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error in the decree complained of, and that the same must be affirmed.

SNYDER, P., and BRANNON, J., concurred. GREEN, J., absent.

CALE'S ADM'R V. SHAW et al.

ADAIR et al. v. SAME.

(Supreme Court of Appeals of West Virginia. Nov. 18, 1889.)

SEPARATE ESTATES OF MARRIED WOMEN-COMMISSIONERS' SALES.

W. purchased a lot of land in September, 1866, for $1,150, from D. M., who executed and delivered to her a deed therefor, and afterwards she sent said deed to the clerk's office by S., for the purpose of having it recorded, and said S., upon consulting an attorney, without the knowledge or consent of W., (who was then a married woman, but living apart from her husband,) had said deed altered by inserting therein his name as grantee, in the room and stead of hers, and subsequently informed W. that said change was made to protect said property from her husband, should he return. She sold said property for $2,500; and, after paying a balance owed by W. on the purchase money, for which a vendor's lien was retained, and an amount borrowed by her from S. to make part of the cash payment thereon, a balance of $1,950 was left of the proceeds of said sale, which amount was received and retained by S., who declared to W. he would hold the same in trust for her, and purchase for her a better home, when she could hold it. Said W. and S. Intermarried in the fall of 1869, and in 1875 and 1877 said W. purchased, at commissioner's and tax sale, two tracts of land,-one containing 110 acres, and the other 31 acres,-situated in Preston county, W. Va., where she resided; and part of the purchase money therefor was paid by S. out of money in his hands belonging to his then wife. Said purchase was reported as made by her, and the report of sale was confirmed. At the time of said commissioner's and tax sales, and confirmation thereof, no judgment lien existed against said S. and, so far as the pleadings show, no debts existed against him. Held, (1) that said land, purchased by the wife of S. at said commissioner's and tax sale, could not be subjected to sale by the creditors of S. to satisfy judgments acquired and docketed after said sale and confirmation; (2) as it does not appear from the pleadings that S. owed any debts at the time said sales were made and confirmed, there was nothing to prevent said S. from paying his said wife any portion or all that he owed her on his indebtedness to her contracted before marriage: (3) as no lien existed which would in any manner bind money in the hands of S., he had as much right to pay his wife any portion of the debt he owed her, as aforesaid, as any other creditor; (4) after a commissioner's sale is confirmed, it relates back to the date of the sale, and the purchaser is considered the owner from and after that date.

(Syllabus by the Court.)

Appeal from circuit court, Preston county.

John Brannon, Wm. G. Brown, and Henry Clay Hyde, for appellants. John Barton Payne and P. J. Crogan, for appellees.

ENGLISH, J. These two suits in equity were brought in the circuit court of Preston county in the year 1881,-one in the name of Joseph Adair and Charles E. Vickery, in March, against Joseph M. Shaw, Benjamin Shaw, and Joseph A. Martin, for the purpose of recovering a judgment for the sum of $188.05 and costs, which one David Wheeler had obtained against said Joseph M. Shaw, Benjamin Shaw, and said Joseph Adair and Charles E. Vickery, and whica

said Adair & Vickery claim they had been compelled to pay, and to subject their real estate to the satisfaction of the same; the other in the name of John A. Martin, administrator of Joshua H. Cale, deceased, against said Joseph M. Shaw and Benjamin Shaw individually and as late partners doing business under the firm name of J. M. Shaw & Bro., Mary Shaw, J. Ami Martin, Joseph Jackson, and John P. Jones, late partners doing business as Joseph Jackson & Co., and others, the object of which last-named suit was to enforce the payment of certain judgments in the bill mentioned against the real estate of the defendants Joseph M. Shaw and Benjamin Shaw, and to set aside two deeds made to the defendant Mary Shaw, and obtain a decree for the sale of the real estate in the bill mentioned for the payment of said judgments. And on the 7th day of December, 1887, said two causes were heard together upon the report of Commissioner Hawthorne, who, by a former decree rendered therein, had been directed to ascertain and report as to the title to the lands conveyed by William G. Worley, commissioner, to the defendant Mary Shaw, and by J. Ami Martin, clerk, to said Mary Shaw, and as to the validity of the title to said lands, and as to the consideration paid for the same, and whether the moneys paid therefor were the moneys of the defendant Benjamin Shaw, or any part thereof, and by whom the same was paid, and how derived; and upon the exceptions indorsed on said commissioner's report, and upon an amended bill filed by John A. F. Martin and others, and upon consideration of the pleadings, proofs, and exhibits in said causes, the court held that the deed in the bill mentioned from William G. Worley, commissioner, to Mary Shaw, dated on the 20th day of January, 1879, and the deeds executed by J. Ami Martin, clerk, to Mary Shaw, dated the 20th day of April, 1880, and the 22d day of September, 1879, respectively, and the deed executed by the defendants Benjamin Shaw and Mary Shaw to William Parshall, dated the 28th day of November, 1882, were, and each of them were, as to the creditors of said Benjamin Shaw, fraudulent and void; set aside said deeds, and each of them, as to the creditors of said Benjamin Shaw; sustained the first and second exceptions to said commissioner's report indorsed by the creditors of J. M. Shaw & Bro., and the creditors of J. M. and Benjamin Shaw; and overruled the exceptions indorsed thereon by Caleb Boggess and Joseph M. Shaw; confirmed the report of said commissioner as to the liens existing against said lands, and as to the priorities thereof; and directed a sale of said lands by a special commissioner therein named, unless said Benjamin Shaw, or some one for him, should within 60 days from that date pay to the said creditors the amount therein ascertained to be due to them, respectively, and to the plaintiff in the case of J. H. Cales, Adm'r, etc., v. J. M. Shaw & Bro. et al., his costs thereby decreed to him.

From this decree the defendant Benjamin Shaw and Mary Shaw applied for and obtained this appeal; and they assign, as the first error relied on by them, that the

court erred in sustaining the first and second exceptions to the report of the commissioner, Hawthorne, which exceptions are as follows: "(1) Because the land sought to be subjected to the payment of said debts and held in the name of Mary Shaw should have been reported as the real estate of Benjamin Shaw, and subject to his debts reported herein." (2) Said creditors except to the report so far as the conclusions of said commissioner as to the facts in relation to the purchase and ownership of said land. They insist that the facts proven show the purchase was made by Benjamin Shaw. And, so far as any money went into said land other than that paid by Benjamin Shaw, the same was borrowed and is unpaid; liens having been given thereon for the same by Mary Shaw. That it is not shown that Mary Shaw had any money of her own which she paid on said land.

Upon the questions raised by these exceptions, the proofs in the cause show: That said Mary Shaw was first married in 1851, to one Isaac Whiting, in the state of Maine. That her said husband removed from that state to Preston county, W. Va., to which place said Mary followed him, and in said county kept boarders, for some time, for the firm of Perry & Co., who were engaged in the shuck business, and then removed to Rowlesburg, where she engaged in the same business for the same parties, getting her house rent and fuel free, her groceries at cost, and $18 per month for each of the men boarded for said Perry & Co. That while said Whiting was careless and negligent, and did not provide a living for his wife and children, yet he set up no claim to her own earnings; and when he eventually left and abandoned her, and went to the state of California, she had, by labor and economy, accumulated about $600 in money; and some time after her said husband abandoned her she purchased a house and lot of one Daniel Martin at Cranberry Summit, W. Va., and contracted to pay him $1,150 for the same,-$800 down, and the balance on time. That she borrowed $200 from the appellant Benjamin Shaw to enable her to make the cash payment; and when said cash payment was made said Martin executed and delivered to her a deed for the same, reserving a vendor's lien for the residue. This deed bore date on the 1st day of September, 1866, said Whiting having finally left and abandoned said Mary on the 8th day of May, 1866. It appears that after she had received said deed she intrusted it to said Benjamin Shaw, to be carried to the clerk's office for recordation, and that said Shaw, upon consultation with a lawyer by the name of Hooton, had the deed so changed as to insert the name of Benjamin Shaw in the place of Mary Whiting, in order to protect the property from said Whiting, her husband, in case he returned, which change was made without her knowledge or consent; and afterwards said Shaw explained how and why said change was made, and told said Mary he was to hold the title to said property in his name, in trust for her. Subsequently said property was sold to one Wendall for $2,500 with the consent of said Mary; and the commissioner ascer

tains, as I think, properly, that from the fall of 1866 up to the fall of 1869, and prior to her second marriage, which took place late in the fall of 1869, the said Benjamin Shaw became indebted to the said Mary Whiting to the amount of $2,600, which was the status of accounts between said Mary and Benjamin Shaw at the time of their marriage. When he informed her of the change made in said deed, he declared his intention to hold the property in trust for her; and, being thus held, the statute of limitations would not apply to said indebtedness; and in this respect, as well as others, this case differs very materially from the case of Bank v. Atkinson, 9 S. E. Rep. 175, referred to in the brief filed by counsel for appellees. The property sought to be subjected in this case consists of a tract of 110 acres which the commissioner ascertained was purchased by said Mary Shaw in the fall of 1875 at a judicial sale in Kingwood, Preston county, W. Va., of Special Commissioner William G. Worley, and two small tracts of 31 acres from J. Ami Martin, clerk, in 1877. The 110 acres was purchased by said Mary for the sum of $1,312.50. At the time she consented to the sale of the house to Wendall, said Benjamin told her that he would get her a better home when she could hold it; and it appears that after returning to said Shaw the money she had borrowed from him to make the cash payment, and $350 still due Daniel Martin, a balance of $1,950 was still due her from said Benjamin, besides $275 for articles of furniture, etc., sold him, and $375 for her services in keeping house for him. The purchase money for said 110 acres of land appears to have been derived by said Mary Shaw as follows: $530 was realized from an insurance policy which said Benjamin Shaw took out in the spring of 1867, and gave to her as a partial security for his indebtedness to her; $500 thereof was borrowed from said Benjamin Shaw from some money which he had in his hands in a fiduciary capacity, and the note of said Mary Shaw was executed therefor, and a deed of trust upon said tract of land to secure the same; and the residue was paid by her by the sale of timber off of the land, and by borrowing $87.21 from a man in Newburg. So that the purchase money for said 110-acre tract was largely paid from money realized upon a collateral placed in her hands by said Benjamin before said marriage, and nearly all of the residue was paid by her by creating a lien upon the land, and the sale of timber from the same. But, if said Benjamin Shaw had paid the money for said lands directly, he had a perfect right to do so. The debt due from him to Mary Whiting existed before marriage, by reason of his having received the proceeds of the sale of her real estate, the title to which passed to her by the execution and delivery of the deed to her by Daniel Martin, and remained in her, notwithstanding the unauthorized change made in the same by the insertion of the name of Benjamin Shaw, until the same was sold and conveyed; and the proceeds went into the hands of said Benjamin Shaw, as he declared at the time, in trust for her.

At the time of said marriage, in the fall

of 1869, our statute declared that" the real and personal property of any female who may hereafter marry, and which she shall own at the time of marriage, and the rents, issues, and profits thereof, shall not be subject to the disposal of her husband, nor be liable for his debts, and shall be and continue her sole and separate property, as if she were a single woman." See Code W. Va. 1868, c. 66, p. 447, § 2. And, this being the law, the marriage of said parties would have no effect upon the rights of said Mary, with reference to her property held and owned by her previous to her marriage. Again, the purchase of this 110acre tract of land was made in 1875; and, although the deed was not made for the same until some time in 1879, it is held by the court of appeals of Virginia, in the case of Taylor v. Cooper,, 10 Leigh, 317, that "after the sale is confirmed the confirmation relates back to the sale, and the purchaser is entitled to everything he would have been entitled to had the confirmation and conveyance been contemporaneous with the sale. She then was, for all purposes, the owner of said 110-acre tract on the 7th day of October, 1875; and at that time none of the judgments reported by the commissioner had been rendered, and there is nothing in the pleadings to show that the debts existed when the land was purchased, in October, 1875; and, even if Benjamin Shaw had purchased and paid for said land, he had a perfect right to do so, so far as anything appears in the cause, and have the same conveyed to his wife in satisfaction, or partial satisfaction, of his indebtedness to her.

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As to the 31 acres purchased at tax-sale, and at the sale of the Chidester estate, the title to said land never was in the defendant Benjamin Shaw; but the sale appears to have been made, and said Mary Shaw reported as purchaser, and the sale to her was confirmed. She, also, was the purchaser at the tax-sale; and, if said Benjamin Shaw paid any portion of the purchase money for her, it was her money he was paying, and the creditors, by their docketed judgments, had no lien upon it, and acquired no lien upon the 31 acres for which it was paid, as their debtor, Shaw, acquired no title of any character, legal or equitable, to said tract of land.

In this case, it appearing that the indebtedness of Benjamin Shaw to Mary Whiting was created before their marriage, and also that there was clearly a resulting trust in favor of said Mary as to the house and lot purchased from Daniel Martin, which was paid for by Mary Whiting, the deed for which was taken in the name of Benjamin Shaw, without her knowledge or consent, the subsequent sale of said property, and reception of the proceeds by said Shaw, accompanied with the declaration that he would hold them in trust for her, did not extinguish said trust as to said proceeds. Neither did their marriage affect the same, but it remained good and valid between the parties thereto. And it does not appear that at the time the property now sought to be subjected was acquired by said Mary Shaw any creditors of Benjamin Shaw existed to interpose an objection, if any could legally be made, to the

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said Mary being repaid in money or property what she was legally entitled to by reason of said antenuptial debt. As to the deed of trust executed by Mary Shaw and Benjamin Shaw to secure the money borrowed by her from Benjamin Shaw, guardian, etc., it is not regarded as material in this case whether said trust created a valid lien upon the property therein described or not. It shows that she borrowed the money from a source that could not be reached by the general creditors of said Benjamin Shaw, if any such there were.

Entertaining these views of the case, we are of opinion that the court below erred in sustaining said first and second exceptions to Commissioner Hawthorne's report, and in declaring the deed from William G. Worley, commissioner, to Mary Shaw, dated the 20th day of January, 1879, and the deed to her from J. Ami Martin, clerk, dated the 20th day of April, 1880, fraudulent and void as to the creditors of said Benjamin Shaw, and in setting said deeds aside as to said creditors, and in ascertaining that any liens exist against said lands in favor of said creditors, and directing a sale of said lands to satisfy any liens in favor of said creditors so ascertained. The decree complained of must be reversed, with costs to appellant, and the bills dismissed as to the defendant Mary Shaw, and the lands purchased by her, as aforesaid, from William G. Worley, commissioner, and J. Ami Martin, clerk.

SNYDER and BRANNON, JJ., concurred; GREEN, J., being absent.

STATE V. BAKER.

(Supreme Court of Appeals of West Virginia. Nov. 18, 1889.)

INDICTMENT-QUASHING GRAND JURY-COMPETENCY OF PETIT JUROR-EVIDENCE.

1. A plea in abatement to an indictment which avers that the prosecuting attorney, of his own motion, without authority of law, went into the room where the grand jury were sitting, and, in the presence of the grand jury, examined certain named witnesses, upon whose testimony the indictment was found, and talked in the presence of the grand jury about the said testimony of said witnesses, and thus unlawfully conspired against the defendant to have and procure the grand jury to find the indictment, does not present cause for abating the indictment, and was properly rejected.

2. A juror who had not heard the evidence in a criminal cause on a legal investigation, or from witnesses, but had read in newspapers a report of the evidence given on a former trial, and stated that from that he had formed a decided opinion as to the guilt or innocence of the accused, which it would require stronger evidence than he had read to remove, and who stated upon his voir dire that he had no prejudice or bias against the prisoner, and that he would regard it a duty, as a juror, under his oath, to discard that opinion, and that he thought he could discard it, and have his mind as a blank, ready to receive the testimony that should be given on the trial, and that, while he would as a citizen entertain that opinion, yet as a juror he would not, but could and would hear and consider the evidence, and render a fair and impartial verdict according to the evidence, uninfluenced by such opinion, and whose statements satisfy the court of his fairness, is a competent juror.

3. A sheriff, having a prisoner in his jail charged with murder, requests him to deliver his

pantaloons to him, not informing him of the purpose for which he desired them. The prisoner,

without any protest or objection, delivers him the pantaloons, taking them off for that purpose. The pantaloons are subjected to investigation by experts, to discover the presence or absence of blood spots on the pantaloons. The state, upon the trial, against the prisoner's objection, by leave of the court, introduces the pantaloons, together with evidence tending to show that such investigation revealed blood spots on the pantaloons. There is no error in allowing the pantaloons and such evidence to go before the jury.

interest will be promoted thereby, or when called upon by the foreman to do so, to aid them with his advice and assistance in the discharge of their official duties. But he shall not be present when any vote is taken upon the finding of an indictment or presentment." This statute has been repealed, and for that reason it is claimed the legisla ture did not intend prosecuting attorneys to go before grand juries. In the first place, this section made it the duty of prosecuting attorneys to do so, whereas before it was not imperative; and, secondly, though the legislature may have so intended, it could only express its intent by enactment. This repeal left the subject as it was atcommon law. How is it at common law? The judges of England, in 1660, in the proceed

4. Upon a writ of error to a judgment overruling a motion to set aside a verdict and award a new trial on the ground that the verdict is contrary to the evidence, and the evidence, and not the facts, is certified in the bill of exceptions, this court will not reverse the judgment, unless, after rejecting all the conflicting oral evidence of the exceptor, and giving full faith and credit to that of the adverse party, the decision of the trial court still appears to be wrong. State v. Flanagan, 26 W. Va. 116. 5. A case in which, upon circumstantial evi-ings against the regicides of King Charles dence, a verdict of murder in the first degree is found, and this court refuses to reverse the judgment based upon it.

(Syllabus by the Court.)

Error to circuit court, Brooke county.

W. W. Arnett, John M. Cook, W. D. Moore, and John R. Donehoo, for plaintiff in error. Alfred Caldwell, Atty. Gen., John A. Hutchinson, and Wm. J. Huff, for defendant in error.

BRANNON, J. Van B. Baker was indicted in June, 1887, in the circuit court of Hancock county, for the murder of Mrs. Drusilla McWha. He demurred to the indictment, and his demurrer was overruled. He tendered a plea in abatement, which was rejected by the court. He then pleaded not guilty. After a trial in Hancock, and a new trial granted, the case was removed to Brooke county. When his trial came on there he objected to certain jurors for incompetency whom the court accepted as competent. His trial resulted in a verdict of guilty of murder in the first degree, and finding that he be confined in the penitentiary. He moved the court to set aside the verdict and grant him a new trial, on the ground that it was contrary to the evidence, and the admission and rejection of certain evidence, and erroneous instructions. No instructions are in the record, and no assignment is made as to them The court overruled the motion for a new trial, and on the 27th of December, 1888, rendered judgment that the prisoner be confined in the penitentiary during his life; and to that judgment he obtained a writ of error.

was

Did the court err in rejecting the plea in abatement? It avers that the prosecuting attorney, of his own motion, without authority of the law, went into the grand jury room while the grand jury was in session, and there, in the presence of the grand jury, examined certain witnesses, upon whose testimony the indictment found, and there talked in the presence of the grand jury about said testimony of said witnesses, and thus unlawfully conspired against the defendant to have said grand jury find said indictment. Will the presence of the prosecuting attorney before a grand jury vitiate an indictment? Our Code of 1868 (chapter 120, § 5) provided that "it shall be the duty of every prosecuting attorney in this state to go before the grand jury whenever, in his opinion, the public

I., (5 State Tr. 947,) resolved that any of the king's counsel might privately manage the evidence before the grand inquest, in order to the finding of the bill of indictment. So in the case against Hardy and others (24 State Tr. 199) for treason, in 1794, the solicitor for the crown went before the

grand jury. According to Sir JOHN HAWLES, in Colledges' Case, in 1681, the practice had long prevailed. 8 State Tr. 723. 1 Chit. Crim. Law, 260, states that it is not unusual, except in the king's bench, where the clerk of the grand jury attends, to permit the prosecutor to be present during the sitting of the grand jury,to conduct the evidence on the part of the crown. So, on indictment for high treason, where the sovereign is immediately interested, any of the king's counsel may attend for the same purpose, as he cannot prosecute in person. 1 Bish. Crim. Proc. § 861, says the practice is not uniform in all the states, but in the greater number the state's attorney is with the grand jury, when not deliberating on their finding, assisting in examining witnesses, and advising on questions of law. In 9 Amer. & Eng. Cyclop. Law, 16, tit. "Grand Juries," the rule is laid down that "during the taking of the testimony no one besides the witnesses is permitted to be present, except the prosecuting attorney or his assistants. During the deliberations and vote of the grand jury, no person not a member of the grand jury may be present. An indictment may be set aside if the rule is violated." Mr. Justice Net SON, in U. S. v. Reed, 2 Blatchf. 435, said: "It is the uniform practice in the federal and state courts for the clerk and assistant of the district attorney to attend the grand jury, and assist in investigating the accusations presented before it. That has been the practice, to my knowledge, without question, ever since I have had any conneetion with the administration of criminal justice. ** We cannot at this late day overturn a uniform practice, that has been settled for so long a time. But, if any abuse has been committed by him, or by any other person, it is a proper subject for investigation by the court." In Justice FIELD'S formal charge as to the powers and duties of grand juries, in 2 Sawy. 678, he says: "The district attorney has the right to be present at the taking of testimony before you, for the purpose of giving information or advice touching any matter cognizable by you, and may inter

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rogate witnesses before you; but he has no right to be present pending your deliberations on the evidence. When your vote is taken upon the question whether an indictment shall be found, or a presentment made, no person besides yourselves should be present." In State v. Whitney, 7 Or. 386, an assistant attorney was before the grand jury; and this was held not a cause for setting aside the indictment, or reversing the judgment. In Shattuck v. State, 11 Ind. 473, it was held that the prosecuting attorney may attend the grand jury, examine witnesses, and advise the jury of matters of law. See, also, Thomp. & M. Juries, §§ 630, 632, and Ex parte Crittenden, Hemp. 176, and Whart. Crim. Law, §§ 494, 495. Davis, in his Criminal Law, says the practice in Massachusetts is for the prosecuting officer to open the case, commence the examination of each witness, and meet any question as to the law of the case that may be given him; but during the discussion of the question it is his duty to remain perfectly silent, unless his advice or opinion in a matter of law is requested. The least attempt to influence the grand jury in the decision upon the effect of the evidence is an unjustifiable interference, and no fair and honorable officer will ever be guilty of it. It is very common, however, for some one of the grand jury to request the opinion of the public prosecutor as to the propriety of finding the bill; but it is his duty to decline giving it, or even any intimation on the subject, but in all cases to leave the grand jury to decide, independently, for themselves." Undoubtedly, this power is, in many cases of complication, important for the public interest, and, when exercised by conscientious prosecutors, according to these principles, cannot hurt the accused, but when improperly exercised is a weapon of danger. Now, this plea in abatement does not aver at what stage of the grand jury proceedings the attorney was present; or that he was present during deliberation or vote; or that he made any comment on the credit or effect of the evidence, or even on the law; or that he urged the finding of the indictment. It does say that he talked in the presence of said grand jury about the testimony of said witnesses." This may be so, and yet not improper. In what respect did he talk of it,-about its weight, or credit, or its mere admissibility, or the law pertinent to it, or during the deliberation or vote upon the indictment? The plea does not say. The plea should show that this "talk" was contrary to law. It does say, "and thus he unlawfully conspired against him, to have and procure said grand jury to find said indictment." The word "thus" remits us to the "talk" before the grand jury; and we do not, as just stated, know whether that talk was improper, the manner of conspiring being limited by the word "thus" to such talk. So far as the plea informs us, the only party to the conspiracy, except by inference, was the prosecuting attorney. If it was with the whole or part of the grand jury, it does not say so. A plea in abatement should be certain, not inferential. So there was no error in rejecting this plea.

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Did the court err in overruling defendv.10s.E.no.18-41

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ant's objection to the juror Reed? There have been many cases in Virginia upon the incompetency of jurors in criminal cases on account of preconceived opinions. Lithgow's Case, 2 Va. Cas. 297; Sprouce's Case, Id. 375; Poore's Case, Id. 474; Pollard's Case, 5 Rand. (Va.) 659; Hughes' Case, Id. 655; Mendum's Case, 6 Rand. (Va.) 704; Brown's Case, 2 Leigh, 769; Osiander's Case, 3 Leigh, 780; Hendrick's Case, 5 Leigh, 707; Maile's Case, 9 Leigh, 661; Moran's Case, Id. 651; Armistead's Case, 11 Leigh, 657; McCune's Case, 2 Rob. (Va.) 771; Heath's Case, 1 Rob. (Va.) 736; Hailstock's Case, 2 Grat. 564; Epes' Case, 5 Grat. 676; Smith's Case, 6 Grat. 696; Smith's Case, 7 Grat. 593; Clore's Case, 8 Grat. 606; Wormeley's Case, 10 Grat. 658; Montague's Case, Id. 767; Jackson's Case, 23 Grat. 919; Little's Case, 25 Grat. 921; Cluverius' Case, 81 Va. 787. In Jackson's Case, supra, MONCURE, P., said: "There is no question perhaps, about which there has been more apparent conflict of decision in this state, or in regard to which it is more difficult to derive from our many cases on the subject any definite rules which will apply to all cases that may arise. The object of the law is to secure to every man who is charged with a criminal offense a trial by an impartial jury; and this rule has been established by the cases, if no other: that if a venire man has formed-and, still more, if he has formed and expressed-a decided or substantial opinion as to the guilt or innocence of the accused, no matter upon what ground it was formed, whether from having heard the evidence on some former trial or examination, or from mere rumor, or otherwise, he is an incompetent juror to try the case; and if, on the other hand, his opinion be merely hypothetical, he is not incompetent. He further says: "It would be dangerous to lay down a rule; and no case has ever decided that a verire man, who has formed an opinion from accounts received from witnesses out of court, and still less from accounts received from others, as to statements made by witnesses in or out of court, is therefore necessarily an incompetent juror." It is useless to attempt to analyze these many cases. It is clear that they all hold that to disqualify a juror the opinion must be decided and substantial. So our court has said the opinion must be "deliberate and decided." Thompson v. Updegraff, 3 W. Va. 629. It makes no difference, if the opinion is decided, whether it has been expressed or not. Armistead's Case, supra. Some cases hold that if the opinion is decided, no matter what its source, whether from evidence heard on a former trial, conversation with witnesses, or common report, even though the juror say that he is without prejudice, and that his opinion would yield to the evidence, and he would give the accused a fair trial, and has no doubt of his ability to do so, still he is not competent. Armistead's Case, Sprouce's Case, and perhaps Heath's Case, supra. Other cases hold that if such opinion is based, not on evidence heard on a trial, but on common report, though the juror says that on what he heard his opinion is decided, yet if he says that he is without prejudice, and that his opinion will

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