A judge is not bound to repeat his charge, nor is he bound to adopt the exact language of counsel in their request to charge. Tucker v. Ely, 37 Hun, 565; O'Connell v. People, 87 N. Y. 377; Moett v. People, 85 N. Y. 373; Raymond v. Richmond, 88 N. Y. 671. And he may properly refuse to give instructions asked after the argument has commenced. Surber v. State, 99 Ind. 71. § 144. Instances of Harmless Error.--The rule is firmly established that if, upon considering all the instructions together, it fairly appears that the law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate. Cooper v. State, 120 Ind. 377.

The same reasoning that applies to a harmless error in an instruction is equally available as regards any error that is manifestly without prejudice to the accused. All arguments upon this proposition converge upon the same conclusion. Armstrong v. Tait, 8 Ala. 635; O'Callaghan v. Bode, 84 Cal. 489; Klimple v. Boelter, 44 Minn. 172; West v. Camden, 135 U. S. 507, 34 L. ed. 254; Hogshead v. State, 120 Ind. 327; Cooper v. State, supra; Whidden v. Seelye, 40 Me. 247, 63 Am. Dec. 661; Staser v. Hogan, 120 Ind. 207; Walters v. Jordan, 35 N. C. 361; Atkinson v. Dailey, 107 Ill. 117; Copeland v. Koontz, 125 Ind. 126; Bosley v. Chesapeake Ins. Co. 3 Gill & J. 450; Jones v. Angell, 95 Ind. 376; Johnson v. Evans, 8 Gill, 155, Ricketts v. Harvey, 106 Ind. 564; Sawyer v. Chicago & N. W. R. Co. 22 Wis. 403; Zachary v. Pace, 9 Ark. 212, 47 Am. Dec. 744; Hovey v. Chase, 52 Me. 304, 83 Am. Dec. 514; Lackawanna & B. R. Co. v. Doak, 52 Pa. 379; Worley v. Moore, 97 Ind. 15.

§ 145. The Conclusion Reached as to Instructions.-Summarizing the conclusions of eminent authority, we may appropriately refer to the case of Com. v. Selfridge, Har. & T. 2, decided in 1806. Ch. J. Parker in summing up the evidence and instructing the jury, makes use of the following expressive language:

"I hold the privilege of the jury to ascertain the facts, and that of the court to declare the law, to be distinct and independent. Should I interfere with my opinion on the testimony, in order to influence your minds to incline either way, I should certainly step out of the province of the judge into that of an advocate. All which I conceive necessary or proper for one to do in this part of

the cause is, to call your attention to points of facts on which the cause may turn, state the prominent testimony in the case which may tend to establish or disprove those points, give you some rules by which you are to weigh testimony, if a contrariety should have occurred, and leave you to form a decision according to your best judgment, without giving you to understand, if it can be avoided, what my opinion of the subject is."

Eighty years later the same principle was reasserted by the supreme court of Mississippi in the following language: "It has been correctly laid down, by authority, that the court is bound to instruct the jury on all the points pertinent to the case. The responsibility of a correct announcement of the law is upon the court. It would seem to follow, therefore, if the requests to charge do not, in the opinion of the judge, correctly state the law applicable to the case, that he ought to so modify them as to make them conform to the law." White v. State, 52 Miss. 216.

146. Power to Direct a Verdict.-The trial court has not the power to direct a verdict of guilty, even though the evidence of guilt be overwhelming, and the question of guilt or innocence depends wholly upon a question of law. The contrary, however, was held in a case where the facts constituting guilt were undisputed. On the other hand, the trial being in progress, the court cannot discharge the prisoner on the ground that the corpus delicti has not been proved; but a question of law only being presented, may instruct the jury to acquit, and a refusal so to instruct is error. But such an instruction should only be given where there is no evidence tending to prove the offense charged. In the Federal courts it is not the practice to direct a specific verdict, but rather to instruct the jury upon the law as to the competency of the evidence, and leave it to them to find their verdict accordingly. Rapalje, Crim. Proc. § 376, citing Tucker v. State, 57 Ga. 503; United States v. Taylor, 3 McCrary, 500, 3 Crim. L. Mag. 552; United States v. Anthony, 11 Blatchf. 200; People v. Bennett, 49 N. Y. 137; State v. Warner, 74 Mo. 83; United States v. Walsh, 22 Fed. Rep. 644.

Where, on the trial of an indictment, the facts in evidence are admitted or undisputed, and are insufficient to establish that the offense charged has been committed by the defendant, it is the duty of the court, on request therefor, to direct the jury to return a verdict of not guilty. Com. v. Ruddle, 142 Pa. 144.

CHAPTER XXIV.

EVIDENCE OF PREJUDICIAL JURY.

§ 147. Accused is Entitled to Fair and Impartial Jury. 148. Mere Abstract Opinion of Guilt no Ground for Objection. 149. The Test of Competency.

150. When the Objection Should be Regarded.

151. Irregularity of the Grand Jury May be Shown. 152. Evidence in Support of Verdict.

§ 147. Accused is Entitled to Fair and Impartial Jury.A frequent objection obtruded, upon the trial of a criminal case, relates to the prejudice or bias of the individual members composing the jury. Evidence is produced which tends to establish the fact that some individual who sat in the jury box approached the consideration of the case under circumstances that prevented him from being influenced solely by the evidence adduced. This objection is an important one, especially where the life of the accused is concerned; as no privilege is more important to the citizen, than that of having the issues made, tried and determined by a fair, competent and disinterested jury, standing impartially between himself and his accusers.

§ 148. Mere Abstract Opinion of Guilt no Ground for Objection. This entire subject has received the critical attention of the New York court of appeals in a very recent case; and Chief Justice Ruger in delivering the opinion of the court has left little that can be said upon the subject. In People v. Carpenter, 102 N. Y. 238, the evidence shows that one of the jurymen testifying as to his competency to sit in the case, said: "My mind is practically clear and unbiased as between the people and this prisoner. I have no opinion now as to the guilt or innocence of the defendant. If the defense of insanity was interposed, I would have a prejudice against it. My answer only implies that I believe the defense of insanity has been misused and abused and I am not prejudiced against a person who is insane. It is a prejudice. against sham defenses. I don't think that feeling would control or influence my judgment against the defense of insanity." The

juror was held competent. Com. v. Buzzell, 16 Pick. 160; Com. v. Porter, 4 Gray, 423.

The existence of a mere abstract opinion in which no element of malice or unreasoning prejudice enters, can certainly form no just ground for the rejection of a juror, even where he admits that the defense of insanity, owing to its gross abuse, would raise some feeling of hostility to the accused. If the evidence shows, that notwithstanding this feeling against this defense, the juror can still be guided to his verdict by the testimony in the case, uninfluenced by any feeling of bias, he is competent as a juror.

The end sought by the common law was to secure a panel that would impartially hear the evidence and render a verdict thereon uninfluenced by any extraneous considerations whatever. If the person proposed as a juror can and will do this, the entire purpose is accomplished. To secure this the statute requires that he shall make oath that he can do this, irrespective of any previous or existing opinion or impression. Not satisfied that this may be safely relied upon, on account of the difficulty of determining by a person having an opinion or impression how far he may be unconsciously influenced thereby, the statute goes further and provides that the court shall be satisfied that the person proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror. Surely this latter provision, if rightly and intelligently administered by a competent court, will afford protection to the accused from injury from a partial jury. Stokes v. People, 53 N. Y. 164, 13 Am. Rep. 493.

On a question of actual bias even slight evidence is admissible. People v. Bodine, 1 Denio, 281, 307.

The object of the inquiry is the state of mind of the proposed juror, and that state must be such, in order to make him competent, as will lead to the inference that he will act with entire impartiality. May v. Elam, 27 Iowa, 365. The leading and most recent case is People v. Casey, 96 N. Y. 115, 2 N. Y. Crim. Rep.

194.

§ 149. The Test of Competency.-The test of the competency of a juror in a capital case is his ability to render a verdict upon the evidence, and upon the evidence alone, uninfluenced by any opinion which he may have previously formed from newspaper or other reports of the crime. Rizzolo v. Com. 126 Pa. 54. That case followed directly in the line of Staup v. Com. 74 Pa.

458; O'Mara v. Com. 75 Pa. 424; Ortwein v. Com. 76 Pa. 414, 18 Am. Rep. 420; Allison v. Com. 99 Pa. 32; Clark v. Com. 123 Pa. 558.

In Allison v. Com. 99 Pa. 32, it was held that where a juror in a criminal case has formed an opinion from hearing or reading the evidence upon a former trial, he is incompetent, even if his opinion thus formed does not come up to the standard of a fixed opinion. But this rule does not apply where the juror has heard or read only fragmentary portions of the evidence; on the contrary, his opinion must have been formed upon all the evidence in a former trial against the same prisoner, before the disqualification referred to attaches; and it was distinctly ruled that the hearing or reading the evidence upon a preliminary examination before a coroner or committing magistrate, was not a trial within the meaning of this rule. We need not discuss this question further. It is worn threadbare, and the law ought now to be well understood. Com. v. Taylor, 129 Pa. 534.

In Staup v. Com. supra, it was laid down as a primary rule, that a juror who had read the evidence taken on a former trial and had formed an opinion from what he read that was fixed, deliberately formed and still entertained, was not a competent juror. In O'Mara v. Com. supra, the rule stated was affirmed with the addition that where the juror's "opinion of the prisoner's guilt has become a fixed belief, it would be wrong to receive him." Ortwein v. Com. supra, followed, affirming all that was decided in the two former cases. The court then formulated and laid down the rules touching the competency of jurors in Allison v. Com. supra, and ruled: "Where the juror entertains a fixed or deliberate opinion, no matter how formed, of the prisoner's guilt, he is incompetent, and his belief that he can try the prisoner impartially will not remove the disqualification."

In our present state of society, all that can be required of a juror, to render him competent, is, that he shall be without bias, or prejudice for or against the accused, and that his mind is free to hear and impartially consider the evidence, and to render a verdict thereon without regard to any former opinion or impression existing in his mind, formed upon rumor or newspaper reports. Whenever it is shown that such is the state of mind of the juror, he should be held to be competent; and such is the rule as laid down in Waters v. State, 51 Md. 430. In that case it was