delivered the opinion of the Court:
This was an indictment preferred by the grand jury of Adams county, against Montgomery Leach and Byron Leach, and tried at the May term, 1869, of the circuit court of that county, for the murder of Andrew Price. Montgomery Leach was convicted of manslaughter, and sentenced to ten years’ imprisonment. Byron Leach was acquitted.
A motion for a new trial was overruled, and the judgment of the court pronounced in accordance with the verdict.
To reverse this judgment this writ of error is prosecuted, and various errors assigned.
We will not undertake to notice all of them with equal particularity, confining ourselves to those most important, and which may be considered as bearing directly on the merits of the case.
The two first errors question the ruling of the court as to the competency of two jurors, namely: George Stopher and Thomas Wallace. The objection to these jurors was, that they had formed an opinion of the guilt or innocence of the prisoners.
The question involved in this objection has frequently been before this court for consideration. The leading case is Smith v. Eames, 3 Scam. 76, where it was held, if a juror has made up a decided opinion on the merits of the case, either from a *317personal knowledge of the facts, from the statements of witnesses, from the relations of the parties, or either of them, or from rumor, and that opinion is positive and not hypothetical, and such as will probably prevent him from giving an impartial verdict, the challenge should be allowed. The substance of the rule there announced, is, that a juror is disqualified if he has expressed a decided opinion on the merits of the case. But if a juror says he has no prejudice or bias of any kind, for or against either party, that he has heard rumors in relation to the case but has no personal knowledge of the facts, and from the rumors has formed and expressed an opinion in a particular way, if they are true, without expressing any belief in their truth, he would not be disqualified. This rule was fully recognized by this court, in a capital case, Gardner v. The People, ibid. 83, and may be considered the established doctrine.
The bill of exceptions shows that both these jurors had no fixed opinion in the case—an opinion, merely, of a light and transient nature, such as is usually formed by persons in almost every walk of life, upon hearing a current report, and which may be changed by the relation of the next person with whom he might come in contact, and which does not show a conviction of the mind and a fixed conclusion—that, at most, it was hypothetical. In such case the challenge should not be allowed. It is very manifest the minds of these jurors had settled down upon no conviction whether the prisoners were guilty or innocent. Baxter v. The People, 3 Gilm. 368. These jurors were, therefore, competent.
It is also objected by the plaintiff in error that the court, on the cross-examination of Daniel Hunsaker, a witness for the prosecution, refused to permit his counsel to put this question to the witness: “ did the witness know at the time, that there had been a difficulty between the prisoner and one Joseph Kately ?”
The bearing of this question will be understood, when it is stated that the witness testified that on the evening of the homicide, and before it occurred, he saw a knife in Leach’s *318bosom, and that Leach said, “ if his hand was well, he would strike some licks that night.” Now, if the object of this testimony was to show malice against the deceased, and of the cross-examination to induce the jury to believe the remark might have referred to Kately, perhaps it would have been legitimate testimony for the prisoner, had it been preceded by proof that Kately was there present, or expected there. In the absence of such proof, the evidence was properly rejected. Besides, the question was confined to no time.
It is also objected, that the court refused to permit the prisoner to prove he was advised by his cousin, Walter Leach, to flee, after committing the homicide. Flight sometimes bears upon its face a consciousness of guilt, whether advised or not. But the prisoner had the benefit of this testimony, through other witnesses, one or more of whom testified that after the deceased fell, Byron Leach, a co-defendant, told the prisoner to get his horse and leave the country.
Several objections are made to the manner in which the court disposed of the instructions on behalf of the prosecution and of the plaintiff in error. The instructions were quite voluminous, and that a court, in disposing of them in the hurry of a trial, should commit some errors, is not remarkable. Some given by the court, perhaps, ought not to have been given, and some refused should have been given; but in all the important legal propositions bearing on the facts proved, we think full justice was done the prisoner. The instructions given on behalf of the prisoner, were as favorable as he had any right to demand, and no court is justified in reversing a judgment, if, on the whole record, it appears justice has been done, and there appears no substantial misdirection of the court by which the prisoner’s rights were injuriously affected. On reading the instructions, we think, as a whole, they fairly stated the law, and deprived the prisoner of none of his rights. Several of the instructions asked by the prisoner and refused by the court, were mere echoes of instructions already given, and for that reason were properly refused.
*319Upon the evidence in the record, we are satisfied the homicide was of a most atrocious character, and would have justified the jury in demanding a life for a life. That of Andrew Price was most remorselessly taken away—hack’d to death by a knife in the hands of a man who had said he would have revenge on him for some trifling matter which should not have disturbed the equanimity of any one. The only immediate provocation was a blow with the open hand, or fist, and by an unarmed youth, who could not have expected death from the quarter from which it came. There was no sufficient provocation for the wicked deed. The prisoner knew he was not in danger of great bodily harm when he dealt his murderous blows, and he should be grateful to the jury who tried him, and to his counsel who defended him, for the mild punishment inflicted. It was a murderous act—Andrew Price was causelessly done to death, while engaged in a fight with the prisoner, which there is much in the record to show the prisoner brought on in order to gratify that revenge he confessed was lurking in his bosom.
The prisoner has had a fair trial. He has been deprived of none of his rights, and the judgment of the law ought to rest upon him, as pronounced by the circuit court.
We see no cause for reversing the judgment, and it must be affirmed.
Judgment affirmed.