#### *The Commonwealth v. Jones.

November, 1829.

Criminal Law — Distinction between Murder in First and Second Degrees.* — Distinction between murder in tbe first and murder in the second degree, within the meaning of the statute 1 Rev. Code, ch. 171. § 2, considered, and the distinction between the two crimes explained.

Criminal Proceedings — notion for New Trial — Verdict Not Warranted by Evidence. — When a motion is made for a new trial, in a capital case, on the ground that the verdict is not warranted by the evidence, the court is not bound to re-examine the witnesses and state the evidence verbatim, but may state the material facts proved and evidence adduced at the trial from the judge’s own notes, aided by those of the counsel on both sides.

Same — Jurors—Objection—Waiver.†— By-standers are called as jurors in a capital case, and, at the instance of the accused, sworn and examined touch*210ing- their inflifierency; and then elected by the prisoner and sworn to the jury: upon objections to the indifferency of these jurors, discovered after the trial, not directly inconsistent with what was disclosed by the jurors themselves on their examination touching their indifferency, the court ought not to set aside a verdict of guilty, just in itself, though the objections be such, that if known and disclosed before the jurors were elected and sworn, they might have been good cause of challenge to the jurors; much less, if the objections be such as would not have been good cause of challenge. _

_ Same — Same—Challenge for Cause — Waiver—Discretion of Court. — A person accused has a right to challenge a juror for cause, before he is sworn, and the court is bound to judge whether the cause is sufficient or no to sustain the objection:-but when, after a juror has been elected and sworn, and after trial and verdict, the prisoner asks a new trial on grounds of exception against him, existing before he was elected and sworn, such motion is addressed to the sound discretion of the court; and in the exercise of this discretion, the court ought to consider the whole case, and be satisfied that justice is done.

John M. Jones was indicted, and tried, for the murder of George Hamilton, in the circuit court of Lynchburg. The jury found him guilty of murder in the first degree. He moved the court to set aside the verdict, and direct a new trial, on the ground that the verdict was not warranted by the evidence. The court intimated its opinion that the verdict was right: upon which his counsel asked the court to spread the evidence upon the record, and to state it from the mouths of the witnesses. The judge said he would make an accurate state of all the facts which he considered proved at the trial, with the aid of his own notes and those of the counsel on both sides; but he refused to re-examine all the witnesses, for the purpose of stating their evidence verbatim.

*The circumstances of the case, as stated by the court, were as follows: On the 22d May 1829, between three and four of the clock in the afternoon, Jones the prisoner, and Hamilton the deceased, and several others, met, casually, at a grocery in the town of Lynchburg, not far from the river, in a disreputable part of the town. The grocery was kept by a uncle of Jones, and Jones was abiding there with him at the time. The whole party was in peace, and had been drinking; when one Betsey Fulcher, a common prostitute, with whom Jones, (a young unmarried man) had had for sometime an illicit intercourse, came into the grocery, and soon insulted Hamilton in very gross language: he warned her to desist; she repeated the insult; and he gave her a severe slap on the face. She appealed to Jones for protection. Jones said he would not suffer any woman, especially a woman he had a feeling for, to be so treated in his presence: Hamilton said he could whip her and her protectors: they' instantly approached each other as if to fight; but the other persons present interposed, and prevented them from coming to blows; and they were soon, apparently, reconciled. Shortly after, Hamilton stepped out of the house, as if with design to go away; but he stopped at the door, and said, in a loud voice, that if any were dissatisfied with what he had said or done, he could whip them. No notice was taken of this challenge; and Hamilton went off towards his boat. After he was gone, the woman Fulcher told Jones, | she did not think he would suffer her to be abused by *any*man, without protecting her; upon'which Jones bade her be easy, and said he could whip any one man, but could not fight a community of men. Jones then left the house, but shortly returned, apparently in a passion, pulled off his coat, abused Hamilton, and said he would kill him, or any other person that would strike a woman he had a feeling for, and he would see his heart’s blood before sunset. One Trimble, a boatman from Rockbridge, advised Jones to let Hamilton alone; that he was too stout for him, and was a violent *'man when angered. Jones giving no heed to this advice, and continuing his abuse and threats against Hamilton, one M’Caul, who had witnessed the quarrel, left the house, and went towards the river where the boats lay: on his wa3r he met Hamilton, who said he was going to the grocery; that he apprehended Jones and Trimble would get into an affray, and said he wanted to see what was the matter. M’Caul told him that Jones and Trimble were not qúarrelling; that Jones was abusing and threatening him (Hamilton), and was armed with a dirk; and he advised him not to go to the grocery, vthere Jones was, but to return to his boat. Hamilton returned to his boat, and armed himself with a large bludgeon (part of a boat pole) saying Jones had drawn a dirk upon him, and he meant to avenge himself with that stick; and then, in spite of M’Caul’s earnest intreaty and advice, he presisted in his resolution to return to the grocery; but he said he would not interrupt Jones, unless,he attempted to strike him with a dirk. Hamilton, and M’Caul with him, proceeded to the grocery; they stopped near the door; Jones and others were still in the house; they heard Jones’s voice still in passion; M’Caul endeavoured to persuade Hamilton not to go in, ana got between him and the door; they heard Jones say (alluding to Hamilton, as M’Caul supposed, but not naming him) “damn him, I will see his heart’s blood before sunset.” Hamilton hearing this, exclaimed, “by G — d, I will not take that — stand out of the way;” and, pushing M’Caul a.side, stepped into the door, and struck Jones a blow on the forehead, with the bludgeon, which staggered him: the blow inflicted a wound an inch and a half long, and cut to the bone; it bled profusely. M’Caul, with the aid of others present, got Hamilton out of the house; and the door was closed before any other blow was struck. Hamilton began to pick up stones; and Jones, shortly after, appearing at an open window, Hamilton shewed a determination to throw a large stone at him, which M’Caul endeavoured to prevent him from doing; but Hamilton said, 1 ‘stand out of the wa3r — damn him I will kill *him;” and immediately threw the stone at him, which struck the facing of the window. The stone was so large, and thrown with such force, that, in the opinion of the by-standers, if it had struck Jones, it might have killed him. Hamilton picked up other stones, to throw at Jones; and some of the witnesses said he did throw more than one; others, that he did not. Hamil*211ton was then persuaded to go away; some of the witnesses said, he again threatened that he would kill Jones; others, that they heard no other threats than those above mentioned. He was advised to throw away his bludgeon — that it was too large to strike a man with; but he carried it away with him. There was one point touching the affray in the house, as to which the witnesses differed: M’Caul said, that when he and Hamilton got to the door, Jones was brandishing a dirk; and several persons, who were in the house, said, he was brandishing the dirk shortly before Hamilton came in, and swearing he would kill Hamilton, or any other man who should strike a woman he had a feeling for, and that he would have his heart’s blood before sunset: but it was deposed by another witness, that Jones had, at his instance, put up the dirk before Hamilton entered the house and struck him. It was doubtful too, whether Jones saw Hamilton, before he came into the grocery and gave him the blow: the probability Was, that he did not.

Jones had had no previous acquaintance with Hamilton, who was a boatman from Rockbridge, and, it was proved, was a stout man, apt to quarrel in his cups, and when angered very violent and careless of consequences, but of a generous temper when cool, and not apt to harbour resentment for things past. At the time of this affray, Jones had been drinking, and was under the excitement of strong drink; some thought him quite drunk; and there was evidence, that excitement of that kind, sometimes produced in him a state of phrenzy. Other witnesses said, that Jones had indeed been drinking, but was not drunk, and by no means deprived of his reason. Hamilton and Jones were 'x'both strong athletic men ; Hamilton somewhat the larger of the two.

After this affray, Hamilton went to a lumber house near the river, where he gave a boastful account of his victory, declared his willingness to renew the contest, and raising his stick, said “this never fails me.”

And after Hamilton’s departure, a friend of Jones washed the wound on his forehead, applied lint to it, and bound it up: Jones borrowed a clean waistcoat, turned in the collar of his shirt which was bloody, tied a black cravat over it, and left the grocery, apparently composed, saying he was going to get a clean shirt. The time, from the end of the affray till Jones’s departure from the grocery, was, according to one witness, ten minutes, according to another, half an hour.

The next evidence concerning Jones’s actions, placed him in the town, about 200 yards from the grocery, at the shop of a gunsmith named Lewis, where he applied to borrow a gun, saying he wanted to shoot some body. The young man m the shop asked whom? He named no person, but raised his hat, and pointed to the wound on his forehead, from which the bood appeared to be still issuing through the lint and bandage. The young man purposely handed him a defective gun, the main spring of the lock being broken. Jones examined the gun, snapped it, and said it would not do; he wanted one that would fire. He was told he could have no other gun in the absence of Lewis: Jones inquired where he was: he was in the blacksmith’s shop, in the cellar beneath: Jones went thither, and applied to him, and then returned with Lewis, to the gunsmith’s shop; Lewis offered him the same defective gun; Jones rejected it, repeating that it would not do; he wanted one that would fire. Lewis then handed him another gun, which Jones examined, snapped, primed and flashed; and said, “this will do.” He proceeded to load the gun (where he got the ammunition, did not appear). He was at Lewis’s some ten or fifteen minutes.

He went off from thence with *the gun to the market house, about 250 yards from Lewis’s shop; and thence proceeded down the most public street of the town, towards the toll house of the bridge across the river, near which stood the lumber house, in which Hamilton had been, as above stated, and which was 300 or 400 yards from the market house, and not far from the place where the boats lay in the river. As he passed near the toll house, where one of his uncles lived, this uncle, who had heard of the affray between him and Hamilton, called to him to come back; he refused to do so, and went on. At this time, several persons were near and following Jones; and it was said and repeated (by whom the witnesses did not know) that he was going to shoot Hamilton. He proceeded to the lumber house (the same where Hamilton had been, but from which he had shortly before retired) and stepping in, with a drawn dirk and the gun in his hands, he pointed the gun at a man there, saying “damn you, I know you by your whiskers:” the man turned to look at him, upon which he retired backwards out of the door, saying nothing. He immediately turned the corner of the lumber house, on the river bank where the boats lay, in one of which was Hamilton with three others: Hamilton had come into the boat a few minutes before, with his stick in his hand, which he had now laid down ; he was sitting on the gunwale of the boat; he said a man was coming to shoot him; and one of the company doubting this, he repeated it, and said he had seen him coming down the hill with a gun. About this time, those in the boat heard some movement on the river bank, ■near the corner of the lumber house, and looking that way, saw Jones coming down the bank, with the dirk and gun in his hands — the gun raised and pointed as in the act of taking aim. Jones said, “aye, damn you, you are there, are you; I know you by your whiskers.” The whole party in the boat, including Hamilton, who had now no weapon of any kind in his hands, attempted to escape from the boat by the head, which was near the bank, lying towards Jones; Hamilton endeavouring to keep the ^others between him and Jones, and they endeavouring to escape from the danger of Jones’s fire, which was directed towards Hamilton. Hamilton called to Jones, to keep his distance, adding he had done him no harm; another of the party called to Jones, and said “no shooting here.” Hamilton was the hindmost of the *212party. Two had escaped from the boat: the third, immediately behind whom Hamilton was, had just leaped from . the head of the boat, and had not time to turn, when Jones fired the gun at Hamilton then standing on the head of the boat. Hamilton stood a moment, and only saying “boys, I am gone,” fell over the boat into the water.

Jones's conduct immediately after the fatal shot, was variously represented by the witnesses. One said, he immediately put his gun down, and advancing with his dirk drawn, said “damn you, if I have not killed you, I will finish you;” then, changing the dirk from his right to his left hand, he raised Hamilton’s head, and placed it on a rock, out of the water, saying “damn you, you are dead enough.” Another said, that the first blood he saw after the shot, seemed to him to issue from Hamilton’s breeches, and as he did not fall, he inferred he might not be mortally wounded, and seeing Jones quickly put down his gun, and advance with his dirk, he thought Jones was under the same impression, and advanced with the dirk lest Hamilton might yet be able to resent the shooting; but Hamilton fell, and then Jones halted, and said, “damn you, you thought I would not shoot, but damn you, I have killed you;” then, changing the dirk to his left hand, he raised Hamilton’s head out of the water, said he was dead enough, and placed the head on the rock. Several of the witnesses concurred in this account of Jones’s language and conduct after the shot; and several of them concurred in saying, that Jones said, if Hamilton was not dead, he would finish him, or words to that effect. All concurred, that Jones made no attempt to use the dirk. Several witnesses said, that before Jones advanced to raise Hamilton out of the water, some one cried, “take him out of the ’'water;” and one witness thought this was Jones, and that he said, *“if*no one will do it, I will do it myself,” and then advanced.

After this, Jones left the boat, took up his gun, ascended the bank, brandished the gun over his head, said he had killed the damn’d rascal, and there were two more he intended to kill, M’Caul and Trimble; and began to re-load his gun. M’Caul passing by, asked Jones why he wished to kill him; Jones said, “damn you, I will kill you any how,” and advanced upon him with his' dirk. M’Caul retreated. M’Caul was Tvell acquainted with Jones, and had been on friendly terms with him. M’Caul and Trimble both said, there was no grudge between them and Jones, that they knew of.

When M’Caul retreated from the dirk, Jones took up his gun, and as he walked off, said, “he had killed the damn’d rascal, and he was glad of it, and that he would do the like by any man who should strike the woman he loved, and any man of spirit would do the like, and now they might hang him for it.”

The several witnesses made various estimates of the time that elapsed from the end of the affray in the grocery till the act of shooting — from ten minutes to an hour and a quarter — the judges comparing these estimates, and considering all the circumstances, thought it at least three quarters', of an hour, most probably more.

Jones was shortly after arrested, making1 no resistance to the officer, and no attempt to fly. Before the magistrate, he admitted he had borrowed and loaded the gun, and prepared himself, for the express purpose of killing Hamilton; and said, that any man of honor and spirit would do the same under-like provocation: and he acknowledged, that what the witnesses said, was true, except in one particular; in explaining which, he said, that Hamilton could not have seen him as he approached, for that he had kept1 the lumber house between them. At this time, the wound on Jones’s forehead was-still bleeding.

*After the court had intimated its. opinion, that the verdict was right, and at a subsequent day of the term, the prisoner’s counsel moved the court' to set aside the verdict, on the ground of objections discovered since the trial, to three of the jurors, Wilkins, Gilliam and Angle. These jurors had been called as talesmen ; and before they were sworn of the jury, they were, at the prisoner’s instance, examined on oath as to their indifferency.

1. Upon this examination, Wilkins said, he had heard part of the evidence at the examining court, and had expressed some opinion as to the probable result; but he-thought he could give the prisoner as fair a trial as if he had heard nothing; he was conscious of no bias or prejudice to prevent it. Upon which the prisoner elected to be tried by him.

The prisoner now proved, by one witness,, that he had heard Wilkins, say, before the trial, that he was at the examining court, and had heard part of the evidence, and if he was on his jury he should hang him; but that Wilkins was a man of good character, and did not speak as if he had any prejudice against Jones, but as if he was speaking in relation to the supposed truth of what he had heard. It was testified by another witness, that he had heard Wilkins say, in a general conversation concerning Jones’s case, that if he was on the venire he should hang him: and by a third, that he heard Wilkins say he thought Jones would be hanged.

2. When Gilliam was examined, he said he had heard none of the evidence against the prisoner; he had heard his case talked of in the town, by various persons, but he did not know that any of them had heard the evidence; he had no bias or prejudice on his mind; and thought he could give the prisoner as fair a trial as if he had heard nothing of his case. The prisoner elected to be tried by him.

The prisoner now adduced a witness, who said, he had heard Gilliam say he thought from the evidence he had heard, that Jones ought to be hanged: that he had frequently heard him repeat the same sentiment: that he had *a conversation with the juror the same day (and before) he was empaneled, when he repeated the opinion, that Jones would be hanged, and if he was on the jury, he should be compelled, from the evidence he had heard, to hang him; and that he told Gilliam, that as he had expressed his opinion, he could not be *213on the jury, and Gilliam seemed to understand the same. On cross examination, this witness said, he could not say, that Gilliam told him he had heard any part of the evidence, nor did he know that he ever had; he inferred that he had: that Gilliam was a respectable man, and deserved full credit on his oath.

3. When Angle was examined as to his indifferency, he said he had heard no evidence, but had heard various reports of what the evidence was; he did not recollect from whom; he did not know, whether those reports were true or not; they were •different from each other; he had expressed an opinion of what would be the probable result, in conversation with others; he had no bias on his mind to prevent him from giving the prisoner a fair trial; he had no prejudice against the prisoner or his family, any way; and he thought he could give ;the prisoner as fair a trial as if he had heard nothing about the case. Upon this, he was elected by the prisoner.

The prisoner now proved by a witness, that shortly after the homicide was committed, he and the juror were in conversation about it, when Angle “allowed” the prisoner would be hung; the witness “allowed” he would not; and a gallon of whiskey was bet upon the event. Angle said, if witness knew as much as he did, he would not bet. He was not far off when prisoner killed Hamilton, and heard the evidence, as witness thought, before the inquest. Angle did not speak as if he had any personal prejudice against Jones, nor does the witness think he had. Angle is a respectable man, and deserves to be credited on oath. The juror (Angle) being present was sworn, and stated, that he had made the bet with the witness as he mentioned; it was a casual thing which had escaped his recollection, and he ^should never have thought to demand the whiskej', nor does he suppose the witness would. He never thought of it, at or during the trial; it had altogether escaped his mind, until reminded of it by the witness after the trial; and he repeated, that he was neither at the called court, nor pres■ent at any examination of witnesses, at any time, respecting the case, nor heard any statement of the evidence from any body that had heard it, so far as he knew, before the trial.

The prisoner offered another witness, Martha Gilliam, who said — '“I was at Angle’s house on the day of the called court. Angle returned home. I asked him what was done with Jones. He said he did not stay to hear the trial over. I said I wished he might be cleared; he said, he wished he might be hung. I said, how can you say so, Mr. Angle? You know that when a man is drunk, when he is in a passion, his wit is out, and he ought to be excused for his acts. Angle said, he wished Jones •and all such damn’d rascals to be hung. He did not say that he had heard any part ■of the evidence or any part of the trial. I have heard Angle speak of the subject several times. We live close neighbours. He always said Jones ought to be hung. I am the daughter of Patterson Gilliam, who was a witness for Jones. I am no ways related to Jones, or any of his family, and but little acquainted with him.” Angle, the juror, denied having had any such conversation with Gilliam as she detailed ; and said that she had shewn great anxiety for Jones’s acquittal since the trial, and had declared she would do any thing in her power to procure his discharge. Gilliam denied this.

The counsel for the prisoner also presented to the court an affidavit of the prisoner in relation to the three jurors aforesaid ; which was made a part of the record. This affidavit stated, that since the rendition of the verdict, he had been informed, that the three jurors had, previous to their being empaneled, formed, and repeatedly expressed, an opinion that he ought to be hanged; and that Angle had, moreover, previously to his being empaneled, made a bet *that he would be hanged, and expressed a wish that he shomd be hanged: that at the time the said three jurors were so empaneled, he did not know, believe, or suspect, that either of the said three jurors had expressed the opinion above stated, or he would have challenged them.

The circuit court, with the prisoner’s assent, adjourned the following questions to this court:

1. Ought the verdict of the jury to be set aside, and a new trial directed, upon the state of the facts of the case, as above set forth?

2. Ought the court, in order to prepare-the state of the case, to have re-examined the witnesses, after the verdict rendered, so as to state verbatim what they said? and having declined to do so, ought a new trial to be granted for that cause?

3. Ought the verdict to be set aside, on the grounds disclosed by the evidence respecting the three jurors above mentioned, or either of them? or ought the court to proceed to judgment?

The case was argued by Johnson for the prisoner, and by the Attorney General for the commonwealth.

The questions debated were, 1. Whether, upon the facts of the case, the homicide was murder in the first degree, as the jury had found it to be, or only murder in the second degree? within the definition of the statute, 1 Rev. Code, ch. 171, *l*2, p. 616. 2. Whether the objections to the three jurors, or either of them, were such, as would have entitled the prisoner to have challenged them for cause, had he been apprised of those objections before the jurors were elected by him and sworn? and supposing the objections would then have been good, whether, having been discovered since the trial, the court ought now, for this cause, to set aside the verdict, and direct a new trial?

*

Criminal Law — Distinction between Murder in the First and Second Degrees. — On this question, the principal case is cited in Hill v. Com., *2*Gratt. 598: *footnote*to Burgess v. Com., 2 Va. Cas. 483; *foot-note*to Boswell v. Com., 20 Gratt. 860: Howell v. Com., 26 Gratt. 1007; Willis v. Com., 32 Gratt. 936; *foot-note*to Mitchell v. Com., 33 Gratt. 872; Wright v. Com., 75 Va. 920; McDaniel v. Com., 77 Va. 284, 286; Price v. Com.. 77 Va. 396; Robertson v. Com.. 1 Va. Dec. 856; State v. Abbott, 8 W. Va. 769, 771: State v. Welch, 36 W. Va. 700, 15 S. E. Rep. 422.

†

Jurors -Objection — Waiver.—The principal case is cited in Bristow v. Com., 15 Gratt. 647, and *note;*Heath v. Com.. 1 Rob. 743, and note; *foot-note*to Hail-stock v. Com., 2 Gratt. 564; *foot-note*to Kennedy v. Com., 2 Va. Cas. 510; *foot-note*to Poore v. Com., 2 Va. Cas. 474; *foot-note*to Smith v. Com., 2 Va. Cas. 6; Cur-ran’s Case, 7 Gratt. 623; Dilworth v. Com., 12 Gratt. 692, 698; Simmons v. McConnell, 86 Va. 500, 10 S. E. Rep. 838; State v. McDonald, 9 W. Va. 465; Sweeney v. Baker, 13 W. Va. 228: State v. Greer, 22 W. Va. 824; State v. Hobbs, 37 W. Va. 826, 17 S. E. Rep. 385. See monographic *note*on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.

DANIEL, J.

The first question refers to a state of the facts which were proved before the jury upon the trial, and *upon which the verdict was rendered; and makes it necessary for this court to examine the facts and the circumstances of the case, to ascertain what offence the prisoner had committed, and what degree of criminality marked the offence. That the prisoner committed the homicide charged *214in the indictment, there can be no doubt. Was it committed under circumstances, which, according to law, made it manslaughter? murder in the second degree? or murder in the first degree?

That the offence proved is greater than manslaughter, the prisoner’s counsel does not deny; but he contends, that, though it be murder, it is not murder in the first degree.

To determine whether it be murder in the first or second degree, it is necessary to refer to and consider the provisions of the statute, by which the distinction between the first and second degree of murder is created. The statute declares, “that all murder which shall be perpetrated by means of poison — or by lying in wait — or by duress of imprisonment or confinement — or by starving — or by malicious, wilful and excessive whipping, beating or other cruel torture — or by any other kind of wilful, deliberate or premeditated killing — or which shall be committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery, or burglary, shall henceforth be deemed murder in the first degree. And all other kinds of murder shall be deemed murder in the second degree.”

The counsel for the prisoner has supposed, and argued with great ability and ingenuity (as he always does) in support of his supposition, that the words “any other kind of wilful, deliberate or premeditated killing,” ought to be construed, and of necessity, as preferring to the character or kind of killing or murder specified in the previous enumeration (by means of poison, lying in wait, duress of imprisonment or confinement, starving, wilful, malicious, or excessive whipping, beating or other cruel torture) as if it read, “any other kind of such wilful, deliberate or premeditated killing;” because, otherwise, as he supposes, the preceding “particular enumeration would be useless. Now, a plain and invincible answer to this argument, is presented in the import of the terms used; other and such; Other killing, means any other whatever, which is different from the same; such killing would refer to the modes of killing enumerated, and confine itself to the kind of killing enumerated and the means by which it was effected. To admit this construction of the prisoner’s counsel, would be to allow that the legislature meant nothing, or did not understand what it meant, when it used, upon this very important subject of life and death, those words of plain and obvious import; 1 ‘any other kind of wilful, deliberate and premeditated killing.” This is what this court cannot admit. Poison may reach the life of one or more not within the design of him who lays the bait; lying in wait, may be with a view to great injury, abuse and bodily harm, without the settled purpose to kill; imprisonment or confinement or starving, may be. with a view to reduce the victim to the necessity of yielding to some proposed conditions, as well as a punishment for the failure of prompt obedience, without any certain and fixed determination to destroy life; and the same may be said of malicious or excessive whipping, beating or other cruel torture. In all these enumerated cases, the legislature has declared the law, that the perpetrator shall be held guilty of murder in the first degree, without further proof that the death was the ultimate result, which the will, deliberation and premeditation of the party accused sought. And the same authority has declared the law, that any other kind of killing, which is sought by the will, deliberation and premeditation of the party accused, shall also be murder-in the first degree; but lhat as to this other kind of killing, proof must be adduced to satisfy the mind, that the death of the-party slain was the ultimate result which the concurring will, deliberation and premeditation, of the party accused, sought. But to this general rule the same authority adds an exception, which is, that any death consequent upon the perpetration or attempt to perpetrate any arson, rape, “robbery, or burglary, shall be deemed murder in the first degree ; and all other murder at common law, shall be deemed murder in the second degree. So that the cases within the exception, as. now put, and the cases enumerated as first mentioned, are, in fact, placed upon the same principle: there is no necessity of proof in either, to establish the fact that a homicide was intended. And it follows, of course, that all other homicide which was-murder at common law, is now murder in. the second degree, except when it shall be proved, that the homicide was the result of a “wilful, deliberate and premeditated killing;” and it also follows, of necessity,.that, when by the proof the mind is satisfied that the killing was wilful, deliberate and premeditated, such killing must be taken and held to be murder in the first degree. This, construction of the act of assembly is consistent with, and supported by the decisions, of this court, in Burgess’s case, 2 Virg. Ca. 483, and Whiteford’s case, 6 Rand. 721.

According to the above construction of the statute, it remains to be determined, whether, upon the proof disclosed by the-record, the prisoner is guilty of a “wilful, deliberate and premeditated killing.” The-court does not think it necessary, in this case, to enter into a definition or description of the various operations of the mind in relation to any act, whereby such act should be regarded as willful, deliberate and premeditated; but, approving the opinion heretofore indicated by this court in relation to this subject, in the cases above referred to, and considering the circumstances of this case, we feel no difficulty in determining, unanimously, that the jury was well justified in finding, that the killing, in this instance, was wilful, deliberate and premeditated. The prisoner, although excited by strong drink, and by an insult offered to a woman, which he thought himself bound to resent, and by a severe blow' on himself, for which he had a right to-redress, was not, by any of these causes or all-combined, so deprived of his mental faculties, according to any evidence in the cause, that he could not distinctly understand “what he willed and was about to do; or so that he could not reflect, and reason, and deliberate, and determine, and choose what he would or would not do. According to the evidence, the first moving-*215cause to commit the act, which constitutes his offence, was the injury done to a woman, for whom he felt an attachment; to her he promised redress for the insult and injury, which she had received; and, before he had himself received any personal injury, he avowed, that the measure of the redress which she should receive, should be filled with the heart’s blood of the deceased before sunset. And after he had shed the blood of the deceased, as he had threatened, he said, “he had killed the damn’d rascal, and was glad of it; that he would do the like by any man who should strike the woman he loved, and that any man of spirit would do the like. ” It is true he had received a severe blow, in the mean time, which was calculated to increase, and no doubt did increase, his resentment against the deceased. But still he referred the revenge he had sought and taken, to the original cause of offence — the blow given to the woman he loved. A considerable time elapsed after both causes of offence, and threats of deadly revenge were made, before he executed his purpose; at least three quarters of an hour; in which time his resentment might have cooled. He employed this time, not in hasty but in deliberate preparation to execute the purpose he had avowed of shedding the blood of the deceased. He dressed his wound, adjusted his clothes, and, being apparently composed, deliberately armed himself with a dirk, or, being already thus armed, went abroad a considerable distance in quest of a gun ; chose one with cautious circumspection and judgment; deliberately tried its fitness for the object he had in view, a sure fire; primed, snapped, and flashed it; procured powder and lead, and loaded it; and, thus armed with a drawn dirk, and a loaded gun, traversed the public streets, passed the market place, where, perchance, he might meet the deceased, and, finally, sought him at his boat where he found him; and then, with deliberate *aim, shot him to death, while the deceased was unarmed, unresisting, and in actual flight from him. This must certainly be “a wilful, deliberate, and premeditated killing.” And, therefore, this court, in answer to the first question propounded, doth unanimously decide, that a new trial ought not to be granted on the ground therein referred to.

As to the second question, this court is, unanimously, of the opinion, that, on a motion for a new trial, the court is not bound to re-examine the witnesses, or to state the evidence verbatim as it was given by the witnesses; and doth, therefore, decide, that a neVv trial ought not to be awarded for that cause.

As to the third question adjourned: the three jurors referred to, as it appears from the record, were called as by-standers, and were severally, before they were sworn of jury, at the instance of the prisoner, sworn to answer questions touching their indifferency. In answer to these questions, they each said for himself, that they had expressed opinions on the prisoner’s case, and disclosed generally the grounds on which they had so expressed opinions. Wilkins said he had heard part of the evidence: Gilliam and Angle had heard no part of the evidence, and nothing but the accounts and rumours which were circulated in town: they all said, they had no prejudice against the prisoner, or bias on their minds, so as that they could not give him a fair and impartial trial, in like manner as if they had heard nothing about the affair: and the prisoner, thereupon, elected them, and they were sworn to try his cause. Several days after a verdict L was returned against the prisoner, and a motion for a new trial on the merits had been overruled, the prisoner moved for a new trial on the ground of exceptions to these jurors, which, if good, existed at, and before, the time when they were empaneled, but which were then unknown to the prisoner. In support of these exceptions to the jurors, severally, the prisoner adduced witnesses to prove the various opinions which they had expressed unfavourable to his acquittal. But we do not perceive, that any '^of these witnesses prove anything inconsistent with what the jurors respectively disclosed on their voir dire. They did not disclose when, where, and to whom they had expressed their opinions, because the prisoner did not demand it. They did not disclose what were the precise opinions they had expressed, whether favourable or unfavourable to the prisoner, because that would have been improper. But they did distinctly disclose the fact, that they had expressed opinions as to what would be the result of his trial, and thereby put him upon his guard. If, in this state of things, the prisoner is at liberty to elect a juror, and take a chance for his acquittal, if the juror should be favourably disposed for it, and to set aside the verdict, if the juror should have expressed opinions unfavourable to it, then almost every verdict of guilty would be set aside. If or it is most probable, nay almost certain, that twelve men could not be selected, without previous examination, from any neighbourhood in which an atrocious murder or other felony has been committed, no one of whom has heard of the offence, and expressed an opinion unfavourable to the discharge of the perpetrator. And it is also certain, that by diligent inquiry, for several days pursued, among the neighbours of such one or more, proof could be obtained to establish what was the opinion expressed. This is a practice which should not be indulged. Besides, if the opinion expressed should not, when truly proved, with all the circumstances under which it was uttered, be a good cause of challenge, it might be easily modified by the addition or abstraction of a single word, or at most of a few words. And if the party accused be a man of wealth, of influence, and numerous friends, it would be an eas3' matter to find some one to make the little, though needful, addition or abstraction, to suit the occasion. And in favour of life, this effort would be made, and with the greatest probability of success, if new proofs were received several days after a motion had been overruled on the merits, and the precise points, in which the prisoner’s evidence was deficient, pointed out by x'the court. This prac*216tice leads directly to perjury and corruption, and ought not to be allowed.

But if the practice here condemned were allowable, a majority of this court is of the opinion, that no sufficient cause of challenge, against the jurors, is established in this case. For, although the cause of challenge might have been sufficient, if proved by the prisoner, without the oath of the jurors respectively, yet, after he has caused them to be sworn, and appealed to their testimony, he shall not thereafter be permitted to reject it altogether, without proof that falsifies it; and if it is not so falsified, it should be taken in conjunction with the testimony of his subsequent witnesses, so as to form one whole; and, in this point of view, if the cause of challenge so proved, had been alleged before the jurors were sworn, it would not have been sufficient. This conclusion is not contradicted, but supported, by the decisions of this court, in Kennedy’s case, 2 Virg. Ca. 510; Smith’s case, Id. 6; Poore’s case, Id. 474.

There is another view of this case, which presents itself to the consideration of this court. We do not know of any case decided in England, or in this country, in which, after a juror had been elected by the prisoner, without making any previous objection to him, a new trial has been granted on the single ground of any cause of challenge for favour existing at the time of his being elected, whether known or unknown to the prisoner. Our statute provides, in terms, “that no exception against any juror on account of his estate, or age, or any other legal disability, shall be allowed after he is sworn.” But, as the judge who presides in a criminal case, especially of life and death, ought to be satisfied before he pronounces sentence, that the judgment which he pronounces is just, he may, notwithstanding this act, hear such suggestions of the prisoner; upon proof, as go to shew any flagrant fraud on the part of the juror towards the prisoner,, or such unquestionable hostility towards him as necessarily to render it not only improbable, but almost impossible, that such a juror could give the prisoner a fair and impartial *trial; and this, although the exception proved against the juror existed before he was elected and sworn. Yet, in the absence of any decision to sustain the position, we cannot consider it as a matter of right, ex debito justitiae, that the prisoner should have a new trial, in every case, wherein he could shew such cause of challenge against a juror, after trial, as might have been allowed if made before the juror was sworn; especially in a case, wherein the prisoner, having caused the juror to be sworn on his voir dire, elected to be tried by him, without taking any exception. When the prisoner excepts to a juror for cause, before he is sworn, it is matter of right, to be adjudged by the court; when he excepts after trial, for cause existing before the juror was elected and sworn, it is matter addressed to the discretion of the court: in the exercise of this discretion the court ought to consider the whole case, and be satisfied that justice has been done. To grant the prisoner a new trial in the present case, would be to allow that a cause of challenge existing at the time, but not asserted by the prisoner, because it was not known to him, should be as available to the prisoner, after the juror, being elected by the prisoner, has been sworn, and a verdict rendered, as if it had been asserted before'; and this cause to be proved by testimony conflicting with the evidence selected by the prisoner himself, the oath of the juror; which, in this case, is proved, in relation to each juror, to be above exception. The decisions of this court heretofore made, do not present this precise view of the question, but they tend to fortify the opinion herein expressed.

Upon the whole matter, this court is of opinion, and doth decide, that a new' trial ought not to be granted for any cause suggested by the record; and that the circuit court ought to proceed to pronounce judgment upon the verdict of the jury, according to law.

Judges Brockenbrough and Semple dissented from the opinion of the majority of the court, on the last point. And ^judges Parker and Hay, though they concurred in the opinion, that the verdict ought not to be set aside, dissented from the opinion of the majority, that there was no just cause of challenge to any of the three jurors, if the prisoner had exercised his right of challenge before they had been elected and sworn.

There are two errata in the above report of this case, so material that it is deemed best to note them here. In the report of the juror Gilliam’s first examination, there is a line omitted: after the word “evidence,” p. 606, 8th line from the bottom, read “he had expressed an opinion, as others had, in conversation.” And in the report of the juror Angle’s first examination, p. 607,16th and 17th lines, instead of “he had expressed no opinion,” read “he had expressed an opinion,” &c. — Note in Original Edition.