Travers

The appellant was convicted of murder, and appeals from the judgment on the judgment roll, and a short bill of exceptions which shows certain proceedings had on a motion to set aside the indictment.

1. Appellant, upon his arraignment, moved to set aside the indictment, upon the ground that he had not been held to answer when the grand jury which indicted him was in session, and that the grand jurors were prejudiced against him, and had unqualified opinions that he was guilty. He introduced on the motion an affidavit made by the county clerk and one made by himself, which showed that he had not been held to answer when he was indicted, and had no opportunity to challenge the grand jury. No other evidence was introduced. The bill of exceptions states that “defendant then offered to leave the challenge to the said grand jurors who indicted him to prove the challenge good, and moved the court for reasonable time and opportunity to examine each juror on his voir dire in support of said challenge. The court overruled said motion and challenge, and defendant excepted.” The first part .of the language above quoted is obscure. It probably was intended to state that defendant moved for…

The practical administration of justice should not be defeated by a too rigid adherence to a close and technical analysis of the .instructions of the lower court. And conceding this instruction to be obnoxious to criticism, of which fact I have some doubt, yet its weaknesses form too slight a basis for a reversal of the judgment in this case.

I do not believe that the fact of innocent men having been convicted in the past was a matter to be considered by the jury in making up their minds as to the guilt or innocence of this defendant. Such fact could not add to or take away one jot from the weight to be given every piece of evidence in the case. It was the duty of the jury to be convinced, beyond a reasonable doubt, from all the evidence in the case, of the guilt of the defendant, before they could convict, and the fact of innocent men having been convicted in the past should not and could not have impregnated itself into the question of reasonable doubt in any way.

The jurors in this case, under their oaths, were bound to try this defendant in the same manner, under the *241 same rules of law, and give him the full benefit of all the shields with which the law surrounds every…