#### THE STATE *vs.*THOMAS NASH.

In an indictment for a capital offence, the Court haying previously ordered one hundred tales jurors to be summoned, on the trial the original pannel was first perused and exhausted, and the Court then directed thirty-six of the tales jurors to be drawn, and, these being exhausted by challenges, directed the remaining tales jurors to be drawn, the prisoner at the time making no objection ; *Held,*that there was no error in this nor ground for a new trial.

The mother of the prisoner being introduced by him to prove an *alibi,*the Court charged the Jury “ that the law regarded with suspicion the testimony of near relations, when testifying for each other, that it was the province of the jury to consider and decide on the weight due to her testimony, and, as a general rule, in deciding on the credit of the witnesses on both sides, they ought to look to the deportment of the witnesses, their capacity and opportunity to testify in relation to the transaction, and the relation in which the witness stood to the party *Held*that this charge was not erroneous.

The cases of *State*v. *Ellington, 7*Ired. 61, and *State*v. *Lytle,*5 Ired. 61, cited and approved.

Appeal from tbe Superior Court of Law of Montgomery County, at the Fall Term, 1847, his Honor, Judge Caldwell, presiding.

The prisoner was indicted for Murder. The day before the trial, the presiding Judge, at the instance of the Solicitor of the State, ordered a special writ of *venire facias*to issue to the Sheriff, commanding him to summon one hundred Jurors. In forming the petit jury, the original pannel was first perused, and, a jury not being made,the clerk was directed by the Court to put into the box, from whence the names of the jurors were drawn, thirty-six scrolls, containing the names of that number of the special venire. This was done, and *they*were all drawn, without making a jury, because of the challenges. The scrolls, containing the names of the remainder of the special *venire,*were then put into the box, by the order of the Court, out of which, a jury was made, *fp*this mode *36of making up the jury, no objection was made at the time, or during the trial.

On the trial, the prisoner introduced his mother as a •witness, to prove an *alibi,*and she swore to his absence at the time, it was alleged, the murder was committed. The Court charged, *“*That the law regarded with suspicion the testimony of near relations, when testifying for each other ; that it was the province of the jury to consider and decide on the weight due to her testimony, and, as a general rule, in deciding on the credit of the witnesses on both sides, they ought to look to the deportment of the witnesses, their capacity and opportunity to testify, in relation to the transaction, and the relation in which the witness stood to the party.”

The prisoner was convicted, and moved for a new trial for error of the Court in forming the jury, and error in the charge. This motion was over-ruled, and the prisoner then moved in arrest of judgment, and, that being refused, appealed.

*Attorney General*referred to the following cases :

1st point. *State*v. *Benton,*2 D. & B. 196, *State*v. *Ward, 2*Hawks, 443.

•2nd. *State*v. *Ellington,*7 Ired. 67.

No counsel for the defendant.

Nash, J.

We perceive nothing in the manner in which the jury was formed, or in the charge of the presiding Judge, to induce us to disturb the verdict in this case. The error alleged as to the former consists, as we are told, in the fact, that, after failing to procure the jury from the original pannel, the Court directed the names of thirty-six of the tales jurors to be put into the box, instead of ordering the whole to be deposited together, as it was the right of the prisoner to have an opportunity *37of having all the tales tendered to him. If it be true, that, upon the failure to procure a jury from the original *venire,*the prisoner had a right to have tendered to him ■the whole of the special *venire,*and that upon his demand it would have been erroneous to refuse it, (a point we do not decide,) yet here there has been no error, because he did not demand it, and he was notin fact deprived of any right belonging to him. The jury was not formed out of the thirty-six names first deposited in the box, but, after that pannel was exhausted, the names of all the remainder of the tales jurors were deposited and drawn from. So that in fact, he had an opportunity of having all the jurors tendered to him, and it was precisely the same as if the names of all the jurors had been put into the box at the same time. *State*v. *Lytle, 5*Ired. 61.

The presiding Judge was fully sustained in his charge, as to the evidence of the mother of the prisoner by the case of *Ellington,*7th Ired. 61. The charge in the latter case, was, in principle, what it is here, and the reasons are there so fully stated, that it is sufficient to refer to it.

We have looked carefully into the record, and are unable to perceive in it any reason for which the judgment should be arrested.

The opinion will be certified to the Superior Court of Montgomery County,

Per Curiam, Ordered to be certified accordingly.