The first ground of error alleged by the learned counsel of the prisoner, is, that the grand jury finding the indictment Avas not legally constituted, there being only fourteen present at, and participating in, the investigation of the particular case. But this objection was not well taken, as has already been decided by this court, in the case of The People v. Roberts, April, 1856. The statute requires the concurrence of twelve grand jurors to find an indictment; and when that concurrence is had, it is not perceived how the prisoner can be injured by the absence of the others. In this case the grand jury consisted of the proper number, hut nine of them were excluded from participating in the proceedings in reference to this particular case.

The next ground taken by the counsel of the prisoner, is that the District Court erred in permitting the district-attorney to *440 ask a witness for the prosecution, this question, namely; “ What was Mr. Butler’s business at Downievillo ? ” This question was objected to on the ground of irrelevancy, the objection was overruled and the prisoner excepted. The witness then answered, “ I do not know that Butler was employed particularly in any business; all that I ever saw him at, was gambling.”

The record in this case does not contain all the evidence given at the trial. We must, therefore, presume that the state of the testimony was such as to authorize the question, if admissible at all under any state of case. Several witnesses had been examined by the prosecution, and what was the testimony given by them, the bill of exceptions does not state. If, therefore, we can conceive of a state of case when such a question would he proper, we are compelled to presume that it existed in this case.

At the time the question was put, the Court could not know what would be the answer of the witness. .The question might have been material for the purpose of identifying the prisoner; or of testing the memory of the witness, as to whether he knew the prisoner. There are many states of cases in which the question might have been relevant and ju’oper.

But we cannot perceive that any injury could result from the question, if proper instructions were given by the Court, which we must presume was done. At the time the alleged murder was committed, there was no statute in force making gambling a criminal offence; but there was a statute authorizing gaming as a lawful business. Com. L., 826.

There was, then, nothing criminal in the eye of the law, as it then existed, in the practice of gaming.

If then, it was necessary to put such a question to the witness under a state of the case we must presume to have existed, the danger of injury to the prisoner was too remote to justify us in reversing the judgment of the Court below upon this ground. Every prisoner is entitled to a fair trial before an unprejudiced jury; and Courts should be very careful to exclude all irrelevant questions that might prejudice the prisoner. But it is imposible for the law to exclude every question that might prejudice some minds, without entirely defeating ¿he ends of justice. In putting questions of doubtful character the district-attorney should be required by the Court .to state, in advance, the purpose for which the evidence is offered. The State never asks any thing but justice. On the part of the State the prosecution is but a fair and just inquiry into the guilt or innocence of the accused. She can have no interest in convicting the innocent or in releasing the guilty. She stands perfectly impartial as between the community and the individual. Prosecuting attorneys should therefore, do their duty faithfully, but no more. They should never act as employed counsel. No advantage should be taken of temporary public excitement against the prisoner, or of any preju *441 duce against him arising from any cause whatever. And if such attempts are made, the Court before whom the prisoner is tried, should put a stop to them.

But in this case there is nothing before us to show that the question was improper when put. Our duty is “ to disregard .technicalities, and to determine from the whole case whether the prisoner has had a fair trial, and the judgment is correct.” The People v. Moore, July, 1857.

The last error assigned by the counsel of the prisoner is that the Court erred in giving the following instructions:

The language used by Moffat was this, as stated in the bill of exceptions. “I want nothing to do with you;” “I do not think it any honor for a man tó have anything to do with you:" or, “ I want nothing to say to you, or any of your kind f or, “ I want nothing to do with you, I know you of old.”

This language, the counsel of prisoner insisted, at the trial, was “ sufficient to excite an irresistible passion in a reásonable person, and that if the jury should be of that opinion, they could not find the defendant guilty of a higher crime than manslaughter.”

It is but justice to the learned counsel for the prisoner to say, that they do not urge the point upon this Court. But it is deemed proper, as the point is made, though not urged, to say a few words respecting it.

All the authorities upon criminal law are against the position. The rule upon this subject is well stated in Wharton's Criminal Law, p. 368, where it is said:

Every State, and every community, has a right to adopt the means necessary to its own protection, and what those means are, the society must judge. The law of self-protection is as applicable to communities as to individuals. Communities are but corporations, or artificial beings, capable of united action through proper organs. Every member of society forms a part of this artificial being, and the State, therefore, has the greatest interest in preserving the lives of its people. The security, power, *442 and greatness, of a State, depend upon the number and character of its population. The State, and each member of the body-politic, have a reciprocal interest in the welfare of each other, and owe certain mutual duties and obligations to each.

From these positions, it results legitimately, that no civilized State can adopt a steady system of law that will permit the destruction of its people for light and trivial causes. As the State has an interest in every one, and every one owes a duty to the State, no man has the right to destroy himself, or to render himself incapable of performing his duty to his country. When he does so, he commits a great moral and political wrong, which no system of enlightened jurisprudence can sanction or approve. If a man was permitted to mutilate his person, or cripple himself, so that he could not perform the duties of a good citizen in time of peace, or defend his country in time of war, then the State would be compelled to protect him, while he could render no service in return. And it was long ago held in the case of a man who cut off his arm to avoid entering the army, that he was guilty of an offence. And what a man has no right to do himself, others have no right to do for him, except in cases of necessary self-defence.

As the State must look to the protection and preservation of its citizens, it cannot accommodate its permanent system of laws to the peculiar pride, or views, of individuals. And if we take a just and rational view of the subject, there can be nothing in mere words, or gestures, that should “ excite an irresistible passion in a reasonable person."

If untrue,'they cannot alter the fact. The truth still remains unchanged. But if true, the party has no right to complain. It is enough for a just man to do right himself. That is his business. That is a matter within his own control. .If others do him injustice in words, that is their fault, not his. There are, and must be, good and intelligent men enough in every community to do him justice, sooner or later. All that is required is time and patience. A reasonable man ought to have patience and forbearance. But suppose the law should justify the destruction of human life for mere words, what must be the practical result of such a theory ? Where would it end ? Hpw would justice, be practically administered ?

Under such a theory, it would become necessary to establish,, by judicial decision, what were, and 'what were not, words of insult and reproach. If this were not done, no man could tell, in advance, what he might say himself, or for what ho might kill another man for saying: and the Courts would not only have to do this, but they would have to permit the truth or falsity of the words to be shown. It would not do to allow a man to be killed simply because he told the prisoner the truth. In criminal prosecutions for libel, our Constitution allows the truth to *443 be given in evidence for the defendant. And in all actions for libel, or slander, the defendant may justify by proving the truth of the words written or spoken. To tell the truth would hardly he considered a crime in our country. And if we look simply to the effect that words are apt to have upon men, we should find that when true, they generally produce the most “ irresistible passion.” The actual effect is generally in proportion to the true elements of truth in fact, and the character of the charge made. And the character of the charge made will depend upon the peculiar views of the person accused.

Whatever may be the views of particular individuals upon this question, it is apprehended that no such a theory ever could be tolerated in any system of law. There is no anticipating the practical effects it would have upon the welfare of society.

After considering the whole case of the prisoner, we think there is no sufficient cause for reversing the judgment of the Court below, which is, therefore, affirmed.