
    *The Commonwealth v. Thomas Hughes.
    November, 1826.
    Law — New Tidal — Preconceived Opinion oí Jaaror.--An hypothetical declaration (made by a j uror before he was impanelled) that “if he (the prisoner) killed the man, he ought to be hanged,'1 is not a sufficient ground on which to grant a new trial; such declaration not being an opinion as to the prisoner's guilt.
    This was an adjourned case from the Superior Court of Halifax. The prisoner was indicted for the murder of Thomas Boyd, and was convicted by the jury of murder in the second degree. On the last day of the Court, he moved the Court to grant him a new trial, on the following facts and statement. On impanelling the jury in this case, Anderson H. Trabue, one of the jury who tried the prisoner, was called and sworn to answer such questions as might be asked him, in order that it might be ascertained whether he was a proper juror, or not; and in answer'to questions put to him, stated, that he had not 'made up, and expressed an opinion upon the guilt, or innocence of the prisoner. After the verdict was rendered, the prisoner introduced James Watson, who being first sworn, staled, that shortly after the alleged murder was committed, he heard the said Trabue say, in conversation in relation to the prisoner, “Damn his (meaning the prisoner) soul; if he took his knife and killed the man, he ought to be hanged without Judge or Jury.” Also, Randolph Hambrick, who being also sworn, stated, that he and the said Trabue were conversing about the prisoner’s case some short time after the prisoner was committed; and in *that conversation, the said Trabue stated to him, that “if he (the prisoner) did kill the man, he ought to be hanged.” Both of the above witnesses are men of good character. The above statement having been made, and the Court not having time to give to the prisoner’s motion the smallest consideration, by consent of the prisoner, the question whether the Court ought to grant a new trial upon the facts and statement, was adjourned to the General Court, for their opinion and advice.
    
      
       Criminal Law-New Trial— Isscosnpcsiesicy of Jarot.— In State v. Greer, 22 W. Va. 824, it is said: “In Virginia and this state it has been repeatedly held, that a new trial will be granted in a criminal case for matter that is a principal ca use oí challenge to a juror, which existed before he was elected and sworn as such juror, but which was unknown to the prisoner until after the verdict, and which could not have been discovered before the juror was so sworn by the exercise of ordinary diligence; unless it appears that the prisoner suffered inj us tice from trie fact that such juror served upon the case. Smith's Ca.se, 2Va, Gas. (5; Poore’s Oase, 2 Va. Gas. 174; Kennedy’s Gase, 2 Va. Gas. 510: Brown’s Case, 2 Va. Gas. 516; llwjh.'-s' Oaseth Hand. 655; Jones's Oase, 1 Leigh 508; Heath's Case. 1 Rob. 7515; Hailstock’s Oase, 2G-ratt. 561; Curran's Oase, 7 G-ratt. 619; Dil-warth’s Case, 12 Gratt. 689; Bristow's Oase, 15 Gratt. 684; McDonald's Case, 9 W, Va. 456. The same doctrine is held in civil cases. Sweeney v. Baker, 13 W. Va. 158; Plesher v. Hale, 22 W. Va'. 44.” And in State v. Baker, 33 W. Va. 324, 10 S. E. Rep. 611, it is said: ‘ There have been many cases in Virginia upon the incompetency of jurors in criminal cases on account of preconceived opinions. Lithgow’s Case, 2 Va. Gas. 297; Sprouce’sGase, 2 Va. Gas. 375; Poore’s Oase, 2 Va. Gas. 474: Pollard’s (’ase, 5 Rand. 659: llu'jhez' Gase.oJiand. 655; Mentlmris Oase. 6 Hand. 704; Brown’s Case, 2 Leigh 769: Osiander’s Oase, 3 Leigh 780; Hendrick's Oase, 5 Leigh 707; Maile’s Case, 9 Leigh 66i; Moran's Oase. 9 Leigh 651; Armistead’s Oase, 11 Leigh 657: McOune's Oase, 2 Rob.771; Heath's Oase, 1 Bob. 736; Hailstock’s Case, 2 Gratt. 561; Epes’ Case, 5 Gratt. 676; Smith’s Case, 6 Gratt. 696; Smith’s Case, 7 Gratt. 593; Clore’h Oase. 8 Gratt. 606; Wormeley’s Ca.se, 10 Gratt. 658; Montague’s Oase, 10 Gratt. 767; Jackson’s Oase, 23 Gratt. 919; Little’s Oase, 25 Gratt. 921; Oluverius’ Case, 81 Va. 787.’'
      On this subject the principal case is also cited in Curran’s Oase, 7 Gratt. 623; foot-note to Com. v. Hailstock. 2 Gratt. 561; foot-note to Bristow v. Com., 15Gratt. 634; State v. McDonald, 9 W. Va. 465; Sweeny v. Baker, 13 W. Va. 228; State v. Hobbs, 87 \v. Va. 826, 17 S. E. Rep. 385.
      See further, monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 783; mono-graphic note on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.
    
   BOUT/DIN, J.

delivered the opinion of the Court.

Not deciding whether the cause stated be one, on account of which the Superior Court could regularly adjourn a case here for decision, it is the opinion of this Court, that the declaration of the juror was not the expression of an opinion relative to the guilt or innocence of the prisoner, but from the words used by him, was a reply to some loose and general statement, of the accuracy of which he had probably not reflected. A new trial ought not 1o have been granted to the prisoner on such ground.  