NO FUNDS OF DRAWER IN HANDS OF DRAWEE an excuse for want of notice of dishonor: See Hubble v. Fogartie, 45 Am. Dec. 775; Lacoste v. Harper, 48 Id. 449, and cases in this series cited in the notes thereto. In Pack v. Thomas, 51 Id. 135, it is held that even although the drawer may have had reasonable grounds to believe that his check would be honored, nevertheless if in fact he had no funds in the hands of the drawee, no notice of dishonor need be given him. But the principal case is relied upon in Schuchardt v. Hall, 36 Md. 602, as authority upon the point that drawers having reasonable grounds to believe that their draft will be honored, are entitled to demand and notice. See also Moore v. City of New Orleans, 32 La. Ann. 751.

DUE DILIGENCE IN MAKING Demand anD NOTICE is necessary in order to charge drawers or indorsers: See Whitaker v. Morrison, 44 Am. Dec. 627, and note. The principal case is cited on this point in Haines v. Pearce, 41 Md. 233, and in Tate v. Sullivan, 30 Md. 470, to the effect that if the proof of due diligence is insufficient in law, it is error to refer the question to a jury.

INSOLVENCY OF DRAWEES NO EXCUSE FOR Want of DEMAND AND NOTICE: See Hunt v. Wadleigh, 45 Am. Dec. 108, and cases cited in the note thereto. See also Gower v. Moore, 43 Id. 247, and note, to effect that maker's insol. vency is no excuse for failure of demand on a note. The principal case is cited in support of this principle in Armstrong v. Thruston, 11 Md. 157.

DRAWER DISCHARGED BY LACHES NOT LIABLE on a count for money had and received: See Austin v. Rodman, 9 Am. Dec. 630.

CASES

IN THE

SUPREME JUDICIAL COURT

OF

MASSACHUSETTS.

COMMONWEALTH v. WEBSTER.

[5 CUSHING, 295.]

PRISONER MUST CHALLENGE PEREMPTORILY BEFORE JURORS ARE EXAMINED touching their bias, in a capital case, or he will lose his right. PRECONCEIVED OPINION, TO DISQUALIFY JUROR, under the Massachusetts statute, must be something more than a vague impression formed from casual conversations or imperfect newspaper reports, and must be such as will be likely to prevent a candid, unbiased judgment after hearing the evidence.

THAT JUROR IS OPPOSED TO CAPITAL PUNISHMENT DOES NOT DISQUALIFY him from sitting in a capital case, where he states that he does not think his opinions will interfere with his doing his duty as a juror, although he faars that his views on that subject may influence others of the jury. SYMPATHY WITH PRISONER AND HIS FAMILY IS NOT BIAS which will disqualify juror in a capital case, where he states that he thinks he can give an unbiased verdict.

Juq ›r must Decide for Himself WHETHER HIs Opinion is SUCH as to prevent an unbiased verdict.

VW OF PREMISES WHERE HOMICIDE WAS COMMITTED may be granted, under the Massachusetts statute.

OPINION OF WITNESS HAVING PERSONAL KNOWLEDGE OF PARTY'S HANDWRIT.

ING, not from seeing him write, but from often seeing his signature to official documents, is competent evidence in regard to it, independent of any skill in penmanship, or in judging of it, on the witness's part. 'HANDWRITING" OF PARTY INCLUDES WHATEVER HE HAS WRITTEN with his hand, though not in his usual or ordinary chirography.

OPINION AS TO WHETHER ANONYMOUS LETTERS ARE IN DEFENDANT'S HANDWRITING, though disguised, from a witness who knows his handwriting, is competent.

WITNESS MAY GIVE REASONS FOR OPINION AS TO HANDWRITING, in a paper exhibited to him as being that of the prisoner.

OPINION OF WITNESS AS TO WHETHER LETTER WAS WRITTEN WITH CERTAIN INSTRUMENT found in a party's possession is inadmissible.

EVIDENCE THAT THERE WAS PERSON STRONGLY Resembling FERSON ALLEGED TO BE MURDERED going about at the time of the latter's disappearance is inadmissible, on a trial for murder, to rebut evidence introduced by the defense that the man said to be murdered was seen at various times after the alleged killing.

COMMON-LAW DISTINCTIONS BETWEEN MURDER, MANSLAUGHTER, and justifiable homicide are a part of the law of Massachusetts.

MURDER IS THE KILLING OF A HUMAN BEING WITH MALICE AFORETHOUGHT, express or implied.

MANSLAUGHTER IS THE UNLAWFUL KILLING OF ANOTHER WITHOUT MALICE, whether the killing be voluntary or involuntary.

MALICE DISTINGUISHING MURDER FROM MANSLAUGHTER IS NOT CONFINED TO ILL-WILL against a particular person or persons, but denotes an action flowing from any wicked and corrupt motive, a thing done malo animo, attended with circumstances indicating a heart regardless of social duty and fatally bent on mischief.

MALICE IS IMPLIED FROM ANY DELIBERATE OR CRUEL ACT against another, however sudden.

MALICE IS IMPLIED IN EVERY INTENTIONAL HOMICIDE, and any circum

stances of accident, necessity, or infirmity extenuating or excusing the act must be satisfactorily proved by the accused, except so far as they are disclosed by the proof against him.

FROM ASSAULT WITH DANGEROUS WEAPON likely to kill, and which does in fact produce death, an intent to take life or do great bodily harm is presumed, and malice is implied in the absence of proof to the contrary. HOMICIDE, THOUGH VOLUNTARY, COMMITTED IMMEDIATELY AFTER PROVOCATION by the deceased, consisting of a blow or an assault, or other act which the law deems adequate to excite sudden and angry passion, is manslaughter, and not murder.

PROVOCATION BY WORDS ONLY, HOWEVER OPPROBRIOUS, IS NOT SUFFICIENT to mitigate an intentional killing to manslaughter.

MALICE AFORETHOUGHT DOES NOT IMPLY DELIBERATION for any length of time before the killing, but it is sufficient if the intent to kill precedes and accompanies the act, however sudden it may be.

HOMICIDE COMMITTED IN MUTUAL COMBAT, where the parties moet without intending to quarrel and a conflict springs up, is manslaughter and not murder, if no unfair advantage is taken in the outset, and the occa sion is not sought for the purpose of gratifying malice.

CIRCUMSTANTIAL EVIDENCE IN CRIMINAL CASES is competent, and is sometimes the only mode of proof.

GREAT CARE MUST BE EXERCISED IN DRAWING INFERENCES FROM CIRCUMSTANCES proved in criminal cases.

TO JUSTIFY CONVICTION ON CIRCUMSTANTIAL EVIDENCE EVERY FACT NECESSARY to the conclusion must be distinctly and independently proved by competent evidence; but a failure of proof of some collateral circumstance not necessary to the conclusion, but offered by way of corroboration does not destroy the chain.

ABSENCE OF EVIDENCE ON PART OF ACCUSED, EXPLAINING SUSPICIOUS CIR. CUMSTANCES, after proof of a probable state of facts tending to criminate him, is to be considered, though not alone entitled to much weight. ATTEMPTS BY ACCUSED TO SUPPRESS EVIDENCE, SUGGESTIONS OF DECEPTIVE EXPLANATIONS, and endeavors to cast suspicion upon other persons, without just cause, are circumstances to be considered against him, but are not to be pressed too urgently. INFERENCES FROM INDEPENDENT SOURCES TENDING TO SAME CONCLUSION, though differing from each other, not only support each other, but do so with increased weight in a criminal case depending upon circumstantial evidence.

IN CASE DEPENDING ON CIRCUMSTANTIAL EVIDENCE FACTS PROVED MUST BE CONSISTENT with each other, and with the main fact sought to be proved, to justify conviction. CIRCUMSTANCES TAKEN TOGETHER SHOULD BE OF CONCLUSIVE NATURE and tendency, leading on the whole to a satisfactory conclusion, and producing a reasonable and moral certainty that the accused, beyond a reasonable doubt, and no one else, committed the offense, to warrant a conviction on circumstantial evidence.

REASONABLE DOUBT, TO WARRANT ACQUITTAL in a criminal case, is not a mere possible doubt, but is such a doubt as, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in such a condition that they can not say they feel an abiding conviction, to a moral certainty, of the truth of the charge. MURDER MUST BE COMMITTED BY SOME ACT AFFECTING THE PERSON either directly or indirectly, and a death caused by grief or terror is not murder. INDICTMENT MUST STATE CHARGE WITH AS MUCH CERTAINTY as the cir cumstances of the case will permit, but nothing more is required. INDICTMENT CHARGING ASSAULT AND KILLING "IN SOME WAY and manner, and by some means, instruments, and weapons to the jurors unknown, feloniously, willfully, and of malice aforethought," is sufficient where the mode of killing can not be more particularly described. EVIDENCE THAT PERSON ALLEGED TO BE KILLED WAS SEEN ALIVE after the time when the killing is charged to have occurred is competent, but to warrant an acquittal, must be made out by satisfactory proof.

EVIDENCE OF GOOD CHARACTER OF PRISONER ACCUSED OF MURDER is com. petent, though of less weight than in crimes of inferior grade, and the defendant must prove a high character by strong evidence to counterbalance a strong case made by the prosecution.

INDICTMENT for murder. The fourth count, which was the only one upon which any question arose, was that the defendant "at Boston, etc., on the twenty-third day of November, etc., in and upon the said George Parkman, feloniously, willfully, and of his malice aforethought, did make an assault; and him, the said George Parkman, in some way and manner, and by some means, instruments, and weapons to the jurors unknown, did then and there feloniously, willfully, and of malice aforethought, deprive of life, so that," etc. Tried before Shaw, C. J., and the associate justices.

J. H. Clifford, attorney general, and G. Bemis, for the common. wealth.

P. Merrick and E. D. Sohier, for the defendant.

At the trial the defendant by his counsel moved the court to ask the several jurors the statutory questions before the defendant challenged peremptorily. The court ruled that the defendant must exercise his right of peremptory challenge, if at all, before the jurors were examined.

On the examination of the jurors, Shaw, C. J., said that the material inquiry, under the statute, was whether the juror had formed or expressed an opinion, or was sensible of any bias or prejudice, and that the words "prejudice" and "opinion" seemed to imply nearly the same thing, to wit, a prejudgment of the case, and not necessarily any enmity or ill-will against either party, the object of the statute being to exclude any person who had made up his mind or formed a judgment in advance; that an opinion or judgment which would disqualify must be something more than a vague impression formed from casual conversations, or from reading imperfect newspaper reports; that it must be such an opinion upon the merits of the question as would be likely to bias or prevent a candid judg ment upon a full hearing of the evidence; and that though one had formed what might in some sense be termed an opinion, if it fell short of exciting any bias or prejudice, he might conscientiously discharge his duty as a juror.

One of the jurors, in answer to an interrogatory as to whether he held any opinions which would prevent his finding a verdict of guilty where the punishment was death, stated that he was opposed to capital punishment, and was in favor of changing the law, but that he did not think his opinions would interfere with his doing his duty as a juror, and believed he could execute the law as it was. Afterwards he asked to be excused, stating that holding the opinions he did he thought it inconsistent for him to serve on the jury, and should prefer being left off; that he thought he could give an unbiased verdict, but he had a sympathy for the prisoner and his family, and feared that his opinions on capital punishment might influence other jurors. The court stated that the juror must judge as to whether his state of mind was such as to prevent his giving an unbiased verdict; but as he had stated the matter, the court did not regard him as disqualified under the statute.

Before going into the evidence the attorney general asked that