#### THE STATE vs. JOHN TILGHMAN.

Ia order to make the declarations of a deceased persou'evideuce, as “dyiu;; declarations,” it is not necessary that the person should be in articulo mortis (in the very act of dying); it is sufficient if he be under the apprehension of impending dissolution, when all motive for concealment or falsehood is presumed to he absent, and the party is in a position as solemn, as if an oath had been administered.

A witness cannot be admitted to state, that “he thought, the decease! thought, he would not die from his wounds,” He cannot give his own opinion, but only depose to the state of the wounds of the deceased an l what he then and there said and did, from which the Court may decide what he thought of his condition.

If the deceased, at the timehe made the declarations, was, in fact, in a condition to make them competent evidence, a hope of recovery, at a subsequent time, would not render them incompetent.

There is a distinction between a cause for a new trial and a cause for mistrial; the former is a matter of discretion — the latter a matter of law.

Where, on a trial, the circumstances are such, as merely to put suspicion on the verdict, by shewing, not that there was, but that there might have been, undue influence brought to bear on the jury, because there was opportunity and a chance for it; it is matter within the discretion of the presiding J udge. But if the fact he, that undue influence was brought to bear on the jury; as if they were fed at the charge of the prosecutor or the prisoner ; or if they be solicited and advised how their verdict should be; or if they hear other evidence, than that which urns offered on the trial; in all such cases, there has been, in contemplation of law, no trial, and this Court, as a matter of law, will direct a trial to be had. whether the former proceeding purports to have acquitted or convicted the prisoner.

Where the facts, in relation to the jury on a trial for murder, were, that the jury were placed in the charge of an officer and confined in the ordinary *514jury roots ; that they retired from the Court on Thursday at 6 P. M. and rendered their verdict on Saturday at 10 A. M.; that while out, the members of the jury separated at various times to obey calls of nature — that e3ch one separated himself from the others, more than once for this purpose, and one of them as often as six times ; that, when they did this, they went, one at a time, under charge of an officer, and, during such absence, the other jurors remained together in the jury room, with the door locked; that they went about fifty yards from the Court-house, and returned as soon as practicable, holding no intercourse with any one; that one of the jurors separa ted himself from his fellows, and visited a drug store, about one hundred and fifty yards from the jury room, for the purpose of procuring medicine, being sick; that he went under the charge of an officer, and held no conversation except with the keeper of the drug-store, who asked him if they had agieed on their verdict, to which he replied, "they had not;’’ that this store was in the most public place in the town of New-borne ; that another juror separated himself from his fellows and stood on the outside of the jury room, near the door closed, and conversed privately for ten or fifteen minutes with a third person, but what was'said did not appear; that the jurors also ate and drank, while out, but not to excess • that a part of the time they did so with permission of the Court, but whert enjoined by the Court not to eat or drink, they violated this injunction, contrary to the wishes of the officer, who had them in charge ; that several jurors wrote notes and dropped them from the windows of the jury room, and also received notes from persons not of the jury, but neither the contents of the notes nor the names of the persons, to whom sent or from whom received, appeared; that some of the jurors conversed from the windows with persons in the street, on various subjects andjabout this suit, hut what was said did not appear; and that some servants and small children had access to the jury room, the servants for the purpose of carrying food and clothing to the jurors, and the children to see their fathers; Held, that these facts might, in the discretion of the presiding Judge, have been a good cause for granting a new trial, but they could not justify the Court in declaring, as a matter of law, that there was a mistrial.

The admission of dying declarations, as evidence, is not in opposition t'o that part of the Bill of Rights, which says, that, “In all criminal prosecutions every man has a right to be informed of the accusation against him, and to confront the accusers and'witnesses with other testimony.”'

Thecase of the Stale v Miller, 1 Dev. Sc, Bat. 300, cited and approved.

Appeal from the Superior Court of Law of Craven County, at the Fall Term 1850, his Honor Judge Ellis presiding.

*515The defendant was tried for murder, upon the following indictment, to wit:

State op North CaRolina, ? Superior Court of Law, Lenoir County, $ Fall Term 1849.

The Jurors for the State upon their oath present, that John Tilghman, late of the County of Lenoir, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the fifteenth day of August in the year of our Lord one thousand eight hundred and fifty, with force and arms, at and in the County of Lenoir aforesaid, in and upon one Joseph J. Tilghman, in the peace of God and the State then and there being, feloniously, wilfully, and of his malice afore* thought did make an assault, and that the said John Tilgh-man a certain rifle, of the value of five shillings, then and there loaded and charged with gunpowder and one leaden bullet, which rifle he, the said John Tilghman, in both his hands then and there held, to, against and upon the said Joseph J. Tilghman then there felonously, wilfully, and of his malice aforethought did shoot and discharge ; and that the said John Tilghman with the leaden bullet aforesaid, out of the rifle aforesaid, then and there by force of the gunpowder, shot and sent forth as aforesaid, the said Joseph J. Tilghman in and upon the right side of the forehead of him, the said Joseph J. Tilghman, a little above the right eye of him, the said Joseph J. Tilghman, then and there felonously, wilfully, and of his malice aforethought did strike, penetrate, and wound, giving the said Joseph J. Tilghman then and there with the leaden bullet aforesaid so as aforesaid shot, discharged and sent forth out of the rifle aforesaid by the said John Tilghman, in and upon the said right side of the forehead of him the said Joseph J. Tilghman, a little above the right eye of him the said Joseph J. Tilghman one mortal wound of the breadth of one inch and of the depth of six inches of *516which said mortal wound the said Joseph J; Tilghman then and there instantly died : And so the. Jurors aforesaid upon their oath aforesaid, do say, that the said John Tilghman, the said Joseph J. Tilghman in manner and form aforesaid feloniously, wilfully and of his malice aforethought did kill and murder, against the peace and dignity of the State : And the Jurors aforesaid, upon their oath aforesaid, do further present, that John Tilghman, late of the County of Lenoir and State of North Carolina, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the fifteenth day of August in the year of our Lord one thousand eight hundred and fifty, with force and arms at and in the County of Lenoir aforesaid, in and upon one Joseph J. Tilghman, in the peace of God and the State then and there being, feloniously, wilfully and of his malice aforethought did make an assault; and that he, the said John Tilghman, then and there with a certain riñe, of the value of five shillings, which he. the said John Tilghman in hoth his handsthen and there had and held, the said Joseph J Tilghman in and upon the right side of the head of him thesaid Joseph J. Tilghman then and there feloniously, wil-fully and of his malice aforethought, did strike, penetrate, and wound, giving unto him, the said Joseph J. Tilghman, then and there with the said rifle by the stroke aforesaid in manner aforesaid, in and upon the right side of the head pf him the said Joseph- J. Tilghman, one mortal wound of the length o! three inches and of the depth of three inches, of which said mortal wound the said Joseph J. Tilghman then and there instantly died ; and so the jurors, aforesaid, upon their oath aforesaid, do say, that the said JohnTilgh* man. the said Joseph J. Tilghman. in manner and form afore-aid. fe'oniously wilfully and of his malice aforethought did kill and murder, against the peace and dignity of the Stare.'

. The prisoner, upon his arraignment, pleaded not guilty

*517The bill was found by the Grand Jury of Lenoir County at the Fall Term 1850, and the case was removed by the State, upon the affidavit of the Solicitor, to the County of Craven, where it was tried at the present Term of the Court.

The Solicitor called, as a witness for the State, one Joseph Wilson, who testified, that he knew the prisoner at the bar, and also the deceased, Joseph J. Tilghman : They both lived formerly in Lenoir County, where Joseph J. Tilghman died on the fifteenth day of August, A. D. 1850: that in the afternoon of that day, a few hours before night, the deceased parted with the witness at a hog pen on the land of the deceased, where he had gone to feed his hogs: that the deceased started towards his dwelling house, about four hundred yards distant, and the witness went to resume his labor, at which he had been engaged a short distance from the hog pen : that, in about eight or ten minutes after the deceased left, he heard the report of a rifle gun in the direction in which the deceased had gone : that the witness, upon hearing this, walked a short distance towards the place, from whence the report emanated, when he saw the deceased walking rapidly towards his house, and apparently staggering: that he had his hat on his head at the time: that the witness returned to his work, and in a very short time thereafter heard an alarm at the house of the deceased ; when he left his work and ran as speedily as he could to the house: that when he reached there he saw the deceased sitting in his door, bleeding profusely, and his wife was engaged in cutting off his hair, and in an effort to stop the flowing of blood: that the deceased had a wound on each side of his head, and one in the forehead just above the right eye, from which latter the blood was flowing: that, at the request of the deceased, witness started immediately to Kinston, about seven miles distant, for a physician, and *518as he started, he passed along the road, leading from the hog pen to the house of the deceased, when he saw a wallet with corn in it lying in the road, about two or three hundred yards from the hog pen, which he recognised as the same the deceased had while feeding his hogs at the time referred to. This witness further said that he went to Kinston as soon as he could and without delay, and when he returned he saw Joseph J. Tilghman at his house, and he was then dead. The witness also stated, that upon examination the same afternoon he saw a puddle of blood in the road, leading from the hog pen to the house of the deceased, about twenty-five or thirty steps from the wallet, and nearer the hog pen : that he saw the tracks of a barefoot person, pointing both ways between the wallet and puddle of blood, and that the deceased had on no shoes w'hen he last saw him at the hog pen : that there was no blood between the wallet and the puddle spoken of, but there were frequent marks of blood between the wallet and the house of the deceased : that there was an impression upon the ground at the place, where the puddle of blood was, similar to one made by a person lying down : that this witness lived with the deceased at the time as a laborer.

- The Solicitor then proposed to prove by this witness, that the deceased told him just before his death, that the defendant inflicted the wounds upon him, of which he died.

The prisoner’s counsel objected to the testimony, and the Court decided, that it could only be admitted as the dying declarations of the deceased, made ^yhen all hope of recovery had forsaken his mind, and when he entertained the belief, that he would speedily die from the effects of the wounds he had received, and that as yet such did not appear to be the case.

The Solicitor was then permitted to lay the grounds for the admission of this evidence" by calling witnesses to *519prove the condition of the deceased’s mind, at the time the declarations were made.

For this purpose Dr. Woodley was called by the State, who testified, that he called to see the deceased on the fifteenth day of August last at the summons of the witness, Wilson : that he found him dead when he reached his house : that the deceased had a wound two and three fourths or three inches long on the left side of the head laying bare the skull bone ; on the right side of the head there was another wound, that fractured the skull and de-? tached a small portion of the skull bone : that there was a puncture wound just above the right eye, which turned, after it reached the skull bone, without breaking it, in the direction of the ear, passing under another bone below the temple and extending down in the neck. The witness probed it to the depth of three or four inches; thought it a gun shot wound, though he did not find the ball or search for its termination. This witness was of opinion, that either this wound or the one upon the right side of the head would have produced death. The witness stated, that he was a practising physician, professing peculiar knowledge and skill upon the subject of wounds.

The State then called Mrs. Susan Tilghman upon this part of the case, who testified, that she was the widow of the deceased, and was at home on the fifteenth of August, when the deceased returned home with a wound upon each side of the head and one above the right eye : that he was bleeding when he came: that he said to the witness, “I shall leave you a widow before to morrow morningthat she and deceased then had some talk about the disposition of his property after his death, when they concluded it would be better to sell the land and keep the negroes : that she told the deceased, she .thought, if the blood could be stopped, he would yet recover, when he told her to stop the blood : that she did stop the blood *520.and told him she thought he would recover and yet live longer than she would, and he replied, "save me if you ean”

, This witness also stated, that she thought the deceased thought he would not die from the wound, but the Court refused to consider the witness’opinion, as to what the deceased thought. This witness also said, the last words she heard the deceased say, were, “Save me Wilson if you can that the appeal was made to Wilson Tilghman, his brother, who was present She further said, that the deceased seemed addled like a drunken man : that he spoke very indistinctly1-, sometimes talking rationally and at other times foolishly.

The prisoner called Wilson Tilghman upon this part of the case, who testified, that he was brother to the deceased and father to the prisoner: that he was at the house of the deceased on the fifteenth of August last, just before his death: that he did not believe the deceased thought he would die: heard him say, “save me Wilson if you can.”

This witness also stated, that the deceased seemed addled and spoke indistinctly, saying some things intelligibly and others foolishly.

The prisoner’s counsel still objected to the admission of the declarations of the deceased, for the reason, that his request of the witnesses, to save him if they could, manifested hope on his part, that he would still recover, and a belief that it was possible for him to survive. And that, even though he had entertained the opinion at one time, that he would die from the effects of the wounds, yet he subsequently changed that opinion and entertained hopes of recovery ; and that any declaration made, while laboring under the first impression, would not be admissible, in consequence of such subsequent change of opinion and hopes of recovery ; and that the expression referred *521*to, “save me if you'can,” was evidence, that the deceased had changed his opinion that he would die from the effects of the wounds, if he had before entertained such opinion ; and that the declarations were inadmissible for the further reason, that the deceased was non compos mentis and insane at the time they were made.

The Court concurred with the prisoner’s counsel in the correctness of the legal positions assumed, but expressed the opinion, that the deceased did entertain the opinion that he would soon die from the effects of the wounds, and so expressed himself; and that it did not appear from the testimony, that he had subsequently changed that opinion ; and that the exclamation, “save me if you can,” rather manifested a desire to live, than a hope that he would recover: that the nature of the wounds was calculated to confirm the deceased in the opinion, that he would necessarily die from their effects in a short time ; and that it did not appear from the evidence, that the deceased was insane in his last moments, but it did appear that he was rational and sensible of his situation.

The evidence proposed was therefore admitted.

The Solicitor then continued the examination of th.a first witness, Wilson, who further testified, that, when he reached the house of the deceased, as set forth in the other part of his testimony, he found him bleeding and wounded as described: that witness asked the deceased, if he knew who had given him the wounds, and he replied that he did: that the witness then asked who it was and he said it was John Tilghman, the prisoner at the bar: that the witness also asked him, if he had been shot, to which he replied, “if he had been, he did not hear the report of the gun; that he heard something pop like a percussion cap:” that the witness did not remain to have further conversation, but proceeded to Kinston after a physician.

*522William Wingate was then called as a witness b'y the State, who testified, that he saw the deceased at his own bouse after he had received the wouuds spoken of and just before his death : that he was at the time engaged in a conversation with Wilson Tilghman, the witness heretofore called ; that Wilson Tilghman asked the deceased, how the affair took place, and the deceased attempted to tell him, but his lips and tongue seemed tobe stiff, and he so muttered his words, that he could not be understood by the witness ; whereupon Wilson Tilghman told the deceased, how John Tilghman, the prisoner, said it took place, to which the deceased replied, “Not so, Wilson; John met me in the road and told me he had come on purpose to kill me.” The witness said, he did not remember any of the statement of Wilson Tilghman, which brought forth this reply of the deceased.

The prisoner’s counsel objected to the testimony, upon the ground, that the witness could not remember the substance of the statement of Wilson Tilghman, to which this negative of the deceased applied; and that it was but a part of the conversation. The Court overruled the objection and admitted the evidence.

This witness further stated, that subsequently to this conversation, he heard the deceased exclaim, “he has killed me.”

Upon cross examination, this witness said, he saw the prisoner the same afternoon at Council Wooten’s — he was lying down on the piazza and was bleeding ; the blood had run through the bed and along the floor. He also saw the knife, exhibited in Court, picked up the same dayf after he saw the prisoner at Wooten’s. It was found in the road spoken of by the witness Wilson. There was blood upon it at the time, and blood in the road at different points.

In reply to a question askéd by the prisoner’s counsel, this witness said, he had told one Garby, that he would *523for'one hundred and fifty dollars leave the country and not appear as a witness against the prisoner : that this was said in reply to an offer make to him by the said Garby, who told him, that Wilson Tilghman, the father of the prisoner, said he did not want his (Wingate’s) oath to hang his son, and that he would give him one hundred dollars to leave the country and not appear as a witness.

Dr. Woodley was again called to the stand, and des. cribed the wounds of the deceased to the jury, as he had done to the Court, when he was before examined, and gave the same opinion as to their effects. He also said, that he saw the prisoner soon after he saw the deceased and upon the same day ; that he had a wound through the right hand near the thumb. It was made with a knife, which cut an artery and a nerve in passing through. Witness took up the artery some days after this time, and was compelled to take it up again at another place twelve days later. The knife entered on the inside of the hand and turned towards the brawn of the thumb. The prisoner would have died during the night had he not received medical aid.

Council Wooten was next called by the State, who testified, that he lived three or four hundred yards from the place in lhe road, where the wallet and blood were found as described by the witness Wilson : that he was at home on the fifteenth of August last in the afternoon, when he heard the report of the rifle gun proceeding from about the place where he afterwards saw the blood in the road : 1hat in about five minutes or, perhaps, less after he heard the report of the gun, the prisoner at the bar came to his house with the rifle, exhibited in Court; he came from the direction, in which witness had heard the gun fire ; the rifle had blood upon it at the time, and the barrel was bent: that prisoner had blood upon him, and was then bleeding profusely from a cut through the right hand : the rifle was the one claimed by the prisoner before this time, *524and which he usually carried. It was a percussion lock and required to be sprung before the hammer of the lock would fall. The barrel was not bent, when the witness last saw it before this time. The witness then sent for Wilson Tilghman, the father of the prisoner, w»ho came to the house of the witness and proceeded with him, Win-gate, and another to the place where the blood was found in the road. They saw the blood as described by the wit» ness, Wilson, and found lying upon the ground the knile, exhibited in Court. It had blood upon it, and is the same the witness saw the deceased have a short time before.

The Solicitor next called Carrol Jackson for the State, who testified, that in the month of July last, he was at the house of the deceased, when a controversy arose between two little girls about a broach of cotton : that the prisoner interposed, with some remarks, when the deceased seemed to get angry with the prisoner and threatened to kill him. The prisoner told him not to do it sneaking-Jy, but to go out with him and have a fair fight. The prisoner then took down his rifle, wiped it out and loaded it, and told the deceased to take his double barrel gun, and go out with him and take a fair fight with these weapons ; to which the deceased replied that the prisoner might go where he pleased, but he, (the deceased) would not go with him. This witness also said, the deceased told him, the prisoner had been working at his house : that he saw the deceased’s hat after the blows had been inflicted and it had no hole in it.

The Solicitor next introduced Mr. King ; who said he saw the deceased on the morning after his death and that be had no marks of gunpowder about his face.

The prisoner then called as a witness one Cox, who said Joseph J. Tilghman died on Thursday, and on the Sunday before, the witness met him, when he said the prisoner had abused him in his own house and if he did *525not mind he (the deceased) would kill him — that he had a great mind to kill him any how.

Mrs. Susan Tilghman, who had heretofore been in« troduced by the Solicitor upon a question to the Court, was now recalled by the prisoner, and cross examined as to the facts of the case. She said, the prisoner and deceased had a quarrel in July last — it grew out of a con. troversy between two little girls about a broach of cotton : that the deceased then threatened to kill the prisoner, who told him not to do it sneakingly, but openly — to take his double barrel gun and he (the prisoner) would take his riñe and with these weapons they would have a fair fight: that the deceased replied, “he was not ready then the deceased then said he would kill the prisoner if he did not let him alone: that the prisoner then threatened to tell his grandfather, and the father of the deceased, about certain notes the deceased held against him ; and said, “you know you got the land for nothing you bought from grandfatherthat the deceased had, previous to this time, informed the witness and prisoner, that he had taken up several notes from Mr. John C„ Washington upon his father, and he merely acted as his agent in the matter: that he (the deceased) still held the notes uncan-celled, and intended to hold them against his father, as though he had purchased them from Mr Washington :— that he also had another note made payable to his father and signed by the deceased, with the word “Paid,” marked across its face : that this note was of the same date and for the same amount as one his father then held on him for the purchase money of a tract of land ; and that when the note, held by his father was presented for payment, he intended to offer this cancelled note to show, that the money for the land had been paid, it being the only debt of the kind he ever owed his father: that the five hundred dollar note in his possession was drawn to secure the purchase money of the land bought, but was not delivered, *526because in it the word, “dollars,” was spelt, “dolers and upon this being observed, that he (the deceased) executed another note for the land, and retained this.

The witness further said, that on the Sunday night before his death, she told the deceased she had heard the prisoner had told his grandfather about the notes and would make an affidavit of the facts, and she was afraid she would be called on to give evidence in the matter; to which the deceased replied, “he will have to swear soon if he does, for I intend to kill him before Saturday night.” She also stated, that the prisoner and deceased had another quarrel just before his death, when deceased took down his gun, drew a load of small shot and re. loaded it with large shot, and followed after the prisoner towards the woods: that he returned, and said he could not .overtake the prisoner, and that if he had done so, he would have killed him : that, at another time, just before his death, the deceased hid his musket in his blacksmith shop, near his house, as he said, for the purpose of killing the prisoner ; he said he did not want every person to see him carry his gun out. She also said, that the knife, exhibited in Court and spoken of by the witnesses, was the knife of the deceased: that the prisoner was at the house of the deceased on the same day the deceased received his wounds, and they seemed then to be friendly.

This witness also stated, that she was present when the conversation took place between Wilson Tilghman and the deceased, and that she did not hear the language used by the deceased, as stated by Wingate.

Wilson Tilghman was next called by the defence. He said he was the father of the prisoner; that on the fifteenth day of August past, in the afternoon, he went to the house of the witness Wooten, having been sent for by him: that he there found the prisoner, who had a fresh cut through the right hand, which was bleeding profusely : that the prisoner had then lost much blood and seem*527ed to be greatly exhausted :■ that the witness then went to the place in the road referred to by the other witnesses : that they picked up the knife exhibited in Court and it had blood upon it: that this place was about three hundred yards from Wooten’s house, and that the intervening space was unobstructed, so that a child could be seen in Wooten’s house door: that there was a scuffling place in the road between the wallet and puddle of blood, as marked by the road: that the witness walked from this place to the •hog pen, spoken of by the witness, Wilson, in the space of two and a quarter minutes. This witness also said, he was at the house of the deceased the same afternoon just before his death: that he had a conversation with him, and did not hear him make the declarations deposed to by the witness Wingate: that this witness was there at the same time and during the entire time that Wingate was present. This witness also stated, that the deceased seemed addled like a drunken man — his speech was indistinct and thick — he muttered out his words and could not be distinctly understood in every thing he attempted to say.

Several witnesses were then called by the State and defence as to the character of Wilson Tilghman, whose testimony it is deemed unnecessary to report.

The Court, after reciting all the evidence offered in the case, charged the jury, .that before they could convict the prisoner, they must be satisfied of the death of Joseph J. Tilghman: that he was killed by the prisoner, and that the act was done with malice aforethought either expressed or implied : that such malice did not mean simply ill-will or hatred; those passions might or might not characterize such malice as is charged in the bill of Indictment, and which is necessary to constitute the crime of murder : that, if they entertained the opinion from the testimony, that the prisoner, with a previously formed design and fixed will, and an actual and deliberate intention *528to take away the life of the deceased, did kill him, then he would be guilty of murder, for this would be a killing with express malice : that, if they believed the prisoner killed the deceased with a deadly weapon, then the fact implied malice from the very fact of killing, and he would be guilty of murder, unless the inference of malice was repelled by evidence offered by the prisoner, or circumstances arising out of the evidence produced against him, or both combined ; for, in such case the law would infer that he intended the natural consequences of his own act • that a rifle gun, such as described by the witnesses, is what is known in law as a deadly weapon, whether it be. used by shooting a ball therefrom or by striking upon the head with either end of it. If the prisoner, having his rifle gun, sought the deceased with the design of provoking him into a fight, and when engaged in the affray of killing or doing him some great bodily harm, and under these circumstances did kill him, the prisoner would be guilty of murder.

Or if they should be of opinion, that the deceased gave to the prisoner a provocation by assaulting or striking him, and the prisoner retaliated with a weapon greatly more dangerous than the one used by the deceased, or with an excess of force, wholly inadequate to such provocation, then these were circumstances, from which they might infer a wicked, depraved and malignant spirit upon the part of the prisoner, amounting to malice, and by killing the deceased under such circumstances he would be guilty of murder. If the prisoner and deceased engaged in a mutual affray, and while so engaged, the prisoner killed him of passion, he would not be guilty of murder, but of manslaughter only, and this would be the case even though he killed him with his rifle or any other deadly weapon, for such would be a killing without malice ; that if they believed the deceased made an assault upon the prisoner,that there was an actual necessity for the pn„ *529soner to kill the deceased in order to save his own life or prevent some great bodily harm to himself, and, under such circumstances, he killed the deceased, he would not be guilty of any offence, but excused in law; or even if there was an apparent necessity for him to kill the deceased in order to save his own life or to protect himself from some great bodily harm, he would not be guilty.— And by apparent necessity it is meant, that if, irom the character of the weapon used by the deceased and from the manner of his assault, a person of ordinary fears and ordinary apprehensions would be induced to believe it necessary to kill in order to prevent deatli or some great bodily harm, then by killing the deceased, under such circumstances, the prisoner would not be guilty of any of-fence, but would be excused in law.

Here the charge of the Court closed ; when the presiding Judge turned to the defendant’s counsel and asked if (hey desired any other instructions from the Court to the jury. In reply to which, the defendant’s counsel asked the Court to charge the jury, that if they entertained a reasonable doubt of the prisoner’s guilt, they ought to acquit him. Upon which the Court informed the jury, that, before they could convict the prisoner, they should be satisfied beyond a reasonable doubt, that he killed the deceased ; and that, if they should be satisfied beyond such doubt, that the prisoner killed the deceased and with a deadly weapon, then they ought to convict him, unless the prisoner convinced them by his own proofs or circumstances arising out of evidence offered by the State, that he killed in self defence, or that the killing was extenuated from murder to manslaughter ; in which latter case they should find him guilty of manslaughter only; and if the killing thus appeared to be in self-defence, they should return a verdict of not guilty.

The Court again asked the Prosecuting Officer and counsel for the prisoner, if they desired to ask further

*530instructions to the jury ; to which they replied, that they did not.

Whereupon the jury retired; and afterwards returned with a verdict, in which they found the prisoner guilty of murder.

The prisoner’s counsel moved for and obtained a rule for a new trial:

1st. Because the Court admitted improper testimony against the prisoner, after objection.

2nd. Because the Court excluded proper testimony offered by the prisoner.

3rd. Because the Court gave erroneous instructions to the jury.

4th. Because the Court refused proper instructions pray- • ed for.

5th. Because the Court, in summing up, omitted to tell the jury, they ought, to disregard the dying declarations of the deceased, if they thought him insane at the time he made them.

6th. Because there was a separation of the jury and other irregularities practised b}r them, before they returned their verdict.

For these latter reasons the prisoner also contended that there was a mistrial and that he was entitled to a venire de novo. As to the alleged misconduct of the jury, while out and before their verdict was returned, many witnesses were examined, and the following facts appeared to the Court as satisfactorily proved.

The jury was placed in charge of an officer and was confined in the ordinary jury room in the third story of the Court-house in the Town of Newberne : That they retired from the Court on Thursday of the Term at six o’clock P. M. and rendered their verdict at 10 o’clock A. M. on the following Saturday. While out, the members of the jury separated at various times to obey calls of nature. Each one, so separated himself from the others *531more than once for this purpose, and one of them did so as often as six times. When they did this, they went one at a time under charge of an officer, and, during such absence, the other jurors remained together in the jury room with the door locked. They went about fifty yards from the Court House, and returned as soon as practicable, without holding intercourse with any one. And at one time one of the jurors went for the same purpose as far as one hundred and fifty yards from the other jurors. That one Elijah W. Ellis, a juror, separated himself from his fellows and visited a drug store at the distance of one hundred and fifty yards from the jury room. He was sick at the time and went to procure medicine, which he did, and returned without delay to the jury room. He went under the charge of an officer and held no conversation with any one except the keeper of the drug store, who asked him if they had agreed in their verdict, to which he replied, “they had not.” This drug store was in the most public place in the Town of Newberne.

It also appeared, that one Dewey, a juror, separated himself from his fellows and stood on the out side of the jury room, near the door clbsed. and conversed for ten or fifteen minutes with one Richardson, privately.

The subject of conversation did not appear to the Court.

The jurors also ate and drank while out, but not to excess. They did so with the permission of the Court a part of the time, and when enjoined by the Court not to eat or drink, they violated this injunction, contrary to the wishes of the officer, who had them in charge. Several jurors wrote notes and letters and dropped them from the windows of the room, in which they were confined. The contents and the names of the persons to whom these letters were directed, did not appear to the Court. It also appeared, that several jurors received letters from persons not upon the jury. The contents did not appear to the Court.

*532It farther appeared, that some of the jurors conversed from the windows of the jury room with persons in the street on various subjects and about this suit. What was said did not appear. It also appeared that negro servants and some small children of one of the jurors had access to the jury room. The servants entered for the purpose of carrying food and clothing to the jurors, and the children to see their father.

The Court expressed its disapprobation of the irregularities of the jury, but being satisfied, that they were generally men of high character, and that no undue in fluence was brought to bear upon them, but that these irregularities were the results of their long and unpleasant confinement, overruled this and other causes assigned for a new trial, and discharged the rule.

The Court, being further of opinion, that the separation and other irregularities of the jury did not vitiate the verdict, pronounced judgment of death upon the prisoner.

From which judgment, the prisoner prayed an appeal to the Supreme Court, which was granted.

Attorney General, for the State.

J W. Bryan, for the defendant,

submitted the following argument:

In order to warrant the admission of dying or death bed declarations it must be shewn in the first place, that the declaration was made under an apprehension of impend ing death; and this seems to be the only instance in which such evidence is admissible against a prisoner, who has not had the power to cross examine — an anomaly, which in itself calls for great caution and circumspection in the use and application of such evidence. To enable these testimonies to be given in evidence, they must be made when the party is not only in actual danger of death, but when he is aware of the cir *533cumstances in which he is placed and impressed with a sense of speedy dissolution. 1 Chitty Coin. Law 569, 1 Leach 503,1 East P. C. 353. But if at the time of making the declaration the party had reasonable prospects and hope of life, such declaration ought not to be received. State v. Moody, 2 Hay. R. 31. The case states that the wife of the deceased told the deceased, she thought if the blood could be stopped he would recover yet, when he told her to stop the blood — that she did stop the blood and told him, she thought he would recover and yet live longer than she would, and he replied “save me if you can.” There is no evidence that any declaration, charging the prisoner with the commission of the act, was made by the deceased before this assurance was given him by his wife, that he would recover; on the contrary, all the declarations of the deceased to that effect, were made afterwards. Such declarations are not admissible in evidence. Rex v. Mostly,Jl Moody Crim. cases 101. Ib. Eng. Crown Cases 101. In Rex v. Crockett, 19 Eng. Com. L. Rep. 418, a person who was told by the Surgeon, that she would never recover, said, that she “hoped he would do what he could for her for the sake of her family.” He again told her that there was no chance of her recovery. Held that this shewed such a degree of hope in her mind, as to render a statement, she then made, inadmissible, as a declaration, in articulo mortis. And Bosanquet, Justice, before whom the case was tried, declared “this will not do, I must strike the whole of this evidence out of my notes.” In Rex v. Haywood. 25 Eng C. L. R. 331, 6 Carr and Payne, 137, it is held that any hope of recovery, however slight, existing in the mind of the deceased, at the time of his making a declaration, will render it inadmissible as a declaration in articulo mortis. In Rex v. Fa gent 7 Carr & Payne 23S, 32 Eng. C. L. R. 501., if a person, whose death is the subject of a charge of man* slaughter, express an opinion that she shall not recover, *534and make a declaration, and at a subsequent part of the same day, asks a person whether he thinks she will “rise again.” Held that this showed such a hope of recovery, as rendered the person's declaration inadmissible. 33 Eng. C. L. R. 168, 172. In Christie's Case, O. B. 1821» Carr Supp. C. L, 202, the deceased asked his Surgeon if the wound was necessarily mortal, and on being told that a recovery was just possible, and that there had been an instance, where a person had recovered from such a wound, replied, “I am satisfied,” and after this made a statement; it was held by Abbott, C. J., and Park, J., to be inadmissible as a declaration in articulo mortis, since it did not appear that the deceased thought himself at the point of death; for being told that the wound was not necessarily mortal, he might still have had a hope of recovery. Roscoe’s Crim.Eo. 26. The mere fact'that a person receiving his mortal wound, was heard to cry out, “0 my people,” is not alone sufficient evidence of the expectation of immediate death to authorize the admission- of his declarations. Lewis v. State, 9 S. and M. 115. The twice repeated expression by the deceased, of “save me if you can,” was held rather to manifest a desire to live, than a hope that he would recover — this distinction between desire and hope adopted, and recognized by the learned Judge, as the ground and inference, for the admissibility of this testimony, would seem to be one without much, if any difference, and would be but an increase of the harshness of the rule making such declarations evidence and aggravate the anomaly of its character. Who is there that has not felt in desire, what the wise man said of hope, (which is not much different from it,) that it being deferred maketh the heart sick, and that, still proportionable to the greatness of the desire. Locke Hum. Understanding, B. 11, C. 21. Hope is the encouragement given to desire. Cogan on the Passions, C. 2, S. 3 And desire is that sensation excited in the mind, by the view, or by the con-*535tcmplation of any desirable good, which is not in our possession, which we are solicitous to obtain, and of which the attainment appears at least possible, lb. Pt. 1 C. 2,S. 3. The opinion too of the witness, as to the belief of the deceased that he would not die, was admissible. McKee v. Nelson, 4 Cow. 355. 1 Leach Cr. Law, 503. 1 East C. L. 359, 360. Trelawny v. Colman, 2 Starkie R. 191.

2nd; Although, as a general rule.it is true, that it is the province of the Judge and not of the jury to determine whether the circumstances, under which the declarations were made, are admissible in evidence, yet the jury are to judge of them and of their weight, as of all other testimony, and ought so to have been instructed by the Court. The Court in this instance left nothing upon this part of the case to the jury, but determined both upon the admissibility and weight of the evidence, and the sanity of the deceased at the time the declarations were made. I Greenleaf on Ev 207. Rex v. Woodcock, 2 Leach Cr. Cases, 503. Phil. & Am. on Ev. 30-1. Vass’s Case, 3 Leigh. R 794. Commonwealth v. Murray, 2 Ashmead 41. Commonwealth v. Williams, 2 Ashmead 69. 1 U. S. Digest Evid. 694. See also the remarks of Mr. Evans, 2 Poth. on Oblig.256,(294,) App. No. 16, who thinks that the jury should be directed previous to considering the effect of the evidence to determine — 1st. Whether the deceased was really in such circumstances, or used such expressions, from which the apprehension in question was inferred ; 2nd. Whether the inference, deduced from such circumstances or expressions is correct; 3rd. Whether the deceased did make the declarations alleged against the accused ; and 4lh. Whether those declarations are to be admitted, as sincere and accurate Trant’s case, Mc-Nally’s Ev. 385. White v. White, 4 Dev. R. 257. Sneed v. Creath, 1 Hawks R. 309.

3rd. This case discloses the lacts that after the jury were charged and whilst they were deliberating upon their ver-*536diet, they repeatedly separated from each other; one juror left the jury room and stood outside near the door, but with the door closed, and conversed for ten or fifteen minutes with a stranger ; the jury ate and drank with the permission of the Court a part of the time, and when enjoined by the Court not todo so, violated this injunction contrary to the wishes of the officer, who had them in charge ; a correspondence by means of letters was had and kept up by and between the jurors and persons out of doors not members of the jury ; conversations were also had and held from the windows of the jury room, with persons in the street, on various subjects and about this suit, and servants and children were admitted into the jury room.

After the evidence has been heard and the jury retire to consider of their verdict, the oath administered to the officer, who is sworn to keep them, is as follows: You shall swear that you shall keep this jury without meat, drink, fire or candles; you shall suffer none to speak to them, neither shall you speak to them yourself (not adding the words, touching any matter relative to this trial, as in 6 T. R. 530-1, et supra,) but only to ask them, whether they are agreed. So help you God. Dalt. c. 185; 2 Hale 296; Dick, Bess. 223; Bac, Ab. Junes, G., 1 Chitty C. L. 632. Accordingly in Com. Dig. tit. Enquest F„ it is laid down, that after the evidence given, the jury ought to continue together till they agree on their verdict, without eating, drinking, fire or candle, or speaking with any one, except the bailiff to know if they be agreed. C'o. Lift. 227, B. 3. Just. 29, pi. 13. 15 Hen. 7, 1, 2. If a great tempest happens, the jury may depart from the place, where they arc to consider of their verdict. So if a sudden affray happens, or if the house be upon the point of falling. Yin Ab tit. T' ial G. ; 4 Cites Bro. Verdict pi. 19; 14 Hen. 7, 29 ; Per Redc} Davers & Tremaile Bro, Jurors pi 13 S. C. The same law seems to be of fire *537upon ibe house. Ib. Vin. Ab. Trial (G. g 4.) So in Co• myn’s Dig. til. Enquest F.-, if the jury separate on account of a great tempest, they shall not he amerced. (Plowd■ 13 b. 15 Hen 7, 1 b. 14 Hen. 7, 30.) In 4 Blue. Coni' 360, it is said that when the evidence on both sides is closed, and indeed when any evidence is given, the jury cannot be discharged unless in cases of evident necessity; (Co. Lilt. 227 3 Just.. 110. Fost. 27. Gould’s case, Hill 1764) till they have given in their verdict, but are to consider of it, and deliver it in, with the same forms, as upon civil cases, only, they cannot, in a criminal caso, which touches life, or member, give a privy verdict. Bui the Judges may adjourn, while the jury are withdrawn to confer, and return to receive the verdict in open Court.— Jn Bul. ni. pri. 308, it is said, an officer of the Court ought always to be placed at the door of the box, where the jury sit, to prevent any one from having communication with them ; and when they depart from the bar, they are to be attended by a bailiff, sworn lor that purpose. In the King v. Wolf et. al., 1 Chitty’s Rep, 401, which was an indictment for a conspiracy, Cor. Abbott, C. J„ the trial being unfinished the first day, Abbott informed the jury that they might retire at night to their families, but warned them not to have any communication with any person, touching, or concerning the matter in issue. They retired accordingly, and the next morning they assembled again and the case being concluded, on that day, they found the defendants guilty. The defendants and their attornies were ignorant of such separation and retirement, until after they had formed their verdict. On motion to set aside this verdict, the cases were fully gone into by four counsel for the defendants ; and they cite! J^ord Delaweres case, 4 Harg. Lt. Tr. 232, 1 Jac. 2, A. D. 168, and Kelyng 50, where it is said by all the Judges (on a question whether the Court could allow the jury lose* •parale,) “the jury being once charged, can never be dis»*538charged, till they have found their vervict; this is clear ; and the reason of that is, for /ear of corruption and tampering with the juty. An officer is sworn to keep the jury, without permitting them to separate, or any one to converse with them, for no man knows what may happen; for though the law requires honest men should be returned upon juries, and without a known objection, they are presumed to be probi et legales homines; yet they are weak men, and perhaps may be wrought upon by undut influence.” The Judges were unanimous in refusing the tule and delivered their opinions seriatim, Abbott, C. J, saying, I am of. opinion that in case of a misdemeanor, then dispersion does not vitiate the verdict. In the ease of the King v. Stone, A. I). 171)0, 6 T, R. 530, which was an indictment for high treason, the Court having set on the-first day of the trial, from nine o’clock in the morning, till ten o'clock at night, without any intervention or refreshment, and the Attorney General stating that his evidence would occupy four hours more, and some of the jury being very much exhausted, and incapable, as they declared, of keeping up their attention much longer, the Court adjourned till nine o’clock the next morning, Lord Kenyon observing that necessity justified what it compelled; and though it was left to modern times, to bring forward cases of such extraordinary length, yet no rule could compeHho Court to continue their setting longer than their natural powers would enable them, to do the business of it. The jury retired to an adjoining tavern, where accommodations were prepared for them, and the bailiffs were sworn “well and truly to keep the jury, and neither to speak to them themselves, nor suffer any other person to speak to Ihem, touching any matter relative to this trial.” The entry of the adjournment was in the fallowing form :— Thursday next after, &c. Forasmuch as it appears to the Court here, from the length of time, which has already been occupied by the trial of the issue joined upon this *539indictment, and tbe further lime which will be necessarily occupied by the same, that justice cannot be done, if this Court proceed without intermission upon the said trial : It is ordered that the jury empannelled and sworn to try the said issue, have leave to withdraw from the bar of this Court, being well and truly kept by six bailiffs, duly sworn not to permit any person to speak to them touching any matter relative to the trial of this issue, and that the same jury shall again come to the bar of this Court, on the morrow, at nine o’clock in the forenoon. And it is further ordered thafcthe prisoner be again brought, &c.— In Bro Ab. tit. Verd. 17, 21 Ed. 3, 24, the jury were sworn and committed to the care oí the sheriff, and when the justices would have taken the verdict, certain persons deposed, that victuals and drink were brought to the jury, after their charge, and that they were suffered to go out, for which reasons the justices refused to take their verdict, because it was suspicious; and complaint was made of this to the King, by bill, which he indorsed to the justices of Banco Regis, to do right and reason , and the under-sheriff by his servant, confessed that he permitted them to go at large, and because this appeared of record, as his misdemeanor, and he was an officer, a capias was awarded against him ; and because, their going at large, and victuals and drink being carried to them, was only a surmise, a venire facias was awarded against the jury and the trespassers, and between the parties, a venire facias de novo ' was awarded. Where there has been an improper separation during the trial, if the verdict is against the prisoner, he is entitled to the benefit of a presumption, that the irregularity has been prejudicial to him ; and the burthen of proof is upon the government to shew beyond a reasonable doubt, that the prisoner has suffered no injury, by reason of the separation. If the government fails in this, the verdict will be set aside. State v, Rescott, 7 N. Hamp. 2S7; where a *540part of a jury in a capital case, which lasted several days, frequently separated themselves from their fellow jurors at night, for fifteen or twenty minutes at a time, without being under charge of an officer, it was held that this was such an irregularity as vitiated their verdict. And it is not necessary for the prisoner in such case, to prove that the jurors have been tampered with — it is sufficient if they might have been. McLain v. State, 10 Yerger, 211. In McLean v. The State it is held that in capital cases, the jury after being sworn, should not be permitted to separate, until they have renderd their verdict, and if permitted so to separate, the judgment will be re^ versed. 8 Mis. 153.

In Smith v. Thompson, 1 Cowen R. 221 ; Where two Jurors (after the jury retired to consider of the verdict) separated from their fellows, and were gone some hours, but returned, and joined in the verdict, the Court refused to set aside the verdict, there appearing to have been no probability of abuse. In Hoi ton v. Horton, 2 Cowen R. Sail, the jury agreed upon their verdict, while the Court were at dinner, and without the consent, or knowledge of either party, dispersed, and obtained their own dinners and returned into Court at the opening thereof, and upon a motion to set aside the verdict, it was held that if the slightest suspicion had appeared that the privilege which the jury had taken, had been abused to the injury of the party the verdict should be set aside, but none such was shown or was insinuated. In the People v. Douglass, 4 Cowens R. 20, a jury impannelled to try a prisoner, upon an indictment for murder, were allowed to leave ihe Court-House, during the trial, under the charge of two constables ; and having left the Court-House, two of them separated from their fellows, went to their lodgings, a distance of thirty rods, ate cakes, took some of them on their return, and drank spirituous liquors, though not en- < ugh to affect them in the least, and one of them con*541versed on the subject of the trial; they returned, heard the trial through, and joined in a verdict of guilty. Held, lhat the verdict should be set aside, and a new trial granted. And although the mere separation of the jury contrary to the directions of the Court will not of itself be a sufficient cause for setting aside the verdict, yet if there be the least suspicion of abuse, the verdict should be set aside ;et vide Jar nag an v. State, 10, Yerger 529. So when a juror, after the cause was committed to the jury, drank brandy, though in a trifling quantity and as he stated to cure the diarrhea, it was held that the verdict should be set aside, Brant v. Fowler, 7 Cowen R. 562, And in this case the Court observed : “We cannot allow jurors thus of their own head, to drink spirituous liquor, while engaged in the course of a cause. We are satisfied, that here has been no mischief; but the rule is absolute, and does not meddle with consequences. Nor should exceptions be multiplied. We have set aside verdicts on error, for this cause, even where the parties consented that the jury should drink.” So where the jury procured their separation, by pretending to the constable that they had agreed upon a sealed verdict, when in truth they had not; and conversations out of doors were afterwards carried on in the presence of some of them, relative to the suit, by persons not on the jury; and on assembling, they, were sent out again, though this was objected to by the plaintiff; and then they returned with a verdict for the defendant; it was held that the verdict should be set aside. Oliver v. Trastees of Springfield, 5 Cowen R. 2S3. In Beebee v. The People, 5 Hill’s R. 32, which was an indictment for Maliciously maiming a horse, in the course of the trial the prosecutor having failed to procure the attendance of one Dutton, whose deposition had been taken before the committing magistrate, it was proposed by the prisoner’s counsel to admit the deposition to be read in evidence, provided time were allowed him to obtain wit*542nesses, in order to shew Dutton’s incompetency, for want of religious belief. This was agreed to by the prosecutor, and the trial was accordingly suspended for three days. In the meantime the jury were allowed to separate, having been previously admonished by the Couit, however, not to converse with any one in relation to the case. At the expiration of three days, the Court and jury convened, and the trial proceeded. Nelsox, C. J., in delivering the opinion of the Court, remarks, ‘fin respect of the delay of the trial and separation of the jury in the meantime, it is not for the prisoner to take advantage of the irregularity, if it be such, as the indulgence was granted on his application, and for his benefit. Still, if it had appeared that any of the jurymen, while thus separated, were tampered with, had held improper conversation in respect to the complaint, or in any way misbehaved themselves, or abused the indulgence .of the Court, we should feel it our duty' to in. terfere and quash the proceedings. Rut I do not find the slightest imputation against them. For aught that ap, pears, they observed strictly the admonition of the Court to hold no conversation during the interim about the com ■ plaint.” In the important case of the Commonwealth v. John McCaul, Virginia Cases 271, the prisoner was-in. dieted for grand larceny, and the trial continued four days; on each of which the Court adjourned for about two hours, giving orders, that in the meantime, the jury should be kept together, in a room by themselves, where they were allowed refreshments. On their way to the jury room, at the second adjournment, one of the jurors having been unexpectedly sworn on the jury, separated from his fellows for about twenty minutes, to attend to some necessary business. His pretence was that he wfished to dine at home; his departure vras opposed by the sheriff, who admonished him not to do so, and took hold of his arm to prevent him. The juror stated that he believed the Court at that time did not instruct the$jury *543to remain together; and he understood the design of the adjournment was with the view, that the jury might obtain some refreshment. He ate his dinner at his boarding house and returned. Several persons asked him if the trial of McCaul had ended, to which he answered in the negative, but he had (as he stated) no further conversations with any one on the subject of the trial; denied that he had been practised with, and no abuse appeared. Another juryman was absent a few minutes, on a visit to a sick child, (this was the morning of the second day of the trial) with an officer, from whom he was separated about five minutes, on going in his chamber to see his child. Verdict of guilty. On moving to set aside this verdict, Mr. Wirt, for the prisoner, defied the Attorney General to produce a single case of life and death, in which a verdict was allowed to stand, after a separation of the jury. And Mr. Nicholas, the Attorney General, said that Mr. Wirt could not produce a single case from the English books, in which the separation of one juryman from his fellows was sufficient to set aside the verdict. A majority of the Court were of opinion that actual tampering, or conversation on the subject of the trial with a juryman was not necessary to set aside the verdict. And per Nbu sou, J , (who delivered the opinion of the Court) “from the mode in which collusion and tampering is generally carried on, such circumstance is generally known to no person, except the one tampering, and the person tampered with, or the persons between whom a conversation may be held, which might influence the verdict. If you question either of these persons on the subject he must criminate, or declare himself innocent, and you lay before him an inducement not to give correct testimony. The old rule was that the jury on no occasion, should separate. I mentioned (though it was with difficulty that the rule has been at all relaxed) that it is relaxed only in cases of imperious, or perhaps of unavoidable necessity. But by *544allowing that a jury may separate without necessity and that their verdict should stand, unless the party accused, who, in these cases is in the custody of law, can shew that the jury not only have separated, but that they,or a member of it, has also been tampered with, or held communication cn the subject; this great barrier against oppression may gradually be sapped and undermined, and the bulwark cannot long remain. Such a precedent would be productive of evils incalculable, and too great for the Court, by its decision, to allow a door to be opened for them. Every danger, and particularly in such a case as this, should be watched and opposed in the beginning.— The Court will preserve “with fear and jealousy,” and will not expose the trial by jury in criminal cases, to such risks of contamination, as arises from the affidavits in this case. If the Court hath without necessity, suffered a juryman to go home without an officer (which it would never do) it would vitiate the verdict. There is as much danger from a juryman’s separating, without the act of Court, as if it had been done by such act. Although there might, and probably was, no tampering with any juryman in this case, yet in a free country, in deciding in a particular case, the decision is to be according to general principles as applied to that case; and more good will arise from preserving the sacred principle, involved in this case, than evil from granting a new trial, although in this individual instance, a verdict has probably been given by twelve men, in fact, unbiased by the separation.” And Chief Justice Shaw, in the case of the Commonwealth v. Roby, 12 Pickering R. 519, commenting upon this (Mc-Caul’s) case, remarks, that “it is manifest that by such separation, the jurors might be thus exposed,” and in his review of the authorities upon this subject, concludeshis very able opinion with the remark : “The result of the authorities is, that where there is any irregularity which may affect the impartiality of the vroceedings, as when *545meat and drink have been furnished by a party, or where the jury have been exposed to the effect of such influence, as where they have improperly separated themselves, or have had communications not authorized; then inasmuch as there can be no certainty, that the verdict has not been improperly influenced, the proper and appropriate mode of correction and relief is by undoing, what is thus improperly and may be, corruptly done — or where the irregularity consists in doing that, which may disqualify the jurors for proper deliberation, and exercise of their reason and judgment, as where ardent spirits are introduced; there it would be proper to set aside the verdict, because no reliance can be placed on its purity and correctness.” In Carstapher’s case, 2 Ha}'. R. 238, which was an indictment for perjury, the Judge retired for a few' minutes, and two of the jurors also retired, without leave, and without an officer, and returned again. The jury found the prisoner guilty ; and upon a motion to set the verdict aside, it was held per Hall, J., “If it shall appear upon the affidavit of the jurors, that they did not speak with any person in their absence, the verdict ought not to be set aside.” And this afterwards appearing, the motion was not further pressed. It would seem that if the contrary had appeared, the learned Judge would have deemed it sufficient cause, to set aside the verdict; and per Gaston, J., in Miller’s case, 1 Dev. & Bat. 52S, “I believe I may lay it down as an universal rule, that there is no instance in England, either in ancient or modern times, in which such a dispersion (of the jury) is permitted, on a trial'for a capital offence, and for that very reason it follows, that such a dispersion must yet be deemed unlawfuland per Washington, J., in the U. States v. Haskell & Francois, 4 Wash. Cr. Ct. Rep. 402, during a trial for a capital offence, the jury, after the adjournment from day to day, previous to the charge, may take refreshments, but not afterwards.— Whilst these decisions embrace the leading authorities. *546both in this Country and in England, they would seem not to be entirely in accordance with that of the State v. Miller, 1 Dev. & Bat. 500, in this Court. In that case it was assumed, that upon the coming into Court of the jury, who had been permitted to retire in charge of an officer, upon the closing of the testimony and before, the charge of the Judge, only eleven of the body appeart d, but in less than two minutes, the other juror, whose name was third upon the list, and who did not answer when called, returned into the Court House, and the Court relusing to grant a new trial on account of this dispersion of the jury, the prisoner offered to prove, that white this juror was thus absent from the body of the jury, he went to a store at the distance of one hundred, or one hundred and twenty yards from the Court House, and in view of it, to get a drink of spirits ; this evidence the Court below refused to receive and the jury having found the prisoner guilty, judgment of death was pronounced upon the prisoner. — ■ The absent juror stated that when he separated himself from the jury, he was obliged to step aside to obey a call of nature, and it was in proof that the place to which he went was about seventy or eighty yards from the Court House, but was out of the way and retired. This Court* then constituted of Ruffin, C. J., Daniei, and Gaston, Judges,differed essentially in opinion, but mainly upon the legal effect and operation of the separation of a jury in a capital case — the two former holding misconduct in a juror in a capital ease, as a separation from his fellows, or eating or drinking without the permission of the Court, before delivering their verdict, to be a reason for applying to the discretion of the Judge in the Court below for a new trial, and not to render the verdict a nullity, and a venire de, novo proper — and the latter, that any unauthorized and unexplained separation of a jury from his felloSvs, in a capital case, inlaw vitiates the verdict, and a venire dc novo should be awarded. Minor irregulari *547 ties are ground for a new trial addressed to the discretion of the Judge, who presided at the trial. Whilst it is always with diffidence and distrust that counsel press upon the Judges a review of their opinions, it cannot but afford them pleasure, to have an opportunity critically to re-examine the grounds by which they "have come to judgment.”

It is true, that new trials are within the discretion of the Judge, but this discretion means, not the whim of a Judge but a. legal discretion; it is his duty discernere per legem quid sitjustum, and there must be a legal rule, for the gov-vernment of this discretion, otherwise jus est vagum. The discretion of a Judge is said to be the law of tyrants ; it is always unknown; it is different in different men; it is casual anddepends upon constitution, temper and passion. In the best, it is oftentimes caprice; in the worst, it is every vice, folly and passion, to which human nature is liable. The discretion, therefore, to.give assurance of certainty and integrity in the administration of justice, must be a legal discretion, regulated by known and fixed rules and principles. And of this opinion was Lord Mansfield in Crisp v. Eynon 1 Burr. 390, where he adopts this principle, and in support of his judgment cites the quaint case of Wood v. Gunston, Michaelmas 1655, Banc. Sup. Style 486, which was an action on the case for speaking slan< derous words, and upon a verdict for the plaintiff the defendant having moved for a new trial, Glynn, Chief Justice said. "It was in the discretion of the Court, in some cases to grant a new trial, but this must be a judicial discretion, and not an arbitrary discretion. And it is frequent in our books for the Court to take notice of the miscarriages cf juries and grant new trials upon them. And it is for the people’s benefit that it should be so: for a jury may sometimes, by indirect dealings, be moved to side with one party and not to be indifferent betwixt them, but it cannot be so intended of the Court.” And in the *548same case Mr, Justice Denison concurred, and said it would be difficult perhaps to fix an absolutely general rule about granting new trials, without making so many exceptions to it, as might rather tend to darken the matter than to explain it; but the granting anew trial, or refusing it, must depend upon the legal discretion of the Court, guided by the nature and circumstances of the particular case, and directed with a view to the attain1 ment of justice. Mr. Justice Foster also remarked, that the question “depending on a variety of circumstances, is matter of legal discretion.” And it would seem that in this Court the same doctrine would be held, State Bank v. Hunter, 1 Dev. 100. If attaints and the doctrine of mistrials furnished in the earlier history of law the only method of redress, and they have been succeeded by the modern practice of granting new trials, as affording a readier, and easer, and more just method of redress, that fact of itself furnishes, a conclusive reason, why, in criminal trials especially, the authority of granting a new trial should be kept and exercised, under positive rules of law, and not left under the patronage and uncertain discretion of its ministers. The writ of attaint lieth to inquire whether a jury of twelve men gave a false verdict; Finch 484. And a jury may be attainted in twro ways — 1st. where they find contrary evidence; 2nd. where they find out of the compass of the allegata. But to attaint them for finding contrary to evidence, is not easy, because they may have evdence of their own conusance of the matter by them, or they may find upon distrust of the witnesses, or their own proper knowedge ; but if they find upon evidence, that does not prove the allegata, there it s easy to subject them to an attaint, because it is manifest, that what is so found, is an evidence not corresponding to their issue ; and this was the only curb they had over the jurors: for the Judge being the best master of the «i* legata, if they did not follow his direction, touching the *549proof, they were then liable fo the danger of an attaint: and therefore since the Judges from the difficulty of at-tainting the jury, have granted new trials, whereby jurors having been freed from the fear of attaints, they have taken a great liberty in giving verdicts. Gilb. II. C. B. 128. And even if the verdict be notoriously wrong and find the prisoner guilty, it could only be set aside by attaint of the King, but not at the suit of the prisoner. 2 Hal. P. C. 310. 4 Bl. Com. 861. Formerly the only remedy for the reversal of a verdict unduly given, was by writ of attaint, which is at least as old as the institution of the grand assise by Hen. II, in lieu of the Norman trial by battel, but this is now abolished by 6 Geo. IV, c. 50. A mistrial on the other hand, is an erroneous trial on account of some defect in the persons trying, as if the jury come from the wrong County; or because there was no issue formed, as if no plea be entered ; or some other defect of jurisdiction. 3 Cro 284. Hob 5. 2 M. <§• S. 270. Both of these remedies would seem to be applicable to breaches of those positive rules, which the law has established. in order to establish a fair, unbiased and impartial trial. A venire de novo is as ancient as the law, when at-taints were in use, and as the judgment in attaint was very severe and the punishment excessively hard, to avoid that severity, it was thought better to proceed in a milder way, and neiv trials were introduced. The more modern practice hath declared that the former must be for matters apparently on the record, and is of tight. The latter may be for matter not appearing on the record, and is addressed to the discretion of the Court. The former is matter of error, and must be noticed by the appellate Court; the latter is ordinarily not matter of error, nor else, where examinable, in this case the conduct of the jury, as appears by the record, was a breach of those positive rules prescribed by the law, to secure a fair, unLiased and impartial trial, and the law therefore annuls and vacates *550the verdict. And in Miller's case, 1 Dev. & Bat. 512, the Court declare that they do not contend, that there may not be flagrant cases of misconduct during the separation of the jury, which ought to annul their verdict. Every one sees and feels that there is something unusual and unprecedented in this proceeding' — if not wrong. And as Mr. Justice Blackstonk remarks, “next to doing right, the great object in the administration of public justice, should be to give public satisfaction. If the verdict, be liable to many objections and doubts in the opinion of his counsel, or even in the opinion of bystanders, no party would go away satisfied, unless he had a prospect of reviewing it. Such doubts would with him be decisive ; he would ar< raign the determination as manifest, and abhor a tribunal which he imagined had done him an injury without a possibility of redress.” 3 Blac. Com. 391.

Dying declarations are excluded in evidence in this State, by the provisions of the seventh section of the Bill of Rights. “In all criminal prosecutions, every man has a right to be informed of the accusation against him and to confront the accusers and witnesses with other testimony.” If therefore the dying man be regarded as a witness, or accuser, the admissibility of his declarations precludes the possibility on the part of the accused, of confronting the accuser and witness with other testimony. The relaxation of the ancient rule of law denying to prisoners the right to have witnesses sworn in their behalf, and allowing them that privilege, is but an assertion of this principle which is secured to the citizen not only by our Bill of Rights, but also by the sixth article of the Amendments to the Constitution of the United States, which declares that “in all criminal prosecutions the accused'shall enjoy the right to be confronted with the witnesses against him.”

*551Pearson, J.

We have considered the several questions presented by the case as made up by his Honor, and have come to the conclusion that there is no error.

The first exception is untenable. The condition of the deceased was such as to make his declarations, competent evidence, as “dying declarations.” It is not necessary, that the person should be in articulo mortis, (the very act’ of dying ;) it is sufficient if he be under the apprehension ! of impending dissolution ; when all motive for concealment or falsehood is presumed to be absent, and the party is in a position as solemn, as if an oath had been administered. The evidence was competent. The degree of credit to which it was entitled, was a matter for the jury; it was liable to be impeached, like the testimony of a sworn witness; and the jury were at liberty to give it more or less weight, as from the conduct of the witnessi and the attending circumstances, they might suppose him to be more or less impressed by the obligation of his oath or the solemnity of the condition in which he stood.

- The second exception, because of the rejection of the opinion of the wife of the deceased, that “she thought, the deceased thought, ho would not die from the wounds,” is also untenable. A witness is allowed to give his opinion as to the sanity of one at the time he made his will: or as to theafFectionof a wife towards her husband, viz: whether she loved him or not; because a witness may have acquired a knowledge of the fact, from a thousand little circumstances accruing at different times which it is not possible to communicate; but the matter to which our attention is now directed is not of that character.— What the deceased thought of his condition, was to be judged of by the state of his wounds, and what he then and there said and did. These circumstances it was in the power of the witness to communicate to the Court; and the Judge did right, requiring her to do so, whereby he was enabled to form an opinion, instead of allowing *552the witness to form one for him. Upon the third ground of exception, the prisoner has no right to complain. The Judge, perhaps, entered more largely into the discussion of the law of homicide, than the facts of the case called for, but he confined himself to the announcement of well settled principles, except in one instance ; there he erred ig favor of the prisoner. In this he held, that if the deceased at the time he first made his declaration, was in a condition to make the evidence competent, but afterwards got better for a short time, and then had hopes of recovery, this would make the prior declaration incompetent.— This cannot be law. We presume his Honor was misled by a misapprehension of Rex v. Faquet, 32 E. C. L. 501, where it is said, that a subsequent hope may reflect back to the time of a prior declaration, so as to show that the deceased was not in fact in a condition to make his; declarations competent. But this falls very far short of supporting the position, that, if, at the prior date the deceased was in fact in a condition to make his declarations competent, a hope of recovery at a subsequent time would make that incompetent which was before competent.

The fourth exception has been fully considered in treating of the third.

The fifth exception, for an omission to charge, cannot be entertained, because the point was not made during the trial, and at the close of the charge, the counsel on both sides expressly stated, they desired no further instructions to the jury.

The last ground of exception, because of the irregularity and misconduct of the jurjq is the only one upon which we have had much difficulty. Perhaps it would have been well, had his Honor in his discretion, set aside the verdict and given a new trial, asa rebuke to the jury and an assertion of the principle, that, trials must not only be fair, hut above suspicion. This, however, was a matter of discretion, which we have no right to reverse. Our en-*553quiry is, was the misconduct and irregularity such as to vitiate the verdict, to make it in law, null and void, and no verdict ?

In the consideration of this question, we have had oe.ca* sion to review State v. Miller, 1 Dev. & Bat. 500, and it seems to us, that the decisions of the Court and the dis* tinction between cause fora new trial, which is a matter of discretion, and cause for a mistrial, which is a matter of law, is fully sustained by authority and by reason.— The eminent talent of Juge Gaston, in a long and la-boured opinion, was exerted on the other side of the ques* tion But his argument fails in this ; he does not give due weight to the fact, that, according to the modern practice, the presiding Judge, in favorem vitae, has a dis* cretion to give the prisoner a new trial, when suspicion is put upon the conduct of the jury, and although evidently oppressed by the position, that if such irregularity works a mistrial so as to make no verdict, a prisoner acquitted may again be put on trial, he attempts to escape the conclusion by a denial of the truth of the position, which is not supported by authority or by any sufficient reason.

We wish not to be understood, as disclaiming a right to grant a venire de novo, when it is made to appear on the record, that there has not been a fair trial; on the contrary, we assert that right whether it is to be exercised for or against the prisoner. We take this plainposition ; if the circumstances are such as merely to put suspicion on the verdict, by showing, not that there was, but that there might have been undue influence brought to bear on the jury, because there was opportunity and a chance for it — it is a matter within the discretion of the presiding Judge. But if the fact be that .undue influence was brought to bear on the jury, as if they were fed at the charge of the prosecutor or of the prisoner, or if they be -solicited and advised how their verdict should be, or if they have other evidence than that which was offered ©:i *554the trial, in ail such eases, there has in contemplation of .law been no trial; and this Court, as a matter of law, will direct a trial to be bad, whether the former proceeding purports to have acquitted or convicted the prisoner.

In the argument, the prisoner’s counsel assumed the positron, that dying declarations are excluded as evidence in our State, by the provision of the 7th sec. of the Bill of Rights: “In all criminal prosecutions, every man has a right to be informed of the accusation against him, and to confront the accusers and witnesses with other testimony.” We do not feel the force of the argument. The witness who proved what the dying man said, may be confronted with “other testimony,” and the case is exactly the same as that of a witness who proves that the prisoner executed a certain deed, or wrote a certain letter, whereupon the deed or the letter is received as evidence against him.— This section of the Bill of Rights was aimed at the old practice, by which prisoners were not allowed to have witnesses sworn on their behalf, and the testimony came altogether on the part of the crown. Our ancestors did not intend to deny the rule of evidence, as to dying declarations, but to assert that, in criminal prosecutions, prisoners ought to be allowed to have witnesses in their behalf, sworn and examined.

There is no error.

Per Curiam. Ordered to be certified accordingly.