27; Peter, a Slave, v. The State, Ibid. 434.
    
      John D. Freeman, attorney general,
    on the part of the state.
    Error 1st. In drawing the grand jury the venire was exhausted, and two talesmen Avere summoned and put upon the jury. The statute of this state provides that talesmen may be empanelled as grand jurors, and that they shall serve until discharged by court. H. & H. 499. The common law affords the same rule, in cases where the venire was exhausted before the grand jury was complete. It is a discretionary power of all courts of genera] criminal jurisdiction, without which designing persons summoned on the venire, by refusing to attend court, might prevent the formation of a grand jury at every term of the court, and so defeat the ends of justice. See Hiding v. The State, How. R. 6.
    The issuance of an attachment for contempt of court by the failure of a juror to attend, is discretionary with the court, and if not resorted to, is not cause of error.
    Error 2d. The law reducing the peremptory challenges from twenty to twelve, is unconstitutional. The constitution secures the right of trial by jury. The number and qualification of jurors has ever been the subject of legislation under magna charta in England, and under the constitution of the United States. The statute of this state now brought in question, was decided to be constitutional by Mr. Justice Trotter. 4 How. Rep. 196, 197.
    The points made in the bill of exceptions, are submitted without comment.
   Mr. Justice Thacher

delivered the opinion of the court./ — -f

This was an indictment for murder preferred in the Warren county circuit court, which resulted, upon a trial, in a verdict of manslaughter in the second degree.

The first ground claimed for error, is that the grand jury, which found the indictment, was composed in part of bystanders not of the original venire facias, and not brought into court by a special venire facias.

The record shows, upon this point, that a grand jury was empanelled, of which twelve persons were taken from the regular venire, and it having then become exhausted, two persons were taken from bystanders, summoned by the sheriff.

It has been held that objections to the personal qualifications of grand jurors, or to the legality of the returns, cannot affect any indictments found by them, after they have been received and filed by the court; but such objections, if any exist, must be made before the indictments are found, and may be received from any person who is under a presentment for any crime whatsoever; or from any person present who may make the suggestion as amicus curies. Commonwealth v. Smith, 9 Mass. 107. But assuming that this objection is well taken in point of time in this case, it is not clear that it is well taken in point of fact.

The first inquiry which grows out of this assignment of error is, the legality of completing a grand jury by means of tales grand jurors, in cases of an exhaustion of the jurors returned upon the regular venire facias.

The constitution of this state has provided that “the right of trial by jury shall remain inviolateand it has further provided, that “ before an individual shall be held to answer for a capital or otherwise infamous crime, except in cases not now pertinent to enumerate, there must be a presentment or indictment for such crime, by a grand jury. It is contended that by thus adopting modes of legal proceeding, we have adopted'them with all their incidents as known to the common law, or at least, so far as not changed by absolute legislation. The history of this country and the opinions of some of its most eminent jurists, show that this position, when generally claimed, must be taken with restrictions. Mr. Justice Story, in his Commentaries on the Constitution, vol. 1, p. 132, sec. 148, enlarges those limitations to a great degree, and excludes all rules repugnant to our local and political circumstances. The historical fact is, that the early colonists of this country were more learned in divinity than in jurisprudence; and Hutchinson, the best colonial historian, observes, in his History of Massachusetts, 1, 399, that its “judicial proceedings were in as summary away as could well consist with the preservation of any' tolerable method or order.” None would contend, at this day, in a trial of a writ of right, for the extraordinary jury, called the grand assize, composed of four knights, “ girt with swords,” and who chose twelve other persons to be joined with them. It has been déemed necessary, in this state, to secure by enactment, the privilege of a jury d'e medietate linguae,. Yet both these juries were known to the original common law. It will be observed that the modifications in this country, of the English forms of legal proceedings have not always been formally made, as by legislation, but have sprung naturally from our circumstances. The old common law has been insensibly changed and tempered to our situation and institutions, and thus practice, custom and usage, which are always as potent as legislation in such cases, have made a common law for the individual states. Thus while the constitution must be construed to have adopted the generous privilege of the common law trial by jury in its essential elements, it reasonably follows, that whatever was an accidental and not an absolute part of that institution, the mere superfluous forms and complicated proceedings of the English courts, is not necessarily included to have been guarantied in the right, by the clause of the constitution. It was therefore competent for legislation to point out the mode of empanelling juries, both grand and petit, so long as it did not intermeddle with the constituents of those bodies; and, whenever legislation is silent, we must presume an intention to adopt the forms of the common law, unless they are found to be repugnant to our local or political circumstances, and well-established usages. In this state, the mode of empanelling grand juries differs in many respects from the mode existing at common law. One of the marked differences is, that at common law, jurors duly served with process under a venire facias, were compellable to appear, and their appearance in the common pleas was enforced by writs of ha-beas corpora, and distringas juratores, and in the king’s bench and exchequer, by the writ of distringas juratores alone. Bac. Abridg. tit. Juries. With us, jurors duly served with process under a venire facias, and failing to attend, are liable to a fine, unless good cause be shown for their non attendance on or before the first day of the regular term of the court next after their default, or before a final judgment on scire facias issued according to law against them. H. & H. 492, sec. 48. They are not com-; pellable to appear at the return term of the venire facias. The statute has affixed the penalty and the whole penalty fop such non attendance. The scire facias against a defaulting juror in this state, corresponds to the distringas juratorem of common law, the latter having been returnable immediately, and the former being returnable to a subsequent term of the court. In this interpretation of the statute, the legal maxim, that Expres-sio unius est exclusio alterius, applies with much force. It is a legitimate mode of ascertaining the meaning of a statute, to compare it with others of a similar character. For instance, the statutes of this state respecting the summoning and attendance of witnesses upon trials, resemble the rules governing jurors; they are subject to the same penalty, and same process of its recovery. H. & H. 599, sec. 2 and 4. In the case of witnesses, however, there is a special statute authorizing the issuance of a warrant or attachment to compel their attendance, which does not exist in the case of defaulting jurors. H. & H. 605, sec. 21. In further confirmation of this view of the law upon this point, it may be observed that the statute, H. & H. 492, sec. 49, provides that the grand jury shall be constituted from the whole number of the jurors, summoned by the venire facias and attending thereon, which seems plainly to anticipate the contingency of the non attendance of some of the jurors summoned by the regular venire facias. In reply to that branch of the assignment of error which would appear to hold, that, under the circumstances, a special venire facias should have been awarded to complete the grand jury, it is enough to observe that the statute providing for such an order, (H. & H. 498, sec. 68,) authorizes it only when not any of the regular jurors summoned to a particular term, shall be in attendance. This is but a re-enactment of the common law, as will be hereafter seen. Then, there existing no means of enforcing the appearance of the defaulting jurors of the regular venire facias, and it not having been a case for the award of a special venire facias, what was the proper course to be adopted to complete the number of jurors necessary for a legal grand jury % Our statutes, although they do not expressly point out the mode, point it out by inference, by acknowledging the legal existence of. tales grand jurors. H. & H, 499, sec. 70. At common law, if a jury did not attend on the habeas corpora or distringas jura-tores, which were to bring them into court, there was a writ of undecim, decim or octo tales, according to the number deficient, to force others into court; and also subsequently, 35 H. Till, 6, “ the court could cause a supply to be made of so many men as were wanting, of them as were standing about the court,” and hence the act itself was styled a tales de circumstantibus. The tales de circumstantibus was given by statute to trials by assize and nisiprius. In this state, the tales and the tales de circum-stantibus have been indifferently used by custom of the courts.

It occurs here to notice the objection that the two persons, bystanders, do not appear to have been competent jurors. Although this objection is likewise involved in the difficulty of having been taken too late in point of time, as before sustained by authority, it is not well made in point of fact. The two persons were summoned from the bystanders to sit upon the grand jury. The circumstances show that they were summoned as tales de circumstantibus. The word tales is similitudinary, and has reference to the resemblance, which there ought to be in esse. Thus at common law, if the array were quashed, or all the polls challenged or absent, a new venire facias was awarded, and not a tales, because there were no quales. The mode of proceeding shows, therefore, that the persons summoned were “such as” “those” of the jury already empanelled, and who, nothing to the contrary appearing, must be considered to have been good and lawful men, and invested with all the necessary qualifications.

Upon the examination of the second assignment of error, some remarks are equally applicable to the one just considered. The second ground claimed as error is, that the circuit court erred in refusing to allow the prisoner to challenge peremptorily a greater number than twelve of the jurors tendered to him by the state for his trial.

Our statute, (H. H. 674, s. 46,) limits the number of peremptory challenges in capital cases to twelve. At common law, in capital cases, the prisoner could challenge thirty-five peremptorily. By statute 38 H. VIII. c. 3, peremptory challenges were reduced to twenty, but by 1 & 2 W. & M. c. 10, the challenge of thirty-five in treason and petit treason was restored. In this state, formerly, by act June 11th, 1822, peremptory challenges were allowed to the number of twenty. The origin of peremptory challenges shows that the reason for the common law rule has ceased at this day. The trial by the petit jury was introduced to do away with the trial by ordeal, the jury of twelve being after the manner of the canonical purgation of accusation. Among the canonists, the whole pares were not upon the jury, but only a select number was brought in and chosen by the accused himself. A middle way was therefore adopted, and the accused had liberty to challenge peremptorily any number under three juries, four juries being as many as generally appeared to make the total pares of the county. Gilbert’s Com. Pleas, 99; Bacon’s Abridg. title Juries, E. It might be extremely inconvenient, and indeed, in some instances, work a complete denial of public justice, under our local circumstances of sparse population, to adhere implicitly to this feature of the common law. The trial by jury is by twelve free and lawful men, who are not of kin to either party, for the purpose of establishing, by their verdict, the truth of the matter which is in issue between the parties. It is called a trial by one’s peers ; that is, by men who have that concern for the party on trial, which naturally flows from a parity of circumstances, common to him and his judges. 3 Black. Com. 361. The jurors should be as impartial and independent as the lot of humanity will admit, and be allowed to judge upon the matter submitted to them freely and without fear or favor. Such is the trial by jury, guarantied by the constitution, and originally secured by the magna charta of England. Any legislation, therefore, which merely points out the mode of arriving at this object, but does not rob it of any of its essential ingredients, cannot be considered an infringement of the right.

'f'he third point relied upon as error, is, that a witness on the part of the state was permitted to testify as to the general habit of the prisoner, in his'capacity of overseer, in punishing slaves upon the plantation of the owner of the slave charged to have been killed.

It is not necessary to prove strictly as laid in the indictment, the instrument or means by which the crime of murder has been committed, for if it be proved to have been effected by any other instrument, capable of producing the same kind of death, it will be sufficient. But the mode in which the death is alleged to have been effected, must be proved to a reasonable degree of certainty. In this case, the answer of the witness was a response to the allegation in the indictment, of the instrument used to inflict the wounds, but was general in its character, and had no other than a general reference to the individual slave charged to have been killed. It cannot, therefore, be viewed as evidence in this case of killing, even though we supply the fact that this slave was upon the plantation. The primary rule in relation to evidence is, that the evidence must correspond with the allegations, and be confined to the point in issue. A principal reason for this rule is, that a party, having had rio notice of such a course of evidence, may not have prepared himself to rebut it. It is not an answer to this to say, that the matter in evidence having no relation to the point in issue, cannot therefore influence the mind upon it. It may have the effect to withdraw the minds of the jury from the point in issue, and thus to mislead them. If the admitted evidence tend to prove that the prisoner has committed another distinct offence, it may thus excite prejudice, and even raise the inference of the commission of the offence alone in question. It is of the last importance to a person charged with an offence, that the facts laid before the jury should consist exclusively of the transaction, not only because he can be expected to come prepared to answer them alone, but because, even should he happen to be so prepared, it is so much irrelevant matter tending to confuse the minds of the jury, and to take from him the benefit of their exclusive consideration of the merits of the matter solely in issue. The customary manner of the prisoner’s punishing slaves upon the plantation under his control, was not the point in issue, nor a collateral fact of that point, nor did it constitute any part of the transaction to which that point related. The prisoner was not necessarily prepared to prove his customary mode of punishing slaves. Such a matter involved an inquiry into circumstances that might draw away the minds of the jurors from the true merits of the investigation submitted to them. It might have tended to prove that the prisoner had committed the offence of cruel and unusual punishment upon a slave, which is a misdemeanor under our statutes, and thus have excited an improper prejudice against him in the minds of his jury. There was error, therefore, in permitting the question complained of to be asked and answered by the witness.

With the foregoing view of this case, its remaining points relied upon by counsel need not be reviewed.

.The judgment of the court below is therefore reversed, and a new trial awarded.

Mr. Chief Justice ShaRKey

delivered the following opinion.

One of the objections raised in this case is, that the grand jury was illegally organized. It seems that after the venire was called, only twelve of the jurors who had been summoned appeared, whereupon the court ordered the sheriff to summon two bystanders to serve on the jury, who were accordingly sworn. The regularity of this proceeding seems to me to depend entirely upon the sixty-eighth section of the circuit court law, which is in this language. “ If at any regular or special term of any court in this state, there shall not be in attendance any of the regular jurors summoned to such term, it shall be the duty of the court to award forthwith a special venire facias, directing the proper officer to summon without delay, persons, freeholders or householders of the county in which the court shall be sitting, to serve as jurors at such term of the court,” &c. Now the question is, does this section authorize the court to exercise this power only when all the grand jurors fail to attend, or is the special venire facias to issue to bring in a less number than a full panel 1 I think the statute is not to be read as providing only for the non-attendance of the whole panel, but if any part fail to attend, then a venire shall issue to make up the requisite number. The sense of the statute is made apparent by reading it thus: “If there shall not be in attendance any one or more of the regular jurors,” &c., or “any number of the jurors,” then it shall be the duty of the court to issue a special venire. The word any ” means every, either, whosoever. By giving to it either of the latter significations, my construction is sustained, and the statute leaves no contingency unprovided for. It would seom singular, indeed, that the legislature should have intended to authorize the court to issue a special venire only in the event of the non-attendance of the whole jury, a contingency that is least likely to occur, and that they should have overlooked the difficulty which is most probable, and which must, in the nature of things, often occur, by the non-attendance of part of the jury. Thinking, then, that the statute provides for supplying the deficiency, in case any one or more of the jurors should fail to attend, the question is narrowed down to this; may the court disregard the mode prescribed by the statute, by pursuing a different method 1 I think not. The statute must be followed. As Avell might the court dispense with the venire facias entirely, and summon the whole of the grand jury from the bystanders. It is not for the court to say that the provision of the law is useless, or that its object may be accomplished without process, when process is required. The law requires that the special venire facias shall direct the sheriff to summon freeholders or householders of the county, but under a mere order, verbally given, the defendant has no security that competent persons will be summoned. It is safe to follow the law, but dangerous to depart from it. If my construction of the statute be the true one, then the indictment was bad, and the judgment ought to have been arrested.

I concur with the majority of the court in holding that improper evidence was permitted to go to the jury. The testimony which tended to show the defendant’s treatment of other slaves, should have been excluded.  