
    William H. Boles vs. The State.
    In capital cases the accused, has a right to select a jury from the list of those summoned on the special venire furnished him, so far as it is practicable for him to do so by exercising the right of challenge for cause, and also his right of peremptory challenge.
    'A circuit judge has no authority to discharge a juror specially summoned for the trial of a capital case, without sufficient cause shown.
    Where upon the impanelling of a jury in a capital case, some of those summoned on the special venire failed to appear when their names were called, and the court refused to stay the further call of the names and force their attendance by attachment, and a jury was afterwards completed from those summoned on the special venire. Held to be no error.
    Where the special venire has been called through without completing the jury, then, as a general rule, the accused is entitled to process to force the attendance of those who have been summoned upon it and failed to appear, though there are circumstances under which an attachment may, even in such a case, be refused without error.
    The fact, that disqualified persons were summoned on a special venire, cannot be objected to by a challenge to the array, and is no ground to -quash unless upon proof of partiality or corruption in the sheriff, and is not a sufficient reason for reversing the judgment.
    The statements of the accused are not a part of the res gestee.
    
    Leading questions are admissible upon cross-examination.
    Where the accused has been tried, convicted, and sentenced in one county, and a new trial has been granted, and the venue changed to another county, it is error to read to the jury the affidavit of the accused for the change of venue, or the record of the previous conviction and sentence.
    In error from the circuit court of Hinds county; Hon. Richard Barnett, judge.
    The plaintiff in error was indicted at the October term, 1846, of the Warren county circuit court, for the murder of one-Donnahoo, whose Christian name was unknown. At the May term, 1847, he was tried, convicted, and sentenced to be hung. His case was taken to the high court, the judgment reversed, and the cause remanded for a new' trial. In May, 1848, the venue was changed to the county of Hinds, where a trial was had at the May term, 1849, of the circuit court, which resulted in his conviction and sentence.
    
      A new trial was again granted by the high court of errors and appeals, and at the March term, 1852, of the Hinds county circuit court, he was again tried, convicted, and sentenced to be hung, to which judgment the present writ of error was taken.
    While the court was engaged in maldng up the jury from the special venire ordered in the case, James W. Farr, one of those summoned on the venire was regularly called, and failed to answer or appear. The prisoner insisted that the further call of the names on the venire should be suspended till the attendance of Farr could be forced by attachment or otherwise. This the court refused, and proceeded to call the other names on the venire; to which action of the court the prisoner excepted.
    The same action was had in regard to five others who were summoned on the venire and failed to appear.
    The record does not show that the special venire was exhausted before the jury was completed, or that recourse was had to the regular panel, or the tales jurors.
    On the list of the venire appeared the name of John W. Jones as having been regularly summoned. When this name was reached and called, one James W. Jones presented himself, and proving to be a competent juror, was peremptorily' challenged by the State. After the call of two or three other names, the counsel for the prisoner stated to the court that there was no such name as James W. Jones on the copy of the venire furnished to the prisoner. James W. Jones was then called back, and stated that he had been summoned by the sheriff as a juror in the case, and had told the sheriff that he signed his name J. W. Jones. The prisoner’s counsel demanded that John W. Jones should be produced, and objected to the further call of the venire without him; but the court overruled the objection, and proceeded with the call, and John W. Jones did not appear.
    The record does not show that John W. Jones was not summoned upon the special venire.
    
    Four of the venire proved to be incompetent to serve as jurors in the case, being neither freeholders nor householders of the county.
    
      On the cross-examination of a witness, (Carlisle) as to the condition of deceased, and the position he was in at the time he was stabbed, the district attorney asked the following question, viz.: Was not the intoxicated condition of the deceased such, that, unless he had leaned for support on the post, or some other supporter, he could not have stood up ? To this interrogatory the counsel for the prisoner objected; the court overruled the objection, and the witness answered: “ I considered the deceased very drunk, and quite overpowered by liquor.”
    On the further progress of the trial, the prisoner having introduced one David McElwee as a witness, who stated among other things, that, on the day of the killing, he saw the prisoner running, pursued by several persons, among whom was E. E. Bruner, a witness who had testified on behalf of the prosecution, who had a pistol in his hand and exclaimed, “ stop, you old rascal, or I’ll shoot you,” the prosecution reintroduced Bruner in rebuttal of this portion of McElwee’s statement, who denied having a pistol in his hand at the time referred to, or having used the expression attributed to him by McElwee.
    The district attorney then asked witness Bruner the following question: When you had overtaken the prisoner, or while pursuing him, what did you say to him ? In reply, (which was not objected to,) the witness said that he asked the prisoner why he did so; and proceeded, in opposition to the remonstrances of the district attorney, to state that the prisoner replied, that he, the prisoner, would allow no man to follow him round town. The court decided that this response should not go to the jury as evidence.
    The district attorney read to the jury the record of the trial, conviction, and sentence of the prisoner in Warren county, the judgment of the high court of errors and appeals granting a new trial, and the affidavit ‘of the accused made to procure a change of the venue to the county of Hinds. To all of which action of the court, the prisoner objected and excepted.
    The errors assigned, and. relied on to reverse the judgment were,
    . 1. Because the court dispensed with the attendance of James W. Farr and five others, persons summoned as jurors on the special venire, and refused the application of the prisoner for an attachment against said jurors.
    2. Because the juror, John W. Jones, was not presented, though returned on the special venire, and James W. Jones placed on the venire in his stead.
    3. Because the special venire contained the names of four persons summoned as jurors, who were neither householders nor freeholders.
    4. Because the court below permitted a leading question to be propounded to the witness, John C. Carlisle.
    5. Because the court below, in the examination of the witness Bruner, permitted him to relate part of the declarations of the accused touching this offence, and rejected that portion of such confession favorable to the accused.
    6. Because the court permitted the district attorney to read the affidavit of accused for a change of venue, and the entry of such change as contained in the minutes of Hinds circuit court.
    7. Because the court permitted the district attorney to read . to the jury the record from Warren circuit court, reciting a former conviction for this offence.
    
      Amos R. Johnston, for plaintiff in error.
    To dispense with the attendance of jurors summoned on the special venire, whose attendance could be secured, is erroneous. The intention of the statute was to afford the accused an opportunity of selecting a jury from the names furnished him two whole days before the trial. The course pursued by the court below tended to defeat this provision of law. If six jurors can be dispensed with, any number might. The absent jurors were in contempt of court. Hutch. Dig. 1007, art. 7, § 1; lb. 1003; as to copy of venire, Boles v. State, 13 S. & M. 399. See the same authorities in support of the second error assigned. If one man can be substituted for another, on the same ground a judge might change the whole venire.
    
    The record shows, that four persons were summoned as jurors who were neither householders nor freeholders. This was erroneous ; the writ of venire facias commands the sheriff to summon good and lawful men. It was the duty of the sheriff to .obey the process strictly; he had no right to summon incompetent jurors ; the officer should know what persons in his county are good and lawful men. If the officer be permitted to summon four incompetent jurors, might he not summon all of that description ? and if so, what becomes of the law providing for a special venire ? It is swept away. Byrd v. State, 1 How. R. 163.
    The question propounded to Carlisle is a leading one, and, therefore, objectionable; a question suggestive of the desired response is objectionable. Any question that may be answered “ yes ” or “ no,” is a leading question; a question that embodies a material fact, and admits of answer by a single negative or affirmative, is a leading question. Toomey v. State, 8 S. & M. 104; 1 Greenl. Ev. § 434; 1 Starkie, Ev. 169.
    It was assuredly an error to permit the State to call.for and obtain part of the statement of the accused at the time of the homicide, and exclude the remainder of what he said in that connexion. When one party opens the door and calls for a particular conversation, the whole conversation must be given. When a confession is given in evidence, the whole confession must go to the jury, however favorable portions of it may be to the prisoner. 1 Greenl. Ev. §§ 201, 218; Torrance v. Hurst, Walk. R. 403; Roscoe, Cr. Ev. 51.
    The reading of the affidavit for a change of venue was improper, because thereby the fact that the prisoner’s case was so odious where the transaction occurred, that in his own opinion he could not have a fair trial there, was improperly conveyed to the jury; that was calculated to prejudice the case of the accused, and ought not to have gone to the jury.
    It was still more improper to read to the jury the record of a former conviction;. that circumstance,had nothing to do with the trial then progressing, and the evidence was well calculated to prejudice the minds of the jury. In the case of Toomey, it was adjudged error to read to the jury the record of the probate court, showing malfeasance on the part of the prisoner as guardian of his ward, on whose person he was charged with committing rape. Toomey v. State, 8 S. & M. 104.
    
      As to the trial by jury, it is urged that the constitution of Mississippi intended to preserve it inviolate, with all the common law incidents of the institution. See Constitution, art. 1, § 28.
    
      D. C. Glenn, attorney general, for the State,
    Insisted in answer to the majority of the questions raised by the prisoner, that something must be permitted to the discretion of the court below; such has been the rule in regard to matters of high import, but from' the necessity of things must rest in that discretion. Barb. Cr. Law, 356, 357; 13 Wendell, 351, 355; 4 Taunt. 309.
    The introduction of proof of a former conviction, a reversal in this court, and a change of venue, by which alone the case can come lawfully into Hinds county, was not only proper and right, but absolutely essential. It is but the legal history of the case, and without such history, upon proper exception, the party is entitled to his discharge.
    From the finding of the bill of indictment in' Warren county down to this time, the State must show the accused to have been in legal custody, and that all general laws have been,complied with in regard to him. Now: Boles was indicted eight years ago; unless in the mean time the State has done its duty in the prosecution, the party is entitled to his discharge. See Byrd’s case, 1 How. R.; Loper case, 3 lb.; Nixon’s case, 2 S. & M. 503.
   Mr. Chief Justice Smith

delivered the opinion of the court.

This was an indictment tried in the circuit court of Hinds, upon which William H. Boles, the plaintiff in error, was convicted of the murder of one Donnahoo. A motion was made for a new trial, which was overruled, and the case having been removed into this court, we are asked to reverse the judgment for errors alleged to have occurred during the progress of the trial below.

We will proceed to consider the objections pressed upon our attention in the order in which they were discussed.

1. The three first bills of exceptions present this state of facts : In making up the jury the names of James W. Farr, Hugh Sheridan, James Staughton, Peter Barr, H. E. Windley, and Elijah Peyton, were regularly reached on the list of jurors summoned by virtue of the special venire facias, which issued in the cause. These persons, upon being called, did not answer to their names; whereupon the prisoner, as in each instance and before the succeeding name was called, objected to a further call of the persons summoned' as jurors, until the juror called and failing to attend should be attached, or his attendance otherwise procured. The objection in each case was disregarded, and the call of the special venire proceeded with. This action of the court, it is alleged, was unauthorized and illegal.

By the statute, (Hutch. Code, 1007, art. 7, § 1,) it is directed, that whenever any person shall, have been arraigned, charged with an offence the punishment of which is death, it shall be the duty of the court forthwith to award a special venire, by which the sheriff is required to summon from the county any number which may be directed by the judge of said court, not exceeding one hundred jurors. From the persons thus summoned, the jurors by whom the. award is to be tried, are to be taken, unless the venire should be exhausted before the jury is completed. In the event that a sufficient number of competent and impartial jurors to constitute a jury cannot be selected from the special venire, recourse must-be had to the regular panel, and the tales jurors summoned for the day.

By another provision of the statute, (Hutch. Code, 1003,) the party under an indictment for a capital felony is entitled to a list, to be furnished at least two entire days before the day of trial, of the jurors summoned by virtue of the special venire facias. These directions in £he statute are of the highest importance. They are designed to insure to persons criminally charged the full benefit of a trial by an impartial jury of the country, as guarantied in the bill of rights. Courts, therefore, charged with the administration of the criminal jurisprudence of the State, will be solicitous to enforce intelligently and with firmness and fidelity, every provision of the statute regulating the trial by jury. Hence, if in the course pursued by the court upon the point under consideration, the rights of the accused have in anywise been violated, it will be for ns to apply the corrective.

It will not be contested that the prisoner was entitled to a trial by a jury selected from the persons summoned under the special venire facias, and of whose names a list had been furnished to him, provided a sufficient number of competent jurors be, according to the rules regulating the impanelling of juries, be obtained therefrom. The objection is, that the action of the court tended to impair this right of the prisoner. It is argued, that if a judge under such circumstances has a right to dispense with the attendance of any number of the venire from which the jury should be selected, he may with equal propriety dispense with the whole, and thus be enabled to defeat the manifest intention of the statute, and thereby deprive a party capitally charged of rights solemnly guarantied by the constitution. This court has never held that it was competent for a circuit judge to discharge a person summoned under the special venire in a capital case, without sufficient cause. In the case at bar, when before this court on a former occasion, (13 S. & M. 401,) the contrary doctrine seems to have been intimated. It was then said: “A list of the venire is to be furnished the prisoner two entire days before the trial. This is to give him an opportunity of selecting a jury from the list furnished. A prisoner has not a right to be tried by such a jury as he might select from the body of the county, but he has a. right to make his selection from the list furnished him, as far as it is practicable for him to do so, by exercising the right of challenge for cause, or his right of peremptory challenge.” On the same occasion it was further held, that a juror who had been tendered to the prisoner, could not against his consent be discharged ; this court saying that the “ prisoner had a right to have him, of which he could not be deprived under the circumstances. It is very probable that the court might properly set aside a juror who was physically or mentally incompetent, but there was no such emergency in the present case.” Indeed, without the aid of authority, upon the principles of reason and common sense, it is manifest that a circuit judge does not possess the authority to discharge without sufficient cause a-juror specially summoned for the trial of a capital felony. And the violation of principle would be equally great, although the injury might not be so obvious, if the exercise of an unrestrained discretion over the subject were confined to a single instance, instead of being extended to an indefinite number of the venire. Concurring with counsel, that to dispense with a juror, summoned upon the special venire in capital cases, without cause, and against the consent of the accused, would be an unwarrantable exercise of authority by the presiding judge, we nevertheless think, the action of the court under consideration was unexceptionable.

The record in the case at bar does not show that the special venire was exhausted before a jury had been selected, and that recourse was therefore necessary to the regular panel, or to tales jurors summoned for the occasion. As the effort is to impeach the judgment of the court, the facts upon which the charge of error is predicated must be shown distinctly by the record to exist; as upon an unvarying principle, unless that be done the action .of the court will be held to be in strict accordance with the law. We must assume, therefore, that the jury which was impanelled, and by whom the prisoner was tried, were taken from the special venire. But it is assumed, that the prisoner had a right to select the jury from the whole of the special venire. Hence it is argued that the court, by dispensing with the jurors above named, infringed that right, as the accused was compelled thereby to select his jury from a part, and not from the whole panel. The argument is not borne out by the record. When those persons were called, and failing to attend, the prisoner objected to a farther call of the venire unless the attendance of the absent jurors should be procured by attachment or otherwise. The court disregarded the objection and proceeded with the cause. The record does not show that they were discharged; nor does it affirmatively appear that an application was made for an attachment to bring them before the court. If, after the State and prisoner had failed to obtain a sufficient number of competent jurors from those of the special venire in attendance* upon the court, an application for an attachment to compel the attendance of the absentees had been refused, a very different question would have arisen. In such a case, we apprehend, the accused, as a general rule, would have a right to demand the process of the court to compel their attendance. But even here, something must necessarily be left to the discretion of the court, as we may readily suppose the existence of circumstances which would justify a refusal. Then upon the facts presented' by the record, of what has the prisoner a right to complain ? We answer, nothing. The absent jurors were not discharged. The exigency did not arise in which the prisoner could demand an attachment, as the jury was impanelled before the special venire was exhausted. The right to select the jury from the whole number summoned was not abridged; at most, the right of the accused to select from the absent jurors was postponed until it could be ascertained whether a jury could be constituted of those whose names stood posterior on the list, which was precisely what the representative of the State, with the sanction of the court, would have had the power to do if they had been present.

2. The next exception is of a similar character. It is presented by the fourth bill of exceptions, from which it appears that John W. Jones was returned, as summoned by the sheriff, on the special venire. Upon the call-of the venire, James W. Jones answered to that name, and upon examination, being found to be a competent juror, was peremptorily challenged by the State. Afterwards it was ascertained that the name of James W. Jones was not upon the list of the names of the jurors returned as- summoned. It appears that James W. Jones was in fact summoned, but it does not appear that John W. Jones was not. The prisoner’s counsel demanded the production of John W. Jones, and upon his non-appearance, objected to proceeding with the call of the venire. The court overruled the objection, and proceeded with the cause. What we have above said is a sufficient answer to this exception.

3. It appears from the record, that four persons were summoned as jurors, who upon their appearance at the trial were ^examined on oath, and found to be neither freeholders nor householders; whereupon they were severally discharged by the court. This proceeding does not appear from the bill of exceptions to have been regarded as objectionable. It was undoubtedly correct; but it is now insisted that as it was the duty of the sheriff, in obedience to the mandate of the special venire facias, to summon as jurors for the trial of the prisoner, only such persons as were duly qualified; his omission to do so, or rather his having returned'.upon the panel persons disqualified to sit as jurors, was an infringement of the prisoner’s rights.

By the statute, Hutch. Code, p. 888, art. 10, it was enacted that thereafter, no challengeHo the array should be sustained, nor should any venire facias be quashed, by any court, for any cause whatever, except in capital cases, in which... the special venire might be quashed, for partiality or corruption in the officers executing the writ. The fact that disqualified persons were summoned, if it constituted a defect in the special venire, could not,, therefore, be objected to by a challenge to the array, and was no ground to quash, unless upon proof of partiality or corruption in the sheriff. There is no charge of partiality or corruption against the officer, and it is difficult to perceive why an alleged defect, which if admitted to exist constituted no ground for quashing the special venire, should be a sufficient reason for reversing the judgment. We apprehend, that it could not have been the intention of the legislature to subject a party criminally charged to trial by a jury illegally constituted, and whose finding would be consequently erroneous.

4. The next objection is, that an illegal question was allowed to be propounded to, and answered by, a witness examined on the trial.

John F. Carlisle was produced as a witness, and examined in chief by the prisoner. Upon his cross-examination, the following question was asked by the district attorney, to wit: “ Was not the intoxicated condition of the deceased such, that unless he had leaned for supptjrt on the post or some other supporter, he could not have stood up ? ” The objection is, that this was a leading question; and doubtless it is. 2 Ph. Ev. 401; Turney v. State, 8 S. & M. 104. But as we have seen, the question was propounded to the witness on his cross-examination. Upon cross-examination, a much greater latitude is allowed than upon the examination in chief, and it is settled that upon such examination leading questions are admissible. 2 Ph. Ev. 406; 4 Ib. 723; note, 373. In permitting the question to be asked, there was, therefore, no error. Nor do we think the court erred, in refusing to allow the answer of the prisoner to the question addressed to him by the witness Bruner to be given in evidence. The answer of the prisoner was properly excluded upon a plain principle. It is not contended that it was admissible as a part of the res gestee; and no attempt had been made on the part of the State to introduce the statements or confessions of the prisoner.

5. We will, in the last place, direct our attention to the exception taken to the admission of certain evidence introduced in behalf of the prosecution.

The crime charged was committed, as alleged, in the county of Warren; in which the prisoner was indicted and, in the first instance, tried and convicted of murder. The judgment rendered upon that conviction was reversed by this court, and the cause was sent back to that county for a new trial. Afterwards the venue was changed, and the case transferred to the circuit court of Hinds county. On the trial in the latter county, the aifidavit made by the prisoner for the purpose of obtaining a change of venue from the Warren circuit court, and the record of the conviction and sentence of the prisoner therein, were offered as evidence to the jury. The prisoner objected but his objection was overruled, and the affidavit and record were accordingly read by the prosecuting attorney.

Thé affidavit for a change of venue made by the prisoner could not conduce to prove the issue submitted to the jury. It was wholly irrelevant, and therefore inadmissible. But the irrelevancy of this testimony was not the strongest reason why it should have been rejected. Its obvious tendency was to prejudice the minds of the jurors, and thereby render them less capable of a calm and impartial examination of the evidence. It presented to them the prisoner in the odious attitude of a man who, charged with a capital offence, was so hateful, or whose guilt was so strongly suspected, that a fair trial could not be had in the county where the offence was committed.

The same objections apply, but with greater force, to the introduction of the record of the conviction and sentence. The fact that a jury of the county of Warren, on a previous trial of the prisoner for the same offence, upon the same indictment, ,had found him guilty of the offence charged, was certainly not legitimate evidence to establish his guilt before a jury in the county of Hinds. The fact that the judge who presided on the trial, after a review of the evidence, refused the prisoner’s application for a new trial, and pronounced sentence upon him, was equally inadmissible as evidence in the cause. The effect of this evidence, under any circumstances, must have been unfavorable to the prisoner, and in a doubtful case might have proved fatal to him.

We think the court erred in the admission of this evidence; and, therefore, reverse the judgment, award a new trial, and remand the prisoner.  