Hudgins vs. The State of Georgia.

does not stand indifferent in the cause, to call in another to be substituted in his stead.

The

The King rs. Edmonds et al. decided in England in 1821, 4 Barn. & Ald. 471, was an authority much relied upon in Boon's case, to show what the common law rule was upon this subject. From an examination of that case, it will be seen, that the question as to the qualification of a juror was not before the court. point there was, whether it was admissible to ask jurymen if they had not, previously to the trial, expressed opinions hostile to the defendants and their cause, in order to found a challenge to the polls on that ground; it was held, that it was incompetent to do so, but that such expressions must be proved by extrinsic evidence. And here I might dismiss this case, the decision being authority only on the points made by the pleadings. That none, however, may be misled by the force of a great name, I prefer, at the risk of being thought minute or even tedious, to investigate the opinions of Chief Justice Abbott, and to see whether the obiter dicta thrown out by him, are sanctioned by the authorities cited by himself. After going over the old cases, he concludes by saying, "these ancient authorities show, that expressions used by a juryman are not a cause of challenge, unless they are referred to something of personal ill will towards the party challenging."

The language of Mr. Serjeant Hawkins upon this subject, liber 2, ch. 43, sec. 28, is, says the Chief Justice, "that if the juryman hath declared his opinion beforehand, that the party is guilty, or will be hanged, or the like, yet, if it shall appear that such juror hath made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge."

Now it is a little remarkable, that the Chief Justice, by omitting, unintentionally of course, an important member of the paragraph which he undertakes to quote, was not only misled himself, but has misled others. The whole section reads thus: "It hath been allowed good cause of challenge on the part of the prisoner, that a juror hath a claim to the forfeiture which shall be caused by the party's attainder or conviction; or that he hath declared his opinion beforehand that the party is guilty, or will be hanged, or the like. Yet it hath been adjudged, that if it shall appear that the juror made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge." It is obvious that by splitting the first paragraph, and connecting the latter portion of it with the last paragraph, the author is made to

Hudgins vs. The State of Georgia.

sanction opinions which he never uttered; and hence the delusion of those who have followed this precedent for want of a sufficient examination into the matter.

What is the doctrine taught by the learned Serjeant? Let him speak for himself. "It hath been allowed a good cause of challenge on the part of the prisoner, that the juror hath a claim to the forfeiture which shall be caused by the party's attainder or conviction; or (to repeat again) "it hath been allowed a good cause of challenge on the part of the prisoner, that the juror hath declared his opinion bebeforehand, that the party is guilty, or will be hanged, or the like." This is the distinct doctrine inculcated by Hawkins, and ruled by this Court; and it is not true, as erroneously stated by Chief Justice Abbott, that Hawkins held, "that the declarations of a juryman would not be good cause of challenge, unless it be made in terms, or under circumstances, denoting an ill-intention toward the party challenging." He taught the very reverse of this, unless where the declarations were made from the juror's knowledge of the cause. To such declarations, according to the old doctrine, ill-will had to be superadded, to constitute them a disqualification. With the latter opinion we have nothing to do at present, except to remark, that it is expressly repealed by the Act of 1843. Under this statute, an opinion formed and expressed from a knowledge of the cause, is a principal cause of challenge, whether there be ill-will or not. With due deference, I must think, that every other ancient reference made by Chief Justice Abbott, is authority for the doctrine maintained by this Court; his own opinion is clear and unequivocal in support of it. He says, "it does not appear distinctly in what precise form the question was propounded; but in order to make the answer available to any purpose, if it could have been received, it must have been calculated to show," (what?) "an expression of hostility to the defendants, or some of them, A PRECONCEIVED

OPINION OF THEIR PERSONAL GUILT, OR A DETERMINATION TO FIND

THEM GUILTY. Any thing short of this would have been altogether irrelevant." In the view then of this distinguished Justiciary, "preconceived opinion as to the guilt of the prisoner," that is, "bias"-"prejudice"-would, if admitted to exist, furnish an available objection to the juror. Such was the opinion of Brook & Bubington, in the 15th century; and, as to this principle, there has been no variableness nor shadow of change for the last three hundred years.

Hudgins vs. The State of Georgia.

We now take leave of the case of King vs. Edmonds et al. Nor do we expect in future to resort either to argument or authority to demonstrate that it is hazardous in the extreme to permit one to be sworn on the jury, who has formed and expressed a decided opinion as to the guilt or innocence of the prisoner at the bar. He may esteem himself indifferent and open to conviction; the law, in its humanity, distrusts and consequently rejects him.

It only remains to inquire, whether the mere formation of an opinion from rumour is a good cause of challenge to the juror. We are of the opinion that it is not. I will not undertake to say that a case might not occur where, upon putting a juror upon triors, they might not be justified in returning him incompetent, alone upon the formation of his opinion. On the trial of the indictment for burglary and arson in destroying the Roman Catholic Convent at Charlestown, Massachusetts, which was burned down by a great number of persons, it was held, that if the juror thought such destruction was not a crime, he would entertain a prejudice in the cause; and a juror was, therefore, asked if he had formed an opinion as to the general guilt or innocence of all concerned in the act. Commonwealth vs. Buzzell, 16 Pick. R. 153.

So in the Commonwealth vs. Knapp, 9 Pick. R. 496, one of the celebrated Salem murderers, a juror having said, on his voir dire, that he had formed an opinion from what he had heard, but did not know how much he might be influenced by it, was allowed to be challenged for cause.

In each of these cases, however, there are peculiar circumstances; and the weight of authority is, that a juror is not disqualified unless he has expressed, as well as formed, an opinion in the case.

Suppose a juror was to answer both of the questions in the negative propounded by the Act of 1843, nevertheless should add, "although I have kept silent touching this matter, still my mind is unalterably made up as to the guilt of the defendant," would any court hesitate to allow such juror to be challenged for cause? Again, even if the juror should not voluntarily disclose the state of his feelings, and either party were to move the court for the appointment of triors, to establish upon the juror, acts which would evince his leaning, would the application be denied? We apprehend not.

[2.] Second. Upon the second point made by the bill of exceptions, as to the right of the State to the ten peremptory challenges allowed by the Penal Code of 1833, we have nothing to add to the

Hudgins rs. The State of Georgia.

opinions heretofore expressed by this Court in Jones vs. The State, 1 Kelly's R. 610; and Kinchen P. Boon rs. The Same, Id. 618. We find that similar privileges are granted in Ohio, Alabama, and most of our sister States, and the right to do so sustained by their respective judiciaries.

Third. Was the Judge below right in ruling out the evi- [3.] dence of Anderson Hudgins? who testified that he said to the prisoner "yonder comes John Anderson, and he will kill you." The witness was permitted to state that he notified the defendant that the deceased was approaching, and it was only his opinion as to the quo animo or intention for which he was advancing; that was adjudged to be inadmissible. The doctrine on this subject is this, where the question is whether the party acted prudently, wisely, or in good faith, the information on which he acted, whether true or false, is original and material evidence. And that portion of the proof which was received, comes strictly within the rule, but the part excluded was the opinion only of the witness.

To justify a homicide, the defendant must depend upon the circumstances by which he was at the time surrounded, and under the influence of which he perpetrated the act. Were they sufficient to excite the fears of a reasonable man? and is it evident that the slayer acted under the influence of these fears, and not in the spirit of revenge? was the danger so urgent and pressing, at the time of the killing, that, in order to save his own life, the killing of Anderson was absolutely necessary does it appear, also, that the person killed was the assailant?

Now all these pregnant inquiries must be solved by the facts which transpired, and not by the opinion of a bystander, whether that opinion was communicated to the accused or not.

Had young Hudgins informed his father that Anderson was advancing in great haste, apparently much enraged, that he was using threats of personal violence, armed with a weapon, and the like, all this would be admissible to satisfy the jury that the homicide was in self-defence. The opinion of the witness is a very different thing. It would be dangerous in the extreme to permit the belief of any one, whether sincere or feigned, much more the offspring of the accused, to afford a pretext for taking human life.

Levet's case, Cro. Cas. 538, 1 Hale 42, 474; 1 Hawk. ch. 28, sec. 27, furnishes a good illustration upon this point. The defendant, who was indicted for the death of Frances Freeman, being in bed asleep in his house, his maid-servant, who had hired the

Hudgins rs. The State of Georgia.

ceased to help her do her work, as she was going to let her out about midnight, thought she heard thieves breaking open the door, upon which she ran up stairs to her master and informed him thereof; who rising suddenly, and running down with his sword drawn, the deceased hid herself in the buttery lest she should be discovered. Leret's wife observing some person there, and not knowing her, but conceiving she had been a thief, cried out “here be that would undo us;" thereupon Levet ran into the buttery in the dark, not knowing the deceased but taking her to be the thief, and thrusting with his sword before him, killed her. This was ruled to be misadventure. Mr. Justice Foster thought it might be manslaughter due circumspection not having been used; but the verdict was justified upon the facts of the case. The killing was in the dark, upon a cry of thieves; a stranger discovered skulking from observation; it not appearing that the person was perceived to be a woman, or that there might not be more than one person; on the contrary, what was said by the wife in the hearing of all parties, to which no explanation was offered by the deceased, was calculated to impress the defendant with the belief that there were more. These are the circumstances which are submitted to a jury to justify a killing.

[4.] Fourth. The complaint under this head is the misdirection of the Judge upon the last clause of the 12th section of the 4th division of the Penal Code. The whole section reads thus: "There being no rational distinction between excusable and justifiable homicide, it shall no longer exist. Justifiable homicide is the killing of a human being by commandment of the law, in execution of public justice; by permission of the law in advancement of public justice; in self-defence, or in defence of habitation, property or person, against one who manifestly intends, or endeavours by violence or surprise, to commit a felony on either; or against any persons, who manifestly intend and endeavour in a riotous and tumultous manner, to enter the habitation of another, for the purpose of assaulting or offering personal violence to any person dwelling, or being therein."

The Court charged the jury, and we think properly, that it took two or more to commit the offence contemplated in the last clause of this section. By reference to the previous paragraph, it will be perceived, that to make it justifiable in self-defence where one only makes the attack, it must be manifest that he intends to commit a felony. Not so, however, where there are two or more. In that