9. TRIAL. ($ 349*) - SPECIAL INTERROGATORIES to the jury of specific questions to which -DISCRETION OF COURT. they were required to return answers.

Whether the jury shall be required to return with the general verdiet answers to special questions is a matter for the determination of the presiding justice, and if they return answers to specific questions propounded by the court tending to show the grounds of the verdict, an exception to the court's direction is unavailable.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 823-827; Dec. Dig. § 349.*]

Transferred from Superior Court, ingham County; Pike, Chief Judge. Action for negligence by George H. Beckley against Harrison Alexander, transferred from the superior court, after a trial by jury and a verdict for defendant, on plaintiff's exceptions. Exceptions overruled.

John O'Neill, of Manchester, for plaintiff. John G. Crawford, of Derry, and Page, Bartlett & Mitchell and Ernest L. Guptill, all of Portsmouth, for defendant.

The

WALKER, J. [1-3] 1. Upon the plaintiff's motion to discharge the jury on account of alleged improper conduct on the part of the Rock-defendant and the foreman of the jury while they were going to take a view, an investigation was had by the presiding justice, and he found as a fact that the trial was not rendered unfair by what occurred. plaintiff's exception to this finding presents the question whether it conclusively appears that the trial was an unfair one on account of the conversation between the juryman and the defendant and his counsel. The plaintiff took no exception to the method of procedure adopted by the court in its investigation, and cannot now complain of it; nor can he take advantage of the fact that the court did not interrogate witnesses whom the plaintiff might have offered, but did not. The examination conducted by the court was apparently satisfactory to the plaintiff until the court's conclusion was announced, to which he took an exception. The facts, therefore, that the defendant and his counsel did not know they were talking with a juryman, that the juryman did not know they were in

The plaintiff was injured on November 2, 1912, in consequence of a collision between the carriage in which he was riding and the defendant's automobile driven by his chauffeur. The jury had a view of the premises where the accident occurred. Upon their return the plaintiff moved that the jury be discharged because of a conversation between the defendant and one of his counsel and the foreman of the jury, while they were riding in a smoking car on the way to the view. The court thereupon inquired into the matter, taking the statements of the defendant's counsel and the foreman, and found that the defendant and his counsel did not know they were talking to a juryman, that the juryman did not know they were connect-terested in the case, and that the conversation ed with the case on trial, that the case was not mentioned in the conversation, and that the trial was not rendered unfair. The court denied the plaintiff's motion. To the conclusion of the court upon this matter the plaintiff excepted.

Just before the accident the plaintiff called upon the defendant in regard to a note and mortgage which the latter held against the former. Subject to exception, the de fendant was asked what the talk was between them, and testified that the plaintiff said he could not take up the note and did not know what he could do.

had no reference whatever to the case, but consisted of general talk upon other subjects, fully authorized the court in finding that all the parties acted in good faith and that the trial was not rendered unfair in consequence of the conversation. The opposite conclusion seems to have little, if anything, to support it. The testimony of the juryman as to what was said was not only competent, but sufficient to justify the finding. Maxfield v. Pittsfield, 67 N. H. 104, 36 Atl. 609. In State v. Danforth, 73 N. H. 215, 221, 60 Atl. 839, 842 (111 Am. St. Rep. 600, 6 Ann. Cas. 557) it is said:

"The ruling of the court refusing to hear evidence as to the alleged misconduct of the state's counsel, upon the ground that the act (if it occurred) was not prejudicial to the respond

In order to rebut the plaintiff's testimony on the question of damage that his earning capacity was large, the defendant was per-ent, if understood as a ruling of law, was withmitted, subject to exception, to introduce evidence that the plaintiff had not paid his taxes on his homestead for several years.

out error; while if the holding were intended as a finding of fact that the trial was not rendered unfair, such finding is decisive."

The plaintiff offered to show that one Bar- The talk in question was not prejudicial ker had experimented with his automobile at to the plaintiff, either as a matter of law the place of the accident, and could stop or as a matter of fact. It had no tendency his machine running at a given speed in a to produce the verdict. Blodgett v. Park, shorter distance than the defendant's chauf- 76 N. H. 435, 84 Atl. 42, Ann. Cas. 1913B, 853. feur did. The evidence was excluded, upon | The plaintiff's motion to discharge the jury the ground that the conditions at the time was properly denied. of the experiment were not the same as at the time of the accident, and the plaintiff excepted. He also excepted to remarks made by the defendant's counsel in his argument to the jury, and to the submission by the court

[4] 2. The evidence as to the character of the business the parties were conversing about just prior to the accident was competent, as having some tendency to show that the plaintiff was disturbed and disappointed

because the defendant insisted upon his pay- tice. If with the general verdict the jury ing the note, which under the circumstances he was unable to do. It might naturally be inferred that this disappointment caused him to be less careful in the management of his team at the time of the accident than he otherwise would have been. The evidence had some logical bearing on the question of his care, and was properly admitted.

[5, 6] 3. As the verdict was for the defendant, the question of the damages suffered by the plaintiff became immaterial. So that whether the evidence that he had not paid his taxes for some years was legally in rebuttal of his testimony that his earning capacity was large became unimportant. Justice does not require the setting aside of a general verdict for a defendant on account of an error in the admission of evidence relating to the damages only, unless the evidence appears to be prejudicial to the plaintiff on the original issue of liability. Wier v. Allen, 51 N. H. 177; Griffin v. Auburn, 59 N. H. 286; McBride v. Huckins, 76 N. H. 206, 213, 81 Atl. 528. But, if this were not so, the fact that the plaintiff had allowed his taxes to become in arrears might tend to show that his earning capacity was not as great as he claimed it was. Circumstances might exist which would authorize its admission in a given case, upon the ground that it might be of some value to the jury in deciding the point in issue. Its admission in this case cannot be held error as a matter

of law.

[7] 4. The plaintiff produced a witness to show in what time he could stop an automobile going at a given speed at the place where it was claimed the accident occurred. The exclusion of this experimental evidence, on the ground that the difference in the conditions existing at the time of the experiment and those at the time of the accident was such that the evidence would not assist the jury, presents no question of law. It was a matter peculiarly within the discretion of the court at the trial. Canney v. Association, 76 N. H. 60, 62, 79 Atl. 517; Saucier v. Spinning Mills, 72 N. H. 292, 56 Atl. 545; Cook v. New Durham, 64 N. H. 419, 13 Atl. 650.

return answers to specific questions propounded by the court, which tend to show upon what grounds the verdict was reached, an exception to the court's direction in this respect is unavailing. Such procedure may be of very great use in the promotion of justice. Johnson v. Haverhill, 35 N. II. 74, 87; Barstow v. Sprague, 40 N. H. 27; Hearn v. Railroad, 67 N. H. 320, 323, 29 Atl. 970; Folsom v. Railroad, 68 N. H. 178, 44 Atl. 134. No valid objection to the specific questions submitted to the jury in this case is apparent. The court found that it was "expedient that the jury should answer these questions specially." That finding, upon the facts reported, is conclusive.

1.

(Court of Oyer and Terminer of Delaware.
New Castle. March 11, 1913.)
CRIMINAL LAW (§ 923*)-NEW TRIAL-DIS-
QUALIFICATION OF JUROR-FORMATION AND
EXPRESSION OF OPINION.

A remark by a juror, prior to a trial for homicide, that he thought accused had gotten himself in a pretty bad hole, and that from what he could hear he killed the boy all right. did not show such formation and expression of an opinion as to accused's guilt as required a new trial, where he testified on his voir dire that he had not formed and expressed an opinion.

[Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 2225-2237; Dec. Dig. § 923.*]

2. CRIMINAL LAW (§§ 376, 377*)—EVIDENCECHARACTER OF ACCUSED.

Evidence as to the good or bad character of a person charged with crime must be confined to the time preceding the commission of the crime charged, and a witness may not testify to matters coming to his knowledge after the commission of the crime.

Law, Cent. Dig. 88 836 841, 843; Dee, Dig. §§ [Ed. Note. For other cases. see Criminal 376, 377.*]

3. WITNESSES ($ 274*)--CROSS-EXAMINATIONCHARACTER OF WITNESSES.

A person testifying to the good character of accused is liable to cross-examination, not [8] 5. The remarks of the defendant's coun- for the purpose of discrediting accused, or disproving his good reputation or character by sel in argument, to the effect that the plain-proof of specific acts, but to test the accuracy tiff's claim that the automobile was out of and candor of the witness. the traveled part of the road for some distance was untrue, were not objectionable. They were based upon the fact that the jury took a view, and that they would have seen tracks in the ground made by the automobile, or the plaintiff's counsel would have pointed them out, if the machine had been out of the road. The argument was legitimate.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 965, 966; Dec. Dig. § 274.*] 4. CRIMINAL LAW ($$ 1170%*)-MOTIONS FOR NEW TRIAL-HARMLESS ERROR.

If it was error to permit the state to show, on the cross-examination of a character wit ness produced by accused, that the witness, since the commission of the crime charged. had heard persons say that accused threatened to shoot other persons before the homicide, it was showing malice, had proved the same threats. harmless, where the state, for the purpose of [Ed. Note.--For other cases, see Criminal Law, Cent. Dig. §§ 3129-3135; Dec. Dig. §

[9] 6. Whether a jury shall be required to return with the general verdict answers to special questions is a matter of expediency. for the determination of the presiding jus- | 1170.*]

5. CRIMINAL LAW (§ 938*)- NEW NEWLY DISCOVERED EVIDENCE.

TRIAL-murder in the first degree, obtained a new trial, a motion for leave to withdraw his plea of not Where, on a trial for homicide committed guilty, in order to interpose a plea of former with a rifle fired from a distance of over 800 acquittal of murder in the first degree and a feet, there was evidence for the state tending motion to quash the indictment, was addressto show that accused's rifle would carry a bul-ed to the discretion of the court, and might be let that distance, that accused knew of such denied, where accused's rights could be protectcarrying power, and that he could use the rifle ed by an instruction on the new trial that he very effectively in shooting at an object more could not be convicted of murder in the first than 300 yards distant, and defendant furnished degree. practically all the testimony in his behalf on these points, corroborated only by expert wit-Law, Cent. Dig. 88 2421, 2422; Dec. Dig. § [Ed. Note. For other cases, see Criminal nesses as to the carrying power of the rifle, a 965.*] new trial should be granted, to enable him to produce a witness who would give material testimony on these points, as it would not be cumulative, within the rule that newly discovered evidence, forming the basis of a motion for new trial, must not be cumulative, and its effect would not be merely to impeach or contradict other witnesses, but possibly to disprove the testimony of the state on material and vital points.

[Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2308-2315, 2317; Dec. Dig. § 938.*]

6. CRIMINAL LAW (§ 939*) — NEW TRIAL NEWLY DISCOVERED EVIDENCE.

Where, on a motion for a new trial on the ground of newly discovered evidence, accused's affidavit that the fact that the witness could

furnish such evidence was not known to him at the time of the trial, and that, had it been known, the attendance of the witness could not have been procured, because he was sick and physically unable to attend the trial, was not controverted. a new trial would not be denied

for lack of diligence.

[Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2318-2323; Dec. Dig. 8 939.*]

7. CRIMINAL LAW (§ 964*)—MOTIONS FOR NEW TRIAL VACATION-FILING AFFIDAVITS.

A motion to vacate an order granting a new trial for newly discovered evidence, on the ground that the witness who was expected to give such evidence had died, was not an application for a rehearing or a renewal of the mat

11. JURY (§ 136*)-PEREMPTORY CHALLENGES -NUMBER.

The provision of Rev. Code 1852, amended to 1893, p. 979, c. 133, § 16, that a person, indicted for a crime punishable with death, may challenge 20 jurors peremptorily, and that the state on the trial of such indictment may challenge peremptorily 10 jurors, applies to a new trial obtained by a person convicted of murder in the second degree under an indictment for murder in the first degree.

[Ed. Note.--For other cases, see Jury, Cent. Dig. $8 607-618; Dec. Dig. § 136.*]

12. JURY (§ 103*)—EXAMINATION OF JURORS--

STATUTORY PROVISIONS.

17 Del. Laws, c. 221, providing that, when a juror is called in a capital case, he shall be if he has formed and expressed an opinion in sworn or affirmed upon the voir dire and asked regard to the prisoner's guilt, that if his answer be in the negative he shall be sworn, unless otherwise challenged or excused, and that, if his answer be in the affirmative, he shall be disqualified unless he shall say upon his oath or affirmation to the court's satisfaction that he feels able, notwithstanding such opinion, to render an impartial verdict, applies to the new trial obtained by a person convicted of murder in the second degree under an indictment for murder in the first degree.

[Ed. Note.-For other cases, see Jury, Cent. Dig. $$ 444, 456, 460, 461-479, 497; Dec. Dig. § 103.*]

ter previously decided, and the Attorney Gen-13.
eral should be allowed to file an affidavit in sup-
port of the motion. especially where no objec-
tion was made to the motion itself.

[Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2419, 2420; Dec. Dig. 8 964.*]

INDICTMENT AND INFORMATION (§ 189*)-

DEGREE OF OFFENSE-CAPITAL CASE."

Within Rev. Code 1852, amended to 1893, p. 979, c. 133, § 20, providing that, upon a trial for any felony which includes an assault against the person, the jury may acquit of the felony and find a verdict of guilty of assault, but that this shall not apply to capital cases, a new trial obtained by a person convicted of murder in the second degree under an indictment for murwhere the state admitted hat accused could not be convicted for murder in the first degree.

8. CRIMINAL LAW (§ 964*)--MOTIONS FOR NEW TRIAL VACATION-GROUNDS. An order setting aside a verdict and grant-der in the first degree was not a "capital case," ing a new trial for newly discovered evidence would not be vacated, on the ground that the witness expected to give such evidence had died, where it did not appear that the order was made mistakenly or inadvertently.

[Ed. Note.-For other cases, see Criminal Law. Cent. Dig. §§ 2419, 2420; Dec. Dig. § 964.*]

9. CRIMINAL LAW (§ 965*) NEW TRIAL SCOPE OF INQUIRY.

[Ed. Note.-For other cases, see Indictment and Information, Cent. Dig. §§ 582-595; Dec. Dig. § 189.*]

14. HOMICIDE (§ 22*)—“MURDER IN THE FIRST DEGREE" "EXPRESS MALICE AFORE

THOUGHT."

"Murder in the first degree" is a killing done with express malice aforethought, and Where a person, convicted of murder in "express malice aforethought" exists where one the second degree under an indictment for mur-person kills another with a sedate, deliberate der in the first degree, obtained a new trial, he mind and formed design. could be tried again under the indictment, though he could not be convicted of murder in the first degree.

[Ed. Note.-For other cases, see Homicide, Cent. Dig. §§ 35-38; Dec. Dig. § 22.*

For other definitions, see Words and Phrases, vol. 5, pp. 4637-4641; vol. 8, p. 7727; vol.

[Ed. Note. For other cases, see Criminal Law. Cent. Dig. §§ 2421, 2422; Dec. Dig. 3, pp. 2607-2611; vol. 8, p. 7658.] 965.*]

10. CRIMINAL LAW (§ 965*)-PLEAS-WITHDRAWAL-DISCRETION.

15. HOMICIDE (§ 11*)-ELEMENTS "MALICE." "Malice" is not restricted to spite or malevolence toward the particular person slain, but includes that general malignity and disregard of human life which proceed from a heart void

Where a person, convicted of murder in the second degree under an indictment for For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

of a just sense of social duty and fatally bent | means likely to produce death, to manslaughon mischief.

[Ed. Note.-For other cases, see Assault and Battery, Cent. Dig. § 68; Dec. Dig. § 48.* For other definitions, see Words and Phrases, vol. 1, pp. 532-538; vol. 8, p. 7582.] 22. CRIMINAL LAW (§ 857*) GRADE OF OF-be

FENSE PROVINCE OF JURY.

A person accused of crime is presumed to innocent until his guilt is proved to the satisfaction of the jury beyond a reasonable doubt. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 731; Dec. Dig. § 308.*] 31. CRIMINAL Law (§ 561*)—Degree of Proof REQUIRED.

[Ed. Note. For other cases, see Criminal In a criminal case, the state must prove Law, Cent. Dig. 88 2054, 2055; Dec. Dig. beyond a reasonable doubt every material in857.*] gredient of the crime charged; and if the jury, 23. HOMICIDE (§ 50*)-MANSLAUGHTER-PROV-after carefully and conscientiously considering and weighing the evidence, entertain a reasona

No mere trespass on the premises of an-ble doubt of accused's guilt, they should find other, however annoying or provoking, is a him not guilty. suficient provocation to reduce the killing of [Ed. Note. For other cases, see Criminal a trespasser with a deadly weapon, or other Law, Cent. Dig. § 1267; Dec. Dig. § 561.*]

32. CRIMINAL LAW (561*) — DEGREE OF PROOF REQUIRED "REASONABLE DOUBT." The "reasonable doubt" which will justify

a verdict of not guilty must not be a mere fanciful, vague, speculative, or possible doubt, but a reasonable doubt remaining in the minds of the jury after a consideration of all the evidence, such as a reasonable, fair-minded, and conscientious man would entertain.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1267; Dec. Dig. § 561.* For other definitions, see Words and Phrases, vol. 7, pp. 5958-5972; vol. 8, p. 7779.] 33. HOMICIDE (§ 354*) — EXTENT OF PUNISH

MENT.

A man 60 years old killed a neighbor and friend by shooting him with a rifle from a distance of over 800 feet, and was convicted of mauslaughter. He claimed that he did not know who the person was when he shot, or that a shot from his rifle could carry such a distance, and that he fired merely to frighten deceased from his premises. Prior to his conviction he had been confined in the workhouse for almost a year. Held, that the facts justified a fine of $400 and imprisonment for three

years.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 731; Dec. Dig. § 354.*] 34. CRIMINAL LAW (§ 1208*)-PUNISHMENT PROVINCE Of Court.

The court, in imposing sentence, cannot be influenced by its personal feelings, and the sentence must be based primarily on the verdict.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 3281 3287, 3289 3295; Dec. Dig. § 1208.*]

Charles B. Naylor was indicted for murder in the first degree. Verdict of guilty of manslaughter.

Argued before PENNEWILL, C. J., and BOYCE and RICE, JJ.

2. That the court improperly permitted the character witness produced by the defendstate to show, in the cross-examination of a ant, that the witness had, since the commission of the act charged in the indictment, heard persons say the defendant threatened to shoot other persons before committing the homicide for which he was tried.

3. That the defendant at another trial would be able to show by a new witness, whose testimony could not be produced at the trial, that very damaging testimony giv en at the trial by a witness for the state, was false.

[1] Respecting the first ground we need only say, the court are not satisfied that the juror had, before the trial, formed and expressed an opinion touching the guilt of the prisoner. The only evidence presented to support the charge of the defendant is an affidavit made by Walter S. Burris, wherein it is averred that the juror said to the affiant the day before the trial:

"I am going to Wilmington to-morrow; I have nothing to do and want to hear the argument in the case of the State v. Naylor. I think Naylor has gotten himself in a pretty bad hole. From what I can hear he killed the boy all right."

The juror, by affidavit, denies that he made such a statement. He admits, however, that he said to Burris, something to the effect that, "from what I could hear it looked as though Naylor killed the boy," but he insists that he had not formed and expressed any opinion respecting the guilt or innocence of Josiah O. Wolcott, Atty. Gen., for the nial, and assuming that the juror did make the prisoner. But independent of such deState. Daniel O. Hastings and Richard S. the statement contained in the affidavit, it Rodney, both of Wilmington, for defendant. does not appear to the court that the juror At a Court of Oyer and Terminer, in and was disqualified from sitting in the case. for New Castle county, March 10, 1913, The language he is alleged to have used does Charles B. Naylor was tried upon an indict- not convince us that he had formed and exment (No. 42 to the March term, 1913), charg-pressed an opinion touching the guilt or ining him with murder of the first degree for nocence of the prisoner. the felonious killing of Earvil J. Francis by In the case of State v. Harmon, 4 Penneshooting with a rifle on January 19, 1913, in will, 588, 60 Atl. 870, a new trial was asked Appoquinimink hundred, New Castle county. for because a juror had said, "from what Verdict of guilty of murder of the second people are saying it looks as though Hardegree. Whereupon counsel for the defend-mon would be hanged." Such language we ant moved for a new trial. Charge in first trial not reported, the facts and law applicable thereto being contained in the charge at the second trial.

Motion for a new trial, being argued at said session, was granted for the reasons stated in the following opinion:

PENNEWILL, C. J. (delivering the opinion of the court). A motion has been made for a new trial for reasons which may be summarized as follows:

1. That a certain juror had formed and expressed an opinion respecting the guilt of the defendant before he was called and examined upon his voir dire when he swore that he had not formed and expressed such an opinion.

think more strongly and clearly expressed an opinion than the words alleged to have been spoken by the juror in the present case, but the court refused to set the verdict aside.

In the case of State v. Robinson, 9 Houst. 404, 33 Atl. 57, the defense waived the right to have the juror asked the question whether he had formed and expressed an opinion, but asked for a new trial because he subsequently made statements showing, it was contended, that he had formed and expressed an opinion concerning the defendant's guilt before the trial. The refusal of the court to grant a new trial in that case was based largely upon such waiver, but it was declared that the statements made by the juror would not be regarded as sufficient to disqualify