Baldwin, J. and Cope, J. concurring.

*79The defendant was convicted of the crime of murder in the first degree, and was sentenced to be executed. He now appeals ; and presents numerous exceptions for consideration, none of which do we find of sufficient importance to justify any interference with the action of the Court below.

1. The verdict of the jurors was accompanied with a recommendation to mercy. The Court directed the verdict to be entered without the recommendation. There was no error in this direction. The recommendation was addressed solely to the Court, and constituted no part of the verdict.

2. The defendant offered to prove that one or more of the jurors agreed to the verdict, upon the mistaken impression that it was in the power of the Court to sentence to imprisonment or death in its discretion; and that the verdict would have, been different but for this impression. The Court does not appear to have listened to the proof, and, we think, in this respect acted correctly. The jury have nothing to do with the character or extent of the punishment; their province is solely to determine upon the question of the guilt or innocence of the accused.

8. A witness in the case, during her examination, fainted and fell to the floor. Some of the jurors sitting near the witness lifted her up, and carried her into the adjoining chamber of the Judge, and laid her upon a sofa. The Deputy Sheriff in attendance upon the Court accompanied the jurors, who were absent not exceeding one minute ; and during this period the witness was insensible. The separation of the jurors under these circumstances forms one of the grounds for which a new trial was asked. The Court, it would seem, did not regard the point as worthy of consideration, and in this view we fully concur.

4. The evidence as to the insanity of the defendant was very slight. We are satisfied that the conclusion of the jury in this respect was correct.

5. There was sufficient foundation laid for the admission of the dying declarations of the deceased. Her wound was mortal; and she appeared to be fully aware of her condition. She stated that she could not live ; and requested her mother to send for a priest.

*806. The defendant asked leave to withdraw his plea of not guilty for the purpose of moving to set aside the indictment, on the ground that P. W. Shepheard wras present in the grand jury room while the charge in the indictment was under consideration. The Court refused the leave for the reason, as stated by counsel on the argument, that it was well aware that Shepheard wras Assistant District Attorney at the time. The record, it is true, does not disclose this fact, nor is it material that it should. The granting of the leave rested in the discretion of the Court; and no circumstances are shown which indicate that there wras any abuse in the exercise of that discretion.

7. When the Court directed the Clerk to call and impannel the jury in the cause, objection wTas made on the ground that several of the jurors of the original panel, summoned for the term, had been previously excused without the consent of the defendant; and being overruled, the further objection was made that there was not a full panel present, and this was in the same manner disposed of. There was no error in these rulings.

The judgment must be affirmed, and the Court below directed to designate a day for the execution of its sentence; and it is so ordered.