1877. Special Term. State V. Strauder. 4. Upon the trial of a prisoner charged with murder, after the jury had been examined on their voir dire, accepted and sworn, and after considerable testimony had been taken, the counsel for the prisoner placed in the hands of a Judge on the bench privately an affidavit of a person, that he had heard one of the jurors say, some three months before, that the prisoner ought to be hung; and also affidavits of the prisoner and his counsel, that they had just learned that the juror had expressed any opinion, or that he had any bias against the prisoner; but neither the prisoner nor his counsel made any motion based on said affidavits, nor does it appear, that the attorneys for the State had any knowledge of the existence of these affidavits, or of their being handed to the Judge. The court took no action upon them; and after the prisoner had been found guilty by the jury, the prisoner moved for a new trial, because this juror served on the jury; and thereupon the juror made his affidavit positively denying that he expressed such opinion to the party who made the affidavit, or to any one else; or that he entertained any prejudice or bias against the prisoner. And it does not appear that the prisoner suffered injustice by reason of this juror serving on the jury, the court below refused to grant the new trial. This Court will not reverse such a decision. 5. The court below properly rejected the following instruction; "If the jury entertain a rational doubt of the soundness of the mind of the prisoner, at the time of the commission of the homicide charged, he is entitled to the benefit of that doubt as he would be to the benefit of a doubt as to any other material fact in the case, it being under our statute a necessary ingredient of the offense, that the person charged shall, at the time of the commission of the offense, be of sound mind, although the jury may believe he had judgment and reason sufficient to discriminate between right and wrong in the ordinary affairs of life even at the time of the commission of the offense, they cannot find him guilty"-and properly gave the following instruction in lieu thereof: "To entitle the prisoner to an acquittal upon the ground that he was insane at the time of the commission of the offense charged in the indictment, such insanity must be proved to the satisfaction of the jury, though in passing upon this question, they may look at the whole evidence in the case, as well that for the State as for the prisoner." Taylor Strauder, a colored man, was convicted of the murder of his wife and sentenced to death by the circuit court of Ohio county on the 9th day of January 1875. From this judgment of the circuit court a writ of error was awarded him to this Court. The facts of the case are stated in the opinion of the Court. Hon. T. Melvin, Judge of the first judicial circuit, presided at the trial below. Davenport & Dovener, for the prisoner: The first question to be considered is, did the circuit court err in not discharging the defendant from custody upon his motion, it appearing to the court from the evidence in support of the motion that three terms of the circuit court had elapsed since the defendant was imprisoned? See Code, chapter 158, section 12, p. 715. The record shows that the indictment was found on the 20th day of October 1874, and the defendant was committed on the 25th day of April 1872, five terms of the circuit court having been held since his incarceration, and before the term at which said indictment was found. In Adcock's case, 8 Gratt. 661, one of the questions presented was, ought the court to discharge the prisoner, and to receive the record as evidence? The court held that the record was indispensable to prove the fact of indictment or trial, and that there could be no doubt of the necessity of adducing the record evidence. No such evidence was adduced in this issue by the State. It was error in the circuit court to refuse to grant the defendant's petition to remove his cause to the Circuit Court of the United States for the fourth judicial circuit. In the case of the Rathbone Oil Company v. Charles M. Rauch, 5 W. Va. 79, this Court decided that it is error in a State court to refuse to certify a proper case to the United States court. That the petition and affidavit of defendant made a proper case for such removal, there can be no doubt. By the act of the Legislature, chapter 47, section 1, p. 102, Acts of 1872-3, passed March 12, 1873, in relation to juries: "All white male persons, who are twenty-one years of age and not over sixty, and 1877. Special Term. State V. Strauder. 1877. Special Term. State V. Strauder. who are citizens of this State, shall be liable to serve as jurors, except as herein provided." The second section excepted State officials. This statute was, if of any validity, in force when the defendant was tried. On the 9th day of April 1866 Congress passed an act entitled, "An act to protect all persons in the United States in their civil rights, and furnish the means of their vindication." See 14 Statutes at Large, chapter 31, p. 27, sections 1 and 3. The first section of the act declares "all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, to be citizens of the United States;" and it enacted that such citizens of every race and color, shall have the same rights in every State and territory in the United States, to make and enforce contracts, to sue and be sued, be parties and give evidence, to inherit, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains and penalties, and to no other, any law, statute, ordinance, regulation or custom to the contrary notwithstanding. Section 3 confers exclusive jurisdiction upon the courts of the United States of all cases, civil and criminal, affecting persons, who are denied or cannot enforce in the State courts any of the rights secured to them by section 1st, and provides for the removal from the State courts of such causes upon affidavit, &c. This act was passed in pursuance of the 5th section of the fourteenth amendment to the Constitution of the United States, which section provides that Congress shall have power to enforce by appropriate legislation the provisions of the fourteenth amendment. The purpose of that amendment and the reason for its adoption, are so well known, that it is entirely unnecessary to advert to them-all agreeing that the purpose of the amendment could not be more fully expressed than in the words of the section itself, which, after defining who are citizens, is in the following words: "No State shall make any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The act known as the civil rights law has been decided to be constitutional in the case of the United States v. John Roads et al., 1 Am. Law Times p. 23. This is the first reported case where the act received judicial construction. The court held that the civil rights law gave to colored persons everywhere the same right to testify "as is enjoyed by white citizens," and that the United States courts had jurisdiction of all cases, civil and criminal, which concern the colored man, wherever the right to testify equally with the white is denied him, or cannot be enforced by the State tribunals. The right to trial by jury is guaranteed to every citizen of the State of West Virginia by the Constitution of the State; but men of color are not permitted to be jurors. The convention that framed the Constitution, it is apparent from that instrument, intended that there should be no such distinction, from the fact that they permitted colored citizens to hold office. A colored man may be a judge, clerk or sheriff, but he cannot serve on a jury. Is not, it is submitted, the denial of a colored man the privilege of having one of his own color on a jury, or requiring him to select a jury of white men from a panel, made up by the law of the State exclusively of white men, and on which no colored man can sit, a denial of a right which white men enjoy, and a distinction in the selection of jurymen for the trial of his cause on account of color? The right of a trial by jury has been considered one of the most sacred a citizen enjoys, and the right to be tried by a jury of our peers, "a jury of the vicinage." These terms are intended to imply a jury of our class, our fellows, our neighbors, those who have interests in common with us, is the very essence of the jury system, see 1 1877. Special Term. State V. Strauder. 1877. Special Term. State V. Strauder. Black. Com. a jury selected, summoned and impaneled in such manner as the laws of the State may direct, except that no distinction shall be made between citizens on account of "race, color or previous condition of servitude." In Virginia, in former days, an alien was entitled to a jury, de medietate linguæ, 1 Rev. Code, p. 266. This was also the practice in New York and Pennsylvania, see Rob. (old) Pr. 3d vol. 152, and was the law of England. 27 Ed. III, c. 13. It is not enough to say that the negro is our peer and then deprive him, by reason of his color, of all that protects him. The right to have his cause tried by his fellows, or under a law that does not discriminate against him, is a greater protection to his rights and liberty than the right to hold office. Blackstone says that "the right to trial by jury or the country, per patriam, is a trial by the peers of every Englishman, and is the grand bulwark of his liberties, and is secured to him by the great charter." And again he says, "the truth of every allegation in an indictment should afterward be confirmed by the unanimous suffrage of twelve of his equals and neighbors, indifferently chosen and superior to all suspicion." In the case of State v. Dunlap, Am. Law Times R. 205, the supreme court of North Carolina held, that an affidavit by a colored man in a criminal cause pending in the State court, setting forth in substance, that by reason of his color and previous condition of servitude, he cannot obtain justice in the courts of the State, entitles him to have his cause removed into the United States court. It was decided, not because the laws of North Carolina made any distinction, (as in this State), but because the petitioner was a man of color, had been a slave, and the people of North Carolina were prejudiced against him for that reason. In the Slaughter House Cases, 16 Wall. 27, the supreme court of the United States construed the thirteenth and fourteenth amendments to the Constitution of the United |