#### Werner v. The State.

1. Motion eor New Trial: Office of.

It is not the province of a motion for new trial to bring upon the record irregularities that occurred at the trial. The facts constituting the error complained of and the exceptions to the ruling of the court, must "be shown by bill of exceptions: and the motion for new trial can serve no other purpose than to assign the ruling or action of the court as error.

*123 2. Witnesses: Disqualification of convicts: Restoration by pardon.

Section 2859 Mansfield’s Digest disqualifying convicted criminals as witnesses, applies only' in civil and not in criminal trials. But such parties as were disqualified by' the common law rule are still disqualified, the statute not affecting the rule; but their disqualification is removed by the pardon of the Governor, though their conviction may still be urged against their credibility.

3. Convicts: County Prisoners: Corporal punishment.

Corporal punishment by the lash can be lawfully inflicted by contractors upon county' prisoners for refusal to work, or upon convicts in the penitentiary, only under rule or regulation made by the State board oí prison commissioners for the discipline of convicts in the penitentiary; and if the commissioners have not authorized the use of the lash in the latter class, it cannot be used in either.

4. Motion for, ÍTew Trial: Prejudice, of juror discovered after trial.

When a juror states upon his voir dire that he has- formed and expressed an opinion of the prisoner’s guilt, but has no prejudice against him and can give him an impartial trial, and is accepted by the prisoner without examination as to his feelings and statements, the prisoner cannot afterward urge after-discovered statements of the juror showing strong bias and belief of his guilt as a ground for new trial.

APPEAL from Jefferson Circuit Court.

Hon. J. A. Williams, Circuit Judge.

W. P. A. B. Grace for appellant.

1. The court erred in admitting the testimony of Ike Harris. One convicted of petit larceny, even after pardon, -cannot testify in a criminal ease. Digest, $4,8$; 35 Ark., 4Jff); 39 lb., $29; Greenleaf Bo., 12th ed., sec. 378 and note.

2. One of the jurors, though on examination on his voir dire, he stated that he had formed an opinion from rumor, etc., but could give the accused a fair and impartial trial, was prejudiced, and had made statements that appellant •ought to be hung, etc. This was ground for new trial. 2 Whar. Am. Cr. L., 5th ed., sec. 3152, and, authorities cited; 1 Whart. St. T., 606; Ifi Ark., 515.

3. As contractor to safely keep prisoners, etc., appel*124lant had the right and it was lawful for him to enforce discipline by inflicting corporal punishment. {Acts 1882, p. llf.9, sec. If,; p. 121, secs. 1 and 9; Rules and Regulations Board Pen. Com-rs., secs. If, 5, 7, etc.) The necessities of the case require it. The right existed at common law in this and other cases. 2 Whar. Am. Cr. Laxo, secs. 1259-60; lb., sec. 2863-lf.

4. It was error to exclude testimony that the whipping was done by Bess. The indictment charged that it was done by Ereeman, and if it was proven to have been done by another, without appellant’s aiding or abetting, this would have acquitted him. 1 Ghitty Gr. L, *p. 556; If Bisk. Ci\ Pro., see. If96; 1 Wkar. Gr. L., sec. 593; 1 Phillips Ev., 82If, 81flf and note 237.

5. Appellant and Ereeman should have been allowed to elect the order of their trial. Gantt’s Digest, sec. 1891.

6. Review the evidence and contend that the verdict was contrary to the evidence. {SIf Ark., 639.) The evidence fairly shows a case of death by misadventure, unless it should be held that the act of whipping was unlawful per se, in which ease the homicide was involuntary manslaughter. {2 Whar. Gr. L., sec. 977; Gantt’s Digest, secs. 1266, 1292; 1 East. P. G., 261; Whart. on Horn., secs. 128, 130.) If there be no malice in the master the crime is manslaughter only. (2 Wh. G. L., sec. 10llf andxioteh; If Mason, C. G.,505; Whart. on Horn., secs. 93, 97, 113, 130,150.)

Dan W. Jones, Attorney General, contra.

1. The “rules and regulations of the board of commissioners” were not introduced in evidence, they constitute no part of the public law of this State, and the courts could not take judicial cognizance of them. But if they had been, appellant did not comply with them in any respect. The whipping was cruel and unusual, contrary to all law and the dictates of humanity. Const., art. 2, sec. *125 91; State v. Hoover, Dev. £ Bat., 365; Mansfield’s Digest, sec. 1527.

2. The record fails to show that appellant and Dan Freeman elected the order in which they should be tried. It is only set up in the motion for new trial, and cannot be considered. Mansfield’s Digest, secs. 2301,2306 ; 39 Ark., 225; 40 lb., 459.

3. Harris was a competent witness, having been pardoned by the Governor. Mansfield’s Digest, sec. 2858, applies to civil and not to criminal cases. The incompeteucy in criminal cases not being created by statute, but by the common law, a pardon restores competency. Greenl. Eo., 12th cd., sec. 378 and notes; 12 Ark., 122; 10 lb., 284; 15 lb., 431; 10 Johns., 232, 483 ; 4 Bl. Com., 402; 6 Bac. Ab., Title Pardon; Hawk. P. C., B. 2 Ch., 37; sec. 48, vot 4, 7th cd., p. 354; 1 Bish. Cr. L., sec. 917; 4 Wall., 380.

4. The record does not show that the court excluded the depositions to show that the whipping was done by another than Freeman. Appellant should have offered to read his depositions; then,if excluded,or if improper testimony was admitted in rebuttal, ho might complain. Appellant has not brought himself within the rule. Mansfield’s Digest, 2146, 2149, 2304, 2306 ; 39 Ark., 225; 40 lb., 459.

5. As to the disqualification of the juror King, he was properly examined on his voir dire, and stated that he could give appellant a fair and impartial trial, etc. Appellant did not question him as to his previous declarations, but accepted him on the panel. The court heard the examination, the affidavits, etc., and the granting of a new trial was within its discretion, and this court will not infer that it abused such discretion. 40 Ark., 515, 516; 15 Georgia, 223; 19' Ark., 164.

*126Cockrell, C. J.

Appellant and one Dan Freeman were jointly indicted for the murder of William Sharpe. The facts, as far as it is necessary to state them, are as follows: Appellant was the lessee of the county prisoners of Desha county. Sharpe was convicted of a misdemeanor in July, 1883, and was placed in appellant’s- ■ custody to work out his fine. He was a mechanic and unused to farm labor, but he was stout and apparently in good health, and appellant put him to hoeing cotton with other prisoners. Five or six days afterwards, near the-close of the day’s labor, Sharpe quit work, leaned upon his hoe for support, and refused to move on. The negro guard, Dan Freeman, called appellant from another part of the field. After he came up, and under his direction, four or five men stretched Sharpe on the ground, face down* and stripped off his clothing so as to leave his back and thighs bare. His back showed the marks of former whippings. Dan Freeman stood over him and laid) on twenty-five or thirty blows with an instrument made of a piece of gin belting as wide or wider than a man’s hand, about eighteen inches long, fastened to a wooden handle. It is useless to recount the sickening details of the whipping as given by the witnesses. It is-enough to say that Sharpe died a few hours thereafter* and that there was no lack of testimony that appellant stood by all the while directing the beating, and that it was the cause of the death. There was also evidence that appellant had previously threatened to put Sharpe out of the way, because he had complained of the manner of his treatment. The witnesses, except those who testified as to-the condition of the body after it was exhumed, and some medical experts, were either ex-prisoners from the county farm or the negro employés and mistress of appellant; the *127former testifying for the State and the latter for appellant. Their statements were contradictory upon some of the material facts at issue, but the jury found appellant guilty of murder in the second degree, and assessed his punishment at twenty-one years in the penitentiary. The trial was in Jefferson county on change of venue from Desha, appellant electing to be tried alone.

It is urged that a new trial should be granted because, as is alleged, the court refused to permit the appellant and Freeman, who was jointly indicted with him, to determine for themselves the order in which they should be tried. ~We find nothing in the record on this subject, outside of the statement contained in the motion for a new trial. It is not the province of such a motion to bring upon the record irregularities that occur iu the course of a trial. The facts constituting the error complained of, together with the exceptions to the ruling of the court, should be made to appear by bill of exceptions, and the motion for a new trial can serve no other purpose than to assign the ruling or action of the court as error. There are several other causes for a new trial alleged in the motion here that are in the same category, and we can not consider them. They were doubtless intended only as persuasive to the Circuit Court to set aside the verdict.

q^: f

Ike Harris was sworn as a witness on the part of the State, but before he was permitted to testify, it was regu- . . . larly shown that he had been convicted of petit larceny in this State. The prosecution produced a full and unconditional pardon by the Governor of the offense of which the witness had been convicted, but appellant still insisted upon his disqualification to testify.

2. wuDisquaiifioation of' |J“0Tt'c*sj pardon’

At common law, a person convicted of larceny, whether grand or petit larceny, was excluded from being a witness, and the disqualification of infamy which arose from such *128conviction has not been removed by statute in this State. In civil cases the disqualification is removed by sections 8858-9 Mansfields Digest, as to all of the infamous crimes known to the common law, excepting those specially named in the statute.

The authorities, with one voice, assert that the common law disability by infamy may be removed by a pardon from the person or body authorized to act in that behalf. It is held, however, by some of the courts that where a statute prescribes that persons who have been convicted of certain offenses shall thereafter be incompetent to testify in any case, a pardon by the Governor will not restore the competency to be a witness. The question does not arise in this case. There is no inhibition in our statute against persons giving testimony in criminal eases. The only provision in that regard has already been referred to, and is as follows:

Section 8858 Mansfields Digest: “All persons except those enumerated in the next section, shall be competent to testify in a civil action.”

Section 8859: “ The following persons shall be incompetent to testify: First. Persons convicted of a capital offense, or of perjury, subornation of perjury, burglary, robbery, larceny, receiving stolen goods, forgery or counterfeiting, except by consent of the parties. Second. Infants under the age of ten years, etc.”

If argument were needed beyond the language of these provisions that the statutory restrictions contained in them are made for civil cases only, it is found in the following facts: They were enacted as a part of the civil code, which purports from its name and provisions to regulate the mode of procedure in civil cases. The act is entitled “A Code of Practice in Civil Cases.” The “Code of Practice in Criminal Cases,” enacted at the same time, *129in terms, makes the provisions of the Civil Code apply to and govern the manner of summoning and coercing.the attendance of witnesses and compelling them to testify, but nothing is said about their competency.

In Warner v. State, 25 Ark., 447, it was ruled that the statute under consideration did not apply in criminal proceedings.. See, too, Perry v. People, 86 N. Y., 353.

In Walker v. State, 39 Ark., 229, the court cite this statute in a criminal case, but the question is not discussed, and the proposition of law announced by the court in that connection is correct, independent of any statute. The common law rule as to disqualification by reason of infamy in criminal cases, is in nowise affected by the statute, and the appellant can not invoke its aid to raise an argument against the Governor’s power by pardon to restore a convict to his former capacity as a witness. After pardon the fact of conviction can still be used to affect his credibility. The jury were instructed that they might consider it for that purpose in this case.

Appellant offered to read to the jury certain depositions tending to show that the whipping charged was done by one Bess and not by Freeman, when the court admonished him that if the depositions were put in evidence the State would be permitted to show that Bess had maltreated the deceased man on occasions prior to the last whipping. The appellant declined to offer his depositions in evidence, and now assigns the action of the court as error. ITis depositions were not excluded by the court. They were never ■offered as evidence. If he had offered to read them, and thecourt had rejected them; or if they had been read andimproper evidence had been admitted for the State in rebuttal, the questions argued here now could then have been considered. As it is, there is nothing before us except the admonition of the court. This deprived appellant of no *130right, and we fail to discover in what manner he was prejudiced by it.

punish^ m6nt"

No exception was taken to the charge of the court except as to two points. The first related to the appellant’s-right to inflict moderate corporal punishment upon the prisoners in his custody. The court instructed the jury that appellant could not lawfully do this himself or authorize any one else to do it.

The statute under which the appellant obtained his contract provides as follows: “It shall be the duty of said contractor to safely keep said prisoners, and he shall provide them with sufficient wholesome food and clothing and medicine and medical attention, ánd may work the said prisoners on a farm or at any other lawful labor, under the same rules and regulations as convicts are worked by the lessees of the State penitentiary.” Section 1233 Mansfield’s-Digest.

The “rules and regulations” that control the lessees of the penitentiary are prescribed by a board of prison commissioners, composed of the Governor, Secretary of State and Attorney General, by virtue of this section of the statute: “The said board of commissioners shall prescribe such rules for the regulation of such penitentiary, and for the management thereof, as in their judgment will prevent the inhuman treatment and preserve the discipline of the convicts and protect the interests of the State.” Section 4876 Mansfield’s Digest.

The chief purpose of the act under which appellant held his contract, was to reduce the expense of enforcing the criminal laws. To accomplish this end certain classe s of prisoners who had before been punished generally by imprisonment only, were made liable to an additional punishment of hard labor; they were to be removed fro m. the supervision of the officers whose sworn duty it was to-*131see to their welfare and be intrusted to the care of persons who would hire them for gain, and who, it was no violence to assume, would not be ovei’-nice in the means adopted to-force them to labor to the greatest profit. The act, therefore, seeks jealously to guard against the danger of the prisoner being subjected to harsh or inhuman treatment, by placing the whole question of discipline in the hands of the chief executive officers of the State, to be defined and regulated at their will. No regulations by the board were put in evidence, and we can not know the import of any that may have been adopted by them. Boone v. State, 8 Lea (Tenn.), 739.

Corporal punishment by the lash can be inflicted lawfully upon the convicts in the penitentiary for refusal to work, only under a rule or regulation made for that purpose by the board of commissioners; for all questions of discipline are deferred to their discretion by the Legislature, and it follows that the manner of punishment to be inflicted by way of correction must be prescribed by them. If they have prohibited the lash, or failed to authorize its use, this mode of punishment can not be inflicted upon the felons in the State prison, and it would be strange if, under the same circumstances, a harder measure of punishment could be meted out to the county prisoners, whose term of imprisonment is often due more to their inability to pay the costs of prosecution in inferior courts than to any serious offense against the public; or who are merely awaiting trial, and have elected to labor with the convicted prisoners, and afterwards have the benefit of their labor, rather than lie idle in jail.

The common law undoubtedly recognized the right of personal chastisement in several classes of individuals, but our penitentiary and county prison systems are modern institutions, and the common law authorities have but *132little bearing on the subject. Moreover, “ this form of punishment has fallen under the ban of modern civilization as tending to degrade the individual and destroy the sense of personal, honor. It has been banished from the army and navy, and is no longer treated as an ordinary mode of punishment even for high crimes.” Cornell v. State, 6 Lea (Tenn.), 624.

But it is immaterial what authority the common law would have given appellant, as we hold the statute has vested in the board of commissioners the exclusive right to say what the discipline shall be in such cases. If one in appellant’s position had the right to whip the prisoners in his custody, in the absence of the statute, the provisions we have referred to took it from him and made it discretionary with the board as to -whether the power should be conferred upon him. We can not infer that they have granted this power, and the court did not err in its instruction in this regard.

The appellant prayed for one other instruction which was refused. The purport of it was that if Sharpe was “ not a sound and able-bodied man,” and that the whipping would not have been mortal to a well person, appellant should be acquitted, unless Sharpe’s condition was “known or apparent to him.”

No error is urged here on account of the rejection of this prayer for instruction. It is open to several objections, and we need say no more than that the most appellant could have asked upon this hypothesis -was that the offense should be reduced to manslaughter. (Commonwealth v. Fox, 7 Gray, 585.) This he did not ask.

The court’s charge to the jury was fair and full. Their attention was especially directed to the distinction between murder and manslaughter and the degrees of murder. The inference of intent and malice was left to them to be *133drawn from all the circumstances of the case, under proper instructions prayed by the State, and no instruction on this subject was asked by appellant and refused by the court. There was evidence sufficient to every material point to sustain the verdict, and we can not disturb it on the idea of an insufficiency of proof.

The final argument for new trial is that it was discovered ' after verdict that one of the jurors was disqualified by . J ^ reason of prejudice against appellant. The showing made is by affidavit to the effect that the juror had made statements about the case before he was selected as one of the panel, showing a strong bias against appellant, and a belief in his guilt. This juror, when examined on his coir dire, stated that he had learned from rumor and newspapers what purported to be the facts in this ease, and that upon this he had formed and expressed an opinion about it; that he had no prejudice against appellant and could give him an impartial trial. Re was accepted as a juror by the appellant, without being asked, as far as the record discloses, as to the character and nature of the statements which he admitted that he had made about the case. Appellant was put upon his guard by the juror himself, and having failed to avail himself of the privilege of examining him touching the statements he avowed on his coir dire he had previously made, it was too late after verdict to inquire of others what their purport was, and then insist upon a disqualification by reason of them. Casat v. State, 40 Ark., 515; Meyer v. State, 19 Ib., 156.

3. Motion fob New trial: Prejudice of juror after trial*

Finding no error in the record the judgment is affirmed.