rendered their verdict in part on account | judge of the Circuit court on the same subof the defendant's failure to explain before ject, and which, therefore, I adopt as mine. them the matter of the twenty dollar note "The counsel for the prisoner argue that which he was charged to have stolen. To this was improper, and liken it to a case of say nothing of the doubtful character of a separation of the jury, or their improper this witness for veracity, for reasons before intercourse with persons not of the jury. stated, it is enough to say, that even the If it had even been shown that the deputy affidavits of the two jurors themselves to sheriff was an important witness, or had the same effect would have been an insuffi- any feeling against the prisoner, it seems cient ground for setting aside the verdict to me that it would be going a great length of the jury. "Though the former practice to presume that he had violated his duty was different," says Wharton, "it is now and his oath, by speaking to the jury on settled in England that a juror is inadmis- the subject of the trial. He took an oath sible to impeach the verdict of his fellows. that he would not speak to them himself on 'It would open each juror,' declared Mans- the subject of the trial, nor suffer any other field, C. J., 'to great temptation, and would person to speak to them. The sheriff unsettle every verdict in which there could 949 is obliged to speak to the jury as be found upon the jury a man who could be relates to their comfort or wants, and induced to throw discredit on their common under the law, he is obliged to take care of deliberations.'" 3 Whart. 3155. In this and provide for them, and have the custody country the English rule has generally been of them during the recess of the court; and adopted. Id. In Thompson's case, 8 Gratt. because he happened to be called upon as 641, 650, Thompson, J., in delivering the a witness to prove a fact in the case, howopinion of the court, admitted the well ever immaterial or unimportant, it seems settled English rule, and the great pre- to me that it ought not to be presumed that ponderance of American authority in the he violated his duty and his oath, without same way, and he quoted the strong lan- any motive for so doing. guage of Chief Justice Hosmer, in 5 Conn. R. 348, that "the opinion of almost the whole legal world is adverse to the reception of such testimony, and in my opinion, on invincible foundations. In Bull's case, 14 Gratt. 613, 626, 632, most of the authorities, English and American, including those of our own State, on this subject, were referred to; and this court concluded that, "in view of all the authorities, and of the reason on which they are founded, we think, as a general rule, the testimony of jurors ought not to be received to 948 *impeach their verdict, especially on the ground of their own misconduct." But in this case we have not the affidavit of the two jurors themselves, but only the affidavit of a third person, as to what he says he heard them say; and it is laid down that "the affidavit of third persons as to what they have heard jurors say respecting their verdict, is inadmissible to impeach it." 3 Wharton, 3156. In this case, too, we have counter affidavits of two others of the jury, that in deciding the case and rendering their verdict, the question of the guilt or innocence of the prisoner in taking the twenty dollar note which Merriman charged the prisoner with having taken, was not discussed or considered by the jury -at least, so far as the affiants heard or believed. I am of opinion that the ground thirdly relied on as aforesaid for setting aside the verdict was insufficient for that purpose.

4thly. As to the ground that the jury, after they were sworn and during the trial, were committed to the custody and exposed to the influence of a deputy sheriff, who was a witness and had testified to material facts in behalf of the Commonwealth on said trial.

I do not think I can answer this objection in stronger or more appropriate language than that which was used by the learned

In this case it does not appear that the deputy was summoned as a witness. He was not examined in chief, but was called on as rebutting evidence to prove a single fact, viz: that the prisoner did not fall when he was stricken by Merriman—a fact not very material, and which was proved by a number of other witnesses who testified in the cause-indeed, by every one who testified on the subject, except Jordan Martin. The sheriffs who had custody of the jury were sworn in court every evening in the presence of the prisoner and his counsel; and if there was any objection to any of them having charge of the jury, it ought to have been made then; and if there was any reason for it, the court would doubtless have prevented any improper person from having charge of it. That the deputy sheriff, Kasey, should have been casually called on in the progress of the trial, to prove a single fact which transpired in his presence, and had been already proved by several witnesses, certainly did not show that he had any feeling about the result of the prosecution, or legally disqualify him from keeping the jury. It did not tend to show that he was an unfit person to perform that office, and he might, notwithstanding that fact, have been a very fit person for that purpose. The prisoner may have had perfect confidence in his integrity, and may have preferred that he should continue to keep the jury after he had given evidence. That he was sworn for that purpose in the presence of the prisoner, without any ob

jection being made on his part, shows 950 that he had no objection to *make; and it is now too late to make such an objection, for the first time, in the appellate court, even if it could have been made successfully at any time. It will be presumed that the officer performed his duty and his oath, in the absence of any evidence to the contrary.

My attention has been called to the case riman had intruded himself into the same of McElrath v. The State, 2 Swan R. 378, room with the jury and staid all night, and which is supposed to have a material bear- conversed freely with them, the cases would ing on the question I am now considering. have been more alike. Here, after the I always regard with respect a decision of testimony in chief was closed on both sides, the highest court of a sister State, especially a deputy sheriff was called on by the attorwhen it is supported by good reasons, al-ney for the Commonwealth and testified to though it is not a binding authority in this a single fact of little importance, which State. But in my opinion, and with all happened to be within his observation, and respect for the opinions of those who differ from me, that case is not at all in point. There a new trial was awarded a prisoner convicted of manslaughter, because it appeared that during the progress of the trial the prosecutor spent a night in the room with the jury, who had been committed by the court to the care of a constable, though the prosecutor was the sheriff of the county, and all exceptions to the competency of the panel of jurors summoned by him were waived by the prisoner, and though the prosecutor stated in an affidavit, that he "made use of no means of any sort to influence the jury."

which had already been proved by nearly
all the witnesses on both sides. After this
the deputy was sworn, as on former occa-
sions, in the presence and without any
objection of the prisoner or his counsel, to
keep the jury; and the only question is,
whether, as matter of law, the ver-
dict is invalid for such a cause and
under such circumstances?
I say,

952

clearly not.

I am of opinion that this fourth and last ground relied on for setting aside the verdict was insufficient for that purpose.

And now I have but one remaining point to consider, which is the point presented by the second bill of exceptions, to wit: that on the 11th day of September 1872, when the prisoner was brought into court to hear judgment on the verdict, the term of the court at which he was tried had ended, and it was not competent for the court to enter up judgment on said verdict: and, therefore, that the court ought to have sustained, and not overruled, his motion to arrest said judgment on that ground.

Of all persons concerned in a prosecution, the prosecutor himself is the most interested, and the most unfit to have charge of the jury; and accordingly, in that case, the jury was placed in the care of a constable, who took an oath to keep them separate from all other persons, and suffer no one to have any communication with them. Under these circumstances, it was an act of great misbehavior in the prosecutor (though he was sheriff) to obtrude himself into the room with the jury and stay with them all By the Code, ch. 157, 15, it is provided, night, and it was an act from which the that "every such term of said courts (to prisoner might have sustained great detri- wit: the county courts) may continue, if it ment, notwithstanding the affidavit of the be a monthly term, not exceeding six days, sheriff that he made use of no means and if it be a quarterly term, not exceeding 951 to influence them. It is true *that twelve days.' By the act of April 27, 1867, the court, in its opinion in that case, acts of Assembly 1866-'67, ch. 118, 3, p. makes use of an expression which, taken 944, the 15th section of ch. 157 of the Code by itself, might seem to imply that a wit-is amended and re-enacted, the amendment ness is in no case a proper person to have providing that "every such term of said charge of a jury. But we must construe courts may continue, not exceeding fifteen this expression with the context. The days, and may adjourn from day to day, or simple inquiry, then, is (say the court): to any day within the fifteen days." By Can it be tolerated that the prosecutor may, the act of April 2, 1870, acts of Assembly at his pleasure, associate and hold commu- 1869-'70, ch. 38, p. 35, passed after the nication with the jury during the progress adoption of the present constitution, chapter of the trial? And this inquiry, it seems to 157 of the Code of 1860, was amended and us, admits of no discussion, if the purity re-enacted. The chapter as amended conof the trial by jury be deemed worthy of sisted of 11 sections, while the original preservation. If the prosecutor may do so, chapter consisted of 18. The amended who may not? May not any stranger to chapter, 2 provides, that "there shall be the prosecution, or any witness in the case, held in each county of this Commonwealth, or any relative of the deceased, thus intrude monthly, a term of the County court, to be himself upon the jury?" The responsibil- held at the times prescribed by law, and ities of a prosecutor, further say the court, with the jurisdiction hereinafter provided." "are of a nature to inspire him with a But neither in that section nor any where feeling of personal interest in the result of else in the chapter, is any thing said about the prosecution. He may be, and frequently the duration of the term; while 10 is, a witness; his reputation is, in some repeals "all acts *and parts of acts degree, not unfrequently involved in the inconsistent with the provisions of issue; he is liable to be subjected to costs, this act. If this act repeals the proin the event that the court should be sat- vision of the act of 1867, fixing the duration isfied that the prosecution was either frivo- of the term at fifteen days, then there is lous or malicious; and likewise to an action now no other limitation of the term than for damages at the suit of the injured that which is implied in the declaration party." How unlike in its circumstances contained in the act of 1870, that there shall is that case to this? If, in this case, Mer- be held in each county, monthly, a term of

953

the County court, to be held at the times prescribed by law-the effect of which would be, that the term must commence at the time prescribed by law, but might continue as long as the business of the court required; not longer, however, than until the day fixed for the commencement of the next succeeding term. If this be the true construction of the act of 1870, then certainly the term of the court at which the prisoner was tried had not ended when the judgment against him was pronounced.

I am, therefore, of opinion that the County court did not err in overruling the prisoner's motion to arrest the judgment.

I have now considered and disposed of all the questions arising in this case. I regret that my opinion should have been extended to so great length, but felt that it was proper to examine fully the arguments made by the very able counsel of the prisoner, both in this court and in the court below. I think there is no error in the judgment, and am for affirming it.

ANDERSON, J. "When fresh pro955 vocation occurs between *preconceived

malice and death, it ought clearly to appear that the killing was upon the antecedent malice, which may be difficult in some cases to show satisfactorily, if the new provocation be a grevious one. In such cases, says Hawkins, it should not be presumed that they fought on the old grudge, unless it appear by the whole circumstances of the fact." Wharton's Crim. Law, 6 Ed.,

But it is contended that the provision in the act of 1867, fixing the duration of the term, not being inconsistent with any provision of the act of 1870, is not repealed by that act, but yet remains in full force; that the term of the court at which the prisoner was tried could not be continued longer than fifteen days, counting the Sundays which happened during that period in the number of days fixed for the duration of the court; and that the judgment having been pronounced on the 11th day of September 955; 1 Russell 484. I do not think it ap1872, which was the sixteenth day from the pears from the evidence in this case that commencement of the term, counting the the prisoner had preconceived malice. It two Sundays which intervened (though is true that he threatened the prosecutor only the fourteenth day from said com- that if he did not withdraw a grievous mencement, not counting those Sundays), charge he had made against him, he would the said judgment was pronounced after shoot him. But such threat does not seem the end of the term, and therefore was void. to have been made in malice. The prisoner The question whether the aforesaid did not so regard it; for their relations, provision of the act of 1867 was repealed which were of the most friendly character, by the act of 1870, is an interesting were not affected by it. They seemed to question, but not necessary to be decided have met and parted as friendly as before, in this case in my view of it. As I am clearly of opinion that, if the said provision was not so repealed, but yet remains in full force, and the duration of the term of 954 *the County court is still limited by law to fifteen days, Sundays are not by our laws judicial days, and are not to be counted in the number of the fifteen days during which the County court is authorized by law to sit in a term. The term "may continue not exceeding fifteen days,' " that is juridical days on which the court may lawfully sit, and not including Sundays, which are dies non, on which the court cannot sit. That such is the construction of every such law in this State, unless where a contrary intention is clearly indicated in the law, is expressly decided by this court in the recent case of Michie, &c., v. Michie's adm'r, &c., 17 Gratt. 109, in which it was held that Sunday, being dies non juridicus, is not one of the days of the term of a court. See also the Code, ch. 16, 17, 8th clause, p. 115; and Hill's case, 2 Gratt. 594, 612-13. A contrary intention is not indicated in the act of 1867. The counsel for the prisoner seemed to think that it was by the provision that the court may adjourn "to any day within the fifteen days." But that means "any juridical day within the fifteen judicial days, during which the court is authorized to be continued." It is much more important that the law should be settled than that it should be settled in any particular way (which indeed is a matter of little importance), and it has accordingly been settled with us.

associated together, drank together, and talked with each other in the most friendly manner. And the prosecutor evidently did not regard his threats as serious. The prisoner does not appear to be a malicious man, as he is exhibited in this record. His conduct was not that of a man who had a murderous purpose. He was doubtless grieved by the imputation made upon his character, and his threat of shooting was evidently made, not with a malicious or murderous purpose, but as a means of relieving his character from the imputation, by inducing Merriman, the prosecutor, to withdraw it. I do not think from the evidence that he had formed a fixed resolution to put his threats in execution; but he had serious thoughts of it on the day the shooting took place, as is shown by the inquiry he made of the witness Wingfield, will you back me if I get into any difficulty; will you go my bail? He was evidently considering the consequences of such an act, if he was not too drunk then for reflection. But it does not show that he had made up his mind to it.

956

But whatever may have been his intention or purpose *then, if it was to shoot the prisoner, I think the evidence shows plainly that he abandoned it. If there was preconceived malice, it appears from the evidence that he received grievous fresh provocation; and it does not clearly appear from the evidence, in my opinion, that the shooting was upon the antecedent malice, which, as we have seen, it was incumbent on the Commonwealth to

make clear. On the contrary, I think it | dence shows that the prosecutor was to blame does plainly appear that it was caused by from the beginning to the end of the conthe fresh provocation. I am convinced troversy. He charged the prisoner with from the evidence, that the prisoner would stealing his money, and instead of prosenot have shot if he had not been struck by cuting him for it, and discarding him as Merriman. And there is no evidence that a thief, he was cheek by jole with him he did any thing to provoke him to strike whenever they met; his social and friendly him. On the contrary, the evidence shows intercourse with him were unaffected by the that he endeavored to appease him; that belief of Merriman that he was a felon. he put his hand gently upon him and begged But on the occasion of the fight, conscious him to desist, and let the matter drop, when of being armed himself with a revolver, he was struck a blow by Merriman, as to he goaded the prisoner to make an assault the force and violence of which there is a dif- on him, by hectoring and bullying over him, ference of opinion among the witnesses; but and belching in his teeth the most abusive which was of sufficient violence, according and insulting language, and assuming toto the testimony of Merriman himself, to wards him the most offensive attitudes, all stagger him back two or three feet; accord- of which was unavailing to provoke the ing to the testimony of other witnesses prisoner to an attack, until he, without eight or ten feet, and according to the tes- provocation, struck the blow which sent timony of one to fell him to the ground, him reeling from him; and then the prishe catching on his hands. No other wit-oner drew his pistol (the prosecutor drawing ness saw him fall. The prisoner then drew his almost simultaneously) and fired on his pistol, and about the same time Merri- him, and slightly wounded him. man attempted to draw his, but it hung in *Some little time elapsed before the his coat, and the prisoner shot first, evisecond fire, when they both fired dently, according to the testimony of the nearly simultaneously, and Merriman was physician who dressed Merriman's wounds again slightly wounded. They had one or and extracted the ball, while he (Merriman) two more rounds, Merriman's pistol snapwas in the act of drawing his pistol. ping every time, when the prisoner retreated into the tavern near by, one barrel of his revolver being still loaded, and Merriman pursued him to the door, apparently anxious to continue the fight.

I concur with the president in his exposition of the law, and only differ from him in inference from the facts proved. I regard the certificate of the judge of the court of trial as a certificate of facts, upon the authority of our decision in McClung's adm'r v. Ervin, recently decided and not yet reported, in which the cases on the subject of new trials are reviewed. But if it 957 is a certificate *of evidence, as was said by Judge Brockenbrough in Green v. Ashby, 6 Leigh, p. 135, I can perceive no difference between evidence admitted to be true and facts proved. In this case I do not think there is any material or substantial conflict in the evidence, or facts certified as proved. Some of the witnesses saw what others did not, as is universally the case among the witnesses of such conflicts. And the difference as to the force of the blow struck is only a difference of opinion. The effect of the blow, according to all the testimony, shows that it was a violent one; as, indeed, it is most likely it would have been from a man who exhibited the indecent rage and violence that Merriman did at the time.

I am of opinion, therefore, that the fresh provocation which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting, and that the jury were not justified by the evidence in ascribing it to preconceived malice-if, indeed, any ever existed. I think the evi

958

I am of opinion, from the best view I can take of the evidence, that the fresh provocation, which there is no evidence to show was incited by the prisoner, is sufficient to account for the shooting; and that the jury were not justified by the evidence in ascribing it to preconceived malice.

I deem it unnecessary to notice the other grounds on which the reversal of the judgment is asked, this being, in my opinion, sufficient. But I will only add that I think it a bad practice, during the pendency of a criminal trial, to commit the custody of prisoner to a sheriff, who is examined as a witness for the Commonwealth, whether he had been regularly subpoenaed as a witness or not. In order to preserve the purity of trial by jury, I am not prepared to say that public policy does not require that the judgment in this case should be reversed upon that ground alone, if there was no other.

Upon the whole, I am of opinion that the judgment should be reversed, and a new trial awarded the prisoner.

CHRISTIAN and STAPLES, Js., concurred in the opinion of Moncure, P. BOULDIN, J., concurred in the opinion of Anderson, J.

342

Judgment affirmed.