Page:Palmore v. State.pdf/2

VOL. 29] Rh  4.—Irregular and improper conduct of petit jury.

During the deliberations of the petit jury, in a trial for murder, they should not be permitted to separate, or to indulge in the use of liquor, or to read a newspaper containing improper comments on the trial of the case before them, nor should the defendant or his counsel be called on to consent to such irregularities, as a refusal might incense the jury; but where the court below, with a knowledge of the facts and circumstances, and of the habits and character of the jurors, refuses to set the verdict aside on account of such irregularities, this court will not do it.

5.—EVIDENCE: When threats, and the character of the deceased admissible.

Threats, and the character of the deceased are admissible, when they tend to explain or palliate the conduct of the accused. They are circumstantial facts, and a part of the res gestae when so connected with the conduct of the parties as to explain their motives.

6.CRIMINAL LAW: INSTRUCTIONS: As to what constitutes the crime of murder.

It is not the intention to use a deadly weapon, but the intention to kill, of which the use of the weapon is evidence, that constitutes the crime of murder; and this distinction should be made clear to the jury in the instruction on this point.

7.—Same.

The court should define to the jury the difference in the degrees of homicide; but the failure to do so will not be ground for reversal where the court read from the statute the defintion of the different degrees of murder.

8.—Same.

An instruction, that where a deliberate purpose to kill, or do great bodily harm, on the part of the defendant, appeared, followed by an unlawful killing, the provocation which immediately preceded must not be considered, unless the defendant showed that the purpose was abandoned before the killing; should be accompanied by an explanation of the degrees of homicide, and so guarded as to allow the jury to infer the abandonment of the purpose to kill, from the circumstances of the homicide.

9.—''Same. When obscure.''

Where an instruction is vague and obscure, but not misleading, this court will not hold it erroneous.