
    *Bristow v. The Commonwealth.
    July Term, 1859.
    Lewisburg.
    i.Jurors — Challenge for Cause — Waiver of. — It is a principal cause of challenge to a Juror that he was one of the grand jury which found the indictment. But if the oh j action is not taken until a iter the verdict, it will not be set aside on this ground, unless it appears from the whole case that the juror was biased against the prisoner ; who therefore has not had a fair and impartial trial.
    2. Same — Objection to Mode oí Selecting — Wher! Mode.  An objection to the mode of selecting the jury in a trial for murder,_must be made at the time the jury are chosen ; and prisoner cannot, avail himself of it after verdict.
    3. Same — Selection of. — After the panelhas been completed and the prisoner has struck off eight, the jury may be selected from the remaining sixteen, either by drawing by lot four who shall be discharged. or the twelve who shall constitute the jury.
    
      4. Criminal Law — Murder—Case at Bar. — Deceased strikes tlie prisoner’s father with, his fist and a fight ensues, when the prisoner, who sees it, comes up, and catches the deceased by the collar of his coat behind, and strikes the deceased from behind ■with, a pocket knife, wounding him in the right side. The prisoner, who was about seventeen years old, had lately left the school of the deceased, and had used language on more than one occasion before the affray, and also used language after it, but before it was known deceased was dangerously wounded, which evinced hostility to him. Heed : The killing is murder.
    At the November term 1858 of the Circuit court of King- & Queen county, Robert B. Bristow was indicted, for the murder of B. J. Gogerty. He was put upon his trial at the same term; but the jury not being able to agree upon a verdict, was discharged. At the April term 1859 he was again put upon his trial, when the following facts were proved:
    On the morning of Rriday the 18th of June in the year 1858, B. J. Gogerty the deceased, was at the office of Dr. Cox, in the village of Centerville, in the county of King & Queen, together with several other *persons. It was staled by some person to the deceased that James Bristow, the father of the prisoner, had said that the deceased had struck his son Julian Bristow (who was a pupil of the deceased, and whom the said deceased had corrected) in the eye with his fist. Thereupon Gogerty said it was a lie, and he intended to ask James Bristow about it the first timé he saw him; and if he said so, he would tell him he lied; and if he cut up any riistys, he would thrash him. In a short time some one said James Bristow was coming then, and was in fact in the road passing from his house to his store, approaching the store of D. Butrick, a point necessary to pass in order to get to his store. Gogerty immediately started off in the direction of Butrick’s store, and went a short distance up the road, and beyond Butrick’s store, to meet James Bristow. When he got within a short distance of James Bristow, he said to him, “he had understood that he had said that he (Gog-erty) had struck his son with his fist, and if any person said so, hetoldalie.” James Bristow said he never had said so — it was his son who said so. Gogerty then said, if either said so, it was a lie. James Bristow replied, “If it had come from any other person than a contemptible flat-footed Yankee, he would notice it.” Gogerty thereupon struck him in the face, and one or two blows passed between James Bristow and the deceased. Just as the first blow was struck, Dr. Cox, a justice of the peace (who with others from his office had come up), commanded the peace. The prisoner, who had preceded his father, and had nearly reached his father’s store, when attracted by the quarrel, was seen coming back (apparently whittling a stick, which was a habit with him, or cutting his finger nails), gesticulating very much, and talking to himself; and at the moment the deceased and James Bristow closed in fight, the prisoner rushed in to the back of the deceased, somewhat to *his right, laid his left hand upon the collar in the middle, or a little to the left, apparently pulling the deceased off, and did pull him a little back, and struck the deceased round his body at the same time with his right hand. The prisoner was unobserved by the deceased when he came up behind him, as described. A witness, who was within reach of the prisoner when he came up to the back of the deceased, immediately caught prisoner by the skirt of his coat, and pulled him around; and at the instant this was done, the deceased turned from James Bristow, and advanced, striking at the prisoner, and did strike him one blow on the right or left cheek with his hand. The prisoner struck the deceased no other blow than that above mentioned, round the body. The prisoner retreated, warding off the blows as long as the deceased continued to advance on him, which was five or six paces; then a bystander interfered and separated them; and after this, the prisoner did not advance towards Gogerty. Gogerty then advanced towards James Bristow, as if to renew tlie fight with him, when another bystander interfered. As the prisoner, immediately after striking deceased the blow above mentioned, was pulled around as above stated, an open knife was seen in his hand.
    It was proved that there was no impediment to prevent the prisoner from retreating further, when deceased was advancing upon him, and that before and during the fight, there was nothing to indicate any danger of death, or serious bodily harm to any of the combatants.
    
      It was also proved, that after tile fight, and the crowd had dispersed, the prisoner, who was at his father’s store, said he had stabbed the deceased; and taking' his knife from his pocket, said he had stabbed him with that knife, and asked if there was not blood on it. He also at this time took from the shelf a '^larger knife, of the value of sixty-two and half cents, and said if he had had that knife at the time of the fight, he would have killed the deceased on the spot. A short time after, prisoner said to another person, he had interfered that morning in a fight between Gogerty and his father James Bristow, and that if they had not interfered with him (prisoner) after the first blow, he would have killed Gogerty the second blow, if he had not been pulled off. That the deceased had taken advantage of his absence to whip his brother Julian at school, and that had he been present he would have killed him at that time; and that if Gogerty ever interfered with him, he would kill him. That about fifteen minutes after the figh), the prisoner said to another witness, “Where is the damned rascal? (meaning Gogerty). I will shoot him or his horse either.” That about an hour after the fight, the physician, who attended the deceased, after he had made the first examination of the wound, and at that time thought it slight, said to prisoner, “You have marked Gog-erty.” He replied, “That is exactly what I intended to do.”
    When the foregiong expressions were used by the prisoner, he was not apprised of the serious nature of the wound the deceased had received.
    It was also proved, that about a week before the fight, the deceased, who was a schoolmaster, and the prisoner at that time his pupil, called him up and asked him about a difficulty which the prisoner had had with another boy, and the prisoner replied, he would whip any boy who would do what that boy had done to him. That upon this, the deceased rebuked the prisoner; and that after the school was dismissed for that day, the prisoner said to one of his schoolmates that at the time the deceased rebuked him, he had his knife open in his pocket, and if the deceased had ^touched him, he would have killed him on the spot. That on the day before the fight, about twelve o’clock, the prisoner said he had left the school of the deceased. That he had treated him in an ungentleinanly manner, and he intended to tell him so, and if he resisted him or struck him, he meant to kill him. "At this time the prisoner exhibited a knife,' saying, “It is a small one, but I always have one about me, even though it is a small one.” ISarly in the night of the last mentioned day, the prisoner said that if he went to the debating society that night, and deceased interfered with him there, he would kill him. The fatal wound was inflicted with a knife, the blade of which had a sharp point, and was from two to two and a half Inches long. The wound was located on the left side of the person of the deceased, about midway between the lower rib and the hi p bone. It was directed downwards and inwards, and the narrow edge was towards the anterior medium line of the body. In consequence of the compressible nature of that portion of the body, it penetrated about four inches, transfixing two of the srnall intestines, and entered the large intestine. The wound was inflicted on Friday morning, between eight and nine o’clock, and the deceased died from the effects thereof on the following Sunday, in the afternoon. Some few hours before his death, the deceased, who was then aware of liis approaching end, sent for the father of the prisoner, and had an interview with him. In this interview the deceased said that he did not wish the prisoner punished. That it was perfectly natural for the son to defend the parent. That the prisoner had only done what he (the deceased) or any other person would have done.
    It was also proved that the age of the prisoner at the time of the homicide was eighteen years and five months.
    *After the .evidence had been introduced, the prisoner, by his counsel, moved the court to instruct the jury as follows :
    1st. That every homicide is presumed in law to be murder in the second degree — and in order to elevate the offence to murder in the first degree, Ihe burden of the proof is on the commonweal! h; and to reduce the offence to manslaughter, the burden of the proof is on the prisoner.
    2d. That if the jury shall believe from the evidence, that there was an existing grudge on the part of the accused against the deceased, but that the killing occurred on a sudden affray and by reason of a new provocation, they are bound to presume the killing to have been caused by the impulse of the affray, unless it be clearly shown by the commonwealth to have been on the old grudge.
    3d. That a child will be excused by the law for any injury done by him to one assailing his parent offensively, to the same extent that he would be if the attack was made on himself instead of his parent.
    4th. That if the jury shall have rational doubt as to any important fact necessary to convict the accused of any offence whatever, they are bound to give to the accused the benefit of that doubt.
    Stb. That if the jury shall believe from the evidence that the accused gave to Gog-ertjr the wound which caused his death, whilst Gogerty was advancing on him and striking- at him, under the belief at the time that it was necessary to protect his life or his person from serious bodily harm, and whilst he was retreating from Gog-erty, that then he was excusable.
    6th. If, upon the whole evidence in the case, there is any rational hypothesis consistent with the conclusion that the homicide was justifiable or excusable, the accused cannot be convicted.
    
      7th. That there is no presumption of malice in this *case, if any proof of alleviation, excuse or justification arise out of the evidence for the prosecution.
    To which instructions the attorne3r for the commonwealth objected. Whereupon, the court, refusing to give the said instructions as prayed for by the prisoner, instructed them as follows:
    1st. That every homicide is presumed in law to be murder in the second degree; and in order to elevate the offence to murder in the first degree, the burden of the proof is on the commonwealth; and to reduce the offence to manslaughter, the burden of the proof is on the prisoner.
    2d. If the jury shall believe from the evidence, that at the time of the killing there was an exsiting grudge on the part of the accused to the deceased, but that the blow struck ' by the prisoner, which caused the death of the deceased, was given in a sudden affray, and because of fresh provocation, then the presumption is that the killing was because of the fresh provocation ; and to elevate the offence to murder, it devolves on the commonwealth to show that the killing was because of the old grudge.
    3d. That a child will be excused by the law for any injury done by him to one assailing his parent offensively, to the same extent that he would be, if the attack was made on himself instead of his parent.
    4th. That if the jury shall have any rational doubt as to any important fact necessary to convict the accused of any offence whatever, that they are bound to give the accused the benefit of that doubt.
    Sth. That if the jury shall believe from 'the evidence that the accused gave to Gog-erty the wound which caused his death, whilst Gogerty was advancing on him, and striking at him, and that he then struck the mortal blow through mere necessity, in order to pro'tect himself from serious bodily injury or death, having first retreated until his further retreat was prevented *by some impediment, or as far as the fierceness of the assault permitted, then he was excusable in striking the said blow.
    6th. If upon the whole evidence in the case, there is any rational hypothesis consistent with the conclusion that the homicide was excusable or justifiable, the accused cannot be convicted.
    7th. Every homicide is presumed in law to be murder in the second degree. It is, however, the duty of the jury to consider the whole testimony (both that introduced by the commonwealth and the prisoner), and ascertain whether the prisoner has been guilty of murder in the first degree, murder in the second degree, or manslaughter (voluntary or involuntary), or whether the homicide was not excusable.
    To which opinion of the court, refusing the instructions prayed for by the prisoner, by his counsel, and giving the instructions last aforesaid, the prisoner, by his counsel, excepted.
    The attorney for the commonwealth then moved the court to instruct the jury as follows :
    1st. Every homicide is presumed by law to be murder in the second degree. If the commonwealth would elevate the offence to murder in the first degree, she must prove the characteristics of ' that offence; and if the prisoner would reduce the offence, the burden of proof is on him.
    2d. If the jury believe from the evidence that previous to the time of killing there was a grudge on the part of the prisoner towards the deceased; that the prisoner had previously declared his purpose to kill the deceased if the deceased interfered with him, and that he killed the deceased because and in pursuance of such declared purpose on the aforesaid grudge, then such killing was willful, deliberate and premeditated, and is murder in the first degree.
    3d. If the jury believe from the evidence that the *killing aforesaid was malicious, but not willful, deliberate and premeditated, then such killing was murder in the second degree.
    4th. If the jury believe for the evidence that the prisoner killed the deceased in execution of a malicious purpose to do the deceased a serious personal hurt, bjr wounding or beating him, the offence is murder.
    Sth. If the jury believe from the evidence the prisoner killed the deceased, even after his own retreat, the excuse of necessity will not prevail, unless there was reasonable ground to apprehend that he would otherwise be killed himself, or that he would suffer great bodily harm; and the same rule applies when the killing is by a child in defence of a parent. The danger to either, in order to excuse the killing, must be serious and imminent.
    6th. Where death ensues on a sudden provocation or upon a sudden quarrel, without prepense malice, the killing is manslaughter; and in order to reduce the killing to self-defence, the prisoner must prove two things: First, that before the mortal blow was given, he had declined any further combat, and had retreated as far as he could with safety; and secondly, that he killed his adversary through mere necessity.
    To which the counsel for the prisoner objected. But the court, overruling the objections of the prisoner, by his counsel, to the said instructions, granted the same, and gave them to the jury. And the prisoner again excepted.
    The jury found the prisoner guilty of murder in the second degree, and ascertained His term of imprisonment in the penitentiary at five years. And thereupon the prisoner, by his counsel, moved the court to set aside the verdict, on the ground that the jury was not drawn and selected in the mode prescribed by’ law. The point of the objection was, that after the jianel of *twenty-four had been completed, and the prisoner had struck off eight, out of the remaining sixteen four were selected by lot and discharged; and the other twelve were sworn as the jury. The court overruled the motion; and the prisoner again excepted. There was also a motion for a new trial, on the ground that the verdict was contrary to the evidence, which the court overruled: and there was another exception setting out the facts hereinbefore stated. And afterwards there wa.s another motion to set aside the verdict and grant a new trial, on the ground that Richard Wayne, one of the jury which rendered the verdict, hacl been a member of the grand jury which made the indictment. This application was accompanied by the affidavit of the prisoner, in which he says that he did not know and had no means of knowing, by ordinary diligence on his part, that the said Richard Wayne was on the grand jury which found the indictment, before or during the trial, and not until after the discharge of the jury. There was also the affidavit of the two counsel for the prisoner, who were present when the jury was impaneled, who say that Wayne was sworn on his voir dire before he was sworn in chief as a juror in the case, and that he did not disclose the fact that he was one of the grand jury which found the indictment; and that they did not know, nor were they informed of the fact until after the verdict was rendered.
    Wayne was himself examined, and said that he was a member of the grand jury, but that he had no recollection of the fact at the time that he was called, examined and sworn on the jury; nor did he recollect it until his attention was called to it on the morning after the verdict was rendered. He further stated that he did not when on the jury, nor did he then recollect any of the evidence given before the grand jury which found the indictment; and that such evidence did not weight with him, or in any manner influence his mind *in rendering the verdict; but that his mind was perfectly free and unbiased for or against 'the prisoner. The court overruled the motion; and the prisoner again excepted. And the court having rendered a judgment upon the verdict, the prisoner applied to this court for a writ of error; which was awarded.
    Crump, for the prisoner, insisted:
    1st. That Wayne having been a member of the grand jury which found the indictment against the prisoner, he was not a competent juror; and the objection having been made as soon as it was known, the prisoner was not to be subjected to the consequences of a trial by an incompetent jury; because having used the only means in his power to ascertain the juror’s competency, he had failed to do so by the misconduct of the juror himself. He referred to Dilworth’s Case, 12 Gratt. 689; Cain v. Cain, 1 B. Monr. R. 213; Williams v. The State of Georgia, 3 Georgia R. 453; McKinley v. Smith, Hardin’s R. 167; Herndon v. Bradshaw, 4 Bibb’s R. 45; Sellers v. The People of Illinois, 3 Scam. R. 412; Booly v. The State, 4 Yerg. R. Ill; Monroe v. State of Georgia, 5 Georgia R. 85, 140; and the cases cited in 9 Bac. Abr. 597, title Trial, $ D; Wharton Cr. Daw 850, 923.
    2d. That the jury were not chosen in the mode prescribed by the statute. If the twelve who were to constitute the jury had been drawn, the four who were rejected would have been upon it, and four of those upon it would, have been rejected.
    3d. That the evidence did not make out a higher grade of offence than manslaughter. That the prisoner was justified in going to the assistance of his father, who had been insulted and was then beaten by the deceased; and if in the heat of blood he killed the deceased, it was not murder, unless there was previous malice which prompted the killing. And he insisted ^earnestly that the idle talk or even threats of a mere boy, as was the prisoner, was not to be regarded as evidence of previous malice, especially when the circumstances and excitement of the moment were sufficient to account for his conduct, Certainly it was for the commonwealth to satisfy the court that the prisoner was prompted by the previous grudge. He referred to Roster’s Cr. Daw 290, Mason’s Case; Davis’ Crim. Daw 83. 1 Russ. Crimes 513, 588, 589; Copeland v. The State, 7 Humph. R. 479; The State v. Rord, 1 Spears’ R. 150, 154.
    The Attorney General, lor the commonwealth, insisted:
    1st. That the objection to the juror not having been taken until after the trial, the objection came too late. That the act is broad enough in its terms to exclude all objections to a juror after he is sworn. Code, ch. 162, $ 4, p. 628. And this seems to have been the construction of the act in Jones’ Case, 1 Deigh 598; though Judge Daniel supposes that it does not refer to common law objections. Dilworth’s Case, 12 Gratt, 689. He referred also to Tooel’s Case, 11 Deigh 714; Heath’s Case, 1 Rob. R. 735. And he insisted, that after verdict the only question is, whether the verdict is a just and proper one?
    2d. That the evidence made out a case of murder. That without looking to the evidence of previous malice, the circumstances attending the killing, and the manner in which it was done, made out a case of murder. But that the evidence of previous malice and threats was abundant, and his conduct showed he was acting on that previous malice. He referred to Wharton’s Cr. Daw 368; Davis’ Cr. Daw 86; Johnston’s Case, 5 Gratt. 660; Davis’ Cr. Daw 85, 98, 99; Whart. Cr. Daw 373, 374.
    
      
      Appellate Practice — Jurors—Challenge for Cause— Waiver.--In Sweeney v. Baker, 13 W. Va. 228, it is said : "The decisions in Virginia and West Virginia show, that here the courts regard with extreme jealousy, all attempts to set aside verdicts on the ground of objections to jurors, existing before they were sworn. Here a verdict will not be set aside for any such cause, unless it appears to have operated, so as to inflict injustice. See Smith’s Case, 2 Va. Cas. 6; Poore’s Case, 2 Va. Cas. 474; Kennedy’s Case, 2 Va. Cas. 510; Brown’s Case, 2 Va. Cas. 516; Hughes’ Case, 5 Rand. 655; Jones’ Case, 1 Leigh 598: Hailstock’s Case, 2 Gratt. 564: Heath’s Case. 1 Rob. R. 735; Curran’s Case, 7 Gratt. 619; Dilworth's Case, 12 Gratt. 689; Bristow's Vase, 15 Gratt. 634; Thompson v. Updegraff et al., 3 W. Va. 629; State v. McDonald, 9 W. Va. 456; Zickefoose v. Kuykendall, 12 W. Va. 23.” For the above proposition the principal case is also cited and approved in Simmons v. McConnell. 86 Va. 500, 10 S. E. Rep. 838; Gray v. Com., 92 Va. 777, 22 S. E. Rep. 858 ; State v. Greer, 22 W. Va. 824; State v. McDonald. 9 W. Va. 465; State v. Hobbs, 37 W. Va. 826, 17 S. E. Rep. 385. See, in accord, State v. Williams, 14 W. Va. 851; Beck v. Thomson, 31 W. Va. 459, 7 S. E. Rep. 447; Flesher v. Hale, 22 W. Va. 44; Poindexter v. Com., 33 Gratt. 766, and note; State v. Harrison, 36 W. Va. 729, 15 S. E. Rep. 982: State v. Strauder, 11 W. Va. 745.
    
    
      
       Jurors—Objection toModeof Selecting- Waiver. In Lawrence v. Com.. 30 Gratt. 848, and note, the principal case is cited as authority for tile proposition that an objection to the mode of selecting the jury in a trial for murder, must be made at the time the jury are chosen, and the prisoner cannot avail himself of it after verdict. But in Lawrence’s Case the court went further than the principal case and held that in afelony case a venire facias may be presumed to have regularly issued from the recital of the record and an objection after verdict comes too late. This is overruled in Jones v. Com., 87 Va. 63, 12 S. E. Rep. 226. and the court, in commenting on the principal case, at page 66 says: “Bristow’s Case, 15 Gratt. 634, which has been referred to, has no application. In that case the objection was, not that there was no venire, but that the jury had been improperly selected after the venire hrul been executed, and it was held that the objection came too late after verdict.
      “The difference between that case and this is that here the omission t.o direct a venire leaves the record destitute of an essential part, which, therefore, cannot be supplied by presumption nor affected by the doctrine of waiver; whereas any defect in selecting the jury from the persons brought in under the venire, not being thus essential, may be waived: and so, upon the same principle, objection to tie-competency of a juror must be made before be is sworn upon tie jury, unless by leave of the court.” See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
      Upon the question of competency of jurors, see principal case cited in Jackson v. Com., 23 Gratt. 931, and note, and cases cited. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
      Cnimn;:i Law — Homicide— instructions — Self.Defense. — In Clark v. Com., 90 Va. 369, 18 S. E. Rep. 440, it is said: “In Vaiden's Case, 12 Gratt. 717, it was held that to make out a case of self-defense in a case of homicide, the accused must show to the jury that the defense was necessary to protect his own life, or to protect himself against grievous bodily harm; and that with regard to the necessity that will justify the slaying of another in self-defense, the accused must not have wrongfully occasioned the necessity, for a man shall not in any case justify the killing of another by a pretense of necessity, unless he were without fault in bringing that necessity upon himself. See, also, Bristow's Case, 15 Gratt. 634; Lewis’ Case, 78 Va. 732; Honesty’s Case, 81 Va. 283, 298; Brown’s Case, 86 Va. 466, 470, 10 S. E. Rep. 745; Gaines' Case, 88 Va. 682, 693, 14 S. E. Rep. 375.” See Gray v. Com., 92 Va. 775, 22 S. E. Rep. 858, and cases cited, where the instructions given in the principal case are approved. See monographic note on “Homicide.”
    
   ROBERTSON, J.

If the juror Wa3'ne had been challenged *before he was sworn, because of his having been a member of the grand jury that found the indictment, there can be no doubt that the court would have been bound to exclude him from the jury for the trial of the prisoner. But not having been so challenged, his serving upon it was not of itself sufficient ground upon which to set aside the verdict. A party is not entitled to a new trial, as a matter of right, because he is able after verdict to show such cause of challenge against a juror as would have been allowed if made before he was sworn.

“When the prisoner excepts to a juror for cause, before he is sworn, it is matter of right, tobe adjudged by the court; when, he excepts after trial, for cause existing before the juror was elected and sworn, it is matter addressed to the discretion of the court: in the exercise of this discretion the court ought to consider the whole case, and be satisfied that justice has been done.”

This is the rule as laid down in Jones’ Case, 1 Leigh 598; and it has been uniformly adhered to in this state. In applying it, the court regards with extreme jealousy all attempts to set aside verdicts on the ground of objections to jurors existing before they were sworn. A verdict will not be disturbed for any such cause, unless it appears to have operated so as to inflict injustice upon the prisoner. Heath v. The Commonwealth, 1 Rob. R. 735; Curran’s Case, 7 Gratt. 619.

In the case of Dilworth v. The Commonwealth, 12 Gratt. 689, the objection that one of the jurors had been a member of the grand jury that found the indictment, was made after the jury were sworn, but before any of the evidence was heard. The prisoner’s affidavit that he did not know of the objection until after the juror had been sworn, was sustained by the affidavit of the jailor who gave him the information. The prisoner brought the matter to the notice of the court as soon as possible, and there was no reason to 7 *suspect that, in making the objection, he had any other object in view than to secure an impartial jury for his trial.

Under these circumstances, this court held that the court below exercised its discretion erroneously, in refusing to set aside the juror and substitute another in his place. But the case was carefully distinguished from that of an attempt on the part of a prisoner to avoid the effect of an adverse verdict, “on the score of objections to his triers, existing before they were chosen and sworn;” and the decision was rested on the ground, that “the principles to be deduced from- the modern decisions justify an indulgence to motions to set aside jurors after they have been sworn and before they have rendered a verdict, which would not be allowed to applications for new trials founded on exceptions to jurors taken after verdict. ”

In England, after a juror has been swoim, he cannot, except by consent, be challenged for any pre-existing cause. Hawkins’ Pleas of the Crown, book II, ch. 43; Bacon’s Abr. tit. Juries E. 11; 1 Chitty’s Crim. Law 545. But (as was suggested in Dil-worth’s Case) it is probable “that English judges would not now deny their power to_ set aside a juror, at the instance of a prisoner, at any time before the examination of the witnesses had commenced.”

In the United States, the decisions on this subject are conflicting, the English rule being adhered to in some of the states, while in others it appears to be held that where the\objection to the juror would be good cause of challenge for favor, if discovered in time, it will be ground for a new trial, as a matter of right, if not found out until after verdict.

Even if we were not bound by our own decisions, we would not hesitate to prefer the rule which has been established here, as being the one most consonant with justice and public policy.

*It is a principal cause of challenge to a juror, that he was one of the grand jury which found the indictment. But unless he is challenged before he is sworn, the objection will be considered as waived, and his being on the jury will not vitiate the verdict. The only case in which the failure to make the challenge cannot properly be regarded as a waiver, is where the objection was not known, and could not, by the exercise of reasonable diligence, be known to the prisoner until after the juror was sworn. But while in such case the prisoner ought not, on the one hand,' to be treated as if he had waived the objection, he should not, on the other, be allowed the same benefit of it after verdict, as if it had been made before the jury were sworn. The juror is excluded if objected to before he is sworn, because of his presumed bias. It is probable, from his position, that he will not be able to act impartially; and because of this probability, the prisoner has the right to exclude him. But it is a different matter after verdict. The fairness of the juror has then been tested by experiment. The court can, upon a review of the whole case, and of every thing relating to the conduct of the juror in reference to it, determine, with a reasonable degree of certainty, whether the apprehended bias did really exist. If it appears that it did exist, the prisoner is entitled to have the verdict set aside, because his trial has not been fair and impartial; but if it is obvious that the juror was not influenced by any bias against the prisoner, and that justice has been done, surely the circumstance that it was at one time probable that he would be so influenced, can afford no reason for disturbing the verdict.

To permit prisoners to avail themselves, after verdict, of pre-existing objections to the competency of jurors, as a matter of right, would not only be unreasonable, but most mischievous in its consequences.

*The delays in the administration of criminal justice, and the chances for the escape of the guilty, would be greatly increased. Proper verdicts, especially in trials for grave offences, would be continually set aside. A prisoner knowing, or willfully remaining ignorant of the incompetency of a juror, would take the chances of a favorable verdict, with him upon the jury; and if the verdict should be adverse, would readily enough make the affidavit necessary to avoid its effect.

I think, therefore, if it be conceded that the prisoner in this case was ignorant until after the -verdict that Wayne was a member ox the grand jury, and that lie could not, by an exercise of proper diligence, have sooner ascertained the fact, that the court was not hound to set aside the verdict and grant a new trial because Wayne was also upon the petit jury, unless it appeared that his serving on it caused injustice to be done to the prisoner.

But there is no sufficient evidence that it could not, by the exercise of due diligence, have been ascertained before the verdict was rendered, that Wayne was a member of the grand jury. It is true, the affidavit of the prisoner states that he had no means of knowing- it before or during the trial, by the exercise of ordinary diligence on his part. But what is “ordinary diligence,” is a matter for the court, and not for the prisoner to determine. The affidavit should have stated the circumstances under which, and the person from whom the information was obtained, so as to enable the court to judge for itself whether due diligence was used; and for the further purpose of affording the means of testing- the truth of the allegation of want of knowledge.

The prisoner was entitled to a list of the jury summoned for his trial; and it was his duty to inform himself, before they were sworn, whether objections ^'existed to any of them. If there was as much anxiety before as after the verdict, to discover objections to the competency of jurors, it is difficult, in the absence of any statement of the circumstances under which the discovery was made, to understand how it happened that a fact apparent on the record oí his own case, should have remained unknown to the prisoner until the termination of a trial which lasted five days, and should then have been ascertained just in time to be used on a motion for a new trial.

But waiving all objections to the sufficiency of the affidavits, and regarding the prisoner as having broug-ht himself within the rule applicable to those who, having exercised a reasonable degree of diligence, are ignorant until after verdict of a preexisting objection to a juror, it does not appear that the court, in the exercise of its discretion, ought to have granted a new trial because of the objection to Wayne as a juror.

There is nothing' to warrant the conclusion by this court that Wayne was guilty of perjury or corruption. His explanation of his position seems to have been credited by the judge of the Circuit court, and the prisoner did not attempt to impeach its truth.

In determining whether such injustice was done the prisoner as to make it proper to set the verdict aside, the third ground of error ass’gned in the petition, namely, that “the facts certified do not warrant a conviction for murder,” must necessarily be disposed of.

The court committed no error in substituting for the instructions asked for by the prisoner, those which were given in their stead, or in giving those asked for by the commonwealth’s attorney. The law applicable to the case, in any aspect in which it might be viewed by the jury, and especially in reference to the questions of provocation and malice, was stated in a full and perspicuous manner; and there is nothing in any of the instructions of which the prisoner has a right to*complain. The question then for consideration is, did the facts proved justify the conclusion that the killing was malicious? It seems to me, after making all possible allowances for the youth and indiscretion of the prisoner, that the finding was proper.

It is true, there was provocation at the time, which, in the absence of proof of express malice, might have been sufficient to reduce the killing to manslaughter. But the proof that malicious and revengeful feelings existed, and that the prisoner acted under their influence, is abundant. He had for a week previously manifested strong animosity against the deceased, and had repeatedly stated that, on receiving any provocation from him, he would kill him. The first thing that he did, on taking part-in the contest between his father and the deceased, was to use a deadly weapon, without warning and from behind, when there was no necessity, real or apparent, for the use of such weapon. His declarations, after the fight and before he knew the serious character of the wound he had inflicted, showed that he had been prompted by the desire and intent to kill, and referred that desire and intent not to the immediate provocation, but to the previous act of the deceased in whipping his brother Julian.

If all this does not show express malice, it is difficult to say what would be sufficient proof for the purpose.

The prisoner, then, was guilty of murder, and as the verdict ascertained the minimum punishment prescribed by law for that of-fence, it cannot possibly be regarded as harsh or unjust. It may be further observed, that no effort was made by the prisoner to show that the verdict was more severe than it probably would have been if Wayne had not been a member of the jury.

The only remaining assignment of error relates to the mode of selecting the jury. If the objection were *valid, the prisoner, having failed to make it at the time the jury were chosen, could not avail himself of it after verdict. But there would have been nothing in the objection if made at the proper time. The mode adopted was as full a compliance with the lav/ requiring the jury to be selected by lot, as is the more usual one of drawing out the names of the twelve who are to serve.

I am of opinion to affirm the judgment.

The other judges concurred in the opinion of Robertson, J.

Judgment affirmed.  