State Dula.

the prisoner came there, leaned over her, and had a whispered conversation with her.

The hypothesis of the State was that the grave was dug on Thursday or Thursday night, and the deceased killed on Friday or Friday night; and that the motive was the communication of the disease.

On motion by the State, the court held that the above circumstances were sufficient to authorize the introduction of Ann Melton's acts and declarations in furtherance of the common design; cautioning the jury at the same time that this decision was to have no weight with them as to the prisoner's guilt or innocence.

To this decision the prisoner excepted; as he did specially to the Court's hearing evidence, whilst taking information upon that point, as to the message sent by the little girl.

Evidence was admitted that Laura Foster had said to a witness, whilst riding in the direction of the Bates' place, that she was going to that place. To this the prisoner had excepted, and at a subsequent stage of the trial the State agreed that it should not be considered as in evidence; and the court thereupon, in charging the jury, told them not to regard it. The prisoner complained of the admission as calculated to prejudice him before the jury.

One Eliza Anderson, (a white woman,) a witness for the State, was asked upon cross examination, if she was related to John Anderson, (a man of color,) and the object of this question was stated to be, her disparagement or discredit. Upon objection the question was ruled out.

Verdict, guilty; Rule for a New Trial discharged; Judgment, and Appeal.

Vance for the prisoner.

Attorney General, Boyden and Clement, contra.

State v. Dula.

PEARSON, C. J. The case, as it now comes up, presents but few points, and no one of them calls for much discussion.

1st. On the argument, the point made upon the evidence offered to the court as preliminary to the admissibility of the acts and declarations of Ann Melton in evidence to the

jury against the prisoner, was treated as if the question before this court was in regard to the sufficiency of the evidence to establish the fact of an agreement between Ann Melton and the prisoner to compass the death of Laura Foster; whereas, this court is confined to the question—was there any evidence tending to establish the fact? If so, his Honor's decision, as to its sufficiency, was upon a question of fact, which we cannot review. Looking at it in this point of view, it must be conceded that the point is against the prisoner.

2d. "His Honor erred in receiving as evidence to himself, the declaration of Ann Melton, to wit: the message and instructions given by her to the little girl sent by her to the prisoner." It does not appear on the record that this evidence was objected to as inadmissible. But, suppose it was objected to, we are of opinion that it was admissible on the ground that, although naked declarations of one are not admissible against the other, to show an agency or an agreement, yet this was not a naked declaration, like an admission or confession, but was a part of the act and indeed, the most important part of it.

3d. "The words used by Laura Foster ought not to have been received as evidence." We think that the evidence was admissible as a part of the act. us when the case was up before.

It was so considered by Vide ante 211.

witness, Eliza Anderson,

4th. "The question put to the ought not to have been ruled out." There is not enough set out in the statement of the case to show the relevancy

State v. Hicks.

of this question, and we are confined to what appears in the statement of the case, treating it as a bill of exceptions on the part of the prisoner.

Neither of the two grounds taken in support of the motion to arrest the judgment are tenable. State v. Lane, 4 Ire. 113, is a conclusive answer to one, and the other is only objectionable as violating a rule of grammar. This does not vitiate a legal proceeding when the sense and meaning is clear. Indeed, as the plea of "not guilty" is several and not joint, it would seem to be most proper to use the verb in the singular number and to set out in the record that each person upon the arraignment saith "he is not guilty," "she is not guilty," instead of putting it in the form of a joint plea; but the authorities support the entry in either way.

There is no error.

end, &c.

PER CURIAM.

This opinion will be certified to the

There is no error.

THE STATE v. WASHINGTON HICKS.

In the course of selecting a jury for the trial of a capital crime, two persons, who had been called and challenged by the prisoner for cause and confessed such cause, in reply to further questions upon the same point by the Court, made disrespectful answers: Held to have been proper for the Court to rebuke such persons pointedly, and that no rights of the prisoner were infringed thereby.

HIGHWAY ROBBERY, tried before Green J., at a Term of the Criminal Court for CRAVEN, held on the 4th Monday of September 1867.

State v. Hicks.

The only objection made by the prisoner to the propriety of the trial below was founded upon incidents which occurred whilst the jury was being made up. Two persons, who had been called upon the jury and challenged for cause, admitted severally that from report they had formed and expressed an opinion that the prisoner was guilty. Each of them was then asked whether the impression so made was so strong as to prevent him from giving the prisoner a fair trial. The former answered that the impression made upon him was so great that he would find the prisoner guilty although the evidence on the trial showed that he was not guilty. Upon this the court rejected, him and observed that he was not fit to sit on that or any other jury. The latter answered that he would find the prisoner guilty if the court should instruct him that according to the evidence he was not guilty. Thereupon the court rejected him, and said that if he did he would be guilty of perjury.

The prisoner excepted to these remarks by the court as calculated to intimidate other members of the panel from candidly expressing their opinions as to his guilt, and thus, to force him to exhaust his peremptory challenges on persons who ought to have been rejected for cause.

The court overruled the exceptions, and a verdict of guilty having been found, judgment of death was pronounced. Thereupon the prisoner appealed.

No counsel for the prisoner.
Attorney General, contra.

READE J. The powers and duties of this court and of the Judges of the Superior Court seem to have been misconstrued in the exceptions which bring this case before us. "Men of ability, integrity and learned in the law" are commissioned to hold the Superior Courts, and for "wilfully vio

State v. Hicks.

lating any article of the constitution, maladministration or corruption," they may be impeached by the legislature and indicted in the courts. And the office of this court is to "hear and determine all questions of law" and "all cases in equity" brought before it from the Superior Courts. It is not within the province of this court to supervise the mere behavior of the judge below, or his manner of holding his court, or to criticise his remarks to the bystanders, or to prescribe what morals he shall inculcate. Mere proprieties are entrusted to him only. They are not matters of science, and are not prescribed by any authority. It is only where the party's legal rights have been prejudiced in the court below that this court can interfere. For illustration, it may be said that the prisoner had the legal right to have both of the jurors, who were challenged; rejected; and, if his Honor had refused to reject them, it would have been an error which we could correct; but, the manner of rejecting them, or the temper, or propriety of any remarks in regard to the persons rejected, cannot be reviewed by us. And this is decisive of the case, as it is stated that there was no exception to his Honor's charge.

It we were to say no more, it might be supposed, to the prejudice of his Honor, that we had sustained, only because we had not the power to overrule him. Such is not the fact. The privileges, not to say the duties, of the learned and good men who administer the law among the people, go very far beyond the mere formal declaration of what the law is. They must show its justice, and make it popular. They must not only punish crime, but denounce and make it odious. They must not only rebuke vice, but praise virtue. They must be ensamples as well of good men as of great judges. These qualities of our judges, and these influences in our courts, have made them palladiums, in which the people trust more than in armies.