The opinion of tlie Court was delivered by

The defendaut was indicted for the murder of Mike Barnes, and convicted of manslaughter, and sentenced to five years’ imprisonment in the penitentiary, and from this sentence has appealed.

There is no assignment of errors filed in this Court. No appearance by counsel, either by brief or oral argument. In tlie absence of such, we do not deem it necessary to discuss every point raised- by the bills of exceptions found in the record, but after thoroughly examining the record, shall confine our attention to such questions only as we deem material to the determination of the case.

The only ones deserving consideration relate, first, to the refusal of tlie Judge to charge the jury "that, if they believed from the evidence that tlie deceased could have survived the blows inflicted, if he had received proper medical treatment, this creates a reasonable doubt and tlie jury must acquit,”

The Judge’s refusal to so charge was proper. In the first place, to have given this charge in the words quoted, would have involved the statement of the Judge that blows had been inflicted upon the deceased, which would have been unwarrantable comment on the evidence *396touching' a very material issue, and besides, would have charged, by implication, that the deceased had not received proper medical treatment. Bnt apart from this, it was a correct enunciation of the law on the subject.

In the case of tho State vs. Scott, 12 A. 274, tho Judge was asked to charge the jury: “ If the wound was not necessarily mortal, but by ill treatment became so, they will find the defendant not guilty.” It was held that Ms refusal to.so charge was proper. And in so ruling, the Court used this language: “ If a person dies of a wound inflicted with a murderous intent, whose life might have been saved by the skill of a surgeon, whom it was impossible to procure, the crime is none the less murder. The true point is, did the party die of the wound inflicted by the accused? If he did, the fact that he had no surgeon, or an unskilful one, or a nurse whose ill appliances may have aggravated the original hurt, cannot mitigate the crime of the person whose malice caused the death.” See also Com. vs. McPike, 3 Cush. 181; McAlister vs. State, 17 Ala. 434; Com. vs. Costley, 118 Mass. 1; State vs. Maphy, 33 Iowa, 270; Com. vs. Haskell, 2 Allen, 136.

2. The Judge sustained the challenge of the State to the competency of a juror under the following circumstances: Tho juror was examined on his voir dire, and stated that he had talked with one of the witnesses, who was present at tho killing, and had also heard of the homicide from others, and that from what ho had heard, had formed an opinion, but that opinion was not of a fixed character. The Judge stated in the bill in support of his ruling, that the juror lived about a mile from the scene of the homicide, and that the witness referred to was the main witness in the case; that he, the juror, was at the place soon after the wound was inflicted, and assisted in burying the deceased. That it was evident that he knew all about the case, and was anxious to get on the jury. We think, under these facts, that the ruling was correct. There is no respectable authority supporting the doctrine that the judge is stripped of all discretion touching the competency of a juror, who, on his voir dire, answers all right touching his competency, so far as relates to Ms bare assertion that he has formed no fixed opinion, although it may be evident from the facts disclosed on his examination, that his assertion was false, and his motive in making it corrupt. In this instance, the juror was a near neighbor, one of the first on the spot, conversed with the main witness who alone had witnessed the killing, and yet had no fixed opinion ! If a Judge, though convinced that a juror is incompetent, and that he has so shaped his answers as to conceal Ms incompetency, out of a desire to get on the jury, has no right to exclude him, then it might well happen that it would bo impossible to procure a conviction in some cases, however flagrant the crime and *397plain the proof. And on the other hand, such a rule might operate to the prejudice of the accused at times, and prevent his acquittal, however innocent. The Judge is not absolutely hound by the answers of the juror, that he has or has not formed an opinion, when such answer is opposed and inconsistent with facts and circumstances disclosed by the juror on his examination, or otherwise legally known to the Judge. Besides, a distinction can very properly he made between the ruling of a Judge, who declares a juror competent against the challenge of the accused, and forces him on the jury against the protest of the accused, and the case where he declines to let one serve on the jury whom the accused may want there.. In the one case, the juror, who is forced on the accused, may not only, on account of previous bias, prevent his acquittal, hut secure his conviction, whilst in the other case, it is to be presumed that the juror chosen in the place of the one rejected, is an impartial juror, such as the law requires; and in this case, there is no complaint that the juror chosen in the place of' the one excluded was not in every way competent. And if, notwithstanding the exclusion of the juror that the accused was anxious to have, a fair and impartial jury was obtained, and we find no charge that it was not so, surely we cannot conclude that the accused was so seriously injured by the ruling as to entitle him to a new trial, or, in fact, that anything whatever was done to his prejudice.

We find no error in the proceedings, and the sentence and judgment are, therefore, affirmed with costs.

Disserting- Opinion.

I respectfully dissent from the opinion and decree of the majority of the Court in this case, for the reason, that in my opinion, the exception taken to the ruling of the District Judge on the challenge of the juror, for cause, should he sustained and the case remanded.

The juror, sworn on his voir ¿lire, said: that he had a talk with one of the witnesses who was present at the time of the homicide, and who was a small hoy.

The juror further pointedly said: that from what he had heard, he had formed an opinion, hut the opinion was not of a fixed character and could he removed by competent testimony, and that he would be-governed entirely, in rendering a verdict, by the law and the evidence on the trial.

The District Judge says in the hill, “ that the juror lived about one mile from the scene of the alleged homicide; the witness referred to was the. main witness in the case, being the boy alleged to have been chas*398tised by the father, who was alleged to have been murdered by the accused. He was at the house of the accused soon after the affray and difficulty, and after the death, helped to put the deceased in the coffin. It was apparent to the court, continues the Judge, that he well knew all about the case, and was anxious to get on the jury, and for good and sufficient reasons to act, knowing all the facts and having formed an opinion, after having conversed with the witness, the court rejected him as incompetent.”

It does not appear what the opinion was, which the juror, on his voir dire, stated ho liad formed. It cannot, therefore, be inferred that it was unfavorable to the accused.

If any deduction could be drawn, it should rather be that the juror was a' friend of the deceased, having helped to place his body in the coffin, thus rendering him the last service, and that he was, as such friend, inclined adversely to the accused. I think that nothing shows what his feelings were, and that the opinion to which he refers was a mere impression received without any deliberation.

The answer which he made shows clearly that not only it was not a fixed opinion, a Mas, which was not susceptible of being removed, but that it was such as could be changed, and that he would be guided exclusively by the evidence and the law governing the case.

In State vs. Brette, 6 A. 653, in which a juror stated that “from the rumors he had heard, his mind was biased, but such bias may be removed after he has heard the evidence, and his mind is open to conviction, and he thinks he can do justice between the parties,” the Court held he was a good juror.

In State vs. Ward, 14 A. 673, the Court decided, that the opinion formed, which disqualifies a juror, must be a deliberate one.

Also in State vs. Ricks, 32 A. 1098, since followed, which was a case in which a juror had first declared, and afterwards reiterated, that he had formed a fixed opinion in regard to the guilt or innocence of the accused, from conversations with persons whom he did not know were or not witnesses, but that the opinion would yield to testimony showing the facts to be different from those that he had heard, we held that he was a competent juror. The opinion was not a deliberate, decided and absolute one, which could not be changed.

On the trial of Aaron Burr, Chief Justice Marshall said, that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and remit its force, do constitute a sufficient objection to him. “ Those who try the impartiality of a juror ought to test him by this rule.” Burr trial, Vol. I, p. 416; State vs. George, 3 Rob. 535 ; State vs. Brown, 4 A. 505; 11 A. 607; 6 A. 653,

*399In the present case, liad the accused challenged this juror on the same ground that the State has done, and had the court overruled the objection, the ruling could not have been sustained.

The rule must in future he made to operate so as to apply, with equal impartiality, to the State and to the accused.

' Conceding the facts to he as stated by the District Judge, it is not perceived how the juror could be declared incompetent because he appeared on the spot after the occurrence, and happened to converse with one who was to be a main witness.

The law could not disqualify a Judge, even if the Judge were a material witness. Jurors are sometimes themselves heard as witnesses in cases proceeding before a jury of wliich they form part. It does not pronounce the disqualification of this juror, and no good reason or authority is shown why he should not sit on the trial of -the case.

Before submitting the case to the jury the Judge could have warned them in his charge that their duty would be to determine the case on the evidence adduced on the trial, and not at all on facts, the knowledge - of which might have been acquired otherwise, previous to, and outside of the trial.

The presumption is, that when thus admonished and guarded, the-jury would have responded to the responsibility imposed by law upon them.

I have taken pains to review all the authorities within reach, many-of which are cited in the decisions, and I remain satisfied of the correctness of the affirmed ruling in 32 A. 1098, and of its applicability to the present case. See 33 A. 890, 1241; State vs de Rancé, ante, 186.

I, therefore, think that the verdict should be set aside, and the judgment and sentence annulled, and the case remanded for further-proceedings according to law.