
    Lewis, a Slave, vs. The State.
    A proposed juror having; stated that he had formed and expressed no opinion in the case, was tendered to the prisoner as a juror, and accepted, when he voluntarily stated to the court that he had conscientious scruples about finding any man guilty of murder, and could not conscientiously take the oath. The court thereupon discharged him, without challenge either upon the part of the state or of the accused : Held, that it was the duty of the court to see that an impartial jury was impanelled, and that it was composed of men above all exception. Therefore, when the proposed juror stated his objections, it was right to respect them, and to procure another, who was not restrained by such feelings from the performance of his duty.
    In the case of the dying declarations of a slave, the danger of impending death is considered equivalent to the sanction of an oath. Slaves are presumed to have a sense of religious accountability.
    To authorize the introduction of dying declarations, it must be established as a previous fact, that the declarant was sensible that he was on the verge of dissolution.
    Therefore the exclamation of “ 0 my people,” uttered by a slave when first discovered after a mortal wound had been inflicted upon him, is not sufficient preliminary evidence to authorize the introduction of his dying declarations. But if, upon a new trial, stronger evidence upon this point should be produced, such as to satisfy the circuit judge that the declarant was sensible of bis true situation, and that his end was at hand, then the declarations should be admitted — otherwise, n,ot.
    One of the jurors was engaged in conversing, and in writing, and receiving and reading notes, from a person not of the jury, during the progress of the argument of the prisoner's counsel to the jury. The affidavit of the juror was permitted to be read to show, that the correspondence and conversation were about a wholly different matter, and did not touch the subject of the trial. It was held, that this conduct was reprehensible, and should have subjected the juror to punishment; but whether it would avail, of itself, to set aside the verdict, was not determined.
    ERROR from the circuit court of Warren county ; Hon. George Coalter, judge.
    
      At the October term of the circuit court of Warren county, in the year 1846, the slave Lewis was indicted for the murder of the slave David, and being tried was found guilty. On the impanelling of the jury in this case, William A. Haynes, one of the special venire summoned in the case, was called, and being sworn to answer questions to the interrogatory of the district attorney, said he had not formed or expressed an opinion as to the guilt or innocence of the prisoner, and was thereupon tendered by the district attorney as a juror to the defendant, and accepted. The said Haynes, of his own motion, told the court that he had conscientious scruples about finding any man guilty of murder, and could not conscientiously take the oath in a capital case. The defendant insisted on accepting said Haynes as a juror, but the court refused to suffer said Haynes to be sworn, and for the above stated cause set Haynes aside, and refused to suffer him to be sworn as a juror, to which opinion of the court the defendant excepted.
    On the trial the district attorney called as a witness Lawrence Clark, who, being sworn, testified that he was the master and owner of the slave David, in the indictment specified as the deceased ; that on the 8th day of July, A. D. 1846, within the county of Warren, about ten o’clock at night, he was aroused from his sleep by a cry of distress, and hurrying to the place, about a half of a mile from his house, he found his slave, the deceased, injured badly; that the deceased said “O my people,” seemed like he wanted to see his people, but said nothing else which indicated his apprehension of immediate death. The district attorney then called Daniel McGill, who, being called, stated that he was a practising physician ; was called to see the deceased slave on the night of the 8th July, 1846, and saw him on the morning of the 9th. The slave was then dead. He examined the body, and found a ragged cut on the right jaw of deceased; bone not hurt; several small shallow stabs and cuts on the shoulders and back of deceased, and one stab, the fatal wound, on the left side, between the eighth and ninth ribs, which reached the spine and divided the aorta. That such a wound must of necessity produce death; might produce it in a few minutes, and life might endure for an hour or two. Upon this showing the district-attorney offered to prove by said Lawrence Clark, what the deceased said and declared as to the injury he had received. The defendant objected to the declarations of the deceased being proved by said Clark, on the showing made; but the court overruled the objection, and admitted said Clark to go on and prove the declarations of deceased ; to which opinion of the court the defendant excepted.
    On the hearing of the motion for a new trial in the case, the defendant, by his counsel, read the affidavits of S. B. Wall, R. H. Smith, and R. H. Tompkins, which stated, in substance, that pending the trial of the cause, and while the counsel of the defendant was addressing the jury, and commenting on the evidence, one of the jury, to wit, Henry Strong, was engaged for a very considerable length of time, first, in a conversation, and then in a written correspondence with a person not of the jury, receiving from him, and apparently reading, several notes. The district-attorney then offered to read the affidavit of Henry Strong, which was in substance, as follows: “ The correspondence referred to in the affidavits filed by the defendant, did take place between himself and Harper R. Hunt, while the counsel for defendant was addressing the jury ; but that correspondence did not relate to the case under trial, but was in relation to a matter .of private business between himself and Hunt.” To the reading of this affidavit the defendant, by his counsel, objected, and offered to read authorities, and to show by those authorities, and by argument, that the affidavit was not admissible ; but the court refused' to allow defendant’s counsel to read authorities, or to make an argument in support of the objection, and admitted the affidavit to be read.
    The court overruled the motion for a new trial; to which the defendant excepted, embodied the facts in a bill of exceptions, and prosecuted this writ of error.
    P. W. Tomkins, for the plaintiff in error,
    contended,
    1st. That Haynes was improperly rejected as a juror, and cited Bickhan v. Pissant, Coxe, 220.
    
      2d. That the court improperly permitted the dying declarations of the deceased, who was a slave, to go to the jury. It is the consciousness of immediate dissolution, operating on a mind, imbued with religious obligation and sense of accountability, which, and which alone, places dying declarations on a footing with sworn testimony. In this case there was not a sufficient showing for the introduction of proof of the dying declarations, for it does not appear that the deceased was conscious of his danger, or made his declarations in prospect of immediate death. The deceased was a negro slave. The law does not presume in him any moral culture, nor sense of religious obligation. See Leach’s Cr. Cas. 337; 3 Car. & P. 198 ; How. & Hutch. Dig. 165, §§ 91, 92.
    3d. The court erred in refusing a new trial, first, for the errors first above named, and again because of the misconduct of one of the jurors, in carrying on a written correspondence with a stranger during the progress of the trial. Another branch of this error was in permitting to be read the affidavit of Henry Strong, the juror who misbehaved on the trial. 'See Jessup v. Eldridge, Coxe, 401; Brayt. 169; 6 N. H. 352.
    
      John D. Freeman, attorney-general, contra,
    cited 13 Wend. 351; 1 Baldwin, 78; 16 Pick. 153; How. & Hutch. Dig. 483, § 12; 2 Blackf. 114; 2 Penn. 918; 1 Cow. 221; 2 lb. 589; 6 N. H. 352; 4 John. 487; 5 Pick. 296.
   Mr. Justice Clayton

delivered the opinion of the court.

Several errors are alleged to have occurred upon the trial of this cause, to the prejudice of the prisoner.

The first relates to the rejection of William A. Haynes as a juror. This person, after having stated that he had formed and expressed no opinion in the case, was tendered to the prisoner as a juror, when he voluntarily stated to the court that he had conscientious scruples about finding any man guilty of murder, and could not conscientiously take the oath. The court thereupon discharged him, without challenge, either upon the part of the state, or of the accused. This is claimed to be error.

It is admitted by the counsel of the prisoner, that this would have been good cause of challenge on the part of the state, if taken before the juror was tendered to the prisoner. Although the rule was formerly different, we think, at this day, there can be no doubt the court possessed the power which it exercised on this occasion. It was the duty of the court to see that an impartial jury was impanelled, and that it was composed of men above all exception. When the proposed juror stated his objections, it was right to respect them, and to procure another who was not restrained by such feelings, from the discharge of his duty, and the administration of the law. Otherwise, an undue advantage would be afforded the prisoner. In The People v. Damon, 13 Wend. 354, the rule is said to be, that the court may set aside incompetent jurors, at any time before evidence is given. See Fletcher v. State, 6 Humphreys, 249.

The next objection is to the admission of the dying declarations of the deceased. It may be well to observe, in the first place, “that, by statute, all the laws in force for the trial of a free white person, for a capital offence, are declared to be in force for the trial of slaves for offences declared capital by the laws of this state.” Several reasons are urged for the exclusion of this testimony. The first is, that, by the provisions of our statute, every slave who gives testimony in a court, must first be charged, before he is examined, as to the consequences attached by law to his giving false testimony. That this is in addition to the oath; and as dying declarations are admitted because the law presumes the situation of the party imposes as solemn an obligation to speak the truth as an oath; they stand only in place of the oath. Where another sanction is added, they cannot supply the place of that sanction. This reasoning has failed to convince us. Two considerations unite in the admission of such evidence. First, the necessity of the case, and next the situation of the declarant. The danger of impending death is regarded as equivalent to the sanction of an oath'. The same necessity which justifies dispensing with the oath, will also justify dispensing with the charge directed to be given by the statute.

It is also objected that there ought, in the case of slaves, to be some evidence of a sense of religious accountability, upon which the validity of all testimony rests; and that the same presumption of such religious belief cannot be indulged in reference to them, as in regard to white persons. As to the latter it is said, the presumption is in favor of their proper religious culture, and belief in revelation, and a future state of rewards and punishments ; as to slaves, it is contended, the presumption does not arise, because of a defect of religious education. It is true that if the declarant had no sense of future responsibility, his declarations would not be admissible. But the absence of such belief must be shown. The simple, elementary truths of Christianity, the immortality of the soul, and a future accountability, are generally received and believed by this portion of our population. From the pulpit many, perhaps all who attain maturity, hear these doctrines announced and enforced, and embrace them as articles of faith. We are not inclined to adopt the distinction.

It is lastly insisted that the preliminary showing of the declar-ant’s knowledge of his situation, of his sense of impending death, was not sufficient to justify the admission of his declarations. The law is, that to authorize their introduction, it must be established as a previous fact, that the declarant was sensible that he was on the verge of dissolution. This rule was stated explicitly in the case of McDaniel v. The State, 8 S. & M. 401.

In this case the preliminary proof was, that the deceased, when first discovered after the wound was inflicted, exclaimed, “O my people !” but said nothing else which indicated the apprehension of immediate death. This showing was not sufficient. It indicated alarm and suffering, but showed no sense of approaching dissolution. It is the belief of the declarant, that his wound is mortal, and that his account with time is to be speedily closed, that renders the declarations admissible. It matters not how this belief is manifested, whether by words or conduct, or by an accurate perception of his true situation; yet, its existence must be shown in some way. This kind of evidence forms an exception to the general rule; it is only admissible under peculiar circumstances; and, unless satisfied that they exist, it is our duty to exclude it. 1 Greenl. Ev. 192, et seq.

For this reason a new trial will have to be granted. But if, on the next trial, stronger evidence on this point should be produced, such as to satisfy the circuit judge, that the declarant was sensible of his true situation, and that his end was at hand, then the declarations will be admitted, otherwise not.

Another objection is taken, growing out of the misconduct of one of the jurors. He was engaged in conversing, and in writing and receiving, and reading "notes from a third person, not of the jury, during the progress of the argument of the prisoner’s counsel to the jury. His affidavit was permitted to be read, to show that the correspondence and conversation were about a wholly different matter, and did not touch the subject of trial.

This conduct was highly reprehensible, and should have subjected the juror to punishment. Whether it would avail of itself, to set aside the verdict need not be determined. Yet the trial by jury should be preserved free from all extraneous and improper influences. Confidence in the administration of justice can only be preserved by removing even the shadow of suspicion from those in whose hands it is entrusted. See Hare v. The State, 4 How. 193.

The judgment is reversed, and new trial granted.  