
    George W. Scaggs vs. The State of Mississippi.
    In a case of murder, the record must show affirmatively that the accused was present during the trial.
    On the trial of a case of murder, a witness for the state, on his examination in chief, testified, that on the day upon which the crime was charged to have been committed, he met the accused a half a mile from his house, and that he had blood upon his hands, and upon cross-examination, the witness stated that accused was coming from his own house at the time spoken of, and directed witness’s attention to the condition of his hands ; the court thereupon refused, upon a question in behalf of the accused for the purpose, to permit the witness to state what the accused said, when he showed the blood upon his hands : Held, that to have permitted the question to have been answered, would not have been short of permitting the accused to make evidence for himself, and the statement was therefore properly rejected.
    Declarations are admitted in evidence as part of the res gestee, only upon the presumption that they elucidate the facts with which they are connected, having been made without premeditation or artifice, and without a view to the consequences.
    Error from the circuit court of Itawamba county; Hon. Hugh R. Miller, judge.
    This was an indictment found by the grand jury of Itawam-ba, at the September term of the circuit court, in the year 1846, against George W. Scaggs, for the murder of Lewis Smith. On the 14th day of September, 1846, the defendant was arraigned, and plead not guilty, and thereupon a special venire was ordered for seventy-five good and lawful men, and made returnable on Thursday morning, the 17th day of September, 1846. The record then set out the venire facias, and the sheriff’s return thereon. Then follows eight pages of evidence, to which the name of the judge is signed; but it is not, and does not purport to be set out in a bill of exceptions, no part of which was considered by the court, and it need not therefore be further noticed here. Then follows a bill of exceptions, from which it appears that the state introduced Isaac Barnett as a witness, who testified that on the morning of the 20th of March, 1846, he saw the defendant about a half a mile from his own house, with blood on his hands. Upon cross-examination by defendant’s counsel, witness stated that the defendant was coming directly from his, defendant’s house, and travelling in the direction of his father-in-law’s. The defendant asked the witness how he came to see the blood on his hands, to which the witness answered, that the defendant showed them to him; the defendant then asked the witness what Scaggs said, when he showed his hands; to the answering of which question, the district attorney objected : the court sustained the objection, and refused to permit the witness to answer the question, to which the defendant’s counsel filed a bill of exceptions. The next entry in the record, is in these words, viz.:
    “And thereupon came the hereinafter named jury, whereupon the following judgment was rendered, and entered on the minutes of said court, which reads in the words and figures following, to wit:
    
      “ The State of Mississippi v. George W. Scaggs.
    
    “ This day came John W. Thompson, district attorney of the 7th judicial district of the said state, who prosecutes on the part of the state, and George W. Scaggs, defendant in the above-stated cause, being by the sheriff of said county brought to the bar of said court, and thereupon also came the jury, to wit: (givingtheir names,) who, upon a previous day of this term were elected, impanelled, sworn and charged, well and truly to try the issue joined, upon their oaths do say, that they do find the defendant guilty of manslaughter in the first degree. And the defendant being asked if he had anything further to say, why the judgment of law should not be pronounced upon him, answered that he had not. It is therefore considered by the court, that said defendant is guilty of manslaughter in the first degree, and that for such, his offence, he be imprisoned in the penitentiary of said state for the space of twenty-five years, commencing from the 19th day of September, 1846, and that the sheriff of this county convey the said defendant, and deliver him to the keeper of the penitentiary of said state, and that the state recover of the defendant the costs of this prosecution expended, and that execution issue for íhe same.”
    The defendant thereupon moved for a new trial, and the court overruled the motion. The record then states that the court charged the jury as follows: and sets out about three pages of Howard and Hutchinson’s Digest, as constituting the charge of the court, which does not appear to have been given at the request of either party, nor that any exception was taken to it. The defendant removed the case to this court by writ of error.
    
      Harris and Harrison, for plaintiff in error.
    1. The case was tried in the absence of the prisoner. The record contains no evidence of the fact, that he was in court from the 14th until the 19th day of the month. The venire was made returnable on the 17th, the day appointed for the trial.
    2. There is no entry of record in relation to the commencement of the trial. No account is given of the jury, or as to the submission of the cause to them. They returned into court with a verdict, but when they retired to consider of it, we are not advised. There is a recital, it is true, in the entry, containing the verdict of the jury, and the sentence of the court, (for they are both in one,) that upon a “ previous day of the term,” the jury had been “elected, impanelled, sworn and charged,” but that account is not considered satisfactory.
    3. It appears that the court, having been moved and seduced, doubtless by the excellent learning to be found in Howard and Hutchinson’s Digest, voluntarily, and without being requested to do so, gave in charge to the jury about three pages of the penitentiary code, from that instructive book.
    
      Taylor v. Manley, 6 S. & M. 305. The act of 1846, does not apply to criminal cases.
    
      4. It is contended, also, that the court erred in excluding from the jury the evidence that it did ; and again, in overruling the motion for a new trial. 2 Cow. &. Hill’s notes to Phil, on Ev. 157, 158, 590, 591, 592, 594, 595; 'l Greenl. Ev. 123, sec. 108, 110; Rose. Cr. Ev. 22,23.
    
      John D. Freeman, attorney-general for the state.
    The statute of 1846, providing that the judge shall not charge the jury, unless requested so to do, or by the second section, unless the charge be reduced to writing, does not apply to criminal cases. The charges in the record are not excepted to, and under the previous statutes cannot be a part of the record, unless incorporated by a bill of exceptions. See 3 S. & M. 295, 614, Sharkey’s opinion.
    As to the point, that the defendant was not in court, a venire of seventy-five was returned, a jury was “elected, impanelled, sworn and charged, to try the issue joined.” The names of the jury are given, and there is no exception to the proceedings, hence they are presumed to be regular.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is an indictment for murder, preferred in the circuit court of Itawamba county.

An inspection of the record presents to view several irregular proceedings, but it becomes unnecessary to remark at length upon them all, for the purpose of the present decision of this case, or its future progress.

The error which first protrudes itself to notice, is the circumstance that it does not appear that the prisoner was present during the whole of the trial of the indictment. The only evidence of his presence at all, is contained in a bill of exceptions, where he is stated to have asked some questions of a witness, but he does not appear to have been .confronted by the witnesses against him, which was his constitutional right. Const, art. 1, sec. 10. It must appear in this class of crimes, that the accused was present during his trial, or it will be error. The presence of the prisoner cannot be inferred, but must appear affirmatively, and for all that appears in this record, the questions directed to the witness by him, might have been propounded in writing. • '■

In view of a future trial, an observation is called for upon another point insisted upon for the plaintiff in error. In the examination in chief upon the trial, a witness for the state deposed, that on the day upon whieh the crime is charged to have been committed, he met the accused a half a mile from his house, and that he had blood upon his hands; and upon cross-examination, the witness stated that the accused was coming from his own house at the time spoken of, and directed his attention to the condition of his hands. The court thereupon refused, upon a question in behalf of the accused for the purpose, to permit the witness to state what the accused said when he showed the blood upon his hands. This statement was properly rejected. It was not sought to be let in as a part of a confession, and it could not be admitted as a part of the res gestee or transaction. Declarations are admitted in evidence as part of the res gestee, only upon the presumption that they elucidate the facts with which they are connected, having been made without premeditation or artifice, and without a view to the consequences. Stark. Ev. 1, 49. If was the accused who called the attention of the witness to the blood upon his hands, and it is reasonable to presume that he had premeditated his explanation of its cause, when it was also shown that he was half a mile from the spot where the crime was alleged to have been committed, and had sufficient time to determine upon the explanation he would give concerning the circumstance. The explanation, it is true, might have contained nothing but the truth, bn it was not of that impulsive character which distinguishes declarations at the time of the transaction. To have permitted the question to have been answered, would not have been short of permitting the defendant below to make evidence for himself. The State v. Slack, 1 Bailey, 330.

The judgment of the court below is reversed, and the cause remanded for a venire de novo in this court, for the purpose of a new trial.  