«DECEMBER TERM 1839.

JUDGES PRESENT.

*Smith,*

*Upshur,*

*Field,*

*Lomax,*

*Leigh,*

*Estill,*

*Brown,*

*Dtmcan,*

*Fry,*

*Clopton,*

*Christian,*

*Nicholas.*

#### Maile v. Commonwealth.

December, 1839.

Hurder — Indictment—Sufficiency of.* — Indictment for murder charges that the prisoner of his malice aforethought, did make the assault ; but the striking- and wounding, and the killing and murder, are respectively charged to have been done “of his malice aforesaid.’' Heed a good indictment' for murder.

Jurors — Competency—Preconceived Opinions †— Case at Bar. — On a trial for felony, a j uror, being examined on his voir dire, states, that he was not present at the examining court, but has heard a report of some of the circumstances of the case; that he does not know that the report came from any one who heard the evidence at the examining court, nor does he believe it to be a full detail of all the circumstances, but he believes it to be true, and upon that belief has formed and expressed a decided opinion, which is still abiding on his mind; but he believes, that notwithstanding what he has heard, his mind is open to conviction, and he has no doubt that if the facts should turn out to be different from what they have been represented to him, his opinion would be changed. Heed, he is a competent juror.

Isham Maile was indicted in the circuit superiour court of Chesterfield, for the murder of Archer Maile. The indictment charges, that Isham Maile, on &c. in the «county of Chesterfield, feloniously &c. and of his malice aforethought, did make an assault upon Archer Maile, and did then and there, feloniously *Sec.*and of his malice aforesaid, shoot off and discharge to, upon and against the said Archer Maile a certain shot gun charged with gunpowder and shot, and did then and there, with the shot aforesaid, feloniously *Sec.*and of his malice aforesaid, strike, penetrate and wound the said Archer Maile, giving him then and there, with the shot aforesaid, one mortal wound, of which he then and there instantly died ; and so the jurors said that Isham Maile him the said Archer Maile, feloniously *Sec.*and of his malice aforesaid, did kill and murder, against the form of the act of assembly.

On the trial of the case, Thomas Gibbs, being called as a juror and sworn on the voir dire, stated “that he was not present at the examining court, but that he has heard a report of some of the circumstances of this case, which report he believes to be true, and upon which he has formed and expressed a decided opinion as to the guilt or innocence of the prisoner. He believes, however, that notwithstanding what he has heard, his mind is open to conviction ; and he has no doubt that if the facts should turn out to be different from what they have been represented to him, his opinion would be changed. He does not ltnow that what he has heard came from any one who heard,the evidence at the examining court, nor does he believe that what he heard was a full detail of all the circumstances, but he believes it to be true, and upon that belief he has formed and expressed a decided opinion, which opinion is still abiding on his mind.” The prisoner then challenged the said Thomas Gibbs for cause ; but the court overruled the challenge, and put the prisoner upon his election; to which opinion of the court he excepted.

The jury found the prisoner guilty of voluntary manslaughter, and ascertained his term of imprisonment in the penitentiary to be five years.

«When brought up to receive his sentence, he moved the court to arrest the judgment, “ because of the insufficiency of the indictment in not charging him with the crime of murder, for which he was arraigned and tried before the jury. ” The court overruled the motion, and pronounced judgment according to the verdict; and the prisoner *233excepted to the opinion overruling his said motion.

At the last term of the general court, he applied for and obtained a writ of error to the judgment, upon a petition assigning for error, 1. That the circuit court improperly overruled his challenge of the juror Thomas Gibbs. 2. That the said court improperly overruled his motion in arrest of judgment; the indictment being “insufficient to charge the crime of murder, because it does not allege that the prisoner, of his malice aforethought, murdered the deceased, but substitutes an entirely different phrase ; whereas the words malice aforethought are absolutely indispensable, and admit of no substitute.”

And now the cause was argued by N. Harrison for the plaintiff in error,

and the attorney general for the commonwealth, upon the assignment of errors contained in the plaintiff’s petition.

*

Murder — Indictment—Sufficiency of. — See principal case cited in State v. Yates, 21 W. Va. 764. For further information on this subject, see mono-graphic *note*on “Indictments, Informations and Presentments ” appended to Boyle v. Com., 14Gratt. 674.

†

Jurors — Competency — Preconceived Opinions. — On this subject, the principal case was cited in Armistead’s Case, 11 Leigh 664 ; Jackson v. Com., 23 Gratt. 931, 933 ; *foot-note*to Shinn v. Com., 32 Gratt. 901; State v. Baker, 33 W. Va. 324, 10 S. E. Rep. 641. See further, *foot-note*to Moran v. Com., 9 Leigh 651, and *notes*there referred to; monographic *note*on “ Juries ’’ appended to Chahoon v. Com., 20 Gratt. 733.

CBOPTOH, J.,

delivered the opinion of the court. — From the statement made by Thomas Gibbs when called as a juror in this case, it does not appear that he had any prejudice against the prisoner. The opinion which he •had formed and expressed, although called by him a decided opinion upon the report which he had heard, did not involve the full question of the guilt or innocence of the prisoner; because the mind of the juror was satisfied that what he had heard was not a full detail of all the circumstances. What he had heard, therefore, could not afford materials for such an opinion. The *opinion formed was evidently, in its character, merely hypothetical, depending upon the truth of what he had heard, and the addition of other and fuller proof, and could not influence the mind of a juror otherwise unbiased and impartial. The court is therefore of opinion that the juror was competent, and that the prisoner’s challenge for cause was properly overruled. On this point, however, judges Estill, Brown, Duncan and Fry dissent.

The court is of opinion that the indictment is a good indictment for murder, the term “aforesaid” referring with sufficient certainty to the malice previously charged as malice aforethought; and although it is the most usual course to repeat the terms malice aforethought, it is well settled that the substitution of aforesaid for aforethought is not error. In Heydon’s case, 4 Rep. 41, the words “feloniceet ex malitia proecogitata” were omitted in that part of the indictment which charged the blow, which was connected with the felony and malice previously charged, by a copulative ; and the court decided that the conjunction coupled all the sentences together, and referred the felony and malice charged in the first part of the indictment to all the subsequent verbs. And in 2 Hawk. P. C. 314, it is laid down, that the law will not admit of too great nicety, and that if, in the first part of an indictment of death, the assault be laid with malice prepense, there is no need to repeat it in the clause which shews the giving the wound, that being joined by a copulative to the precedent sentence, and laid at the same time and place with the assault.

The court doth therefore decide that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.