^ ffj" « lii. ■ ;;:: m, j ^^^H|w|M^^^^||ji jj ij j ;: iiiii 1 UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF L\W LIBRARY >0 6 ^lOSANGFUj^ V^l TTT- ''^/smw ^ami L^ A TREATISE ON THE OEGANIZATION, CUSTODY AND CONDUCT OF JURIES, IXCLUDING GRAND JURIES. BY SEYMOUR D. THOMPSON and EDWIN G. MERRIAM. ST. LOUIS, MO.: WILLIAM H. STEVENSON, LAW PUBLISHER AND PUBLISHER OF THE CENTRAL LAW JOURNAL. 1 8 8 2. T r : U2Z T3T1G^ Copyright. 1S82. BY Seymour D. Thompson and Euwix G. Merriam. PRIXTED BY TIIK CBNTUVL LVW .lOUUNVF-. \ ^ PREFACE. The following pages are the result of an effort to put in convenient shape for the use of the bench and bar, the large body of statute and case law relatino- to the followino; subjects : 1. The organization of trial juries. 2. The custody and conduct of trial juries. 3. The organization, powers and proceedings of grand juries. In order to avoid a misunderstanding as to the scope of this work, it is proper to state that it does not relate to the conduct of JiD'f/ trials, except in so far as this subject is involved in the topics above stated. The conduct of court and counsel in the presence of the jury while the trial is in progress ; the function of the court as judge of the law, and that of the jury as judges of the facts ; the instructing of the jury ; the form and substance of the verdict, and the manner of its delivery and reception, (except in the case of sealed verdicts,) are all matters which have been carefully excluded from this work. In short, it is a work upon juries, and not a work upon trials. The reason of this exclusion may not seem so plain to our readers as to us. The mass ■of decisions and statutes relating to the subjects which we have considered could not be treated in less space than we have given to it, without a degree of condensa- tion which would be incompatible with a clear and explicit treatment of the numerous topics presented. In carrying out this plan of treatment, we have atten- 74005;^ IV I'KKr.VCK. lively examiiu'd and cited over four lli()ii>:ind cases. Some of these cases present a variety of topics relating to the su])ject of this work, and have necessarily been cited many times. It is thonght by some law writers that thoy dis- charge their duty to the profession, when they [)rescnt what are supposed to be the common law rules appli- cable to the subject under treatment : Icavinu' the reader in each State to discover for himself how far those rules have been changed by statute in his particular jurisdiction. This we regard as a very perfunctory view of the dutics- which such a writer owes to the profession. Our view is that it is (juite as important for judges and practitioners- to have a familiar knowledge of the law which has been enacted by the legislatures upon any subject, as the law Avhich has been built up by the courts. Many of these- questions, where not directly governed by controlling statutes or decisions, are, in a large measure, questions of sound public policy ; and the public policy of the country upon any given question is as plainly indicated, in the o;eneral concurrence of the legislation of the- different States, with reference to that ((ucstion, as in the- jreneral concurrence of judicial decisions. Proceeding upon this view, we have made the body of statute law, in England and in tliis country, with refer- ence to the subject of juries, the subject of careful study and comparison. The reader must not suppose that we have copied these statutes, either into our text or notes. This has been done only in the case of a few very im- portant statutes, so important that, we trust, the reader will perceive in each case the propriety of this course.' As a rule, Ave have confined ourselves to stating the- general resultft of legislation upon particular (|uestions,. 1 See §§ 49. 173, 222, .■)28. PREFACE. V carefully citing the latest statutes accessible to us.^ In this way, we hope to have made this work a fair index to the very large body of case and statute law on the subjects embraced in it. It will be seen that Part I. relates exclusively to trial juries. In Title I. of this part, we have endeav- ored to give a complete sketch of the organization of trial juries down to and including the swearing. In the concluding chapter of this title, we have discussed the effect of objections taken after verdict to irregularities which have taken place in the process of irapanneling. We have also considered in the same connection what the I'ecord should show with reference to these matters, in order to i)resent them for revision on appeal or error. Title II. embraces matters which constitute familiar grounds for a new trial, viz : the unlawful separation of the jury ; improper communications with jurors ; regulations relating to their food, drink, medicine, and entertainment ■during protracted trials ; the improper use of books and papers in the jury room ; improper methods of arriving i\t a verdict ; concluding with a general sketch of the principles Avhich govern the granting of new trials on the ground of misconduct of juries. Part II. is intended to present a complete discussion of all matters relating to the grand jury ; its powers and •duties : the incidents of its organization ; the right of an accused person before and after indictment to object to in- dividual members, or to the whole body, for incompetency, or for causes going to the validity of its organization ; the proceedings of the grand jur}^ including the return 1 For instances of this, we refer to §§ 17, 24, 2G,40, 45, 69, 162, 165, 173, 379, 402, 473, 474. 481, 483, 484, 486, 480, 498, 516, 517, 536, 583, 593, 623, «2.5, 634, 641. 6.54, 675, 684, 701, 706, 711. VI I 'HE FACE. of their tindiiig : wliiit IIk' rccoi'd should show as to the organization of the grand jury, and its proceedings ; the obligation of secresy resting upon individual members of this l)ody : and linally the personal liability of grand jurors. Having stated the contents and the object of this work, these prefatory remarks might properly end here ; but some difficulties "which Ave have encountered in the course of our investigations suirii"est themselves as of sufficient im- portance to be specially noticed. The statutes of the several States are leplete with provisions which specifically direct the mode of preparing the jury list, and drawing and summoning the panel. The sheriff did all these things, at common law, very much according to his discretion. There were no jury lists; there was consequently no formality like the drawing of a panel for service during the whole or a portion of the term. This officer, or his deputy, returned whom ho pleased, having regard, of course, that the persons sum- moned as jurors possessed the qualifications demanded by the law. Clearly, the sheriff Avas exposed to constant temptation to violate his duty, and frequently both he and his deputies did not scruple to do so. Lord Coke laments that " throu2:h the subteltv and untrue demeanor of sheriifs and their ministers, great extortions and op- pressions be and haAc l)een committed."^ The only means Avhich the common law gave for correcting such abuses Avas the challenge to the array. This consisted in an exception to Avhole of the panel returned, grounded upon the partiality or default of the sheriff, coroner, or other officer making the return.- This challenge was 1 3 Co. Inst. 33. 2 Co. Litt. 150. a. PREFACE. Vll readily allowed, not only for the actual misconduct of the sheriff in summoning the panel, as by consenting to the "nomination" of jurors by an interested party,^ but also for other causes only remotel}^ affecting his impartiality.^ The challenge to the array, or to the panel, as it is fre- quently called, exists in practice to-day ; but, since the adoption of statutes directing the preparation of the jury list, and the drawing of the panel from the jury box, the sheriff has less means of affecting the constitution of the panel, and the challenge to the array or panel has lost much of its original significance. In addition to the grounds for this challenge at common law, it may now be taken for irregularities in the process of making the jury list, in the filling the jury box or jury wheel, and in the drawing of the panel. But the very abundance of statutory provisions regulating these matters would seem to indicate the unreasonableness of requiring a technical compliance with the hnv in all particulars ; and we have endeavored to enforce this view. However, the chapter devoted to this discussion will show that some courts are absurdly punc- tilious in this connection. The chaotic state of the law in regard to the disquali- fication of i^articular jurors in criminal cases, arising from the formation or expression of an opinion in reference to the guilt or innocence of the accused, deserves par- ticular attention. We have discussed this matter at con- siderable length, and have endeavored to seize upon the salient points of the difliculty, as presented by a very large body of decisions.^ It will be seen that much contrariety of decision exists in this connection. Courts of different 1 Potit, § 132. 2 Post, § 130 et seq. 3 Sec. 191 et seq. VIU PREFACE. States part company at many points, and in some cases courts find difficulty in reconciling their own decisions with each other. Kcfincd metaphysical distinctions are at- tempted to l)c engrafted upon the law, to evade tlie Delphic utterance of Lord Coke that "he [the juror] must stand indifferent as he stands unsworn." Trial courts have not correctly apprehended the views of appellate courts, and the result has been fre(|uent failures of justice, caused by the granting of new trials, or fantastic displays like that in People v. Bodine,^ where three weeks were con- sumed in an unsuccessful effort to obtain a jury.- The common law certainly held a juror to be incompetent, who "declared his opinion ])eforehand that the party is guilty, or Avill be hanged, or the like ; '" '' and it is now generally conceded that this dis(jualitication attaches to the formation of an opinion, although such opinion has never been expressed.^ But courts have again and again i)ointed out that the standard of absolute indifference cannot be demanded in the age of newspai)ers and telegraphy. We must recede from the common law standard. But how far? All the confusion in the law upon this point results from the fact that judges are unable to find terms sufficiently definite to answer this question with precision. The organic law of every State requires that the jury shall be " impartial." The courts cannot fritter away, and the legislatures are powerless to take away, a substantial cause of challenge."' liut the lejzislaturo of one State has taken a ^Edm. Sel. C:is. :{C; j><>si, ^ 222, note. 2 Over six thousand jurors wero suiiiiiioiied, of wliom four tliousand were tried upon cliallenges, and all set aside except ten. 3 2 Hawk. r. (;. oil. 43, § 27. ^ Post, § 206. 5 See this point well reasoned in State v. Mi-Clear, 11 Xe\. :V.). PREFACE. IX long stride in the right direction. We allude to the State of New York. The statute of 1872,^ cuts up by the roots Jill previous attempts to settle this matter by judicial decision. Without infriniifino: the constitutional rioi;ht to i\n impartial jury, it declares in plain terms, easy of appli- <'ation and conducive to the administration of justice by intelligent jurors, a rule which the legislatures of other States will do well to follow. The distinction between challenges for principal cause, and challenges to the favor, is less clearly defined than formerly. This arises from the fact that one reason for the distinction has almost passed away. The tribunal known as the triors now exists in few jurisdictions. The triors determined exclusively challenges for favor. But since the almost universal abolition of this tribunal, all challenges being tried by the court, the necessity of deter- mining whether a given challenge is for principal cause or for favor no longer exists. There is considerable confusion in the decisions relating to the grand jury. It seems quite clear that grand jurors were not subject to challenge at common law ; but the inti- mation of Serjeant Hawkins to the contrary has done much to unsettle the law upon this point. The grand jury was organi-^ied without the intervention of accused persons, and no opportunity was given for objection to its constitu- tion, until the passage of the statute of 11 Hen. IV., c. 9, providing a means for avoiding indictments found by grand jurors disqualified to act, or such as were returned by the sheriffs or bailiffs at the instigation of others. This is usually done by a plea in abatement entered by the accused upon arraignment :-' but some courts permit it to be done b}-^ 1 Laws X. Y. 1872, ck. 475. p. li:W: post. § '221. - PuHt . i; ,527. X ri;i:rA(i:. :i motion to quash ;' while some courts deny the right of the- accused to avoid the indictment by showing the disqualitica- tion of particular niemi»ers of the body by whom it was found;- and, linally, in many States where the accused originally had the right to })U'a(l, in abatement of the indictment, the disqualitication of i)articular jurors, or circumstances affecting the regularity of their sum- moning, a statutory prohibition has l)een interposed to render the punishment of criminals more certain.'^ In ^lassachusetts an accu^^ed [)erson has never been permitted to challenge a grand juror,* or to i)lead his distiualitication ill abatement of the indictment.' In New Jersey the Supreme Court on one occasion pointed out what seemed to it conclusive objections against permitting a challenge to l)e made to grand jurors,'' and on a later occasion made an equally strong showing against permitting such objections to bo made by a plea in abatement.' Much diversity' of opinion also exists as to the iiujuisi- torial powers of the grand jury. Able judges have held that they are quite circumscribed in this particular.^ Other courts hold that this body is vested with a general in- quisitorial power and duty to search out all offences against the law.'' In some States this inquisitorial power is con- fined to the investigation of particular classes of crime. ^" These contradictory views have been examined with care, and the limits of the jurisdiction of the grand jury indi- cated, in the light c)f such decisions as the l)ooks >. 1U7. " State v. Kockafellow, 6 N. J. L. 332. ' State V. Rickey. 10 X. .1. L. S3. SO. 340. 8 Post, § G16. ** Pui-t. § dl."., subscu. 2. J" Post, § 617. PREFACE . Xr A curious contiict of opinion will he found in lelution to the indorsement of the finding of the grand jury. The usual method doubtless is for the foreman to affix his sio;uature to an indorsement, certifying the bill to be true, or the contrary. Some courts, however, dispense with the cer- tificate, provided the signature of the foreman, is duly indorsed upon the indictment.^ Others dispense with the signature of the foreman, provided the certificate is duly indorsed f and in Virginia it seems that neither an. indorsement of the findino", nor the sio'nature of the foreman is necessary, where it appears from the record that the bill was returned by the grand jury as true.'^ There can be no doubt that the obligation of secresy resting upon grand jurors has been much relaxed of late. This is partly the result of judicial decisions, and partly due to the interposition of the legislature.* The later de- cisions, therefore, as intimated, will be found to clash in some respects with earlier adjudications. This modification of the law has never been carried further than is essential to the purposes of public justice or the protection of pri- vate rights. The proceedings of the grand jury are as much hedged about with restrictions against impertinent curiosity as ever. It is fashionable for the profession to complain of the multiplication of law books, and for authors in presenting new law books to the profession to say something in the nature of an apology. Such apologies, except so far as they give expression to the sense which every candid author feels of the imperfections which necessarily attend his- efforts, are out of place. A good book, and one that will 1 Post, § 672. 2 Post, § 671 . 3 Post, §674. *Pos«, §706. -^11 PREFACE. 3)rove useful to the profession, needs no apology. On the other hand, no apology can atone for the Avrong of inflicting a poor one upon their confidence. The complaints of the profession about the multiplication of law books, when analyzed, will be found to l)e nothing more than complaints ngainst the multiplication of poor and unnecessary books. There are not enough really (/oocZ law books, and those which are sfood are not srood enouirh. We offer this book to the l)rofession with the feeling that the general judgment which, after a period of time they shall bestow upon it, must afford the only answer to the question whether we have acted wisely or unwisely in writing and publishing it. Whatever may be thought or said upon its first appear- ance, we shall know in the course of time Avhether it be worth preserving in the legal literature of the country. If it shall prove so, errors and omissions may be corrected in a future edition. Perfection lies far off; we cannot hope to have it in this. THE AUTHORS. St. Loris, August, 1882. TABLE OF CONTENTS. PART J.— Of Trial Juries.— TITLE I.— Of the Organ- ization OF Trial Juries. CHAPTER I. iSECTIONS. Of THE Constitution AND KiM>3 OF TuiiLJouiEs, .... j-17 Article I.— The Venue. II.— The Petit Jury. III.— The Special Jury. IV.— The Jury De Meclietate Lingua-. CHAPTER II. Of t^UALiFiCATiONs Foi: JuitY Duty, ...... Jl-:!! CHAPTER in. Of Exemptions from Jury Duty, ....... :!4-4() CHAPTER IV. Of the Selection OF the jury List, ..... 43-5.1 ARTICLE L— In the State Courts. IL— In the Federal Courts. CHAPTER V. Of the Drawing of the Panel, ....... .i.5-6:l CHAPTER VI. Of Summoning AND Enforcing the Attendance OF Jurors, . . titi-85. CHAPTER VII. Of Talesmen, .......... !ii)-l()4 CHAPTER VIII. Of the Service of the Panel on the Accused, .... 108-lii XIV TABLE OF CONTENTS. CHAPTER IX. •89-593 CHAPTER XXIX. Of the IlELATioxsiiir of Court and Grand Jury, .... 595 GOl VXI TABLE OF CONTKNTS. SECTIONS. CHArTKK XXX. tH THE I'DW i;us oi rm; (;i!AND .Ji'in , ... . . KOt-Glii CHAPTER XXXi. Ol rHi: I'Kix KEDINGS Ol THE Cilt.VNI) JURT, . . 62"2-68T .MniCLE I.— Pi(>Un>in;iry I'roceecliugs. II. — Sessions how far Secret. III.— Hearing the Evidence. IV.— The Finding, v.— Indorsement of Finding. VI.— Other Indorsements. VII.— Irregularities in Proceeding.^. CHAPTER XXXir. oi \\ ii.VT THE IJf.(;()ki> .Misr sii(j\\-, ...... r.-t;* t>'.)K CHAPTER XX XI 11. Ok THE OBMd.vTiON OF Secrecy, ....... 701-707 CHAPTER XXXIV. OKTIIE PERSoKAlLIAUIMTV OK (;i!.VNl> JUliORs, .... 710-711 TABLE OF CASES CITED. Aaron v. State, 37 Ala. lOfi, p. 175. Aaron v. State, 39 Ala. 75, p. 97. Abel V. Kennedy, 3 G. Greene, 47, pp. 496, 553. Abram v. State, 25 Miss. 589, pp. 733, 7:5. Acliey V. State, 64 Ind. 56, p. 305. Adams v. People, 47 111. 376, pp. 354, 360. Adams v. State, 11 Ark. 466, pp. 317, 318. Adams V. State, U Ind. 304, p. 735. Adkins v. Williams, 23 Ga. 222, p. 394. Aikin v. State, 35 Ala. 399, pp. 70, 99, 100. Albert v. White, 33 Md. 297, p. 34. Albrecht v. Walker, 73 111. 69, p. 202. Alcott V. Boston Steam Flour Mill Co., 11 Gush. 9 , p. 496. Alexander v. Dunn, 5 Ind. 122, pp. 339, 342, 3.55, 484, 487. Alexander v. Jameson, 5 Binn. 238, pp. 470, 471, 477. Alexander v. O-hkogh, 33 Wis. 277, p. 297. Alexandria v. Brockett, 1 Crancli C. C. 505, p. - Ml. Jt Kl. 247 n., pp. 728, 731. Ayios V. IJiuT, 5 .1. J. Marsl). 2S«, p. (i. -Ayres v. Motcalfo, .J'.i 111. .•!()7. p. 27.'i. B. TJabcocl^ V. People, 15 Hun, 347, p. 320. Haci}81, pp. 1S.3, 30:!. Baiid V. .state, 38 Tex. 5!)9, p. 326. Baker v. Harris, 1 Winst. {S. C.) 277, pp. 131,2.3(5,268,270. Baker v. Simmons, 21 Barb. 198, pp. 428, 432. Kaker v. State, 15 Ga. 498, p. 214. Baker v. State, 23 »Iiss. 243, pp. 583, 629. Baker v. State, 12 Oliio St. 214, p. 718. Baker v. State, 3 Te:>.. .Vpp. .V25, jip. 28i), 21t.5. Baker v. State, 4 Tex. .Vpp. 223, pp. 93, 339. IJaker v. Steamer Milwaukee, 14 Iowa, 214. p. 122. Balbo V. People, 18 Hun, 424 ; s. c, aff'd 80 X. V.484, pp. 202, 224, 227, 242,243. Baldwins Case, 2 Tyler, 473, p. 638. Bales V. .State, 63 Ala. 30, pp. 224, 232, 2.i4, 34», (;25. Ball V. Carley, 3 Ind. 577, pp. 4S5, 495, 496. Balsbaugh v. Frazer, 19 Pa. St. 95, p. 1S2. r.aitiniore etc. K. Co. v. Christie, 6 W. Va. 32.5, p. 314. Barber v. State, 13 Fla. 675 : s.c.,1 Green Cr. L. Kep. 723, p, 2*5. Barbot's Case, 18 How. St. Tr. 1223, pp. 229, 286. "Tiarbotir v. Archer, 3 Bibb, 8, p. 407. .'Uarficld V. Inipson, 1 Smed. So M. 3i6, p. 317. ' Barger v. State,6 Blaekf. 188, p. .585. Barker v. Bell, 49 .Via. 284, p. Xl. Barker v. Hine, .54 Ind. ,542, p. 193. Barklev v. State, Meigs, 93, p. 721. P.arlow V. State, 2 Blaekf. 114, pp. 870, 40»;, 407, .528, 540, .547. Barnes v. Xewton, 46 Iowa, 567, p. 307. Kai-ney v. People, 22 111. 160, p. 319. . Barney v. State, 12 Smed. & M. (>S, p. 601. Barrett v. Long, 3 H. L. Cas. 395, p. 141. Baiu-ett V. Long, 8 Irish L. 331; .'?. c, 7 Irish L. 439, p. 312. Barrett v. stone, 1 Wis. 175, p. 376. Barron v. BaUiinore, 7 Pet. 243, ii. 661. P.arroii v. People, 73 111. 2.56, p. 619. Kartliet v. Kstebene, 5 La. An. 315, p. 87. Bartlett v. Humphreys, Hardin, 513, p. 720. . Bartlett v. State, 28 Ohio .St. 669, pp. 317, .329. Barton v. Holmes, 16 Iowa, 252, pp. 510, 518, .5.53. P.arton v. Quinn, Batty (Irish Rep.) .552, p. 303. P.artow V. Murrv, 2 \. .1. L. 97, p. 70. Bass V. Irwin, 49 Ga. 436, p. 393. . Bass V. State, 37 Ala. 469, p. 619. . Bass V. State, 6 Baxt. 579, p. 327. . IJa-ssett V. Salisbury Man. Co., 28 X. H. 4.38, p. 423. J{ate V. Lewis, 1 J. .1. Marsh. 316, p. 317. Bates V. State, 19 Tex. 122, pp. 77. 99, 298.. Bateson v. Clark, 37 Mo. 31, p. .5:J4. Battle V. State, 54 Ala. 93, pp. 619, 7*5. Baweom v. State, 41 Tex. 189, p. 328. Baxter v. People, 8 III. 368, pp. 2il, 394, .527, 558. Baxter v. Putney, 37 How. Pr. 140, p. 10. Baylis v. Lucas, Cowp. 112, p. 111. BavouJDU V. Criswell,5 Mart. (.\. S.) 2.>2, J). 88. Beal V. State, 15 Ind. 378, p. 6.58. Beall V. Campbell, 1 How. (Miss.) 24, p. .327. Beam v. Link, 27 Mo. 261. pp. 745, 747. Beamisli v. State. 6 Baxt. .530, p. 37. Beasley v. People, 89 111. .571, pp. .578, 646. Beanchaini) v. State, 6 Blackl. 299, pj). 291, 296, 729. Beck V. State, 20 Ohio St. 228, pp. .341, 342. Bedford v. State, 2 Swan, 72, p. 725. Beebe v. People, 5 Hill, 32, p. 394. Beekinan v. Wright, 11 Johns. 442, p. 379. Beers v. Beers, 4 Conn. 535, p. 157. Beery V. United States, 2 Colo. 186, ]). 52. Bt'hler v State, 22 Ind. 345, p. 622. Bejarano v. State, 6 Tex. App. 2(>5, pp. 99, 308. Bel V. State, 44 Ind. 393, p. 7. Bell V. Howard, 4 Litt. 117, p. .303. Bell V. People, 2 111. 397. p. 729. Bell V. State, 44 Ala., 393, p. 220. Bell V. State, 59 Ala. 55, p. 101. Bell V. State, cited 51 Ala. 30, p. 29(i. Bell V. State, 10 Ark. 5:56, p. 317. Bell V. State, 42 Ind. 335, pp. 612, 647. 7.50. Bellair v. State, 6 Blaekf. 104, p. 615. Bellows V. Gallup, Kirbv, 166, p. 303. Bellows V. Weeks, 41 Vt.'SOO, p, 278. Belt V. People, 97 111. 461. p. 301. Beneway v. Conyne, 3 Chand. 214. Benner v. Porter, 9 How. 235, p, 51. Bennett v. Baker, 1 Humph. 399, pp. 510, 515, 543, .552. Bennett v. Com.. 8 I^eigh, 745, pp. 372, 379. Bennett v. Howard, 3 Day, 219, pp. 407, 408. Bennett v. Matthews, 40 How. Pr. 428, pp.323, 336, 338, :i43. Bennett v. State, 8 Humph. 118, p. 734. Bennett v. State, 3 Ind. 167, p. .539. Bennett v. State, 27 Tex. 701, p. 652. Bennett v. State, Mart. & Yerg. 133, pi>. 67, 603. Benson v. Clark, 1 Cowen, 258, pp. 420, 421. Benson v. Fish, 6 ^le. 141, pp. 4S1, 485. Bentlev v. Fleming, 1 Com. B. 479, p. .540." Bentun v State, 30 Ark. 328, pp. 102, 308. Berriau v. State, 22 N. J. L. 9, pp. 729, 730. Berrj' v. Kcnuev, 5 B. Mon. 122, p. 5. Berry v. State, 63 Ala. 126, pp. 578,620. Berry v. State, 10 Ga. 511, pp. 353, 357, 387, 394, 400. Berry v.AV alien, 1 Overton, 187, p. 213. Bersch v. State, 13 Ind. 434, pp. 485, 497. Bibb, V. Reid, 3 Ala. 88, p. 298. Biddle's Case cited, 16 Conn. 464, p. 694. Biggs V. Barry, 2 Curt. C. C. 259, pp. .521, 546, Bilanski v. State, 3 Minn. 427, pp. 354, 357, 361, 387. Bill V. State, 29 Ala. 34, pp. 70, 98, 99, .300, 336. Billis V. State, 2 McCord, 12, pp. 188, 339. Bingham v. Foster, 37 Iowa, 3:19, p. 5.55. TABLE OF CASES CITED. XLV ]iireliai-(l v. Booth, 4 Wis. G7, pp- 311, 513, 514, 515. Bird V. State, 14 Ga. 4:?. pp. 67, HI. Bird V. State, 50 Ga. 585, ]). l-r.i. Bird V. State, 53 Ga. 602, p. 732. Birdsong- v. State, 47 Ala. 68, pp. 176, 3()S. Bishop of N. V. Earl of Kent, Trin. T., 14 Hen. VII., c. 2i), p. 350. Bishop V. State, 9 Ga. 121, pp. 225, 264, .540. Bissell v.Kyan, 23 111. 566, pp. 193, 278. r.ivens v. State, 11 Ark. 455, pj). 317, 328. lii.xlje V. State, 6 Ohio, 86 pp. 151, 153. Bhuk V. State, 9 Tex. App. 328, p. 331. Black V. State, 42 Tex. 377, pp. 216, 236, 279. Blackamoor's Case, 8 Coke Rep. 324, p. 331. Blackburn v. Hays, 4 Coldvv. 227, p. 155. Blair v. State, .52 Ala. 3i3, p. .328. Blake v. Blossom, 15 Me. 394, p. 392. Blake v. Millspaugh, 1 Johns. 3.6, pp. 22t», 234. Blalock V. Phillips, 38 Ga. 216, p. 449. Blanehard v. Brown, 1 VV^all. Jr., 309, p. 150. Blemer v. People, 76 111. 265, r. 78. Blevins v. State, Meifi:s, 82, p. 73 . Blewett V. Brainard, 1 Stra. 70, p. 282. Bloodworth v. State, 6 Baxt. 614, p. 340. Bloom V. State, 20 Ga. 443, pp. 32, 37. Bloomer v. State, 3 Sneed, 66, p. 693. Bloxam V. Brown, 3 Taunt. 470, p. 14. Boardman v. Wood, 3 Vt. 570, pp. 214, 278. Bodjce V. Foss, 39 N. H. 406, pp. 71, 323. Bodkin v. State, 20 lud. 281, pp. 730, 735, 736. Boetge V. Banda, 22 Tex. 105, p. 544. Boggs V. State, 45 Ala. 30, p. 176. Boileau v. Life lus. Co. 9 Phila., 218, ]). 234. Boland V. Greenville, etc. R. Co., 12 Rich. L. 868. p. 339. Boles V. State, 24 Miss. 445, pp. 71, 300. Boles V. -tate, 13 Smed. & M. 398, pp. 277, 299, 369. Bond V. State, 23 Ohio St. ,349, p. 12. Bond V. State, Mart. & Yerg. 143, p, 729. Bone V. McGinley, 7 How. (Miss.; 671, p. 6. Booby V. State, 4 Yerg-. Ill, i)p. 305, 341, 419, 433,435, 551. Boon V. State, 1 Ga. CIS, pp. 157, 214, 215, 223, 229, 249. Boose V. State, 10 Ohio St. 577, p. 329 Boot V. Com. 16 Graft. 519, p\). 38, 571. I'.orst V. Beecker, 6 Johns. 332, p. 177. Bosley v. Chesapeake Ins. Co., 3 Gill & J. 473, 11., p. 542. Bosley v. Farquar, 2 Blackf. 61, p. 388. Bo.ston V. Tileston, 11 Mass. 468, p. 185. Boston, etc., B. Co. v. Dana, 1 Gray, 83, pp. 514, 515, 540. Botsford V. Yates, 25 Ark. 282, p. 326. Boulov. State, 51 Ala. 19, pp. 608, 610, 611. Bowe V. State, 25 Ind. 4.5, p. 732. Boweii V. State, 3 Tex. App. 617, p. 548. Bowler V. Washington, 62 Me. 302, p. 520. Bowman, lie., 7 Mo. App. 568, p. 346. Bowman v. State, 41 Tex. 417, pp. 109, 194, 309. Bowne V. Witt, 19 Wend. 475, p. 175. Box V. State, 34 iMiss. 614, p. 642. Boyd V. State, 6 Coldw. 1, p. 583. Boyd V. State, 17 Ga. 194, p. 324. Boyce V. California Stage Co., 25 Cal. 460, p. 516. Boyle V. People, 4 Colo. 176, p. 192. Boyington v. State, 2 Port. lUO, i)p. '^4 605. Bovnton V. Trumbull, 45 X. H. 408, pn 509, 513. Brackett v. State, 2 Tyler, 152, p. 56S. Bradbury v. Baillie, TAUen (N. B.), 427, p. 13. Bradbury v. Cony, 62 Me. 223, pti. 406, 440, 520. Bradford v. State, 15 Ind. 347. pp. 175, 216, 270, 279, .540, .547. Bradford v. ^tate, 4 W. Va. 763, p. 611. Bradley v. l>radley. 45 Ind. 67, p. 88. Bradley v. Fisher, 13 Wall. 335, p. 749. Bradshaw v. Hubbard, (i 111. 390, pp. 189_ 304. Bradt v. Rommel, 26 Minn. 505, p. ,540, Bragg V. People, 78 111. 328, pp. 32, 37. Brake v. State, 4 Baxt. 361, p. 442. Brakerteld v. state, 1 Sneed, 215, p. 222. Brandin v. Grannis, 1 Conn. 402, pp. 353", 355, 359. Brandreth's Case, ,32 How. St. Tr. 755, PI). 144, 146, 283, 286, 289, 315. Brantley v. State, 13 Smed. it M. 468, p_ 619. Brattonv. Bryan, 1. A. K. Marsh, 212, p,. 339. Bray v. State, 41 Tex. 560, p. 316. Brazier v. State, 44 Ala. 387, pp. 6, 287. Brazleton v. State, 11 Reporter, 291, n„. 189. Breck v. Blanehard, 27 X. H. 100, p. 541.. Breeding v. State, 11 Tex. 257, pp. 38,. 571. Brennan v. State, 33 Tex. 266, pp. 22, 76,. 342, 557. Brewster v. Thompson, 1 X. J. L. 32, pp.. 540,541. Brewer v. Tyringham, 14 Pick. 19(), p.32.. Briant v. Fowler, 7 Cow. 562, p. 458. Briant v. Russell, 2 X. J. L. 107, p. (i. Bridge v. Eggleston, 14 Mass. 248, p. 540., Briggs V. Byrd, 12 Ired. L. 377, p. 339. Briggs V. Georgia, 15 Vt. 61, p. 358. Briggs V. Taunton, 110 Mass. 423, p. 426,. Brill V. State, 1 Tex. App. 572, pp. 304,, 340, 343. Brinkley v. State, .54 Ga. 371, pp. 114, 116- Brinkley v. State, .58 Ga. 296, pp. 346, 347.^ Brisbane v. Macomber, 56 Barb. 375, p.. &5. Bristerv. State, 26 Ala. 107, pp. 1.53, 530,. 532. Bristow's Case, 15 Graft. 634, pp. 323,^ 343, 344. Brittain v. Allen, 2 Dev. 120, pp. 188, 192,.. 201. Britton v. Fox, 39 Ind. 369, p. 393. Bronson v. Metcalf, 1 Disney, 21, pp. 481,. 497. Bronson v. People, 32 Mich. 34, pp. 303,, 323. Brooks V. Bruyn, 37 111. 392, p. 193. Brothei'ton v. People, 75 X. Y. 159, pp.. 714, 715. Brown v. Com., 2 I eigh, 769, pp. 2.6, 222- Brown v. Com., 11 Leigh, 711, p. 19. Brown v. Com., 73 Pa. St. 322, pp. 60, 120, 613, 624. Brown v. Com., 76 Pa. St. 319, pp. 579, 598,. 667. Brown v. Esmonde, Ir. Rep. 4 Eq. 630,. pp. 117, 246. Brown V. LaCrosse Gas Co., 21 Wis. 51,. pp. 338, 341. Brown v. McConnel, 1 Bibb, 265, ji. 3S8. Brown v. State, 52 Ala. 345, p. 303. Brown v. State, 28 Ga. 199, p. ,540. Brown v. State, 28 Ga. 439, pp. 33S, 52S„ Brown v. State, 8 Blackf. 561, p. 6. XX TA15LK OF CASES CITED. Brown v. State, 10 Ind. 4%, p. G. IJrowii V. Stiite, 70 Ind. 577, pp. -219, 308. JJrowu V. state, 7 IliiniiJh. l.">.i, p. 7:i4. lUown V. State, 57 Miss. 424 ; s. c, 10 Cent. L. J. :57H, pp. 175. -IM, :;0S, 309. Urown V. State, is Oliio St. 49(>, p. 13. Krown v. State, 10 Ark. (i07, pp. 617, (>49. IJrown V. State, 12 >ik. C23, p. 71. IJrwwn V. Stat", 38 Tex. 482, pp. 365, 395. JJrown V. Warner, 2 J. J. .Mursli. 39, p. 314. Crown V. Wheeler, IS Conn. 199, pp. 189, 196. Brown. Ft parte. 72 Mo. 83; s. c, 11 Cent. L. J. 491, p]i. 671, •■)75, 676. Brown, Kx parte, 8 I'iik. .50 ', p. 32. Brown, Ax parte, 1 G. & J. 401, p. 83. Brownell v. MeKwen, 5 Denio, 367, pp. .541, .542. Brucker v. State, 16 Wis. 333, pp. 372, 644. Brunskill v. Giles, 9 Binjr- 13, p. 323. Bryan v. Harrison, 76 N. (.!. 360, p. 15.5. Bryan v. State, 4 Iowa, 349, p. 10. Buclianan v. Reynolds, 4 W. Va. 681, p. 542. Bnek v. Mallory, 24 Miss. 170, p. .326. liu'^'4 V. State, 47 Ala. 50, pp. 102, 328. Buliol V. Boudousiiuie, 8 Mart. (N. S.), 425, p. 46. Buie V. State, 1 Tex. App. 4.53, pp. 339, 342. Bull V. Com., 14 Gratt. 614, p. 540. Bull V. I'inkus, 5 Seott, 6.7, p. 14. Bullard v. Spoor, 2 Cow. 430, p. 278. Bullard v. State, 38 Tex. 504, pp. 5, 11, 300. Bulliiierv. People, 95 111. 395, pp. 311, 417. Buntiv. Croul, 10 Johns. 2,39, pp. 423, 427. Bunn V. Hoyt, 3 Johns. 2.55, pp. 391, 393. Burden v. People, 26 Mich. 162, p. 193. Burdick v. Hunt, 43 Ind. 381, pp. 740, 745. Burdine v. Grand Lodge, 37 Ala. 478, p. 193 Burfey v. State, 3 Tex. App. 519, pp. 75, 321. Bur^iess v. Com., 2 Va. Cas. 487, p. 714. Burj^ess v. Langley, 5 Man. & Gr. 722, pp. 514, 515,543. Burk V. Clark,S Fla. 9, p. 317. Bnrk v. State, 27 Ind. 430, p. 218. Burk V. State, 2 liar. & J. 426, p. 90. Burley v. State, 1 Nel). 3&5, p. .580. Burlingame v. Burlinganie, IS Wis. 285, p. 46. Burnham v. Hatfield, 5 Blackf. 21, pp. 740, 745, 746. Burns v. Paine, 8 Tex. 1.59, pp. 353, 540. Buron v. Denman, 1 Kxch. 769, p. 93. Burr, Trial of, cited pp. 204, 213, 218, 221, 224, 229, 23J, 235, 236, 265, 38i5, .589, 698. Burrell v. State, 18 Tex. 713. pp. 20S, 308. Burrill v. Phillips, 1 Gall. 360, p. 3.55. Burroughs v. State, 17 Fla. 643, p. 619. Burrow v. State, 12 Ark. 65, p. 328. Burrows V. Unwin, 3 Car. & P. 310, pp. 427, 492. Burt V. Panjaud, 99 U. S. 180, pp. 23, 257, 308, 624. Burtine v. State, 18 Ga. .534, p. 407. Burton v. Wilkes, 66 N. C. 604, p. 484. Bush V. I'ring, 9 Uow 1. ISO, p. 14. Bush V. State, 52 Ala. 13, p. 329. Busick V. State, 19 Ohio, 198, p. :i42. Butt V. Tuthill, 10 Iowa, .585, pp. .540, 554. Byam v. State, 17 Wis. 145, |.. 733. Byans v. Mt. Vernon, 77 III. 467, pp. 339, 342. Byrd v. State, 1 How. (.Miss.), 163, pp. 6, 20, 22, 279, 626, 729. Bvrne v. State, 12 Wis. 519, pp. 618, 619. Cable V. State, 8 Blackf. .531, p. 247. Cacluite V. State, 50 Miss. 165, pp. 704, 705, 734, 736. Cain V. Cain, 1 B. Mon. 213, pp. ."40, 540, 550. Cain V. Ingham, 7 Cow. 478, pp. 181, 338, 343, Caldwell v. Caldwell, Smith, (N. H.) 239, 1). 340. Caldwell v. Irvine, 4 J. J. Marsh, 108, p. 318. Caldwell v. State, 34 Ga. 10, p. 1.52. Caldwell v. State, 41 Tex. 86, pp. 176, 210, 2(;5. Calhoun v. State, 4 Humph. 477, pp. 340, 734. Calhoun v. Williams, 32 Graft. 19, p. 175. Callender's Case, Whart. St. Tr. 688, pp. 21, 234. Caltliorp V. Xewton, Cro. Jac. 647, p. 75. Campbell V. Com., 84 Pa. St. 187, p. 270. Campbell v. Miller, 1 Mart. (N. S.) 514, p. 540. Campbell v. Skldmore. 1 Tex. 475, p. 557. Campbell v. State, 48 Ga. 3.53, pp. 24, 60, 277. Campbell v. State, 8 Tex. App. 84, p. 716. Campbell v. Strong, Hemp. C. C. 265, p. 321. Canceml v. People, 16 N. Y. 50i, pp. 228, 279, 284, 285. Canceml v. People, 18 N. Y. 128, pp. 6, 7.8. Candler v. Hammond, 23 Ga. 493, p. 317. Cannon v. Alsbury, 1 A. K. Marsh, 76, p. 527. Cannon v. Bullock, 26 Ga. 431, p. .528. Cannon v. State, 57 Miss. 147, p. 342. Cannon v. State, 3 Tex. 32, p. 3.57. Cannon v. State, 5 Tex. App. 34, p. 326. Cantwell v. State, 18 Ohio St. 417, p. 365. Capehart v. Stewart, 80 N. C. 101, p. 89. Caj)erton v. Xickel, 4 West Va. 173, p. 131. Caresv v. Howard, 1 Root, 323, pp. .303, 341. Cargen v. People, 39 Mich. 549, pp. 200, 231. Carlisle v. Sheldon, 35 Vt. 440, pp. 454, 464, 532. Carman v. Xewell, 1 Den. 25, p. 181. Carmarthen v. Evans, 10 Mee. & W. 274, pp. 246, 248. Carmichael v. Howell, 2 X. J. L. 376, p. 71. Carnaghan v. Ward, 8 Xev. 30, pp. 370, 440. Carnal v People. 1 Park. Cr. R. 272, pp. 247, 255, 284. Carne v. Xicoll, 3 Dowl. 115, p. 82. Carpenter v. Dame, 10 Ind. 125, p. 292. Carpenter v. People, 64 X. Y. 483, pp. 115, 593. Carpenter v. State, 4 How. (Miss.) 163, p. 6. (Jarroll v. State, 3 Humph. 315, p. 309. Carroll v. State, 5 Xeb. 32, pp. 227, 243. Car.-ion v. State, .50 Ala. 134, pp. 223, 224. Carson v. Watson, 4 Phila. 88, p. 472. Carter v. State, 56 Ga. 463, pp. 114, 204. Carter v. State, 8 Tex. App. 372. p. 30-j. Cary v. Silcox, 5 Ifid. 370, p. 39t. Case of a Jur>nian, 12 East. 231, y>. 332. TABLE OF CASES CITED. XXI ■Castanedo v. State, 7 Tex. App. 582, p. 109. Castro V. Gill, 5 Cal. 40, p, 530. Cato V. State, i» Fla. 1G3, p. 317. •Cavanah v. State, 56 Mi!^s. 299, pp. SO, 89. Caw V. People, 3 Neb. 357, pp. 354, 387, 398, 407. Cawiey v. Knowles, 16 C. B. (X. S.) 107, p. 14. Caykendall, Ex parte, 6 Cow. 53, pp. 541, 542 Central R. Co. v. Mitchell, 63 Ga. 173, p. 197. Chadbourn v. Franklin, 5 Gray, 312, p. 540. Chalmers v. AVliittemore, 22 3Iinn. 305, p. 445. Chance v. Indianapolis etc. R. Co. 32 Ind. 472, p. 474. Chandler v. Barker, 2 Harr. (Del.) 387, pp. 510, 514. Chaney v. State, 31 Ala. 342, p. 98. Chajinian v. Macutchin, 1 Craw. & Dix. (Irish,) Cir. 121, p. 111. Chapman v. Welles, Kirby, 132, p. 338. Chappel V. State, 8 Yerg. 166, pp. 734, 735. Charnoek's Case, 3 Salk. 81 ; s. c. Holt, 133, p. 1.50 ; 12 How. St. Ti-. 1378, p. 151. Chase v. Jennings, 38 Me. 44, p. 181. Chase v. People, 40 HI. 352, pp. 38, 279, 338, 342, 345, 346. Chase v. State, 20 N. J. L. 218, pp. 628, 631. Chase v. State, 46 Miss. 683, pp. 274, 325. Chase, Trial of, cited on p. 213. Cheek v. State, 35 Ind. 4'.t2, p. 490. Cheney v. Holyate. Brayt. 171, pp. 510, 513, 514, 5 5, .545. Cherry v. State, 6 Fla. 679, pp. 653, 655, 703, 717, 735, 741. Cherry v. Sweney, 1 Cranch C. C. 530, pp 433. 540. Chesapeake etc. 11. Co. v. Patton, 9 W. Va. 648, p. .321. Chews V. Driver, 1 N. J. L. 166, p. 548. Chicago V. Dermody, 61 111. 431, ]). 415. ■Chicago V. Rogers, 61 111. 188, p. 393. Chicago etc. R. Co. v. Adler, 56 111. 345, pp. 205, 206, 263. Chicago etc. R. Co v. Bnttolf, 66 111 347, pp. 206, 263. ■Childress v. Ford, 10 Smsd. & M. 25, p. 342. Chri-stie v. State, 44 Ind. 408, p. 193. Christie v. Richardson, 10 Mee. & W. 688, p. 15. Christine v. Whitehill, 16 Serg. & R. 98. p. 476. Christy v. Myers, 21 Mo. 112, p. 534. Chouteau v. Pierre, 9 Mo. 3, p. 176. Churchill v. Churchill, 12 Vt. 661, p. 184. Cilley V. Bartlett, 19 N . H. 312, pp. 466, 440. Cire V. Rightor, 11 La. An. 140, pp. 540, 544. Citizen's Bank v. Strauss, 26 La. An. 736, pp. 24, 277, 299. Claggett V. Force, 1 Dana, 429, p. 314. Clandinan v. Dickson, 8 Up. Can. Q. B. 281, p. 12. Clare v. State, 30 Md. 163, pp. 617, 623. Clarges, Jix parte, 1 Y. & J. 401, pp. 82, 83. ■Clark V. Carter, 12 Ga. 500, pp. 540, 542. Clark V. Collins, 15 N. J. L. 473, pp. 321, 328. Clark V. Davis, 7 Tex. .556, pp. 325, 326. Clark V. Read, 5 N. J. L. 486, p. 541. Clark V. Saline Co., 9 Keb. 516, p. 46. <:iark v. State, 1 Ind. 253, p. 729. ■Clark V. Van Vrancken, 20 Barb. 278, pp. 248. 339. Clark V. Whitaker, 18 Conn. 543, pp. 481> 485, 497. Clarke v. Good, 6 J. J. Marsh. 637, p. 282. Clarke V. Territory, 1 Wash. (Terr.) 82, p. 338. Claussen v. La Franz, 1 Iowa, 226, p. 121. Cleage v. Hyden, 6 Heisk. 73, p. 188. Clem V. State, 33 lud. 418, pp. 216, .347, 585. Cleveland etc. R. Co. v. Stanley, 7 Ohio St. 155, p. 150. Clifton v. State, 53 Ga. 241, p. 299. Cline v. Bray, 1 Oreg. 89, p. .541. Clingan V. Railroad, 2 Lea. (Tenn.) 726, p. 16. Clinton v. Englebrecht, 13 Wall. 4154, pp. 51, 52, 303, 619. Clore's Case, 8 Graft. 606, pp. 208,220, 223, 243, 279. Clough V. State, 7 Neb. 320, pp. 87, 304, 305, 324, 340, 312. Cluck V. State, 40 Ind. 263, p. 216. Cluggage V. Swan, 4 Binn. 150, pp. 514, 516, 540. Cluui V. Smith, 5 Hill, 560, p. ,543. Clyncard's Case, Cro. Eliz. 654, pp. 631, " 644. Coalheaver's Case, 1 Leach Cr. L. 76, p. 141. Cochlin V. People, 93 111. 410; s. c. 10 Re- porter, 422, pp. 510, 513. Cochran v. State, 62 Ga. 731, p. 305. Cochran v. State, 7 Humph. 544, p. 380. Cochran v. Street, 1 Wash. (Va.) 79, pp. 540, 544. Cock V. State, 8 Tex. App. 659, p. ,309. Cody V. State, 3 How. (Miss.) 27, pp. 342, 589,619. 647,731,732 Coffin V. Gephart. 18 Iowa, 256, p. 481. Cogan V. Ebden, 1 Burr. 383, pp. 545, 546. Cogswell V. State, 49 Ga. 103, pp. 527, 528, ,5.58, 567. Cohron v. State, 20 Ga. 753, pp. 339, 407, 443. Coker v. Hayes, 16 Fla. .368, pp. .540, 542. Coker v. State, 20 Ark. 53. pp. 354, 370, 380, 400, .538. Coker v. State, 7 Tex. App. 83, p. 109. Cole V. Perry, 6 Cow. 584, p. 324. Cole V. Swan, 4 G. Greene, 32, pp. 320, 428, 431, 549. Coleman v. Hagerman, cited 6 Cow. 564, p. 223. Coleman v Moody, 4 Hen. & M. 1, pp. 454, 458, 526. Coleman v. State, 17 Fla. 208, p. 370. Coleman v. State, 28 Ga. 78, p. 540. Collier v. State, 20 Ark. 36, pp. 339, 342, 537, 639. Co'lier v. State, 2 Stew. 388, pp. 6»8, 729. Collins V. Barding, 65 Mo. 4"6, p. 534. Collins V. Frost, 54 Ind. 242, p. 471. Collins V. People, 39 111. 233, p. 717. Collins V. People. 48 111. 145, p. 228. Collins V. State, 5 Tex. App. 39, pp. 328, 329. Colt V. Eves, 12 Conn. 243, pp. 46, 157. Colt V. People, 1 Park. Cr. R. 611, pp. 90, 98. Colorado Springs v. Hewitt, 2 Colo. 275, p. 318. Columbus V. Goetchius, 7 Ga. 139, pp. 185, 346. Combs V. Slaughter, Hard. (Ky.) 62, p. 131. Commander V. State, 60 Ala. 1, pp. 131, 203, 230, 328. Com. V. Abbott, 13 Met. 120, p. 234. Com. V. Addis, 1 Bro. (Penn.) 285, p. 147. Com. V. Austin, 7 Gray, 51, p. 235. XXII TABLE OF CASES CITED. Com. V. Raiinoii, ".i7 Mass. -'14, pj). ii.")l, 652, C5:5. Coin. V. liiirtilscjii, 8.") I'a. St. IJS-.', p. (>13. (.'oui. V. Ik'tton, ,"> Ciisli. 4-.'7, p. 70!'. Com. V. liostoii, otc. K. Co.,;) CusI). "-'.i, pp. 1S7, 1S8. Com. V. ISrown, IJl .Ma.ss.un. p. .V.M>. CoTii. V. IJiirclier, 2 Uob. (\a.) »2i>, pp. 174, 6:i:;. Coin. V. Burton, 4 l^eiffli, tU.i, p. 114:!. Coin. V. IJuz/.ell, l(i Pick. 153, pp. :U, 2)5, 262. Com. V. Bybee, 5 Dana, 249, pj). 71^, 721. Com. V. Clvison, .•) l'liila.219, p. 81. Com. V. Charter, 2 \'a. Cas. ai9, pp. 174, 63;5. Com. V. Cawood, 2 \a. Ca.'S. 527, pp. 734, 735, 704. Com. V. Certain Into.xic-atiiif? I-iqiiors, 107 -Mass. 216, j). 166. Com. V. Chauncfv, 2 A.slim. IK), pp. 72, 610, 631. Com. V. Cherry, 2 N'a. Cas. 20, pp. 603, 631. Com. V. Clark, 2 I5ro. (Peun.) 32.!, p)). .589, 5'.»2. Com. V. Cook, 6 Serj^. & K. .557, p. 3.52. Com V. Crans, 3 I'enn. L. J. 449; s. c, 2 Clark, 180, pp. (i53, 667, 668, 669, 699. Com. V. * nnnin^'lium, 6 Gratt. 695, pp. 174,6:):;. Com. V. Dailey, 12 Cusli. SO, p 9. Com. V. Davis, cited in Com. \-. I'aiker, 2 Pick. 559, p. 6;)(). Com. V. Dever, 10 J.eiffli, 685, p. 72J. Com. V. Dorsev, 103 Ma.s.s. 412, pp. 21, 137. Com. V. Dorus, lOS Mass. 488. p. 390. Com. V. Dove, 2 \'(i. i as. 29, i)p. 720, 721. Com. V. Drew, 4 Mass. .391, p. 540. Com. V. Eaton, 6 Binn. 447, p. 6:i'. Com. V. Eaton, 8 I'liila. 428, p. 90. Com. V. Edgerly, 10 .\llen, 184, p. 482. Com. V. Edwards, 4 Crav, 1, pp. 723, 724, 729. Com. V. Fisher, 7 (Jrav, 492, pj). 729, 731, 734. Com V. Fitzi)atrick, 3 Clark (I'enn.), .520, PI). 2.52, 279. Com. V. Flanayan, 7 Watts & s. 415, pp. 3, 22I,3:)9, :)4l,:)4:!, ;)47. C;om. V. Frazier, 2 Brewst. 490, )). 292. Com. V. Gee, 6 Cush. 174, pp. 92, 264, 283, 662. Cora. V. Gore, 3 Dana, 474, pp. 718, 721. Com. V. Green, 1 .\shm. 28V), pp. 72, 74. Com. V. Gross, 1 .\slnn. 281, pp. 206, 305. Com. V. Hailstock,2 (iratt. .564, pp. 200, 221. Com. V. Hall, 4 Allen, .591, p. 195. Com. V. Hamilton, 15 Grav, 480, pp. 662, 709. Com. V. Ilaiiil, 3 Phila. 403, p. 142, Com. V. Hartzell, 40 I'a. .^t. 462, p. 292. Com. V. Heller, 5 I'hila. 123, p. 357. Com. V. HelmondoUer, 4 Gratt. .5;;6, p. 174. Com. V. Hill, 11 Cnsh. 137, p. 746. Com. V. Hughes, 11 I'hila. 4;>0, p. ;)47. Com. V. Hujilies, 5 Band. 6.55, p. 2is. Com. V. Hussey, 13 Mass. 221, pp. 169,;)41. Com. V. Hutche.'son, 1 Bibb, :)55, pp. 718, 721. Com. V. Jadwin, 1 Cr. L. Mag. 231, p. (■,(J7. Com. V. .James, 99 Mass. 4;)8, p. 152. Com. \-. .James, 1 Pick. 375, ]). 731. Com. V. Jeffries, 7 Allen, 548, ]). 675. Com. V. Jenkins, Thacli. Ciiin. Cas. 118, p. 493. Com. V. Johnson, 78 Ky. 509, p. 571. Com. V. Joliffe. 7 Watt.s, .58.5, pp. 147, 230. Com. V. Jone.s, 1 I.eigli, .598, p. 34 .. Com. V. Knai)p, 9 I'ick. 49(;, pp. 214, 228, 287, 655, 693, 72:). C(nn. V. Eandis, 12 I'hila. 57ri, p. 4IH. Com. V. Leiseniiig, lo Keiiortei', ;;7'', p. 726. Com. V. l,eno.\, 3 Brewst. 249, ji. 22". Com. V. Lesher, 17Serg. & K. 155, pj). 203, 207, 211. 2.!6. Com. V. Eippard, 6 Serg. * 1{. 395, p. 120. Com. \ . Liverinore, 4 Gray, 18, pj>. 190, 275. Com. V. Locke, 14 I'ick. 48.5, p. 72;;. Com. V. I.ong, 2 \a. Cas. 318, )). boi. Com. V. Marrow, 3 Brewst. 4(»2 ; s. <■., sub nam. Com. v. .Marra, 8 I'hila. 440, pp. 147,28;;, 295, ;;o5, 394. Com. V. McCaul, 1 \a. Cas. 271, pp. ;i8(i, .384. Com. V. iMcElhane'y, 111 Mass.4:J9, p. 287. Com. V. McKinney, 8 (iralt. 58'*.t, p. 717. Com. V. Mead, 12 Gray, 167, pi). 7;;9, 740, 744. Coin. \. .Millci-, 4 I'hila. 210, p. 72. Com. \ . Miller, 2 Ashiri. 61, i)p. 'w, 7(M!. COiii, \-. .Moraii, l;;o.Mass. 28i, p. 5?5. Com. V. Mm low, !) I'hila. 583, p. 2:;ij. Com. V. O Neil,(i (irav,;!43, p. 191. Com. V. J'arker, 2 Pick. .549, pp. 72, 604, 631. Com. V. Patterson, 2 .Mete. (K\.; 374, p. 718. Com. V. Pii)cr, 120 Mass. 85, pp. 291,292. Com. V. Porter, 4 <;ray, 42;;, j). 266. Com. \ . Piillan, 3 Bu.s'h, 47, pp. 647, 732. Com. V. Bead, Tliacli. Cr. Cas. Isd, pp. 709, 731. Com. V. Jteed, 1 Gray, 472, p. 18t;. Com. V. IJeid, 8 I'hila. .385, p. 226. Com. V. Bich, 14 Gray, 335, p. 585. Com. V. Bidiiwav, 2 Ashm. 247, pjj. (!51 , 667. Com. V. Bipperdon, Litt. Sel. Cas. I'.i5. op- 708, 710. Com. V. Bobv, 12 Pick. 496, pp. 406, 451, 539. Com. V. Kogers, 7 Mete. .500, pp. 287, 295. Com. V. B\ an, 5 Mass. 90, pj). 186, 686. Com. V. .siiliager, 3 Clark (Penn.), 127, p. :)23. Com. V. Savers, 8 Leigh, 722, p. 7ol. Com. V. Shaw, 7 Am. L. lleg.289. p. 6. Com. V. Sherry, Whart. on Horn. 481, p. 208. Com. V. Shields, 2 Bush, 81, pp. ;;7o, 372, ;)81, .538. Com. V. .slioles, 13 Allen,. 154, p. 7;j3. Com. V. Simons, 6 Pliila. 167. p. H'^'. Com. V. Skcggs, 3 Bush, 19, pj). .54i', .542. Com. V. Smith, lo Bush, 477. p. ^k>2. uom.v. Smith, 9 Ma.ss. 107, pp. .591,604, <>49, 741. Com. V. Smyth. 11 Cush. 473, pji. »>2, 702, 711, 730. Com. V. Spring, 5 Clark, 2;)8 ; s.c, 1 Am. L. Beg. 245, p. :););;. Com. y. St. Clair, 1 Gratt. .5.56, p. 6(1;;. Com. v. Stephen, 4 Leigh, 679, pp. :;21, ■i-25. Com. v. Stone, 3 lirav, 4.53, p. 6ni. Virginia, Re, 10 Cent. L. J. 239, p. '27. (.•om. V. Waltors. (i Dana, 290, pp. 709, 71 a Com. V. Walton, 17 Pick. 40:!, p. 31. •Com. V. Walfih, 124 Mass. 32, pp. 113, lUi, 157. Com. V. Webster, 5 Cusli. 297, pp. 198, 204, 210, 214, 220, 287. t'oni. V. Willson, 2 Leigh, 739. p. (134. ■Com. V. Winaemore, I lircwst. 3.i6 ; .s. c, 2 Browst. 378, pp. 24, 277. t'om. V. Wood, 2 Gush. 149, p. 646. Com. V. Woods, 10 Gray, 477, p. 700. Com. V. Worcester, 3 Pick. 462, p. 186. <'orn. V. Wormley, 8 Gratt. 712, p. 407. Com. V. Wright, 1 Cash 46, pp. 510, 51S. <'ompt<)n V. Legras, 24 La. An. 259, p. 116. Conkey v. Northern Bank, 6 Wis. 447, p. 247. Conkey v. People, 1 Abb. App. Dec. 418, pp. 620, 644. Conklin v. Hill, 2 How. Pr. 6, p. 510. Conner v. State, 25 Ga. 515, p. 81. <;onner v. State, 18 Ind 428, pp. 730, 735. Oonner v. State, 19 Ind. 98, pp. 714, 730, 735. Conner v. Winton, 8 Ind. 316, p. 54(1. Conwav V. Clinton, 1 Utali, 215, i)p. 173, 22;,'228, 236, .308. Cook V. Castner, 9 Cash. 2(>6, pp. 340, 540. €ook V. Green, 6 X. J. L. 109, p. 426. Cook V. Svpher, 3 Iowa, 484, pp. 540, 5.53. Cook V. Walters. 4 Iowa, 72, pp. 353, 388. Cook's Case, 13 How. St. Tr. 318, pp. 14t, 145, 169, 229, 286, 315. €"ooIey V. State, 38 Tex. ()36, pp. 282, 284, 285,289, 295. Cooper V. State, 16 Ohio St. 328, pp. 216, 241. Copenhaven v. State, 14 Ga. 22, p. 249. Cordova v. State, 6 Tex. App. 207, pp. 67, 76. ■Orrneliiis v. Boucher, 1 111. 12, p. 317. Cornelius v. State, 12 Ark. 782, pp. 301, 538, .i47, 729, 731. <'ornwell V. State, Mart. & Yerg. 147, pp. 729, 735, 736. Cortelyou v. Van Brundt, 1 Jolins. 313, p. 32. Coryell v. Stone, 62 Ind. 307, pp. 270, 299. Coster V. Merest, 3 Brod. & Biug. 272, pp. 4iHi, 499. Costigan v. Cuyler, 21 N. Y. 134, p. 2.50. Costly V. State, 19 Ga. 614, np. 251, 338, m, 347. Cottle V. Cottle, 6 Me. 140, pp. 406, 455, 4.56, 525. Cotton V. State, 31 Miss. 504, pp. 228, 236. Cotton V. State, 32 Tex. 614, p. 309. ( 'ouch V. State, 63 Ala. 163, p. 579. Count Conigsmark's Case, 9 How. St. Tr. 12, pp. 144,319. ■Countess of Conway's Case, Skin. 229, p. 108. Countess of Northumberland's Case, 2 Mod. 182, p. 108. Courtwright v. Strickler, 37 Iowa, 382, p. 188. Cowgill V. Wooden, 2 Blackf. 332, p. 111. <'owles V. Chicago, etc., R. Co., 32 Iowa, 515, pp. 540, 5.55. Cowper's Case, 13 How. St. Tr. 1108, pp. 143, 144, 145. Cowperthwaite V. Jones, 2 Dall. .55, pp. .509, 510. Cox V. Haines, 2 N. J. L. 687, p. 70. Cox V. People, 19 Hun. 430; s. c, 80 N. Y. .500, pp. 60, 121. 243, 305. Cox V. State, 7 Tex. App. 1, p. 366. '<'ox V. -^traisser, 62 111. 383, p. 474. Coyle V. Gorman, 1 Phila. 326, p. 521. C abtree v. Hagenbaugh, 23 111. 349, p. 420. Crabtree v. State, 3 Sneed, 302, pp. 509, 510, 515, .552. Craft V. Com., 24 Gratt. 602, pp. 4, 101, 174. Craig V. Elliott, 4 Bibb, 272, p. 303. Craig V. Fenn, Car. & M. 43, p. 188. Cramer \'. Burlington, 42 Iowa, 315, p. 185. Cranburne's Trial, 13 How. St. Tr. 222, p. 194. Crane V. Dygert, 4 Wend. 675, pj). 121, 122, 127, 6'26. Crane v. Sayre, 6 N. .J. L. 110, p. ;j54. Cranrner v. Crawley, 1 N. J. L. 43, p. 111. Cravens v. Gant, 2 T. B. Mon. 118, p. 8. Crawford v. State, 2 Yerg. 60, p. .5.50. Creek V. State, 24 Ind. J51, pp. 462, 695, 700, 742. Cregier v. Bunton, 2 Strob. L. 487, p. 157. Crimm v. Com., 119 Mass. 326, pp. 644, 647. Crist V. State, 21 Ala. 137, pp. 327, 329. Crittenden, E.c parte, Hempst. 176, p. 686. Crocker v. Hoffman, 48 Ind. 207, pp. 388, 391. Crocker v. State, Meigs, 127, pp. 739, 744. Crockett V. State, .52 Wis. 211; s c, 12 Cent. L. J. 479, pp. 307, 370. Cross v. Moulton, 15 Johns. 470, p. 292. Cross v. State, 63 Ala. 40, pp. 578, 579, 609, 610. Croy v. State, 32 Ind. 84, pp. 339, 342. Cruce v. State, 59 Ga. 63, pp. 148, 150, 153. Cruger v. Hudson, etc., li. Co., 12 N. Y. 190, p. 6. Crumley v. Adkins, 12 Iowa, 363, p. 553. Gumming v. Crawford, 88 111. 312, pp. 516, 537. Gummings v. Gann, 52 Pa. St. 484, p. 197. Curley v. Com., 84 Pa. St. 151, pp. 120, 224, 228. Curran's Case, 7 Gratt. 619, pp. 343, -346. Curry v. State, 4 Neb. 545, pp. 205, 242. Gustiss v. Georgetown Tp.Go., JCrancli C. C. 81, p 541. Cutler v. Cutler, 43 Vt. 660, pp. 543, .545. Cyphers v. People, 31 X. Y. 373, p. 582. D. Dakota Ter. v. Tavlor, 1 Dakota Ter. 479, p. 493. Dailey v. Gaines, 1 Dana, .529, p. 180. Dakin's Case, 2 Saund. 290, p. 729. Dalloff V. Stimpson, 33 Me. 546, p. 303. Dalrymple v. Williams, 63 X. Y. 38i, p. .544. Dana v. Tucker, 4 Johns. 487, pp. 510, 514, 515, 539, 541, .543, .547. Daniel v. Frost, 62 Ga. 697, pp. 323, 429, Daniel v. Guy, 23 Ark. .50, pp. 339, 342. Daniel v. State, 56 Ga. 653, pp. 387. 401. Dansby v. State, 34 Tex. 392, pp. 428, 431. Danville Bank v. Waddill, 31 Gratt. 469, p. 542. Dare v. Ogden, 1 X'. J. L. 91, pp. 541, 544. Darrance v. Preston, 18 Iowa, 396, p. 433. Dartmouth College v. Woodward, 4 Wheat. 518, p. 35. Davenport v. Curamings, 15 Iowa, 219, pp. 499, 500, 5,54. Davenport Gas Co. v. Davenport, 13 Iowa, 229, pp. 185, 270. Davidson v, Manlove, 2 Coldw. 346, p. 442. XXIV TABLE OF CASES CITED. Davis V. Allen, 11 Pick. 40f., pp. 18S, 340. Davis V. Fish, 1 U. (ircciu-, 4lH), pp. ;{93, 4-20. Davis V. Hunter, 7 Alii. i:^, np. 17, mo, •200. Davis V. I'eople, 19 111. 71, pp. xs, 3:iii, 34(i, 458. Davis V. State, 54 Ala. 88, p. 328. Davis V. State, 4<; Ala. bO, p. t>-20. Davis V. State, 15 Ohio, 7'2, pp. 364, 37-2, 387. Davis v. State, 25 Ohio St. 309, p. 74. Davis v. State, :}.') Iml. 4%, pp. 35(5, 4G2, 538. Davis V. State, 3 Tex. App. 01, p. 307. Davis V. Slate, "J Tex. App. (>:!4, pp. 11, 300. Davis V. State, 43 Tex. 1S<), p. 541. Davis v. Walker, (iO III. 452, p. 2:!1. Davison V. I'eople. iiO 111. 221, pp. 38, 346, .571, 611. Dawson V. Iloran, 51 Barb. 549, p. 10. Dawson V. People, 25 N. Y. 399, pp. 705, 730, 731. Day V. Com., 3 Gratt. 630, p. 174. Dayv. Savadne, Ilob. 85, p. 1*5. Dayharsh v. Enos, 5 N. Y. 531, pp. 323 324. Dayton v. Church, 7 Abb. N. C, 367, p 333. Dayton v. State, 19 Ohio St. 584, r>. 90. Deacon v. Shreve, 22 N. J. L. 176, pp 4.9, .541. Dearniond v. Dearmond, 10 Ind. 191, p 181. DeBarbelaben v. State, 50 Ala. 179, pp 321,3-28,329. Deb-.'vs V. MoUere, 2 Mart. (N. 8.1, 625 p. 75. Decker v. Matthews, 12 N. Y. 513, p. 500 Dejarnette V. Com. iSup. Ct. App. Va 1881), 11 Reporter, 6.53, pp. 205,216. Deaiarec v. state, 45 Ind. 299, p. 193. Deming v. Hurlburt, 2 D. Clilp. 45, p. 338. Den V. McAllister, 7 N. J. L. 46, p. .540. Denby's Case, Leach C. C. 580, p. 692. Denman v. Baldwin, 3 N. J. L. 945, p. 6. Denn v. Clark, 1 N. J. L. 446, n. 184. Denn v. Evaul, 1 N. J. L.283, pp. 94, 127. Denn v. Lecony, 1 X. J. L. 39, p. 17. Denn v. Pissant, 1 N. J. L. 220, p. 275, 281. Denning v. State, 22 Ark. 131, pp. 642,652, 653. Dennison v. Collins, 1 Cow. Ill, p. 461. Dennison v. Powers, .55 Vt. 39, p. 428. Denny v. ilutcheson, 1 Bibb, 576, p. 318. Dent V. Hertford, 2 Salk. 645, p. 337. Dent V. King, 1 Ga. 200, p. 425. Denton v. J>ewis, 15 Iowa. 301, pp. 510, 511. Deppe V. Chicago, etc., R. Co., 38 Iowa, 592, p. 510. Dew V. McDivitt, 31 Ohio St. 1.39; s. c, 17 Am. L. Keg. 621, pp. 195, 233, 251, 260, 270. Dewar v. Spence, 2 Whart. 211, p. 72. Dias V. State, 7 Blackf. 20, p. 380. Digard V. Michaud, 9 Rob. (La.), 387, p. 540. Dill V. State, 1 Tex. App. 279, p. 77. Dillingham v. Skein, Hemp. C. C. 181, p. 329. Dillon V. Caffrey, Iiish R. 6 Eq. ."563, p. 15. Dilworth v. Com., 12 Gratt. 689, pp. 301, 341. Dively V. Cedar Falls, 21 Iowa, 565, p. 185. Diveny v. Elmlra, 51 X. Y. .507, p. 185. Dixon V. Richards, 2 How. tMiss.), 771, p. 6. Dixon V. State, 3 Iowa, 416, p. 615. Dixon V. State, 4 G. Greene, :581, pp. 328, 715. Dixon V. State, 2 Tex. Apn. 5:10, pp. 2;)], 2 17. Dodge V. People, 4 Xeb. 220, p. 275. Doc V. .Michat-l, 16 Q. B. 620, p. 3:53. Doebler v. ("om., 3 Sorg. & It. 237, p. 324. Dole V. Erskine, 37 X. H. 317, p. U7. Dolan V. .Etna Ins. Co., 22 Hun, 396, pp. 483, 485. Dolan V. I'eople, 64 X. Y. 485, pp. 45, 115, 116, 119, 121, 608, 622, 623, 6-26, 641. Doncai»ler v. Coe, 3 Taunt. 404, p. 13. Donner v. Palmer, 23 Cal. 40, pp.509, 516, 556. Donston v. State, 6 Humph. 275, p. 5.52. Dooley v. State, 28 Ind. 239, pp. 50s), 511. Dorati v. Shaw, 3 T. B. iMon. 415, pp. 540, 519. Dorman v. State, 56 Ind. 454, pp. 581,60f>. Dorr V. Fenno, 12 Pick. 121, pp. 510, 512, 514, 540, 541, 546. Dotson V. State, 62 Ala. 141. pp. 121, 626. Douglass v. Cent. Land Co., 12 \V. Va. 502, p. 329. Douglass v. Tousey, 2 Wend. 352, pp. 388,391, 393. Dovey v. Hobson, 2 Marsh. 154; s. c. 6 i'aunt. 460, pp. 322, 333. Dowdy v. Com., 9 Gratt. 727, p. 308. Dowling v. State, 5 Smed. & M. 564, pp. 21, 157,577,-581. Downer v. Baxter, 30 Vt. 467, pp. 355,530, .541,. 548. Doyle V. State, 17 Ohio, 222, pp. 603, 646. Drake v. Brauder, 8 Tex. ;551, p 326. Drake v. Xewtnn, 23 X. J. L. Ill, p. 452. Drake v. State, 51 Ala. 30, pp. 283, 296. Drake v. State, 3 Tex. App. 649, pp. 98, 100, 289, 295. Drake and Cochren's Case, 6 Gratt. 665, pp. 735, 736. Dresser v. Xorman, 6 C. B. (X. S.) 427, p. 12. Driskell v. Parish, 10 Law Reporter, 395, pp. 2.56,261,291, 292. DrLskill v. State, 7 Ind. .3.38, pp. 208, 210. Driskill v. State, 45 Ala. 21, p. 96. Drumniond t. Leslie, 5 Blackf. 453, pp. 514, 547. Duffy v. People, 6 Hill, 75, p. 11. Duhon V. Landry, 15 La. An. 591, pp.542, .543. Duke of Richmond v. Wise, I Ventr. 125, pp. 451, 459. Dukes v. State, 14 Fla. 499, p. 580. Dull v. People, 4 Den. 91, p. 166. Dumas V. State, 63 Ga. 600, pp. 176, 264, 347. Dunbar v. Parks, 2 Tyler, 217, p. 230. Dunlavev v. Watson, 38 Iowa, 398, p. 555. Dunn V. IIall,8 Blackf. 32, pp. 513, 514, 515, .540, .547. Dunn V. People, 94 111. 120, p. 32. Dunn V. State, 7 Tex. App. 600, p. 196. Dunnaway v. State, 3 Baxt. 206, pp. 543, 551, .552. Dunton v. Montoyo. 4 Colo. 99, p. 179. Durant v. Ashmore, 2 Rich. L. 184, pp. 28fi, 288. Durell V. Mosher, 8 Johns. 445, pp. 218, 229. Dmfee v. Eveland, 8 Barb. 46, pp. 497, 500. Durham v. Hudson, 4 Ind. 501, p. 8. Durr v. State, 53 Miss. 425, pp. 612, 6fe7, 726. Durrah v. State, 44 Miss. 789, pp. 77, 102, tos. TABLE OF CASES CITED. XXV Dutell V. State, 4 G. Greene, 125, pp. 615, 617, 6-2:5, 617, 707. Duttoii V. Ti-iicy, 4 Conn. 93, p. 321. Dyott V. Com., Wliart. 57, p. 619. Dyson V. State, 26 Miss. 362, pp. 317, 329. E. Eakin v. Morris Canal Co., 21 X. J. L. 538, p. 4.")5. Eakuian v. Sheafer, 48 Pa. St. 176, p. 303. Early v. State, 1 Tex. App. 248, pp. 365, 366, 367. Ea&on V. State, 6 Baxter (Tenn.), 466, pp. 216,217,228,236, 241. Easterling v. State, 35 Miss. 210, pp. 647, 709. Eastman v. WigUt, 4 Ohio St. 150, pp. 304, 358. Eastwood V. People, 3 Park. Cr. R., pp. 364,380,381. Eaton V. Com., 6 Binn. 447, p. 74. Eberhartv. State, 47 Ga. .598, p!). 106, 268. Eberle v. St. Louis Public Schools, 11 Mo. 247, p. 185. Edelen v. Goagli, 8 Gill, 87, p. 296. Edmiston v. Garrison, 18 Wis. 594, p. 510. Edmistou v. Schwartz, 13 Serg. & 11. 133, p. 476. Edmonds v. State, 34 Ark. 720, p. 583. Edmondsou v. State, 41 Tex. 496, pp. 328, 329. Edrington v. Kiger, 4 Tex. 89. pp. 353, 356. Edwards v. Farrar, 2 La. An. 307, pp. 38, 205, 301. Edwards v. State, 49 Ala. 33 ^, p. 328. Edwards v. State, .53 Ga. 428, p. 338. Edwards v. Stale, 47 Miss. 581. p. 329. Egglestou V. Smiley, 17 Jolins. 133, pp. 182', 339, 340, 343. Eich V. Taylor, 20 Minn. 378, pp. .355, 444. Eighray v. People, 79 N. Y. ,546. p. 678. Elbin V. Wilson, 33 Md. 135, p. 233. Elledge V. Todd, 1 Humph. 43, pp. 510, 515 552 Elkins'v. State, 1 Tex. App. 539, p. 115. Elliott V. Mills, 10 Ind. 36S, pp. .540, .547. Elliott V. State, 73 Ind. 10, p. 202. Ellis V. Ponton, 32 Tex. 434, p. 407. Ellis, Re, Hempst. 10, p. 6.52. Ellsworth V. Central It. Co., .34 N. J. L. 93, p. 520. Emerick v. Harris, 1 Binn. 416, p. 10. Emerick v. Sloan, IS Iowa, 139, pp. 88, 279. P^mpson V. People. 78 111. 248, p. 582. Engles V. State, 13 Ohio, 490, pp. 364, 389. Epes' Case, 5 Gratt. 676, pp. 219, 385, 386. Epps V. State, 19 Ga. 102, pp. 283, 347, 407. Erwin v. Bulla, 29 Ind. 95, p. 419. Erwin v. State, 29 Ohio St. 186, pp. 308, 309. Essex V. McPherson, 64 111. 349, pp. 341, 342. Estep V. Waterous, 45 Ind. 140, pp. 339, 342. Estcs V. Ricliai'dson, 6 Nev. 128, pp. 228, 247. Etheridge v. State. 8 Tex. App. 133, pp. 179, 194, 208, 265. Evans V. Foss, 49 X. II. 490, pp. 355, 3SS. Evans v. State, 7 Ind. 271, pp. 360, 361, 378, 380, 387, 395. Evans V. State, 6 Tex. App. 513, p. 301. Evarts V. State, 48 Ind. 422, p. 79. Everett v. State, 4 Tex. App. 159, p. ,328. Everhart v. Hickman, 4 Bibb. 341, p. 314. Exchange Bank v. Tiddv, 67 X. C. 169, p. 530. Fahnestoek v. State, 23 Ind. 231, pp. 208, 216, 228. Fain v. Goodwin, 35 Ark. 109, pp. 516, .5,56. FairchiUl v. Snyder, 43 Iowa, 23, p. 4,58. Falmouth v. Roberts, 9 Mee. & W. 469, pp. .303, 304, 330, 334. Famulener v. Anderson, 15 Ohio St. 47.3, p. 194. Farmers' Bank v. Smith, 19 Johns. 115, p. 257. Farmers etc. Bank, v. Whinfleld, 24 Wend. 419, pp. 469, 478, 484, 485. Farrar v. State, 2 Ohio St. 54, pp. 413, 416, 547. Farrell v. Ilennesy, 21 Wis. 632, p. 543. Farringtou's Case, Sir T. Jones, 222. p. 150. Fash v. Byrnes, 14 Abb. Pr. 12, p. 445. Fellow's Case, 5 Me. 333, pp. 73, 230, 340, 465. Fenalty v. State, 12 Ark. 630, pp. 617, 619. Fenwick v. Parker, 3 Code Kep. 2.54, p. 2.52. Ferris v. People, 35 N. Y. 125; s. c. 31 How. Pr. 14; 48 Barb. 17, pp. 59, 109, 120, 121. Fessenden v. Sager, 53 Me. 531, p. 443. Fields V. State, 52 Ala. 348, pp. 4, 70, 71. Fillion v. State, 5 Xeb. 351, p. 270. Findley v. People, 1 Mich. 234, pp. 586, 608," 644, 656. Fine v. St. Louis Public Schools, 30 Mo. 166, p. 185. Fines v. Xorton, Cro. Car. 278, p. 331. Fink v. Hall, 8 Johns. 436, pp. 373, 380. Finley v. Havden, 3 A. K. Marsh, 330, p. 339, 343. Finley v. State, 61 Ala. 201 , pp. 579, 580, 620, 651. Finn v. State, 5 Ind. 400, p. 299. Finnegan v. State, 57 Ga. 427, pp. 603, 620. Fish V. Cantrell, 2 Heisk. 578, pp. 541, .552. Fish V. Smith, 12 Ind. 563, p. 420. Fisher V. People, 23 111. 283, p. 420. Fisher v. Philadelphia, 4 Brewst. 395, p. 180. Fitzcox V. State, 52 Miss. 923, pp. 704, 734. Fitzgerald v. People, 1 Colo. .56, p. 347. Fitzgerald v. State, 4 Wis. 395, pp. 646, 730. Fitzhari-is' Case, 8 How. St. Tr. 436, p. 144. Fitzhugh's Case, Cro. Jac. 527. p. 631. Fitznatrick v. Harris, 16 B. Mon. 561, pp. 339,341. Fizell V. State, 25 Wis. 364, pp. 730, 733. Flagg V. AYorcester, 8 Cush. 69, p. 188. Flanagan v. State, 46 Ala. 703, p. 102. Flanders v. Colby, 28 X. H. 34, p. .503. Flanders v. Davis, 19 X. H. 1.39, p. 500. Flanegan v. State, 64 Ga. 52, p. 415. Flatter v. McDennitt, 25 Ind. 326, p. 523. Fleeson V. Savage S. M. Co., 3 Nev. 157, pp. 187, 309. Fleming v. State, 11 Ind. 234, p. 191. Fletcher v. State, 6 Humph. 249, pp. 261, 301, ,552. Flower V. Livingston, 12 Mart. 681, p. 75. Floyd V. State, 30 Ala. 511, pp. 619, 725. Floyd V. State. 55 Ala. 61, p. 336. Floyd and Barker's Case, 12 Co. Rep. 23, p. 748. Fogarty v. Reg., 2 Cox C. C. 105, p. 117. Folsoni V. Brawn, 25 X"^. H. 114, pp. 540, 542, 543. Folsom V. JIanchester, 11 Cush. 334, p. 540. Foot V. Croswell, 1 Caines, 498, p. 17. Foote V. Lawrence, 1 Stew. 483, p. 325. Foote V. Morgan, 1 Hill, X. Y. 654, p. 110 (0 XXVI TAHLi: OF CASES CITKU. Forbes v. Howard, 4 K. 1. 364, pp- 510, 51S. Ford V. Holmes, (>1 (Ja. 410, j). 4.")(;. Ford V. State, 1-2 Md. r>U, p. 54-.'. Ford, i:.f parte, 1 (;. & .). 4(il, p, 8:5. Korester v. (.Jiiard, 1 JU. 44, p. .">4(i. Forsliee v. Abruiiis, 2 Iowa, 571, pp. ■"ilT, 5."):5. Forsytlie v. State, (! Ohio, 19, p. 4."> JSIiss. 403, pp. •20S, i". ' Foster v. I'.rooks, G Ga. 2S7, p. 448. Foster v. JIawden, 2 Lev. 205, p. mi. Foster V. Kirbv, 31 Mo. 4'.h;, p. 10. Foster V. MeO'HIenis, is Mo. t*f, pp. 480, 485, 499,4!U,.')02,.")03. Foster V. Speed, 32 La. An. 34, p. IKi. Foster V. State, 31 Miss. 421, p. 733. Foster V. State, 8 Tex. .\pp. 248, p. 270. Koster V. N'au Koriuan, 1 Tex. ()37, p. 325. Foster's Case, 13 Abb. Pr. (N. S.) 372, n., pp. 299, 300. Foster's Will. lie, 34 Mieh. 21, p. 475. fountain v. AVest, 23 Iowa, 10, p. 292. FouBt V. Coin., 33 I'a. St. 338, p. 110. Fonts V. State, 7 Ohio St. .')71, pp. 223, 23(;. Fonts V. State, 8 Ohio St. 98, p. 731. Fowler V. C'olton, IJnrnett, 175; s. c, I Pinnev. 331, p. 510. Fowler v." Middlesex, 6 Allen, 92, p. 323. Fowler V. State, 8 Baxt. .573, pp. 100, 311. Fox V. Jlazelton, 10 Piek. 275, pp. 304, 527. Fox V. Smith, 3 Cow. 23, p. 393. Fox V. State, 5 How. 410, p. ROl. Foy V. Harder, 3 Keble, 805, p. 508. Frank v. State, 39 Miss. 705. p. 342. Franklin v. Suite, 28 Ala. 0. p. 73(). Franklin v. State, 2 Tex. App. 8, p. 341. Fraser v. Jennison, 42 Mieh. 20G, p. 1''5. Fra/.ier v. State, 23 Ohio St. 5j1, pp. 210, 227. Frederickton Boom Co. v. McPherson, 2 Hannav (X. B.), 8, p. 197. Freel v. State, 21 Ark. 212, p. 102. Freeman v. Arkell, 1 Car. & P. 135, p 742. Freeman v. Pe()i)le, 4 Den. 9, pp. 149, 211,247, 2.50, 251, 200, 307, 308. Freneh v. People, 3 Park. Cr. R. 112, p. CM. Freneh v. Smith, 4 Vt. 303, p. 338. Friar v. State, 3 How. (Miss.) 422, pp. 540, 709, 710, 732. Friend v. Hamill, 34 Md. 298, p. .58. Friery v. I'eople, 2 Abb. App. Dee. 215 ; s.c.,2 Keves. 244; 51 Barb. 319, pp. 59, 109, 120, 121, .",08. Flies, Tiial of, Whart. St. Tr. (> 0,p. 212. Front V. Williams, 29 Ind. 18, p. 214. Fry V. Hardy, Sir T. .Jones, 83, pp. 508, 515. Frybei-gerv. Pcikins, 60 Ind. 19, p. .5.34. Frye v. State, 7 Tex. App. 94, p. 93. F'ullcr V. Chieafjo, ete. K'. Co., 31 Iowa, pp.211, 510, 518, 5.55. Fuller V. State, 1 Blaekf. 63, p. 88. Fulweiler v. St. Louis, 01 Mo. 479, p. 185. Funk V. Ely, 45 Pa. bt. 444, pp. 143, 181. Funkhouserv. Pogue, 13 Ark. 295, p. 297. Furman v. Applegate, 23 N. J. L. 28, p. 310. Furniss v. Meredith, 43 Miss. 302, p. 320. (iabe V. State, 6 Ark. 510, p. 718. (iage V. Wilson, 17 Me. 378, p. 425. Cainey v. I'eople, 97 111. 270, p. 429. Gale V. New York ete. U.Co., 13 ITun 1 pp. 527, 541, .547. Galena, etc. R. Co. v. liaslani, 73 111. 494,. pp. 2(Hi, 263. (iallagher v. State, 26 M'is. 423, p. 17. (iallow ay v. Stale, 25 Ga. 5'.«i, j). 268. Galvin \*. State, 6 tiold. 283, pp. 551, 552,. {■.47. tJandoIfo v. State, 11 Ohio St. 114, p. 493. Garcia v. State, 5 Tex. App. :;37, ]i. 194. Gardenliire v. State. 6 Tex. App. 147, pp. 98, 297, 324. tiardinei- v. Peo))le, 6 Park. Cr. R. 157, pj). 4, 114. 110, 121,305. (Jardmr v. Lanning, 3 N. J. L. 6>1, p. 188. Gardner V. People, 4 111. 83. pp. 219, 223, 714, 715, 716, 724, 728, 730, 734, 737. Gardner v. State, 48 Ala. 263, p. 329. (iardner V. Turner, 9 Johns. 260, pp. 122, 12:!, 626. Garner v. State, 5 Yerg. 160, p. .301. Garreity v. Brazell, 34 Iowa, 100, p)). 540, .544, .5.55. (iarrison v. Portland, 2 Oreg. 123, pp. 1S5, 274, 310. (iarthwaite v. Tatum. 21 Ark. 336, pp. 195, 225. Garga v. State, 3 Tex. App. 286, p. 289. Gates V. People, 14 111. 443; s. c, 2 Am. L. Reg. 671, p. 20.). Gatlitfe v. Bourne, 2 Moo. & Rob. loo, p. 93. Gavigan v. State, .55 Miss. .533, p. 77. Gay V. Ardry, 14 La. 288, p. 180. Geiirliart v. Jordan, 11 I'a. St. 325, p. 301. Gee V. Swann, 9 M. & W. 685, p. 333. Genet v. Mitchell, 4 .John.s. 186, p. 17. Georgia K. Co. \. Hart, 60 (ia. 550, pp. 182, 338. (iettwerth v. Teutonia Ins. Co., 29 La. An. 30, p. 113. Gholston V. Gholston, 81 Cia. 025, pp. 430, 488. (Jibbons v. People, 23 111. 518, p. 372. (Jibbs V. Dewey, 5 Cow. 503, p. 436. Gibbs V. State, 3 Ileisk. 72. p. 174. (Jibson V. State, 16 Fla. 291, p. 0. (iibson V. AVilliams, 39 Ga. 600, ]). .52.^. Gibson v. Wyandotte, 20 Kan. 155, pp. 95, 96. 151. Cirand •Iiuy v. Public Press, 4 Brewst. :il3, )ip. 053, 065, 00(;. 067. liraiKl .lury. Re, 3 Craw. & Dix C. C. 395, p. 710. Grand ]tapld>* Booniini-- Co. v. Jaivis, 30 Mich. 30S, p. 2'.)S. Graunis v. Brandon, 5 Day, 200, p. 430. (;rant v. State, 3 Tex. App. 1, ]). 324. •<;i-atz V. Benner, 13 Sersi. A R. 110, p. 189. (Ji-aves V. Monet, 7 Smed. .t M. 45, p. 355. Graves v. Short, Cro. p:iiz. 010, p. 469. Graves v. State, 63 Ga. 740, p. 492. Gray v. Knight, 16 ('. B. 143, p. 14. Gray v. People, 20 111. 344, pp. 221, 22S. Gray v. State, .55 Alu. so, pp. 102, 131. Greeley v. Mansur, 64 Me. 211, pp. 540, 550. <;reen v. Bliss. 12 IIow. Pr. 429, p. 541. (ireen v. Hill, 4 Tex. 405, p. 230. Kireen v. State, 19 Ark. 178. pp. 705. 734. Green v. State, 17 Fla. 069, pp. 9S, .321, Green'v. State, 28]Miss. 087, pp. 019, (;20, 734. <;reen v. State, 1 Tex. App. 82, p. .597. KJreentield v. People, 74 N. Y. 277, pp. 135, 219, 225, 243, 244, 209, 285. Groenley v. State, 60 Ind. 141, pp. 208,210. Kireeniip v. Stoker, 8 111. 202, p. 343. (ireenwood v. State, 17 Ark. 332, p. 329. Greer v. Xorvill, 3 Hill (S. C), 202, pp. 38, 299, 309. . 734, p. Guykowskiv. People, 2 111. 47i>, pp. 338, 345. 11. Hackley, Re, 21 How. Pr. 103, p. (U7. Hacklie v. tiastie, 3 Johns. 252, pp. 490, 498, 503. Haiiadorn v. Conn. Mat. Ins. Co., 22 llun,249, p. 234. llager v. Hager, 38 Barl). 92, p. 410. Hague V. Hall, 4 Man. & Gr. 693, p. 13. Hague V. State, 34 Miss. 010, p. 734. Haight V. HoUey, 3 Wend. 2.58, p 07. Ilaiaht V. Turner, 21 Conn. 593, pp. 540, 542. Hairgrove v. Millington, 8 Kan. 480, pp. 477, 478. 480. Haldane v. Beauclerk, 3 Exch. 658, p. 13. Hale v. Cove, Strange, 642, p. 509. Hall V. Meadowcroft, 4 Maule & Sel. 467, p. 13. Hall V. Perott. Bald. 123, pp. 12,13. Hall V. Robison, 25 Iowa, 91, pp. 540, .5.55. Hall V. Kuplev, 10 Pa. St. 231, pp. 481, 488. Hall V. State, 40 Ala. 693, pp. 4, 77, 131. Hall V. State, 51 Ala. 9, pp. 70, 71, 99, 223, 300. Hall V. State, S Ind. 439, p. 420. Hall's Case, 3 Gratt. 593, p. 709. Hallock V. Franklin County, 2 Mete. 558, 13. 304, .528. Halloway v. State, 53 Ind. 554, p. 619. Ham v. Lasher, 24 Up. Can. (i. B. 533, n. pp. 305, 333. Hamilton V. Des Moines Valley R. Co., 36 Iowa, 31, pp. 510, 512. Hamilton V. Glenn, 1 Pa. St. 340, pp. 472, 486. Hamilton v. Pease, 38 Conn. 115, pp. 40 ;, 407,440,441. Hamilton v. People, 29 Mich. 173, p. (564. Hampton V. Speckenagle, 9 Serg. & R. 212, p. 470. Handley V. Leigh,8 Tex. 129, pp. 510, 514. Handline v. State, 6 Tex. App. 347, pp. 321,376. Handy v. Call, 30 Me. 9, pp. 230, 465. Hanger v. Imboden, 12 Mo. 85, p. 4(1. Hanks v. State, 21 Tex. 520, pp. 205, 341. Hanna v. People, 86 111. 243, p. 81. Hauna v. People, 19 Mich. 319, p. 664. Hannah v. State. 1 Tex. App. .578, p. 710. Hunnum v. Bwlchertown, 19 Pick. 311, p. 540. Harbour v. Scott, 12 La. An. 152, p. 373. Hardenbaugh v. Crary, 15 IIow. Pr. :;0i, pp. 319. 323, 320, 340. 343. Hardin v. State, 22 Ind. 347, pp. 603, 60t, 609, 615,617. Hardin v. State, 4 Tex. App. 3.55, p. 289. Harding v. State, 22 Ark. 210, p. (i4H. Harding v. Whitney, 47 Ind. 379, pp. 347, 547. Hardly v. State, 7 Mo. 607, p. 491. Hardy v. Norton, 66 Barb. .527, p. 474. Hardv v. Sprowle, 32 Me. 310, pp. 183, 184, 338. Hardy's Case, 24 How. St. Tr. 414, pp. 3.51, 385, 394. Hare v. State, 4 IIow. (Miss.) 189, pp. 123, 369, 372, 406, 537. Harebottle v. Placock, Cro. Jac. 211, p. 452. Harkins v. State, 6 Tex. App. 452, p. 297. [larless V. United States, Morris (la.), 109, p. (574. XXVlll TABLE OF CASKS CITED. Harper V. Farmers', etc., IJiink, 7 Watts & S. •204, p. -tTt;. Harper V. Keaii, 11 Serj<. A 1!. JSO, pp. 2-2t>, -2:50. Harper v. State, 2'^ Ark. S3, p. :V2!>. Harper v. State, +2 1ml. •IK.'j, p. .^Xs). Harper v. .State, 7 Oliio St. 7:5, p. , 7:!', 7;!4, 7;i7. ManiiiKiii v. Wiiuins, '20 Me. !):{, p. 47:5. llaI•riIl^'t(>ll V. State, 36 Ala. 3'2ti, ])p. JS4, GOlt, ti-2(l. Harris v. State, 2 Tex. App. 102, p. .320. Harris v. State, 6 Tex. App. 07, p. 109. Harri-sbiug 15ank v. Foster, 8 Watts, 304, 1). 10(>. JIarrisoii V. Hance, :!7 Mo. IS."), pp. 401, 4!)2. Harrison v. I'riec, 22 Ind. la"), p. 440. Harrison v. Kowan, 4 Wash. C.C. 32, pp. 451, .V21. Harrison v. State, 4 Coldw. 10.5, p. 074. Harrison V. State, 3 Tex. App. Ms, pji. 4.1, 7.'>, 100. Hart V. State, .")7 Ind. 102, p. 21t;. Hart V. Tallmadf^e, :5 Day, ;)S1, pp. ]-27, 12S. Ilarter v. Seaman, :5 IJlaekf. 27, p. :?ss. Hartford IJank v. Hart, 3 Day, 401, pp. 1S4, 27.-). Hartranft's Appeal, SO Ta. St. 4,53, pp. mi, CAM, 07:!. Hartshorn y. lielston, 3 Caines, t4, p. 10. JIartshorn v. I'atton, 2 Dall. 2.V2, p. 3. Hartzell v. Com., 40 I'a. St. 402, pp. l.'>7, 202. Harvey v. Hewitt, S Dowl. 1'. ('. .iOS, pp. .514, .315, 510. Harvey V. Jones, 3 Humph. l.J7, pji. 510, .552. Harvevv. Uiekett, 15 .Johns, s7, p. 510, Harvey v. Tyler, 2 Wall. .32s, p, .500. Hasselmeyel- v. State, 1 Tex. App. 000, p. :i23. Hatch v. Mann, Wend. 2(;2, pp. 373, 380. Hatcher v. Fowler, 1 IJibb, :5:!7, p. 317. Hatclie)- v. state, is Ga. 400, p. 731, Hatfield v, Cheaney, 70 III, iss, p, 4S3, Hathaway v. Heliiier, 25 ISarlj. 20, ]ip. 100, :50:5. Ilaiin v, Wilson, 2S Ind. 20(;, pp, ,540, .54:5, .547. Hau,ser v. Com., 5 .\ni. L. Reg. (X. S.) 608, p. 2:50. Hawes v. Gustin, 2 .Mien, 4fr2, p. 185. Hawkes V. Kennebeck, 7 Mass. 401, p. 1.S5. Hawkins v. Andrews, .30 Ga. 118, p. .■>41. Hawkins v. New Orleans l'rintin{< Co., 20 La. An. l:!4, pp. 40(>, 4.30. Hawkins v. State, 13 Ga. .322, pp. 1.50, 1.52, 1.53. Hayden v. Com.. 10 B. Mon. 125, p. 721. Haj'den v. I^onjr, s Oreir. 244, p. 271. Hayes v. Uefj., 10 Irish L. .53. p. i;;i. Hayes v. Heji., 2 (ox C. C. 105. p. 117. Hayes v. Stale, 5S Ga. :!5, p. 7:!1. Haves V. Thomp.son, 15Abb. I*r. (X. S.) '220, pp. :5.50, :54:!. Haynes v. Crutehlield, 7 Ala. ISO, p. .301. HayAvard v. Calhoun, 2 Ohio St. 1(54, p. 208. Hayward v. Knapp, 22 Minn. 5, p. 520. Head v. Lanf^worthv, 1.5 Iowa, 2:i5, p. 488. Head v. State, 44 Mi.ss. 731, p. 274. Heard v. Tierce, S Cusli. 3:58, pp. 6.52, (553, 099. Heard v. State, Tex. App. I, p, .507. Hearn V. Greensburf^, 51 Ind. 110, )i. Is5. Heaston v. Cincinnati etc. It. Co., 1(> Ind. 275, p. 208. Heath V. Com., I Itob. (Va.) 7:5i5, pp. 2:54, :543. Heatli V. Conwav, 1 15ibb, :508, pp.510, 511 514,540, .542, .543. Hetlron v. (iaihipe, .55 ^le. .503, pp. 40(J, 4:50, 440. 4S1, 405, .520. Heiiislei- v, Frecdman, 2 Pars. Sel. Cas. K(|.274,p. 075. Ileiser v. \an Dyke, 27 Iowa, ;5d9, pp. 3i53, :!S8. Heller v. Kn^lish, 1 Strobh. L. 480, p. 303. ^Hendel v. IJerks etc. Tp. Ud., 16 Serg. & n. 02, pp. 472, 477. Hendi-ick v. Cannon, 5 Tex. 248, p. 32s. Hendrick v. Com., 5 Lei;: v. Hannibal etc. It. Co., :i.5 Mo. 40S, ]), 10. Henrie v. State, 41 Tex. 5":i, p. :547. llenr\- v. Cnvillier, 3 Mart. (\. S.) 524, p. :541. Heniy v. Kicketts, 1 Cranch C. C. .5-25, p. .52:5. Henry v. State, :53 .Ma. ;W0, p. 77. Henry \-. State, :!3 Ga. 441, p. 2(54. Henry v. State, 4 Humph. 270, pp. 200, Herbert v. Shaw, 11 Mod. US, p. .528. llenidon v. I5rad.sha« , 4 Hibb, 45, p. 3:58. Herriufj v. State, 1 Iowa, 205, )). 7a5. Heskethv. iJraddoek, 3 IJurr. 1S47, pi). 184, 2()7. Hess V. State, 73 Ind. .537. p. COO. Hess v. State, .57 N. H. 188, p. 028. Hester V. >tatc, 17 Ga. 140. p]). .VIO, .544. Ilewett V. Cobb, 40 Miss. 01, p. :}26. Hewitt V. I'oineer I'ress Co., 23 Minn. 17S, p. .5:51. Hiatt V. Mutual Life Ins. Co., 2 Dill, .572, note, p. 2:54. Hieks V. Kllis, (^5 Mo. 170, p. .534. Hicks V. State, 5 Tex. .\i>i». 488, p. 93. Ilif^h V. .Johnson, 2S Wis. 72, j))). .388, ;5S»2. Hight V. Landon, .53 Ind. si, jj. 70. Hill V. I'eoiile, 10 Mich. :551, ])i). 0, 7, ;>44. Hill V. State, 2 "lerg. 240, pp. 1.52, 1.5:5. Hill V, State, (54 Ga. 453, )). .540. Hill V. Yates, 12 Fast, 220, p]). .3.32, :5:5;;. Hill, K.r parte, 3 Cow. ;!.55, ]). :!.50. Hilton V. Southwick, 17 Me. :!03, p. 4.55. Hindle v. Birch, S Taunt. 20, ]>. .547. Hines v. State, 8 Humph. 597, pp. :500, 301,. :5(i7, 3S0. Ilinkle v. Davenport, ."W Iowa, ;>55, p. :520. Hite V. State. "i'erg. 108, j)]). 7:54, 7:56. Hix v. Druiv, 5 I'ick. 297, pp. 406, 486, 496, .547,540. i Hoare v. Uroom, Cro. Kli/,. 309, p. 11.5. lloberg V. State, 3 Minn, 2(52, ]). 420. llegan v. State, :;o Wis. 220, ]>. :i40. llogbtaling V. Osborn, 15 Johns. 110, ))_ :;04, Hogshead v. State, Humph. .59, pp. 304.. 400. Hollingsworth v. Duane, 4 Dall. 1553, pi)- 177, :58S. Hollis V. State, 8 Tex. Apji. (!20, p. .300. Ilolloway V. State, .53 Ind. .5.54, pp.347, 047, 7:50, 732. Holmcad v. Corcoran, 2 Cranch C. C. 110, p. .5:j9. Holt V. Mells, 4 Smed. A: M. 110, p. 328. Holt V. People, 13 Mich. 224, ])]>. 216, 2.52, 200. 270. :!00. llolton V. state, 2 Fla. 470. 1>P- T:54, 736. I TABLE OF CASES CITED. XXIX. Ilord V. Com., 4 Leifili. 674, p. 649. . Hook V. Page, 1 Over' on, 250, p. -JIW. Hooker v. State, 4 Oliio, :!4.s, pp. -IS't, 2!)(i. Hooper v. State, 5 Yerg. 422, ]). 141. Hoot V. Si)ade, 20 Iiul. :;2(), p. 320. Hoover v. State, .5 Baxter (Teiin.), 672, p. .•571. Hope V. Beoi)le, 83 N. Y. 418, p. 693. Hopkins v. Com., 50 Pa. St. 9, pp. 70S,7.'!5. Hopkins v. Preston, 2 A. K. Mai'sh, 64, p. 314. Hopkinson, v. Steele, 12 Vt. 582, pp. 480, 502. Horbiich V. State, 43 Tex. 242, pp. 289, 295. Hornbuc'kel v. Toombs, 18 Wall. 648, ]). 51. Home V. State, 37 Ga. 80, p. 1.52. Home Took's Case, 25 How. St. Tr. 17, p. 229. Horton V. Horton, 2 Cot. 589, p. 388. Horton v. State, 47 Ala. .58, ]). 618. Hotz V. Hotz, 2 Ash. (Penn.) 245, p. 292. House, Jix parte, 36 Tex. 83, pp. 32, ."56. Hotistou V. ^Vorcl8 worth, 65 >('. C. 41, p. 438. Hovev V. Thompson, 37 111. 538, p. 471. Howard v. Cobb, 3 Day, 310, ]i. .541. HoMell V. Hartford Fire Ins. Co., (j Biss. 163, pp. 474, 475. Howell V. Howell, 59 Ga. 145, ]ip. 17, 254, 312. Howell V. Kobertson, X. J. L. 142, p.G7. Howerton v. State, Kleins, 262, ]). 342. Howland v. (i fford, 1 Pick. 42, n., pp. 90, 324, 340, ,528. Howland v. Willetts, 9 X. Y. 170, iip. 478, 486, .503. Howie V. Dunn, 1 Leiah. 4.55, p. 3.5(). Hoye V. State, .39 Ga. 718, ]). .540. Hubbard v. Gale, 105 Mass. 511, p. 277. Hubbard V. Rutled. .32*. Hughes V. Cairo, 92 111. 399. p]i. 233, 234. Hughes V. Listner, 23 Ind. 396, p. 540. Huldekoper v. Cotton, 3 ^Vatts, 56, pp. 739, 741, 742, 745. Hull V. Albro, 2 Disney, 147, pp. 339, 343. Hulse V. State, 35 Ohio St. 421, ]). 17. Humphries v. McCraw, 5 Ark. (il, ]). 471. Hungate v. Hamond, Cro. Eliz. 188, p. 337. Hunt V. Mavbee, 7 X'. Y'. 273, ]i. 500. Hunt V. Mayo, 27 i.a. An. 197, p. 124. Hunt V. Scdbie, 6 B. Mon. 469, p. ,ss. Hunter v. Mathis, 40 Ind 357, p. 749. Hunter v. Parsons, 22 Mich. 9(5, j). 296. Hunter v. State, 43 (Ja. 484 pp. 412, 528. Hunter v. State, 8 Tex. A]ip. 75, i)p. 509, 510, .516, 5.57. Hurl-y V. State, 29 Ark. 17, pp. 275, 299, 335, 477. Hussev V. Allen, .59 Me. 269, pp. 303, .527. Huston V. Vail, 51 Ind. 299, p. 438. Hutchinson v. Consumer's Coal Co., 36 X. J. L. 24, pp. 443,541,547. Hutchinson v. Decatur, 3 CranchC. ('. 291, p. 481. Hutton V. Hun, Cro. Eliz. 849, p. 267. Hyde V. State, 16 Tex. 445, p. 208. I. Illinois, etc. 1!-. Co. v. .Vble, .59 111. 131^ pp. 510, 515. Imlay v. Kogers, 7 X. J. 1,. 347, ]». 745. Ince's Case, 20 L. T. (X. S.) 421; s. c. Allen Tel. Cas. 497, n., p. 675. Indianapolis v. Scott, 72 Ind. 196, p. 523. Ipswich V. Essex, 10 Pick. 519, p. 304. Irish V. Wright, 8 Bob. (La. i 428, p. r>47. Irvine v. Cook, 15 Johns. 239, p. 4S2. Irvine v. Kean, 14 Serg. & K. 292, pp. 225, 236. Irvine v. Lumbermen's Bank, 2 Watts & S. 190, p. 216. Irwin v. Gray, L. B. 1 C. P. 171, p. 14. Irwin V. Jones, 1 How. (Miss.) 497, p. 327. Isaac A-. Clarke, 2 Gill. 1, p. 189. Isaac V. State, 2 Head, 4.58, p. 301. Isham V. State, I Sneed, 111, p. 321. Iverson v. State, .52 .Ma. 170, p. 30s. Jack V. Xaber, 15 Iowa. 4,50, p. r>'>i. Jack V. State, 26 Tex. 1, i)p. 3.53, 370, 401, .524, .526. Jackson v. Com., 23 Gratt. 919, pp. 218, 223,225, 226. Jackson V. Com., 1;; Gratt. 795, pp. 619.. 1)20. .Jackson v. Dickenson, 15 .Johns. 310, pj). .542, .545. Jackson v. Hawks, 2 Wend. 619, p. 393. .Jackson v. Jackson, 5 Cow. 173, p. .527. Jackson v. Jackson, 32 Ga. 325, p. 4l!S. Jackson v. Jackson, 40 (ia. 1.50, p. 462. Jackson v. Pittsford. 8 Blackl. 194, p> 29(!. Jackson v. Smith, 21 Wis. 26, p. 447. Jackson v. State, (i l?lackf. 4(il, p. 6. Jaclcson V. State, 21 Ind. 171, pp. 7:'>0, 734^ 735. Jackson v. State, 4 Tex. A pp. 2 .2, pp. 77, 98. Jack.son v. State, 11 Tex. 261, pp. 603, 731. Jackson v. State, 51 Ga. 402, ii. 301. Jaek.son v. State, 56 Miss. .530, p. 77. Jackson V. Williamson, 2 T. K. 2sl, ]>]). 540, .543. Jackson's Case, 25 IIow. St. Tr. 804, p.. 28(). Jacobs V. Dooly, 1 Idaho, 36, p. .540. Jacobs V. State, 9 Tex. A\i]i. 278, j). 196. Jacques V. Com., 10 Gratt. 6;!0, pp. 181,. 182. James v. State, .53 Ala. 380, pp. 274, 324. James v. State, .55 Miss. 57, pi). 388, 393. Jameson v. Androscoggin li. Co., 52 Me. 412, ]ip. .304, 323. Jefferson v. State, 52 Miss, 767, pp. 7(>, 301. Jefferson City v. Opel, 67 JIo. 394, ]). 534.. Jeffries v. Com., 12 Allen, 145, ]>. 279. Jeffries v. Bandall, 14 Mass. 205, p. 342. Jenkins v. State, 41 Tex. 128, pp. 3(55, 370, 400, .526. Jenkins v. State, 30 Miss. 408, ]). 734. Jerry v. State, 1 Blackf. 395, pp. 729, 733. Jesse V. State, 20 Ga. 156, pp. 157, 276. Jessup v. Eldridge, 1 X. J. L. 401, pp. 475, 495. Jeter v. Heard, 12 La. .\n. 3, pp. 542, .543, Jetton V. State, Meigs, 192, pp. 643, 649. xxx TABLE OF CASES CITED. Jewell V. Coin.,-.".* l*:i. St. '.il, pp. lli;, 117, •JTT, :i!7. Juw.sbiiry V. Speity, .s.") 111. ."x;, |). U(i. .Ilioiis V. i'fopu-, ift ilirli. ."iiMt, p. -.".m;. Jillaril V. Com., Jii I'a. st. lii'.i, i)p. 7-M, 7-.">. .liiu V. State, 4 ilmnpli. 'iX'.\ i>. .'il'.t. .Inhii V. ."^tute, Hi till. •-'(Ml, i)p. JJI, ■.>7."), -J'.i'.i. JolniLX)!! V. .\iiierifiis. 4(i Cia. .*<0, p. 18.'). • Johnson V. Ultukweli, fi Csif. & I'. ■J:!G, p. iJ. ■lohn.son v. Cole, 1 X. J. I.. ifiO, ]). Cn. •Johnson v. Davenport, :J ,). J. Aiarsli. .■{!l;{, pp. .VKi, ."i44. Johnson v. liowe, 7 111. .'J4-J, ]). :5i):i. Johnson v. llushand, -J-J l\aii. 277, ]>]). .")l:!, .il.'), .")4ii, .Vii;. . Johnson v. I'erry, "2 IInnii)li. .")(;i), p. .iIO. .Johnson v. IJichardson, .">2 Tex. 481, p. isi. Johnson v. Root, ■> Clitf. 108; .? c, "2 Kisher's I'at. ('as. 2'.tl, pp. .i.Mi, .");)7. Johnson v. State, 47 Ala. ii, i)p. .JUO, 328, .•5211. Johnson v. .State, .')8 Ga. 4'.>l, ]>. 274. Johnson v. State, :{:> Miss. :'.<>:{, j). ()-27. Johnson v. State, 2:! Ind. :!2, p. 71'). ■ lolinson V. State, 1 Tex. -\pp. .)l!t, p. r!2il. Johnson v. stale, 4 Te.\. App. 2(;8, pp. ;t;i, !)8. Johnson v. state, 27 Tex. 7.')!i, pp. :508, .V24, 520. .")41,."m7. Johnson v. state, :i:! Tex. .■)7(), p. (io'.i. Johnston v. Jones, 1 I'.laek, 20'.), p.:m. Johnston V. stale, 7 Snied. & JSl. .')8, p. Johnstone v. Sutton, 1 Temn I!ep. .">;;."), p. 74'.i. .Johr V. People, 2r> .Mich. 427, p. .m. J(jiee V. Alexander, 1 Craneh C. C. .528, pp. 24'.t, 2.V2, 281. clones V. Biilterworth, 3 N. J. L. :',i'>, ]). 247. Jones V. Com., :U Gratt. 8;!(), p. .');!.'). •Jones V. ieoi)le, 2 Colo. ;5.il. pp. 241, 208, :5;!8. Jones V. state, 2 IMackf. 47."), pp. 208, 201, 2f4, 2!)1, ;!01, :572, ."mO, .-5,87, .-)8!», ."jllO, 0:58. Jones V. State, .'i Uhiekf. :57, Jip 122, 12:5. Jones V. State, 4 Hlaekf. :57, p. 00. Jones V. State, '>' Miss. (■)84. p. 20".). .Jones V. .State (Sup. Ct. Uhto, ia')I), 8 West. L. J. 508, p. 121. Jones V. State, :! Tex. App. 575, p. 75. Jones V. State, 8 Tex. App. VAX, p. 205. Jones V. State, 1 Ga. 010, pp. 21, 157. Jones V. State, 1:5 Tex. I(i8, pp. :507, 457. Jones V. Tiupin, Olleisk. isi.pp. 7:5!), 740, 744, 745. .Jones V. \ ail, :!0 X. J. L. 1:5.5, p. 417. .Jones V. Vanzant, 2 .McLean, Oil, p. 200. Jordan v. Meredith, 1 I5inn. 27, p. :!0:5. Jordan v. state, 22 Ga. .545, p. 270. Josephine v. State, :5'.i Miss. 01:5, ]). 207. Josey V. Wilmington, etc., It. Co., 12 IJich. I-. \M, p. :5:!!i. Joy V. State, 14 Ind. 1:50, p. 01. -Joyce V. State, 7 15axt. 27:5, pp. 500, 511, 515, .5.52. Jndah v. McXamee. :5 T51ackf. 200, p. :5247. Keenan \ . state, S Wis. 1:52, pp. 322, 207, :5>'l. Keener V. State, IS Ga. 104, pp. 3:50, 342. Keiser v. Lines, 57 Ind. 4:51, p. 202. Keitler V. State,4 (;. (ireeiie, 401, p. .507. Kell V. IJrillinger, 8j Pa. St. 270, p. 1:52. Kellev V. reojtle, .55 X. V. ,505, i))). 17:5, 174. Kelley v. State, .5:5 Ind. :5I1, p. («)8. Kellogg V. Wilder, 15 Johns. 4.55, p. 401. Kellv V. Sheehv, 8 Dalv, 20, p. 542. Kelly V. Slate,':! Smed." A M. 518, p. SO. Keini)er v. Louisville. 14 Hush, 8;, p. l,S5. Kennedy v. Dale, 4 W'atts & .S. 17(5, p. 2; 12. Kennedy \. Kennedy, 18 X. J. L. 450, pp. 510,515. Kennedy v. Com., 14 Dush, :!40, pp. 72, :52:5, :5:58, :5:50. Kennedy v. Com., 2 Va. Cas. 510, jip. 222, 300. Kennon v. State, 7 Tex. App. 32(!, p. .320. Kenrick y. Heppard, 23 Ohio .St. :j:i3, pp. :5:59, :542. Kent V. Charlestown, 2 Gray, 281, p. 304. Kent V. Cran)i)ton, 3 I)yer,":!18, \i. 108. Kent V. Tyson, 20 N. H.'l21, jij). 480, 500. Kci'by V. ('om., 7 Leigh, 747, pp. 174, 0:53. Kersehbaugher V. Slusser, 12 Ind. 453, p. 320. Kerwin v. I'eoi)Ie, 00 111. 200, p. 21. Key V. lloleman, 2 I'ay, 315, )). .5:55. Kilgore v. Jordan, 17 Tex. 341, ]). 5.57. Killen v. Sistrunk. 7 (ia. 28:5, pj). 480, 405, 400. Kimbrough v. State, 02 Ala. 248, ]). 207. King v. Dale, 2 111. 513. p. 2:53. King V. King, 40 <;a. 022, )). .540. King y. State, 21 lia. 220, p. 204. King V. State, 5 How. (.Miss.), 7:50, pp. 123, 210, 2.54. 2.55, (;71, 710. King V. Stone, Term Kep. 527, p. 351. King y. Wooler, 1 ISarn. & Aid. 103. p. 13. Kiniren v. State, 40 Ind. 1:52, pp. :5:59, 342, .340. Kinloehs" Case, Foster, 22, p. 352. Kinnicuttv. Stockwell, 8 Gush. 73, ]>. :540. Kirk v. State, 14 Ohio, 511, p. 420. Kirk v. State, 13 sm. & .M. 400, p. 722. Kitrol V. State, Fla.O, pp.571. .580,00:!. Kilter y. People, 25 111. 42, j). :527. Kittridge v. Elliott, 10 X. IL 77, p. 484. Kleinbach y. State, 2 Speers, 418, pp. KiO, 288,202,200. Klinger v. State, 13 Wall. 257, p. 277. Kneeland v. State, 03 Ga. 041, )>. 731. Knight y. Campbell, 02 Barb. 10, p. 10. Knight V. Freejjort, 13 Mass. 218, pp. 400, 4:58. Knott y. Sargent, 125 Mass. 05, pp. 705, 700, 747. Knowles v. Kexroth, 07 Ind. .50, p. 320. Knvaston v. Shrewsbur-\-, Andrews, 85, "l)p. 207, 280. Koch v. Slate, ,32 Ohio St. 352, pp# 292, 571,003, (;07, 038. Koehler v> Cleary, 23 Minn. .325, j). 524. Koenig v. I5auer| I lirewst. 304, pp. 337, ;541. Koester v. Ottumwa, .34 Iowa, 41, p. 4.55. Krebs V. State, 8Tex. Ai)p. 1, pp. :507, :508. Kroer v. Peoi)le, 78 111. 204, p. 200. L. Lacey v. state, .58 Ala. .385, p. 32(i. Lacy y. State. 45 Ala. 80, p. 102. Lad'd V. Wilson, 1 Ciai eh C. C. 5, p. 539. Lady Herbert v. Shaw, II Mod. 118, p. :i03. Lady Joys Case, cited 1 Ld. Kaym. 148, J). 470. TABLE OF CASES CITED. XXX / Lady Northumbci-lancrs Case, 2 Mod. 182 ; Lofft. 2U, ]). 32. Lafavette, etc., K. Co. v. New Albany, etc., K. Co., 13 Ind. 90, pp. .-549, 549. Lamb v. State, 4 Ohio St. U',~, )). G. Lamb v. State, 36 Wis. 421, pp. 282, 289, 31(3. Lambertson v. People, 5 Park. Cr. R. 200, p. 87. Lampliier v. State, TO Ind. 317, p. .342. J^ane v. Goodwin, 47 Me. 593, p. 338. Lane v. Scoville, Ki Kan. 402, ]ip. 303, 342. Lansrworthy V. Myers, 4 Iowa, IS, i)p. 48-!, 4!);). Larillian v. Lane, 8 Ark. 372, p. 6. Larimer v. Kelly, 13 Kan. 78, p. 458. Larkins V. Tarter, 3 Sneed, C81, pp. 542, 551. Laura v. State, 2(5 Miss. 174, p. 734. i^aurent v. State, 1 Kan. 313, i>p. 716, 734. Lavin v. People, («> 111. 303, p. 192. Lawless v. Reese, 8 Bibb, 486, p. 481. Lawrence v. Boswell, Sayer, 100, p. 540. Lawrence v. Collier, 1 Cal. 37, p. 346. Layburn v. Crisp, 8 Car. X- P. 397, p. 82. Layer's Case, 16 How. St. Tr. 135, pp. 144, 229, 2S2, 2S6, 289, 315. Leach V. People, 53 111. pp. 311, 216, 223. Leach V. Wilbur, 9 Allen, 212, p. 429. Leathers v. State, 26 Miss. 73, p. 626. I>ee V. Clute, 1 Xev. 151, p. .510. Lee V. Lee, 71 N. C. 139, p. 92. Lee V. McLeod, 15 Nev. 158, jip. 440, 444, 527. Lee V. Peter, 6 Gill & J. 447, p. 296. Lee V. State, 45 Miss. 114, pp. 217, 608, 734. Leech V. Lamb, 11 Exch. 437, p. 15. Leer v. State, 2 Tex. App. 495, pp. 328, 329. Leiifhton v. Sargent, 31 N. H. 120, pp. 457, 540. Lester v. Goode, 2 Murph. 37, p. .'542. Lester v. State, 2 Tex. App. 432, pp. 22, 175, 176, 262, 265, 309. Leverett v. State, 3 Tex. App. 213, pp. 509 510 515. Levinger V. lieg., L. R. 3 P. C. 282, p. 19. Levy V. Brannan, 39 Cal. 485, p. 509. Lewis V. McMuUin, 5 W. Va. 582, d. 542. Lewis V. Closes, 6 Cold. 193, p. 551. Lewis V. People, 44 111. 452, p. 372. Lewis V. State, 51 Ala. 1, pp. 102, 328. Lewis V. State, 1 Head, 329. p. 608. i^ewis V. State, 3 Head, 127, pp. 87,301. Lewis V. State, 9 Smed. & U. 115, pp. 208, 275, 301. Lewis V. Wake Co., 74 N. C. 194, pp. 651, 6.53, 6.59, 668, 673, (587. Lewis' Case, 7 How. St. Tr. 249, p. 588. Licett V. State, 23 Ga. 57, p. 2(38. Lightfoot V. People, 16 Mich. 507, p. 664. Ligon V. State, 7 J'ort. 1(57, pp. 632. (333. Lincoln v. Stowell, 73 III. 24(;, p. 79. Liudauer v. Teeter, 41 X. J. L. 256, pp. 541, 542. Lindley v. Kindan,4Blackf. 189, p. 121. Lindsay V. McWilliain, 3 Craw. & Dix, (Irish Cir.) 27, p. 8. Lindsley v. People, 6 Park. Cr. R. 233, p. 296. Lingan v. Marbury, 1 Cranch C. C. 365, p. 281. Link V. State, 3 Heisk. 252, p. 287. LLsle V. State, 6 Mo. 426, p. .303. Lithgow V. Com., 2 Va. Cas. 297, pp. 204, 216, 222, 223, 308. Little V. Birdwell, 21 Tex. .597, p. .557. Little V. Com., 25 Gratt. 521, pp. 216, 739, 745, 747. Little V. Lal-rabee, 2 Me. .37, p. 542. Little .Schuvlkill Nav. Co. v. Richards, 57 Pa. St". 142, pp. 472, 499. Littlefield v. Beamis, 5 Rob. (La.) 145, p. 499. Livingston v. Cheatham, 1 . Johns. 61, p. 17. Livingston v. Columbian Ins. Co., 2: Caines, 28, p. 16. Livingston v. Heernaan, 9 Mart. 656, p. 3a5. Livingston v. Smith, 1 Johns. 141, p. 16. Llovd v. McClure, 2 G. Greene, 139, pp. 542, 553. Lloyd V. Xourse, 2 Rawle, 49, p. 225. Lloyd V. State, 45 Ga. 57, p. 2.33. Llovd and Carpenter, Ite, 5 Penn. L. J. 55, pp. 5(39, 659, 6(55, ()(58, 749. Lockwood V. State, 1 Ind. 161, p. 699. Loeflier v. Keokuk Packet Co., 7 Mo. Ajip. 185, p. 254. Loeffner v. State, 10 Ohio St. 598, p. 218. Logan V. State, .53 Miss. 431, pp. 77, 99, 102, 223, 229, 236. Longv. Spencer, 78 Pa. St. 303, p. 17. Long V. State, 46 Ind. 582, pp. 585, 622, 047, 730. Longv. State, .56 Ind. 1.33, p. 736. Lonsdale v. Brown, 4 Wash. C. C. 148, pp. 486, 495. Looper v. Bell, 1 Head, 373, p. 317. Lord V. Brown, 5 Den. 345, pp. 188, 234, 2.55. Lord Grey's Case, 9 How. St. Tr. 128: s. c, Skin. 82, p. 144. Lord Peter v. Heneage, 12 Mod. 520, p. 4(59. Lore v. State, 4 Ala. 173, p. 27.'). Lott V. Macon, 2 Strobh. L. 178, p. 482. Lotz V. Briggs, 50 Ind. 346, pp. 471, 472. Louis V. Davis, 13 Johns. 227, p. 69. Love V. Moodv, (58 N. C. 200, pp. .530, .532. Lovell V. State. 45 Ind. 5.50, pp. 047, 729. Lovett V. State, 00 Ga. 257, pp. 221, 346. Low's Case, 4 Me. 439, pp. (395, 731, 741. Lowe V. McCorkle, 8 West. J.. J. (34, 303. Lowenburg v. People, 5 Park. Cr. R. 414, pp. 208, 216, 232. Lucasv. Cannon, 13 Bush, 050, p. 540. Lucas V. Marine, 40 Ind. 289, p. 388. Lucy V. State, 8 Mo. 134, p. 718. Lung's Case, 1 Conn. 428, pp. 686, 689, 090. Luster v. State, 11 Humph. 169, pp. 407. 408. Lutrell V. Maysville, etc. R. Co., IS B. Mon. 291, pp. 419, .524. Lycoming Fire Ins. Co. v. AVard, 90 111. 545, pp. 223, 226. Lyles v. State, 41 Tex. 172, pp. 176, 179, 180, 265. Lyman V. People, 7 Bradw. 345, p. 733. Lyman v. State, 45 Ala. 72, p. 176. Lyon V. Commercial Ins. Co., 2 Rob. (La.) 2(57, p. 67. M. jMackey v. People, 2 Colo. 13, pp. 07, 58L Mackey v. State, 3 (Jhio St. 302, p. 729. Madden v. State, 1 Kan. 340, pp. 381, 538. Maddox V. State, 32 Ga. 581, pp. 223, 224. Maduska v. Thomas, 6 Kan. 1.53, p. 6. Maffett V. Tonkins, 6 N. J. L. 228, pp. 116, 119, 126. Magness v. Stew^art, 2 Coldw. 309. pp. 339, 343. Mahan v. State, 10 Ohio, 232, pp. 1.52, 731. Maher v. State, 3 Minn. 444, pp. 380, 387,. 402. Maher v. State, 1 Port. 205, pp. 67, 028. Maize v. Sewell, 4 Blackf. 447, p. 214. Major V. PuUiam 3 Dana, .583, p. 339. Major V. State, 4 Sneed,.597, p. 224. TABLE OF CASES CITKD. Maloiie V. Stiiti>, S (;!i.40-i, p. :;(i.'>. Alaloiif V. Stato, 4;i Ua. .JKl, p. lli;. Malov V. fStato, .U Ti!X. .V.ii), \t. •.'•_'. M.iin'V V. Slate, S Ti'X App. :iiil, p. JV.'i. Maiilialtaii Co. v. l^ydit;, 2 Cuiucs, ;JSO, p. 1.;. Xaiiiuii V. Klynn, :5'.i Conn. 3:10, p. :!()>. .Alauix V. Jhilonv, 7 Iowa, 81, i)p. 51S, .V>:!. Manko v. P<>«>pU-, 17 linn, lli;, p. •.>4:{. Mann v. Clifton, :! lUacUf. :!(il. p. :Vi.». Mann v. Kairlee, 41 Vt. i;7-.>, i>p. :W(;, :i:5S. -Mann v. »;iovor, 14 N. J. I.. l!».j. pp. ilS, ■-'»;7, IM. Mans.-ll V. lie;?., S Kl. t 151. .54, pp. 144, 14:), 147, •Ju7.2'.rs. :!ii, rix Mans.-U V. \Vobl),8 Kl. .t HI. .'54, p. '27(;. .Manslield, etc. It. Co. v. Clark, 'iJ Midi. pp. .51'.t, UiJ'.t. Maplcd V. Park, 17 Conn. :5.{S, p. 73. Mapes V. People, oH III. 525, pp. .').•, 120. Mareli V. I'orlsniontli, etc. It. Co., It) N. II. 372, p. 270. Mareli v. .State, 44 Tex. 64, pp. 40(5, 407, 408, 4<50. Maretzck v. Caukl\vell,2 Abb. Pr. (X. S.) 407; s. c, 5 Ilobt. WO, p. 201. Markliani v. Lee, cited 1 Leon. 8>i, p. 110. Marlin v. Stoekbridfre, 14 Tex. Hi."), p. 8. Mainocb v. .State, 7 Tex. App.2(i'J, p. 3GH. Mai-.sli V. Coppock, '.) Car. & P. 480, p. l!)(i. Marsh v. Stato, 30 Miss. (527, pp. 274, 27.'). Maisliall V. Krugg, 2 A. K. Maisli. 30, p. 314. Martin v. EhrenCcls, 24 III. 187, p. 540. .Martin v. Morelock, 32 111. 487, pp. 391, 400, 442. .Martin v. Peonle, 54 111. 225, p. 40;>. Martin v. lleg' 12 Irish L. 3'.)'.), p. 185. Martin v. State, 25 Ga. 4;i4, p. 205. Martin v. State, 9 Tex. Ai>p. 2i)3, D. 429. Martin v. State, 22 Tex. 214, pp. "603, 609. Martin v. State, 40 Tex. 19, p. 328. Martin's Case, 2 Leigh, 745, p. 386. Martin v. Tidwell, 36 Ga. 332, pp. 446, 527. .-)2S. Mason v. Russell, 1 Tex. 721, pp. 523, 540, 541, ,.557. .Alathis V. State, 18 Ga. 343, p. .5:}5. Matilda v. Mason, 2 Crancli C. C. 343, p. 254. Maton V. People, 15 111. 536, pp. 148, 152, 1.5:5. Matthews v. State, 6 Tex. App. 23, p. 93. May V. Khun, 27 Iowa, 365, p. 270. May V. Milwakee, etc. It. Co., 3 Wis. 219, pp. 6, 10. Maynard v. Fellows, 43 X. II. 2,55, p. 500. McAfee v. State, 31 Ga. 41, p. 52. McAllister v. Sibley. 25 Me. 474, pp. 440, 528. Mc.Vllistcr V. State, 17 Ala. 434, p. 274. McArtlmr v. Carrie, 37 Ala. 75, p. 13. McCampbell v. State, 9 Tex. App. 124, p. 179. MeOann v. People, 88 111. 163, p. 374. MeCann v. State, 9 Sined. & M. 465, pp. .■;72, 380, 5:J7. McCarter v. Com., 11 Leigh, 633. pp. :}70, :598. MeCarty v. Kitchen, .59Ind. .500, p. 444. .McC-rirty v. MeCarty, 4 Kich. L. 594, pp. <58, .525. MeCarty v. State, 26 Miss. 299, pp. 99, 274, 322. McCarver v. Pippin, 12 Heisk. 657, p. 407. McCausland v. McCausland, 1 Yeates, 372, pp. 1!)9, 215, :U\, .556. McClary v. State, 75 Ind. 260, pp. 429, 558, 608, 615. McCloskey v. People, 5 Park. Cr. R. :508, p. 122." McCluney v. Lockhart, 1 Bailey, 117, p. 5:55. McClure v. State, 1 Yerg. 2(M\, pp. :522, ;J4(), (H7,73l, 7:53. MeCov V. State, 22 XvU. :!os, p.:jl8. MeCov, Ex parte, (A Ala. 201, )>. 609. McCoikle v. 15inns, 5 ISinn. :540, p. :503. McCorkle v. State, 14 Ind. 40. pp. 352, 360, 394, 3.15. McCorniick v. Brooklield, 4 X. J. L. 69, pp. 5, 249. McCorniick v. Irwin, 35 Pa. St. Ill, p. 47f). McCrav v. Stewart, 10 Ind. 3:57, p. 5:59. .MeCrearv v. (;oin., 2:t Pa. St. 323, p. :$58. McCuller v. State, 49 Ala. :59, p. 329. McCiilloiigh V. Com., 67 Pa. St. 30, jip. 612, 0(;i, 0i;5, 667, 66S. McCnlly v. IJarr, 17 Serg. & R. 455, p. 472. MeCune v. Com., 2 Rob. (Va.) 771, pp. 210, 226. McDaniels v. McDanicls, 40 Vt. 363, pp. 440, 527. McUermott v. Hoffman, 70 Pa. St. 31, pp. 67, 1.50. McDonald v. Beall, 55 Ga. 288, pp. 340, :541. MeOonahl v. Ilodge. 5 Ilayw. a5, p. 499. McDonald v. Shaw, 1 X. J. L. 6, p. 112. 3IcKlhanon v. People, it2 111.369, p. 611. McKlvin V. State, 30 Ga. SCy'.), p. 540. McElvoy V. State, 9 Xeb. 157, pp. 584, 617, 618. McFadden v. Com., 23 Pa. St. 12, pp. 197, 28.5, 297. McFadden v. Wallace, 38 Cal. 51, p. 205. McGarry v. People, 2 Laas. 227, pp. 72. >, 731,7:53,7:54. McGill V. State, 34 Ohio St. 22?, pp. 41, 333. McGowan v. State, 9 Y^erg. 184, pp. 171, 211,223,224. McGreggv. State, 4 Blackf. 101, pp.210, 217. McGnffee v. State, 17 Ga. 497, pp. 90, 92, 225, 243, 342, 709. McGuire v. People, 2 Park. Cr. R. 148, pp. 65, 68. McGuire v. State, 37 Ala. 161, pp.328, 329. McGuire v. State, 37 Miss. 369, pp. 188, ;501. McGunnegle v. State, Mo. 367, p. 32. Mclntire v. Hussey, 57 Me. 493, pp. 406, 440. Mcintosh V. Smith, 2 La. An. 756, p. 394. Mc-Intvre v. People, .58 III. 5)4, p. 372. Mcllvaiiie v. VVilkins, 12 X. H. 474, pp. 406, 417. McKenzie v. State, 26 Ark. 334, pp. 409, .5:59. McKinley v. Smith, Hard. 167, p. .3:58. McKinnev v. People, 7 III. 540, pp. 360, 379, :580, 731, 7:57. McKinnev v. Simpson, 51 Iowa, 662, pp. 340, 342. McKinney v. State, 8 Tex. App. 626, p. 307. McLain v. State, 10 Yerg. 241 , pp. 380, 402. McLaren v. I5irdsong, 24 (ia. 265, p. 205. McLellan v. Crofton, 6 Me. 307, pp. 3:59, 343. McLellan v. Richards, 13 Me. 82, pp. 739, 747. McMillan v. State, 7 Tex. App. 142, p. 295. McXiill V. McClure, 1 Lans. 32, p. 2:55. McXamara V. Dratt, 40 Iowa, 4i3, p. 531. McXeil V. State, 47 Ala. 498, pp. 328, :}2:t. Mct^uillen v. State, 8 Snied. & M.587, pp. 387, 589, 604, 617, 618. TABLE OF CASES CITED, XXXlll McRae v. Tillman, 6 Ala. 486, p. 329. McWatei-s v. State, 10 Mo. 167, p. 718. Meade v. Smith, '6 Conn. 346, p. .541. Means v. Means, 7 Rich. L. 533, p. 474. Meaux v. Whitehall, 8 Bradw. 173, pp. 202, 206, 309. Mechanics' etc. Bank v. Smith, 19 Johns. 115, pp. 247, 268. Medaris v. State, 10 Yerg. 239, pp. 721, 722. Medler v. State, 26 Ind. 17, p. .523. Meeker V. Potter, 5 N. J. L. 586, p. 189. ISEeeks V. State, 57 Ga. 329, p. 340. Mellish V. Arnold, Bunbury, 51, pp. 509, 515. Melson v. Dickson, 63 Ga. 685, pp. 181, 312. Mench V. Bolbach, 4 Phila. 68, pp. 407, 418, 438. Mercer v. State, 17 Ga. 146, p. 346. IMerrick v. State. 63 Ind. 327, p. 79. Merrill v. Berkshire, 11 Pick. 269, pp. 304, 426, 528. Merrill v. Nary, 10 Allen, 416, pp. 491, 492, 493. Mershon v. State, 51 Ind. 14, pp. 592, 608, 609, 615. 616, 617. Meyer v. Foster, 16 Wis. 294, pp. 373, 3S0. Meyer v. State, 19 Ark. 156, pp. 216, 223, 339, 340, 346. Meyers v. State, 20 Ind. 510, p. 299. Miami Valley Furniture Co. v. Wesler, 47 Ind. 65, p. 347. Michigan etc. K. Co. v. Barnes, 40 Mich. 383, p. 187. Middletown v. Ames, 7 Vt. 166, p. 185. Miers v. State, 56 Ind. 366, pp. 582, 622, 645. Mikell V. State, 62 Ga. 36'', pp. 323, 624. Milan V. State, 24 Ark. 346, p. 251. Miles V. Pulver, 3 Den. 84, p. 124. Miles V. Rose, Hempst. 37, p. 314. Miles V. State, 1 Tex. App. 510, p. 328. Miles V. United States, 103 U. S. 301; s. c, 2 Utah, 19, pp. 235, 311. Millar v. Ouddy, 43 Mich. 273, p. 483. Miller v. Hampton, 37 Ala. 342, p. 488. Miller v. Mabon, 6 Iowa, 456, pp. 353, 389. Miller v. State, 2 Kan. 174, p. 734. Miller v. State, 33 Miss. 3.56. pp. 620, 646. Miller v. Wild Cat Gravel Rd. Co., 52 Ind. 51. p. 188. Miller v. Wilson, 24 Pa. St. 114, p. 324. Milo V. Gardinei-, 4 Me. .549, p. 3.55. Mima Queen v. Hepburn, 2 Cranch C. C. 3, pp. 177. 249. Mima Queen v. Hepburn, 7 Cranch, 290, pp. 177, 206, 283. Minims V. State, 16 Ohio St. 221, pp. 308, 309. Miner v. Brown, 20 Conn. 5 9, p. 165. Mingia V. State, 54 111. 274, p. 335. Minor v. State, 63 Ga. 318, pj). 632, 709. Mirick Y. Hemphill, Hempst. 179, p. 542. Missouri etc K. Co. v. Munkers, 11 Kan. 223, pp. 191, 343. Mitchell V. Carter, 14 Hun, 448, pp. 481, 489. Mitchell V. Denbo, 3 Blackf. 259, pp. 114, 123. Mitchell V. Ehle, 10 Wend. 595, p. 509. Jlitchell V. Likens, 3 Blackf. 258, pp. 114, 123. Mitchell V. =tate, 58 Ala. 417. pp. 102, 320. Mitchell V. State, 22 Ga. 211, pp. 264, ,347. Mitchell V. state, 43 Tex. 512, pp. 131, 289. 295, 300. Jlitchum V. State, 11 Ga. 615, p. 346. Mitten v. Smock, 3 N. J. L. 911, p. 8. Muilit V. Rogers, 15 Iowa, 4.53, p. 5.54. Alohler v. State, 24 111. 26, pp. 709, 732. Moncrief v. State, 59 Ga. 470, pp. 338, 346. Monday v. State, 32 Ga. 672, pp. 208, 264. Monroe v. State, 5 Ga. 88, pp. 338, 538. Monroe v. State, 23 Tex. 210, pp. 203, 226. Montague v. Com., 10 Gratt. 767, pp. 148, 178, 204, 208, 269, 270, 275. Montague v. Smith, 17 Q. B. 688, ]i. 13. Montague v. State, 17 Fia. 622, p. 216. Montgomery v. State, 3 Kan. 263, p. 321. Montgomery v. Tillotson, 1 How. (Miss.) 215, p. 328. Mootly V. Pomeroy, 4 Denio, 115, pp. 420. aioore V. Cass, 12 Kan. 288, pp. 38, 343. Moore V. Edmiston, 70 N. C. 471, pp. 530, 531, 532. Moore v. Philadelphia Bank, 5 Serg. & R. 41, p. 347. Moore v. State, 52 Ala. 424, p. 329. Moore V. State, 13 Smed. & M. 259, pp. 718, Moran v. Com., 9 Leigh. 651, pp. 218, 226. Morgan v. Com., 14 Bush, 106, p. 268. Morgan v. State, 19 Ala. 557, pp. 606, 729, 730, 731, 733. Morgan v. State, 48 Ala. 65, p. 102. Morgan v. State, 31 Ind. 193, p. 216. Morgan v. Stevenson, 6 Ind. 169, p. 216. Morlin v. Stockbridge, 14 Tex. 165, p. 325. Morris v. Graves, 2 Ind. 354, p. 380. Morris v. Howe, 36 Iowa, 490, pp. 496, 498, 555. Morris v. State, 7 Blackf. 607, p. 296. Morjis V. Vivian, 10 Mees. & W. 137, pp. 454, 455. Morris' Case, 4 How. St. Tr. 1255, p. 283. Morrissey v. People. Jl Mich. 327, p. 664. Morrison v. Lovejoy, Blinn. 319, pp. 251, 253, 316. Morrison v. McKiunon, 12 Fla. 552, pp. 184, 305. 346. Morrison v. Moreland, 15 Serg. &R. 61, p. 181. Morrow v. Comrs., 21 Kan. 484, pp. 3.55. 387. Morton v. State, 1 Kan. 468, pp. 241, 308, 309. Morton V. State, 1 Lea (Tenn.), 498, p. 433. Morton v. State, 3 Tex. App. 510, p. 325. Morvey v. Maynard, 4 Up. Can. Q. B. (O. S.) 323, p. 14. Moses V. State, 10 Humph. 456, pp. 219, 224, 228. Mosseau v. Veeder, 2 Oreg. 113, p. 79. Moughon V. State, 59 Ga. 308, pp. 221,346, 540. Mounsen v. West, 1 Leon. 88, pp. 110, 181. Mountfort v. Hall, 1 Mass. 443, p. 157. Mowry v. Starbuck, 4 Cal. 274, p. 73. Moyers v. State, 11 Humph. 40, pp. 718, 720, 722. Mt. Desert v. Cranberry Isles, 46 Me. 411, pp. 339, 34 1. Mueller v. Rebhan, 94 111. 142, pp. 92, 284. Muirhead v. Evans, 6 Exch. 447, pp. 5,11, 309. Mulcahy v. Reg. Irish Rep. 1 C. L. 12, p. 38. Mullen V. Morris, 2 Pa. St. 85, p. 471. Mullen V. State, 50 111. 169, p. 619. Mulligan v. State, 47 Miss. 304, p. 734. MuUins V. Cottrell, 41 Miss. 291, p. 536. Muloch V. Lawrence, 5 City Hall Rec. 84, pp. 510, 514. Munde v. Lambie, 125 Mass. 367, pp. 481, 482. Munly v. State, 7 Blackf. 593, p. 296. Munroe v. Brigham, 9 Pick. 368, pp. 324, 339. id) XXXIV TABLE OF CASES CITED. MunshowtT V. I'atton, 10 Serg. & U. 334, pp. 110, 111. Mmchisoii V. Marsli,'.J KciT, (N. D.) 608, p. J 10. MiiiiUuk V. Smniier, ii Pick. 1»(J, i). 510. Murpliy V. Com., I Meti-. (Ky.) 'Mo, pp. .s, 11 Miirjiliv V. Kipp, 1 DutT, (Viil, p. 1(1. .AliiiphV V. IVoplo, 37 111. 447, p. :5S. Murpliv V. ."^talc, 37 .Mil. 14-2, i)p. -llCi, -2^0. MurphV V. .state, 54 Ala. 17S, p. 32'.i. Miisifk V. IVoplu, 40 111. -ilis, pp. l'.)l, ."iS'.l, 0311. Myeis V. Com., 79 Pa. St. 303, pp. 227, 2-29. Myers V. State, 7 T-X. App. 040, pp. 194, 3o;i. Mvloc-k V. Salailiiie, 1 \V. 151. 4^0, pp. 191, •214. Myiiatt V. Iliibbs, Ileisk. 320. p. 4.r2. X. Nadenbousch v. Sharer, 4 W. Va. 203. p. 347. ^'a^^l) V. State, 2 Tex. App. 362, pp. 340, 347. Xasliville V. Shepherd, 3 IJaxt. 373, pp. 17, 27. National B, pp. 2;», 610. Xed V. State, 7 Poner, 187, p. 226. Ned V. State, 33 Miss. 364, pp. 406, 407, .537. Neelv V. People, 13 111. 685; s. c, 11 liuniph. 232, pp. 219, 223, 224. Xeff V. Xetf, 1 15inn. 350. p. 16. Xejrro Jerry v. Townshend, pp. 472, 477. Xeil V. Abel, 24 Wend. 1&5, pp. 481. 489. Xeluis V. State, 13 Snied. & M. 500; pp. 215, 226, 430, 431. Xels V. State, 2 Tex. 2S0, p. 326. Xelson V. Dickson, 63 Ga. 682, p. 17. Nelson v. State, 57 Miss. 286, pi). 174, 175. Xelson V. State, 32 Tex. 71, p. 3.i3. Nesmith v. Atlantic Ins. Co., 8 Abb. Pr. 423, p. 16. Nesmith v. Clinton Fire Ins. to., 8 Abb. Pr. 141, pp. 407, 440, 441, 537. Xewcll V. Ayer, 32 Me. ,334, p. 523. Xewkirk v. State, 27 Ind. 1, pp. 490, 491, 493. Newman t. Graham, 11 C. B. I,i3, p. 13. Newman v. State, 43 Tex. 525, pp. 581, 585,609. Newman v. State, 14 Wis. 393, pp. 578, 603, 608, 617. New Orleans etc. R. Co. v. Hemphill, 35 Miss. 17, p. 174. New York V. Mason, 4 E. D. Smith, 142, p. 323. Xiculls V. Foster, 89 111. 386, p. 540. Xicholls V. State, 5 N.J. L. .5.J9, p. 628. Nichols V. Alsop, 10 Conn. 263, p. ,i27. Nichols V. Bronson, 2 Dav,211, p. 415. Nichols V. State, 65 Ind. .6)2, p. 471. Nichols V. State, 46 Miss. 284, pp. 608,7-54. Nichols V. Suncook Man. Co., 24 N. II. 437, p. 541. Ninis V. Bigelow, 44 X. II. 376, p. 392. Nininger v. Knox, 8 Minn. 140, pp. 391, 392. Noble v. People, 1 111. 29, p. 214. Noble's Case, 15 How. St. Tr. 731, p. 151. Noe V. State, 4 How. (Miss.) 330, p. 219. Nolan V. Vosburg, 3 Bradw. 5'.)6, p. 481. Nolen V. State, 2 Head, 520, pp. 276, 300, 433, 435. Nolen V. State, 9 Tex. App. 4 9, pp. 25„ 179. Noles V. State, 24 .Ma. 172, p. 731. Nonia 13, 17. O'Brien v. People, 36 N. Y. 276; s. c.,4S Barb. 274, pp. 205,208, 232, 251. O'Brien v. Vulcan Iron Works, 7 Mo. ApYi. 257, pp. 275,299. O'Byrnes v. State, 51 Ala. 25, pp. 583, 620. O'Byrne v. State, 29 Ga. 36, p. 150. O'Coiglv's Case, 26 How. St. Tr. 1191, pp. 146, 229, 286. O'Connell v. Mansfield, 9 Irish L. 179, p. 312. O'Connell v. Reg. 11 CI. & Fin. 155, p. 607. O'Connell v. Reg. 11 CI. & Fin. 3.5.3, p. 104. O'Connor v. Guthrie, 11 Iowa, 80, p. 421. O'Connor V. State, 9 Fla. 215, pp. 91,92, 184,216,296,317.319. Odle V. State, Baxt. 1.59, p. 453. Odoni V. Gill, 59 Ga. 180. p. 75. Oftit V. Vick, Walker, 9!), pp. 355,419. Ogden V. Parks, 16 Johns. 180. p. 2,52, Ogle V. State, 33 Miss. 383, pp. 228, 309. O llara V. People. 41 Mich. 623. pp. 664. O'Hara v. Richardson, 46 Pa. St. 38.5, pp. 472, 483, 486. Oldham v. Hill, 5 J. J. Marsh. 300, p. 6. Olesoii V. Meader. 40 Iowa. 662. p. 527. Olive V. Guin, 2 Sidei-fln. 145, p. 469. Omaha v. 01m.stead, 5 Neb. 446; s. c, 16- Am. L. Reg. 356, p. 185. O'Mara v. Com., 75 Pa. St. 424, pp. 215, 228. O'Mealy v. State, I Tex. App. 108, pp. 338, 343. Oneal v. State, 47 Ga. 229, p. 182. O'Neal V. Calhoun, 67 111. 219. Opothle-Yoholo v. Mitchell, 2 Stew. & I'ort. 125. p. 149. Oram v. Bishop, 12 X. J. I.,. 153, p. 355. Orcutt V. Carpenter, 1 Tyler, 250, pp. 173, 339, 445. Oregon, etc. R. Co. v. Oregon Steam Xav. Co., S Oreg. 178, p. 543. Organ v. State, 26 Miss. 78, pp. 369, 406,. 537. Orme v. Pratt, 4 Cranch C. C. 124, pp. 339, 343. Onok V. Com. Ins. Co., 21 Pick. 456, pp. 304, 528. TABLE OF CASES CITED, XXXV Ortwein V. Com., 76 Pii. St. 4U, pp. 227, 228. Osgood V. State, 63 (in. 791, p. 338. O'Shields v. State,. "iS Ga. 69(), pp. 347, 451. Osiander v. Com., 3 Leigh, 780, pp. 214, 218, 222. Ossipe Man. Co. v. Canney, 54 N. H. 295, p. 291. <.)ttinger v. Ottinger, 17 Serg. & R. 142, p. 478. •Oultonv. Morse, 2 Kerr (N. B.), 77, p. 110. Overbee v. Com.,1 Hob. (Va.) 756, pp. 380, 400, 403. Overshiner v. Com., 2 B. Mon. 344, p. 708. Owens V. State, 2 Head, 455, p. 608. 4J\ven V. Warburton, 1 Bos. & Pul. (X. 11.) 326, pp. 513, 514, 515,543. Tackard v. United States, 1 G. Greene, 225, pp. 553,554. Paddock V. Wells, 2 Barb. Cli. 331, pp. 180, 181. Page V. Com., 27 Gratt. 954, p. 226. Page V. Contocook V'alley R. Co., 21 X. H. 438, pp. 1S7, 338. Page V. Danvers, 7 Mete. 326, p. 323. I'age V. Pearce, 8 Mee. * W. 667. p. 15. Page V. Wheeler, 5 X. H. 91, pp. 486, 495, 498. Paige V. O'Xeal, 12 r-al. 483, p. 247. Palmer v. People, 4 Xeb. 68, pp. 220, 240, 307. Pahnore v. State, 29 Ark. 248, pp. 329, 413, 458, 465, 485, 490. Pannell v. StHte,29Ga. 681, pp. 299, 301. Papineau v. Belgarde, 81 111. 61, pp. 510, 515. Parchman v. State, 2 Tex. App. 228, p. 226. Parhani v. Harney, 6 Smed. & M. 55, pp. 509, 510, 515, 517. Paris V. State, 36 Ala. 232, p. 102. Parker v. State, 34 Ga. 262, p. 200. Parker v. State, .55 Miss. 414, pp. 304, 343. Parker v. State, 18 Ohio St. 88, p. 364. Parker V. Thoroton, 1 Stra. 640; s. c, 2 Ld. Ravm. 1410, p. 330. Parkinson" v. Parker, 48 Iowa, 667, p. 347. Parks V. State, 4 Ohio St. 2.i4,pp. 304, 619, 729, 731. Parkyn's Case, 13 How. St. Tr. 75, p. 286. Parmele v. Guthrey, 2 Root, 185, p. 303. Parniele's Case, 2 Mart. 313, p. 175. Parmlee v. Sloan, 37 Ind. 469, p. 388. Parmer v. State, 41 Ala. 41'i, p. 647. Parr v. Seames, Barnes' Xotes, 438, pp. 509, 514. Parrott v. Thacher, 9 Piek. 426, p. 546. Parsons v. Hnff, 58 Me. 137, p. 383. Parsons v. State, pp. 275, 277. Passenger etc. R. Co. v. Young, 21 Ohio St. 518, p. 92. Pasauka v. Daus, 31 Tex. 72, pp. 60, 321. Patchin v. Sands, 10 Wend. 570, p. 16. Pate V. People, 8 111. 644, p. 360. Patterson v. State, 7 Ark. 59, pp. 317, 328. Patterson v. State, 70 Ind. 341, pp. 339, 341. Patterson's Case, 6 Mass. 486, pp. 72, 629. Patton V. Ash, 7 Serg. & R. 116, p. 292. Payne v. McLean, 1 Up. Can. K. B. (O. S.) 444, p. 1.32. Payne v. State, 3 Humph. 375, pp. 217, 220, 223, 224. Peacham v. Carter, 21 Vt. 515, p. 486. Pearse v. Rogers, 2 Post. & Fin. 137, pp. 198, 246. I'earson v. AVightman, 1 Mills Const. Rep. 336, p. 339. Peck V. Brewer, 48 111. 54, pp. 540, 547. Peck V. State, 63 Ala. 201, p. 578. Peifferv. Com., 15 Pa. St. 468, p. 394. Peire v. Martin, 14 La. 64, p. 525. Pekin V. Winkel, 77 111. 56, pp. 511, 516, 517. Pelham v. Page, 6 Ark. .5.35, pp. .534, 5.58. I'ender v. People, 18 Hun, 560, p. 243. Pen Held V. Carpender, 13 Johns. 350, p. 482. Peninsular R. Co. v. Howard, 20 Mich. 18, p. 187. Penn. Hall, /Je, 5 Pa. St. 204, p. 1.57. Pennell v. Pereival, 13 Pa. St. 197, p. 300. People V. Ah Chung, 54 Cal. 398, pp. 121, 209. People V. Ah You, 47 Cal. 124. p. 296. People V. Aichinson, 7 How. Pr. 241, p. 148. People V. Albany, 6 Wend. 548, p. .318. People V. Allen, 43 X. Y. 28, pp. 203, 211, 212. People V. Arceo, 30 Cal. 40, pp. 178, 277 298, 299, 300. « People V. Arnold, 15 Cal. 476, p. 615. People V. Atherton, 51 Cal. 495, p. 268. People V. Backus, 5 Cal. 275, pp. 254, 380. People V. Barker, 2 Wheeler Cr. C. 19, pp. 513, 514. People V. Beatty, 14 Cal. 566, pp. 615, 617, 662. People V. Bennet, 37 X. Y'. 117, pp. 613, 731, 733. People V. Blackwell, 27 Cal. 65, p. 734. People V. Bodine, 1 Den. 306, pp. 196,222, 239, 247, 249, 251, 252, 265, 266, 268, 270, 308. People V. Boggs, 20 Cal. 432, pp. 407. 408. People V. Bonney, 19 Cal. 426, pp. 354, ,370, ,380, .520. People V. Briggs, 60 How. Pr. 17, pp. 693, 726. People V. Brannigan, 21 Cal. .340, p. 538. People V. Brotherton, 43 Cal. 530, pp. 225, 268. People V. Brown, 48 Cal. 2.53, p. 229. People V. Buckley, 49 Cal. 241, p. 247. People V. Butler, 8 Cal. 435, p. 646. People V. Carabin, 14 Cal. 438, p. 584. People V. Carnal, 1 Park. Cr. R. 256, pp. 432, 5 0. People V. Christie, 2 Park. Cr. R. 579; s. c, 2 Abb. Pr. 256, pp. 202, 214, 261. People V. Clark, 23 Hun, 374, p. 11. People V. Coffnian, 24 Cal. 230, p. 311. Peoiile V. Colby, 54 Cal. 37, pp. 578, 582, 701. People V. Colmere, 23 Cal. 631, p. 615. People V. Colson, 49 Cal. 679, p. 268. People V. Colt, 3 Hill, 432, pp. 80, 89, 90. People V. Cotta, 49 Cal. 166, pp. 177, 2.50. People V. Cottle, G Cal. 227, pp. 225, 228. People V. Coyodo, 40 Cal. 586, pp. 98, 130. People V. Crowey, 56 Cal. 36, p. 573. People V. Cuintano, 15 Cal. 327, p. 583. People V. Cummings, 3 Park. Cr. R. 343, pp. 68, 89, 90, 323. People V. Damon, 13 Wend. 351, pp. 208, 301. People V. Davis, 47 Cal. 93, p. 78. People V. Deviue, 46 Cal. 46, p. 78. People V. Dewick, 2 Park. Cr. R. 230, pp. 249, 250, .552. People V. Dick,37 Cal. 277, p. 247. People V. Itillon, 17 Hun, 1, p. 13. People V. Doe, 1 Mich. 453, pp. 246, 247, 2.il, 305. People V. Douglas, 4 Cow. 26, pp 354,, 358, 364, 457. People V. i:arne«t, 45 Cal. 29, p. 627. People V. Edwards, 41 Cal. 640, p. 225. XXXVl TABLE OF CASES CITED. I'ooiilc V. Fi-cciniui, 4 Den. 0, pi>. 247,28-t- rcDplc V. Fiilli r, J raik. Cv. li. 10, pp. I-.',!, Jis, i.vj. People V. tiiiffnev, 14 Abb. Pr. (X. S.) 36, pp. 415, liKi, .vj:?. People V. Gatewoiul, 20 Cal. 146, pp. 309, (•.4(;. People V. Giillnfrlier,.')5 Cal. 462, p. 625. People V. Gar .Soy, 23 Alb. L. J. 41ti, pp. 202, 262. People V. Gaunt, 23 Cal. 156, p. 309. Peoi)le V. Gelir, S Cal. 359, pp. 225, 228, 236. People V. Graham, 21 Cal. 261, p. 191. People V. Green, 1 Utali, 11, p. 644. People V. Grittiii, 2 Barb. 427, p. 018. People V. Guernsey, 3 Johns. (Jus. 265, p. 7.;3. People V. Ilarilin, 37 Cal. 258, p. 247. I'eople V. Harriot, 3 Park. Cr. It. 112, pp. 45, 623. People V. Hurtung, 4 Park. Cr. K. 256, pp. 432, .541, 547. People V. Haves, 1 Edm. Sel. Cas. 585, pp. 171, 224. People V. Ileffernan, 5 Park. Cr. R. 393, p. 662. People V. Henderson, 28 Cal. 466, p. 270. People V. Henries, 1 Park. Ci\ li. 579, p. 148. People V. Hettick, 1 Wheeler Cr. C. 399, p. 214. People V. Hidden, 32 Cal. 455, pp. 615, (U3. Peoi)le V. Iloldridgc. 4 Lans. 511, p. 83. People V. Honevnian. 3 L)en. 121, pp. 211, 219, 247, 250, 251, 260, 278, 284. People V. Ilortoii, 4 Park. Cr. li. 222, p. 062. People V. Hosnier, 1 Wend. 297, p. 542. People V. Howell, 4 .Johns. 296, p. 151. People V. Hughes, 29 Cal. 2.57, p. 5.56. People V. Hulbut, 4 Den. 133, pp. 695, 726, 744. 745, 746. People V. Hunter, 54 Cal. 05, pp. 012, 646. People V. Hurst, 41 Mich. 328, p. 5. People V. Hyler, 2 Park. Cr. K. 566, 002, 698. People V. Jenks, 24 Cal. 11, p. 296. People V. Jewett, 3 Wend. 314, pp. 589, ()(I4, 605, 022, 63s. People V. Jewett, 6 Wend. 386, p. .339. People V. Johnson. 2 Wheeler Cr. Cas. 361, pp. 214,216,218. People V. Johnston, 46 Cal. 78, pp. 219, 225, 236. People V. Johnston, 48 Cal. .549, p. 716. People V. Jones, 24 Mich. 215, pp. 72, 73, 79, 064. People V. Justices, 20 Johns. 310, p. 71. I'eople V. .Justices. 74 X. Y. 400, p. 11. People V. Kelly, 40 Cal. 357, pp. 390. 408, ,582, 647. People V. Kennedy, 2 Paik. Cr. U. 312, p. 6. People V. King, 27 Cal. 507, pp. 216, 222, 228. People V. King, 28 Cal. 265. pp. 0a5, 725. People V. King, 2 ('aines,98, p. (i44. Peoi)le V. Kuai)p, 42 Mich. 207, ii. 429. I'eoi^le V. Knickerbocker, 1 I'urk. Cr. II. 302, pp. 20*, 308.. People V. Koh e, 4 Cal. 199, p. 290 People V. Lane, 6 Abb. Pr. (X. S.) 105, pp. 6, 10, 682. People V. Larned, 7 X. Y. 445, pp. 288, 300. People V. Lawrence, 21 Cal. 368, pp. 682, 711,710. People V. Lee, 5 Cal. 3.53, p. 191. People V. Lee, 17 Cal. 76, pp. 87, 400. People V. Lee, 2 Utah, 441, p. 734. pp. 117 People 247. People Peoi>le Peoi)le I'eople 223, People I'eople 228 People I'eople 08. Peojjle I'eople I'eople 391 , Peoi)le People p. 1 People I'eoiJle 309. Peoi)le 2h4. People People pp. People People p. 2 People People People I'eople 20S. Peojtle 421, I'eople People I'eople 358, Peorle 268. People 368. People People 201. People 216, People 093. People osi. People pp. Peoiile 282 Peoi)le 370, People I'eople I'eople 207. People I'eople 339. People P(!()ple People People 3S0, People 720, People 024, People 308. People 303, V. Lohnian, 2 IJarb. 450, pp 203, V. Lope/,, 26 Cal. 112, p. 725. V. Lvncli, 20 Mich. 274, p. 6(14. V. .Mahoney, is Cul. Iso, p. 203. V. Mallon; 3 Lans. 224, pp. 216, 228. V. Manalian, 32 Cal. 68, p. 582. V. Jlather, 4 Wend. 229, pp. 223, 229, 217, 251, 284. V. McCalla, 8 Cal. 301. pp. 151. 152. V. .McCann, 3 I'ark. Cr. K. 272, p. V. McCartv, 48 Cal. .557, p. 2%. V. .McCauley, I Cal. 379, p. 217. V. McCoUister, 1 Wheeler c C. p. 1K9. V. McDonnell, 47 Cal. 134, p. ,582. V. McGeery, 6 Park. Cr. li. ().53, 30. V. McGuire, 43 How. I'r. 67, p. 16. V. McGungill, 41 Cal. 429, pp. 247, V. McKay, 18 Jolms. 212, pp. 68. V. MeLane, 2 Johns. 381, p, 19. V. McMahon, 2 Park. Cr. 11. 663. 211,251. V. ^leanv, 4 Johns. 294, p. 402. V. Melv'in, 2 \\ heeler Cr. C. 265, 14. V. Millsap.^i, .35 Cal. 47, p. 643. V. Moice, 15 Cal. 329, p. .583. V. Monroe, .'0 Wend. 108, p. 619. V. Murphy, 45 Cal. 137, pp. 218, V. X.iughton, 7 "Abb. Pr. (X. S.) pp. 051, 0.52, 0.53, 679, 093, 694, 723. V. Page, 1 Idaho, 114, p. 475. V. Plununer, 9 Cal. 298, p. 346. V. Itansom, 7 Wend. 417, pp. 333, 364. V. Rathbun, 21 Wend. 509, pp. 251, V. Reagle, 60 Barb. 527, pp. 3.53, V. Renfrew, 41 Cal. 37, p. 247. V. Reyes, 5 Cal. 347, pp. 199, 202, V. Rcvnokls, 16 Cal. 128, pp. 211, 225, 247, 29(!, 319. V. Ristenblatt, I Abb. Pr. 268, p. V. Roberts, 6 Cal. 214, pp. 284,646, 732. V. Robinson, 2 Park. Cr. R. 235, 68, 619. V. Rodrigiiez, 10 Cal. 50, pp. 131, 5S3. V. Rogers, 13 Abb. Pr. (X. S.) pp. 121,287. V. Romero, 18 Cal. 89, pp. .599, 616. V. Russell, 46 Cal. 121, p. 296. V. Ryan, 2 Wheeler Cr. C. 47, p. V. Sanchez, 24 Cal. 17, p. 203. V. Sandford, 43 Cal. 29, pp. 303, V. Pcfltes, 4in. 351, p. 345. V. Scoiigins, 37 Cal. 676, p. 296. V.' Scroggins, ,37 Cal. 679, p. 2S2. V. Shafer, i Utah, 260, pp. 173, 394. V. Shattuck, 6 Abb. X. C. 33, pp. 741. V. .Southwell, 40 Cal. 141, pp. 597, 629, 0.50, 701. V. Stewart, 7 Cal. 140, pp. 210. 26S, V. Stoneclfer, 6 Cal. 405, pp. 173, 308. TABLE OF CASES CITED. XXXVIB People V. Strut, 4 Park. Cr. R. 71, pp. 134,248,251,270. People V. Strong, ] Abb. Pr. (N. S.) 244, p. 693. People V. Stuart, 4 Cal. 218, pp. 78, 692. People V. Symonds, 22 C 1. 348. pp. 219, 725. People V. Tanner, 2 Cal. 257, pp. 208, 210. Peoplev. Thompson, "4 Cal. 671, p. 176. People V. Thurston, 5 Cal. 69, pp. 620, 644. People V Tinder, 19 Cal. 359, pp. 691, 698. I'eople V. Turner, 39 Cal. 370, p. 5.>8. People V. Tweed, 50 How. Pr. 280, pp. 93, 111, 116,119,127, 2)1. Peoi>le V. Van Alstyne, MS. cited 6 Cow. 565, p. 229. Peoiile V. Vance, 21 Cal. 400, p. 78. People V. Verniilvea, 7 Cow. 121, pp. 225, 229, 259, 267, 287, 300. People V. Voll, 43 Cal. 166. p. 303. People V. Walsh, 44 Cal. 440; s. c, 1 Ureen Cr. L. 487, p. 247. People V. Weil, 40 Cal. 268, pp. 236, 309. People V. Welch, 49 Cal. 174, pp. 81, 131, 177, 229. People V. Williams, 6 Cal. 206, p. 225. People V. Williams, 17 Cal. 142, p. 216. People V. Williams, 24 Cal. 31, pp. 416, 493 535 537. People V. Williams, 43 Cal. 344, p. 78. People V. WilUams, 24 Mich, 156, p. 72. People V. Wilson, 3 Park. Cr. R. 199, pp. 208,301. People V. Wilsim. 8 Abli. Pr. 137; s. c, 4 Park. Cr. R. 619, pp. 485, 527, 546, 558. People V. Wintermute, 1 Dak. Ter. 6.!, p. 599. People V. Woods, 29 Cal. 135, p. 241. People V. Woods, 29 Gal. 635, p. 236. People V. Young, 31 Cal. 563, p. 744. Pelham v. Page, 6 Ark. 535, pp. 452, 458, 460, 464. Perdue v. Bennett, Minor (Ala.), lo8, p. 327. Peri V. People, a5 111. 17, p. 69. Perine v. Van Note, 4 N. J. L. 146, p. 520. Perkins v. Ermel, 2 Kan. ;325, p. 355. Perkins v. Knight, 2 N. H. 474, p. 406. Perkins v. State, 50 Ala. 1.54, p. 731. I'erkins v. State, 60 Ala. 7, p. 3-'8. Perkins v. State, 4 Ind. 222, p. 745. Perry v. Bailey, 12 Kan. 539, pp. 458, 540, 556. Perry v. NewtOTi, 5 Ad & El. 514, p. 474. Perry v. State, 9 Wis. 19, pp. 41, 113. Perselly v. Bacon, 20 Mo. 330, p. 744. Peter V. Greenough, Smith (N.H.),238, n., p. 340. Peter V. State, 3 How. (Miss.) 433, pp. 710, 722, 733. Peterson v. Hangen,34 Iowa, 395. I'eterson v. State, 45 Wis. .535, p 101. Pettibone v. Phelps, 13 Conn. 455, pp. 407, 527, .528. Pettis V. Warren, Kirby, 426, pp. 229, 234. Phelps V. Hall, 2 Tyler, 401, pp. 189, 299. Phelps y. Keiley, 11 L. J. (C. P.) 99, p. 12. Phelps V. People, 6 Hun, 401, p, 242. Phillips V. Com., 19 Gratt. 485, pp. 376, 380,381.537. Phillips V. Fo\vler, Comj'ns, 525; s. c. Barnes' Notes, 411, pp. .508, 514. Phillips y. State, 29 Ga. 105, pp. 81, 185. Phillips V. State, Tex. App. 44, p. 287. Phillips, Ex parte, 10 (Exch.) 731; s. c, 1 Jur. (X. S.) 143; 24 L. J. Exch. 79, pp. 339, 346. Phillipsburg Bank y. Fulmer, 31 N. J. L. 53, p. 4.56. Fhipps V. Mansfield, 62 Ga. 209, p. A86. Plckensy. Hobbs, 42 Ind. 270, p. 339. Picken.s y. State, .58 Ala. 364, p. 329. Pierce v. Bush, 3 Bibb, 347, p. 338. Pierce y. State, 67 Ind. 354, p. 79. Pierce v. State, 13 N. H. 536, pp. 208, 235,. 264, 274, 276. Pierce v. State, 12 Tex. 210, pp. 628, 733. Pierce y. Tate, 27 Miss, 283, pp. 326, 327. Pierce y. Woodward. 6 Pick. 2c6, n. 546. Pierson v. State, 11 Ind. ;U1, p. 191. Pierson y. i'eople, 18 Hun, 239, p. 121. Pierson y. People, 79 N. Y. 424, p. 310. Pike Co. V. Griffin, etc. Plank R'dCo., 15 Ga. 39, pp 17, 204. Pines y. State, 21 Ga. 227, p. 264. Pinnev, 7?e, 27 Minn. 281, p. 745. Pinson y. State, 23 Tex. .579, pp. 710, 716. Pipher y. Lodge, 16 Serg. & R. 214, pp. 181, 182, 196. Piper's Case, 2 Bro. (Penn.) 59, p. 31. Pittsburgh, etc. R. Co. v. Porter, 32 Ohio St. 328, pp. 452, 458, 463, 525, 5,0, 531. Pittstield V. Barnstead, 40 N. H. 477, pp. 71, 323. Plea- ants v. Heard, 45 Ark. 403, pp. 5 4, 539, 543, 547. Plummer v. People, 74 111. 361, pp. 198, 217. Plunkett y. Appleton, 9 Jones & Sp. 1.59 ; s. c, 51 How. Pr. 469, pp. 420, 421, 425, 427. Pocket y. State, 5 Tex. App. 552, pp. 76, 77. Poindexter y. Com., 33 Gratt. 766, p. 3. Pointer y. Thompson, 7 Humph. 532, p. 317. Polhemus v. Heiman, 50 Cal. 438, p. 556. Pond y. State, 47 Miss. :59, p. 734. Poole V. Chicago, etc. R. Co., 12 Cent. L.. J. 492; s. c, 6 Fed. Rep. 814; 11 Re- porter, 828, p. 448. Pope y. State ,;;^6 Miss. 121, pp. 406, 430, 458,464,465,5,37. Porter y. Mount, 45 Barb. 422, pp. 471, 486. Porter v. People, 7 How. Pr. 441, p. 273. Porter v. State, 2 Ind, 435. p. 3.53. Portis y. State, 27 Ark. 360, p. .523. Portis y. State, 23 Miss. 578, pp. 624, 643. Portland, etc. Ferry Co. y. Pratt, 2 .\llen (X. B.) 17, p. 187. Post y. Gazlay, 1 Ciu. Sup. Ct. 105, pp. 472, 479. Potsdamer y. State, 17 Fla. 895, pp. 321, 325, 329, 619, 733. Poucher y. Liyingston, 2 Wend. 296, p. 16. Poulterer's Case, 9 Coke Rep. .55 b., p. 6,54. Powell V. Haley, 28 Tex. 52, p 304. Powell V. People, 5 Hun, 69, 127. Powell, lie, 5 Mo. 220, p. 36. Powers y. Presgroyes, 38 Miss. 227, pp. 247, 254, 274. Prall y. Peet, 3 La. 274, pp. 75, 336. Pratt Y. Grappe, 12 La. 451, pp. 59, 120. ['ratt y. State, 56 Ind, 179, p. 4.58. Pratt's Case, 21 Jac. I., p. 495. Pratt y. Coffman, 33 Mo. 71, pp. 540, ,542. I*i-esbury y. Com., 9 Dana, 203. pp. 338, 343. Pressley v. State, 19 Ga. 192, n. 101. Presswood y. State, 3 Heisk. 468, p. 307. Preston v. State, 63 Ala. 127, pp. 578, 620, 729. Preston y. State, 8 Tex. App. 30, p. 317. Pre wit y. People, 5 Neb. 377, p. .580. Price y. Com., 21 Gratt. 846, pp. 708, 714> Price V. Lambert, 3 N. J. L., 401, p. 430. XXXVIll TAHLK OF CASES CITKl). I'rice V. McIIvain, 2 Treiidw. Const. (S. C.) 50:5, p. 547. I'lke V. Wan en, 1 Hon. AM. 385, pp. 540 542. .'54:5. Prince' V. "state, .3 Stew. A Port. 253, p. 111. J'riiiirle v. Iliise, 1 Cow. 432, pp. r2>, 211, 2. Q- "l^uesenberry v. State, 3 Stew. & Port. 20S, pp. 176, 226. Qiiifilev V. Com., 84 Pa. St. 18, p. 336. <,>uinn V. Halbert, .52 Vt. 353, p. 338. <,Hiinii V. State, 14 liid. 589, p. 360. -(JuinebaufT Hank v. Leavans, 20 Conn. S7, pp. 182,339,341. ■<^)uinebauf; Hank v. Tar'jox, 20 Conn. 510, pp. 112, l(w. K. Kafe V. State, 20 Ga. 60, pp. 113, 120, 157, 222. Ilafrantball v. Com., 14 Bush, 457, pp. 632, 740. Jla-land v. Wills, 6 I eigh, 1, pp. 3.53, 388. Itiiinev V. Pcoiile, 8 III. 71, p. 735. Itainailfie v. iJvan, 9 BinK.333, p. 346. llainos V. Bringier, 2 Mart. (X. S.) 192, p. 75. Handall v. Grover, 1 X. J. L. 151, p. 540. Kandall v. Kayon, 4 Mart. (X. S.) 1.32, p. 525. Piank V. Shewev,4 Watts. 218, p. 181. Kankin v. Goddard, 4 Allen (X. 15.), 1.55, p. 93. Hash V. state, 61 Ala. 89, pp. 102, 270, 283, 335, 336. JJatclitf's Case, 1 Wm. Bl. 3; s. c, Foster Cr. L. 40; 18 How. St. Tr. 429, pp. 140, 149. IJalteree v. State. .53 Ga. .570, p. 335. Uawls V. State, 8 Smed. & M. 599, pp. 604, 630. JJawson V. Curtiss, 19 111. 4.56, pp. 473, 477, 4S0. J{av V. .State, 15 Ga. 223, pp. 211, 338, 346. Kay V. State, 2 Kan. 405, p. 226. JJav V. State, 1 2. Reg. v. Manning, 1 Den. C. C. 467, p. 19. Reg. y. Mc(iowen, cited in Reg. v. Mc- Cartie, 11 Ir. C. H. (N. S.) 188, p. 115. Reg. V. McMahon, Irish Rep. 9 C. L. SOi), p. 143. Reg. y. Mellor, Dears. & Be 1 C. C 468, pp. :5:53, :5:54,:i42, 346, 348. Reg. V-. Metcalf -, 3 Cox C. C. 220, pp. 3.53, 3:54. Reg. V. Miller, 8 Low. Can. Jur. 280, p. 19. Reg. y. Mitcliel, 3 Cox V.V. 1, p, 116. Reg. V. Xewton, 3 Car. & K. 85; s. c, 13 (,). H. 716; 3 Cox C. C. 489; 13 Jur. 606; 18 L. J. (M. C.) 201, p. 451. Reg. y. Xicholson. 8 Dowl. P. C.422;s. c, 4 Jur. .5.5S, p. 190. Reg. y. OConnell, 7 Ir. L. 261, p. 3:56. Reg. y. Pattes( n, 36 Up. Can. (Q. t>.) 129, p. 147. TABLE OF CASES CITED. XXXIX Reg. V. Phillips, 11 Cox C. C. 143, p. 336. Keg. V. Rea, 6 Irish C. L. (N. S.) 428, p. 117. Reg. V. Russell, 1 Car. & M. 247, pp. 667, 694. Reg. V. Svillivan, 1 Per. & Dav. 96; s. c.,S Ad. & El. 831, pp. '283, 312,. i28. Reg. V. Swain, 2 LewinC. C. 116; s. c, 2 Mood. & Rob. 112, p. 235. Reg. V. Stewart, 1 Cox C. C. 174, pp. 192, 254. Reg. V. Vonlioff, 10 Low. Can. Jur. 292, p. 19. Reg. V. Wardle, Car. & M. 647, p. 283. Reich V. State, .53 Ga. 73, pp. 608, 617. Reins V. People, 30 111. 256, pp. 354, 360, 431. Rennick v. Walthall, 2 A K. Marsh. 23, p. 339. Respublica v. Mesea, 1 Dall. 73, p. 19. Respublica v. Richards, 1 Yeates, 480, p. 186. Respublica v. Shaffer. 1 Dall. 2.36, pp. 689, 698. Rex V.Adams, Jebb C. C. 132, p. 138. Rex V. Barrett, Jebb C. C. 103, p. 302. Rixv Buvlett, 1 Ld. Rayni. 148; s. c, 2 Salk.645, pi. 9; 12 Mod. Ill, pp. 452, 476. Rex V. Burri 'ge, 1 Stra. 593 ; s. c, 2 Ld. Rajnn. 1364, p. 125. Rex V. Carlile, cited 8 Car. & P. 582, p. 704. Rex V. Clark, 1 Sid. 272, p. 32. Rex V. Cro;slield, 8 How. St. Tr. 733^ n. p. 685. Rex V. Davis, 1 Car. & P. 470, pp. 729, 731. Rex V. Delaney, Jebb C. C. 106, p. 30^ Rex V. Derbishire, 1 Moo. & Rob. 307, p. 13. Rexv. Despard, 2 Man. & Ry. 406; s. c, sub 7101)1. Rex V. Sutton, 8 Barn. & Cress. 417, pp. 126, 311. Rex V. Dickinson, Russ. & Ry. C. C. 401, p. 693. Rex V. Dolby, 2 Barn. & Cress. 104, p. 91. K8X V. Dolby, 1 Dow. & Ry. 145, p. 80. Rex V. Dunconibe, 12 Mod. 224, p. 150. Res V. Edmunds, 4 Barn. & Aid. 471, pp. 40, 60, 82, 120, 129, 212, 229, 246, 248, 258, 267, .337. Rex V. Edwards, Russ. & Ry. 223; s. c, 4 Taunt. 309; 3 Camp. 207, pp. 301, 302. Rex V. Kearnley, 1 Leach, (4th Ed.) 425, p. 729. Rex V. Gordon, 2 Doug. 569, p. 96. Rex V. Hanlev, 1 Craw. &DixCir. (Irish) 183, n., p. '194. Rex V. Higgins, Sir T. Raym. 484, p. 570. Rex V. Hill, 1 Car. & P. 667, p. 93. liex V. Hunt,4 Baru. & Aid. 430, pp. 15, 93 129 333 343. Rex V. Hunter, 3 Car. & P. 591, ]i. 680. Rex V. Johnson, 2 Strange, 1000, pp. Ill, 126. Rex V. Kinlock, 1 Wils. 157; s. c.,rost.Cr. L. 16, p. 302. Rex V. Kinnear, 2 Bai, pp. 20J, 3US. :J09. J{nl)in.soi» v. State, 33 Ark. ISO, p. 300. i:obU'> V. State, 5 Tex. App. 346, pi). 99, 17.'), -270. Kolxson V. Archer, '.' X. J. I.. 103, p. 333. Uockford lus. Co. v. Kelson, 75 111. 548, p. 79. JRoeiler v. StiuU, MS. St. Louisi Ct. of Allp<■al^s, p. 521. Rogers v. Lamb, 3 Blackf. 1.55, p. 109. Jiogers V. Moultluop, 13 Wend. 274, p. 425. IJogcrs V. Rogers, 14 Wend. 131, pp. 226, 247. Rogers V. Smith, 1 A.d. & El, 772, p. 66. Jiogers V. State, 33 Ind. 543, p. S8. Rogers V. The Marshall, 1 Wall. 615, p. 500. RoUand v. Com., 82 Pa. St. 306, pp. 72, 75, 120, 121. Rollins V. Ames, 2 X. II. 350, pp. 171, 243, 52S. Romainc v. StatP, 7 Ind. 63, pp. 214, 339, 343, 347. Roman v. State, 41 Wis. 312, p. 45S. Rondeau v. Xew Orleans Imp. Co., 15 La. 100, pp. 88, 230. Rookwood's Case, 18 How. St. Tr. 139, pp. 659,660, 712. Root V. Sherwood, 6 Johns. 68, p. 393. Rose V. Davis, 4 Cow. 17, p. 461. Rose V. St. Charles, 49 Mo. 50.), pp. 13, 185. Rose V. State, Minor, 28, p. 731. Roseborough v. State, 43 Tex. 570, pp. 304, 338, 341. Ross V. Kason, 2 Yeates, 126. p. i:i. Jloss V. Xeal, 7 T. B. yUni. 408, p. 5. Ross V. State, 1 lilackf. 390, p. 592. Rosserv. McColly, 9 Ind. 587, p. 394. Rothschild V. State, 7 Tex. App. 519, pp. 211, 219, 228, 236, 238. 309, 6s6, 688. Rowand v. Com., 82 Pa. St. 405, pp. 661, 666, 667, 705. Jlowan V. State. 30 Wis. 129, pp. 367, 381. Rowe V. State, 11 Humph. 491, p. 4.i8. Royston v. Royston, 21 Ga. 161, p. 233. Ituble V. McDonald, 7 Iowa, 90, pp. 510, 513, 518, 553. Ruckersville Bank v. Hemphill, 7 Ga. 396, pp. 481, 485. JRuff V. Rader, 2 Mont. 211, pp. 225, 228. Runnels V. State, 28 Ark. 121, p. 580. Russell V. Hamilton, 3 111. 56, p. 185. Russell V. People, 44 111. .>0S, pp. 360, 380. Russell V. (^ainn, 114 Mass. 103, p. 304. Russell V. State, 53 Miss. 367, pp. 78, 208, 277, 458. Russell V. State, 33 Ala. 366, pp. 610, 616, 730. Russell V. State, 10 Tex. 288, ]i. 329. Russell V. Union Ins. Co., 1 Wash. C. C. 440, p. 5-.i7. Rust V. Shackleford, 47 Ga. 538, p. 184. Rust, E.c parte, 43 Ga. 209, p. 37. Rutherford v. Com., 13 Bush, 608, p. 268. Itvan V. Harrow, 27 Iowa, 494, p. 4.58. Ryan v. Kelly, 9 Mo. App. 591, p. 540. Ityder V. People, 38 Mich. 269, p. 246. S. Sacramento, etc. Mining Co. v. Showers, 6 Xev. 291, pp. 452, 4.53, 4.54, 463. Sage V. Brown, 34 Ind. 464, p. 390. Sam V. State, 31 Mi^s. 480, j). 342. Sam V. Staff, 13 Suied. & M. 189, pp. 205, 217, 223, 225, 228, 236. :Sampson v. ^chaffer, 3 Cal. 107, p. 308. Samschen v. State, 8 Tex. Ai)p. 45, p. 93. Samuels v. State, 3 Mo. 68, p. 68. .Sanchez v. People, 4 Park. Cr. R. 535, p. 217. Sanchez v. People, 22 X. Y. 147, pp. 251, 268. Sanders v. Slate, 55 Ala. 183, np. 574, 009, 620. Sanders v. State, 2 Iowa, 230, pp. 388, 389. Sanderson v. Bowen, 4 Tliomp. & C. 675, p. 471, 486, 487. Sanderson v. Nashua, 44 X. H.492,p. .''•20. Sandford v. State, 11 Ark. 328, pp. 317, 328. Sands v. Com., 21 Gratt. 871, p. 75. Sands V. Roblson, 12 Smed. & M. 70t, p. pp. 740, 745. Sarah v. Slate, 28 Ga. 576, p. 9. Sargent v. , 5 Cow. 106, p.5tl. Sargent v. Roberts, 1 Pick. 337, pp. 420, 421,423,424,425. Sargent v. state, 11 Ohio, 472, pp. 364, 387,390,391, 3'.i2. Sartor V. McJunkin, 8 Rich. L. 451, p. 388. Saunders v. Coflin, 16 Ala. 421, p. 736. Saunders v. Fuller, 4 Humph. 516, p. 543. Sawdon's Case, 2 Lowin C. C. 117, p. 144, 198. Sawyer v. Hannibal, etc. R. Co., 37 Mo. 240, pp. 510, 514, 540, 512, 5(3. Sawyer v State, 17 Ind. 435, p. 730. Sayer v. Ducroix, 16 L. J. (Q. B.) 120. p. 12. Sayres v. Scudder, 2 X.J. L. 53, p. 7o. Schanler v. Porter, 7 Iowa, 482, p. 510, 518, 553. Schappner v. Second Ave. R. Co., 55 Barb. -.97, pp. 471, 4S4, 486. Schenck v. Stevenson, 2 X. J. L. 387, p. 540. Schoeflier v. State, 3 Wis. 823, pp. 211, 251, 308. School Dist. Xo. 1 v. Bragdon, 23 X. II. 507, p. 423. Schmidt v. Chicago, etc. R. Co., 83 111. 405, p. 1.55. Schmidt v. Xew Y^ork Ins. Co., 1 Gray, 529, p. 3. Schmidt v. Rose, 6 Mo. App. 587, pp. 342, 346. Schumin V. State, 20 Ohio St. 233, pp. 289, 291, 295. Schumacker v. State, 5 Wis. 324, pp. 177, 292, 296, 345. Schuvlkill Xav. Co. v. Farr, 4 Watts A S. 36-2, p. 150. Schuylkill, etc. R. Co. v. McCreary, 58 I'a. St. 304, p. 476. Schwenk v. (Jmsted, 6 Serg.&R. 351, p. 150. Scott V. Moore, 41 Vt.205, pp. 304, 326. Scott V. I'eople, 63 111. 508, p. 724. Scott V. State, 63 Ala. 59, r^p. 579, 620. Scott V. State, 7 Lea, 232, pp. 541, 544, 5.52. Scranton V. Stewart, .52 Ind. 68, p. 216. Scranton, Jie, 74 111. 161, pp. 34, 37. Scripps V. Reilly, 38 Mich. 10, p. 297. Seacordv. Burling, 1 How. Pr. 175, p. 336. Seal v. State, 13 Smed. & M. 286, p. 304. Sealy v. State, 1 Ga. 213, p. 148, Seavy v. Dearborn, 19 X. H. 351, p. 183. Sehorn V. Williams, 6 Jones L. 575, pp. 189,251. Seibert v. Price, 5 Watts & S. 438, p. 471. Selleok v. Sugar Hollow Tp. Co., 13 Conn. 453, i)p. 303, .528. .Sellers v. People, 4 111. 412, p. 342. Sellers v. State, .52 Ala. 368, p. 291. TABLE OF CASES CITED. xli Seven Bishops, Trial of, 12 How. St. Tr. 429, p. 460. Sexton V. Lelievrre, 4 Cold. 11, pp. 406, 466, 458, 52.5. Sejmiour v. Deyo, 5 Cow. 289, pp. 340, 343. Shackleford v. State, 2 Tex. App. 385, p. 115. Shater v. State, 7 Tex. App- 239, p. 209. Shaffer v. State, 1 How. (Miss.) 238, p. 3. Shaftesbury v. Arrowsmith, 4 Ves. 66, p. 676. Shainv. Markham,4 J. J. Marsh. 580, p. 314. Shane V.Clarke, 3 Har. & McH. 101, p. 338. Shapley v. White, 6 N. H. 172, p. 423. Sharp V. State, 6 Tex. App. 650, pp. 98, 307. Sharp V. Harrison, 10 Heik. 573, p. 328. Sharp V. Hendrickson, 2 N. J. L. 686, p. 70. Shattuckv. State, 11 Ind. 473, pp. 655, 686. 740. Shaw V. Fisk, 21 Wis. 368, p. .549. Shaw V. McCombs, 2 Bay (S. C), 232, p. 393. Shaw V. Newman, 14 Fla. 128, p. 336. Shaw V. State, 18 Ala. .547, pp. 729, 730. Shaw V. State, 27 Tex. 750, p. 342. Sliea V. Lawrence, 1 Allen, 167, pp. 340, 443. Sheaff V. Gray, 2 Yeates, 273, pp. 406, 439, 480, 494. Sheldon v. Perkins, 37 Vt. 550, pp. 541, 542. Shepherd v. Baylor, 5 X. J. L. 827, p. 356. Shepherd v. State, (54 Ind, 43, p. 620. Shepherd v. Thompson, 4 N. H. 213, pp. 480, 481. Sheppard v. Cook, 2 Hay. (N. CI 238, p. 195. Sheppard v. Lark, 2 Bailev, 576, p. 514. Sheridan's Case, 31 How. St. Tr. 811, pp. 570, 607. Sherley's Case, 2 Dyer, 144. a. pi. (59), p. 18. Shields v. Guffey, pp. 477, 479, 480, 487, 497, 499. Shields v. Niagara Sav. Bank, 3 Hun, 477; 5 Th. & C. (N. Y.) .585, p. 90. Shields v. State, 8 Tex. App. 421, p. 226. Shinn v. Cora., .32 Gratt. 899. p. 607. Shipman v. Birniinffham, 5 Up. Can. Q. B. (O. S.) 442, p. 12. Sliobe V. Bell, 1 Rand. 39, pp. 340, 513. Shoeffler v. State, 3 Wis. 823, pp. 216, 222. Shoemaker v. State, 12 Ohio, 43, pp. 321, 325. .Sholley V. Diller, 2 Rawle, 177, pp. 471, 472, 478. Shomo V. Zeigler, 10 Pliila. Oil, pp. 471, 476, 499. Short V. West, 30 Ind. .367, p. 3.57. Shropshire v. State, 12 Ark. 190, pp. 705, 726, 736. Shuster v. Com. ,.38 Pa. 206, p. 142. Sidoli's Case, 1 Lewin C. C. 244, p. 19. Silsby V. Foote, 14 How. 218; s. c, 1 Blatch. 444, p. 301. Silvis V. Ely, 3 Watts & S. 421, pp. 186, 299. Simms v. Templeman, 5 Cranch C. C. 163, p. 4S1. Simms v. State. 8 Tex. App. 230, pp. 221, 347. Simpson V. Kent, 9 Phila. 30, pp. 433, 438, 407. Simpson v. Pitman, 13 Ohio, .3(55, pp. 339, U-2. Sinclair v. Ronsh, 14 Ind. 4.50, p. .540. Skinner v. State, 53 Miss. 399, pp. 217^ 276. Skipper v. Bodkin, 2 Sw. & Tr. 1, p. 15. Slaughter v. State, 24 Tex. 410, p. 429. Sloan v. Harrison, 1 N. J. L. 123, p. 40(). Smith V. Atlantic, etc. R. Co., 25 Ohio St. 91, p. 6. Smith V. Brown, 8 Kan. 608, pp. 289. 295. Smith V. Cheethara, 3 Caines, .57, pp. 510,. 514, .541. Smith V. Clayton. 29 N. J. L. 358, pp. 278, 279, 299. Smith V. (!om., 6 Gratt. 696, pp. 219, 227. Smith V. Com., 7 Gratt. 593, pp. 219, 22T. Smith V. Com., 3 Va. Cas. 6, p. 222. Smith V. Culbertson, 9 Rich. L. 106, p. 540. Smith V. Eames, 4 111. 76, pp. 215, 223, 542,, .547. Smith V. Earle, 118 Mass. .551, p. 3.39 Smith V. Floyd, 18 Barb. 522, pp. 211, 250, 251, 266. Sraitli V. Graves, 1 Brev. 16, p. 419. Smith V. Harrow, 3 Bibb, 446, p. 388. Smith V. Holcombe, 99 Mass. 5,53, p. 488. Smith V. Lovejoy, 62 Ga. 372, p. 443. Smith V. McMillen, 19 Ind. 391, p. 489. Smith V. Powers, 15 N. H. 4.56, p. .547. Smith V. School Dist. 40 Mich. 143, pp. 3.36, 344. Smith V. Smith, 50 N. H. 212, pp. 542, .547. Smith V. State, 47 Ala. 540, p. 329. Smith V. State. 53 Ala. 486, pp. 328, 329. Smith V. State, 55 Ala. 1, pp. 87, 176, 209, 210, 274, 297,299,301. Smith V. State, 10 Ark. 536, p. 328. Smith V. State, 19 Conn. 493, p. 568. Smith V. State, 63 Ga. 169, p. 373. Smith V. State, 4 G. Greene, 189, p. 292. Smith V. State, .55 Miss. 410, pp. 299,301. Smith V. State, 57 Miss. 822, pp. 1.53, 1.54. Smith V. State, 4 Neb. 277, pp. 131, 339. Smith V. State, 5 Neb. 181, pp. 227, 243. Smith V. State, 1 Tex. App. 408, p. 328. Smith V. State, 4 Tex. App. 626, p. 329. Smith V. Thompson, 1 Cow. 221, pp. 353, 355. Smith V. Wagenseller, 21 Pa. St. 491, p. 195. Smith V. Ward, 2 Root, .302, p. .342. Smith V. Williamson, 11 N. J. L. 313, p. 373. Smith V. Willingham, 44 Ga. 200, pp. 4, 3-24. Spencer v. Sampson, 1 Caines. V.)><, p. 17. Sptnccr V. Trartoril, 4-2 Mil. 1, |i li"!. Spoford's Case, ('lii> ton, IX. p. 301. Spong V. Lcslicr, 1 VcatC!i,3'.'i;, ji. ;50l. Spooner, Kx parte, 3 N. V. City llallUcc. im, p. 653. Spoor V. Si)ooner, V2Met. 2S1, p. .54(5. Spratt V. State, 8 Mo. •HI, pp. 715,745. Sprinficr v. State, 34 Ga. 37!», pp. 452, 453, 455, 4.56. Springer v. State. lOJnd. 180. p. 735. Sproxice V. Com. 2 Va. Gas. 375, pjj. 222, 223, 257, 308. Stafford v. State, .55 Ga. .591, p. 542. Stajiner v. State, 11 Tex. App. 440, pp. 255, 2v. St. Tr. 505, p. 144. State V. Accola, 11 Iowa, 246, p. 4*5, .5.54. State V. Adair, m X. C. 2!t8, pp. 2i»7, 301. State V. Adams, 20 Iowa, 486, p. 571. State V. Adams, 2 Lea, 647, p. 674. State V. Addison, 2 So. Car. 356, pp. 687, 698. State y. Alderson, 10 Yerg. .523, p. 70. State r. Alexander, 66 Mo. 14s, p. 540. State V. Allen, 1 Ala. 442, pp. 11(1, 624, 626. State V. Allen, 4(5 Conn. .531, pp. 237, 307. State V. Allen, 47 Conn. 121, p. 90. State y. .Vllen, 83 X. C. 680, p. 682. State V. Anderson, 2 Bailey, 565, pp. 357, 387. State V- Anderson, 4 Nev. 265, pp. 283, 295, 303, 319, 413, State V. Ankiini, Tappan, 80, p. 252. State V. Antonio, 4 Hawks, 200, p. 19. State V. Ansaleme, 15 Iowa, 44, op. 622, 624. State V. Antheny, 7 Ired. L. 234, p. 182. State V. Arata, 32 La. An. 93, p. 124. State V. Arnold, 12 Iowa, 479, pp. 123, 206, 263. State y. Arrington, 3 Mnrph. 571, p. 391. State V. Arrowsmitli, MS. cited State V. Rickey, 9 X. J. L. 293, p. 631. State V. Arthur, 2 Dev. 217, pp. 147, 148, 299, 300. State V. Arthur, 39 Iowa, 631, p 80. State y. Ayer, 23 X. H. 301, pj). 22(i, 346, ;}47,418, 536, .547. State V. Babcock, 1 Conn. 401, pp. 338. 354, 359. State V. Railey, 21 Me. 62. p. 720. State V. Baker, 20 Mq. 338, p. 742. State V. ]5aker, 63 X. C. 276, p. 523. State y. Baldwin, 80 X. C. 390, pp. 182, 619. State y. Baldwin, 2 Hill (S. C). 379, p. 113. State V. Baldwin, 1 Const. Rep. 289, pp. 171,2.58,259. State V. Baldy, 17 Iowa, 39, p. 457. State V. Baltimore, etc. R. Co., 15 W. Va. 362, p. 741. State V. Bancroft, 22 Kan. 170, p. 347. State y. Barnes, 7 Jones L. 20, pp.680, 726. State y. Barnes, 5 Lea, 398, p. 674. State y. Barnes, 20 Mo. 413, p. 582. State y. Barnett,3 Kan. 250, p. 664. State V. Barrontine, 2 Xott 4 McC. 553, p. 147. State y. Barton, S Mo. App. 15; s. c, 71 Mo. 228, p. 228. State y. Burton, 19 Mo. 227, !>. 354. State y. Bea.sley, 32 La. An. 1162, p. 323. State y. Beatty, 30 La. An. 1266, p. .547. State y. Beebe, 17 Minn. 241, pp. 734, 745, 746. State y. Belcher, 13 So. Car. 459. pp. 300, .524. State y. Bell. 15 La. An. 114, p. 2iy.i. Stale V. 15ell, To Mo. (>.53, pi . 363, 370. State V. Beneeke, 9 Iowa, 203, p. 10. State y. 15cnnett, 14 La. An. 651, pp. 98, 99, 2(M;, 28, 271. 275, 276, 299, ;503. State V. Bill, 15 La. An. 114, pp. 20(;, 233. State y. Blackburn, 80 X. C. 474, pp. 619, 706. State y. Bleckley, 18 Mo. 428, pp. .595, 610. Stat42. State y. Bradley, 6 La. An. 564, pij. 481, 539. State y. Brady. 14 Vt. 353, p. 731. State V. Branch, 68 X. C. 186, pp. &54, 705, 706. State y. Brandon, 28 Ark. 410, p. 725. State V. Brandt, 41 Iowa, .593, pp. 622, 623. State V. Brannon, 45 Mo. 329, pp. 354, 363. State V. Braustetter, 65 Mo. 149, pp. 509, 510, ,540. State V. Brazil, 2 Ga. Dec. 107. p. 419. State V. Breaux, 32 La. An. 222, pp. 275, 300. State V. Brette, 6 La. An. 652, pp. 224. 385, 530, 540. State y. Brooks, 9 Ala. 9, pp. 116, 624, 626. State V. Brooks, 30 X. J. L. 3.56, p. 100. State y. Broughton, 7 Ired. L.96, pp. 739, 740,741,743,744,746. State y. Brown, 10 Ark. 78. pp. 617, 718. State y. Brown, 15 Kan. 400, pp. 232, 309. State y. Brown, 22 Kan. 222, pp. 428, 431. State y. Biown, 4 La. An. .5a5, p. 222. State y. Brown, 12 Minn. 538, pp. 75, 289, 324. State y. Brown, 71 Mo. 454, p. 227. State y. Brown, 3 Strob. L. 508, p. 288. State V. Brown, 31 Vt. 6(J2, pp. 709, 731. Stale V. Bruington, 22 La. An. 9, p. 322. State y. Bryan, 40 Iowa, 379, pp. 231, 284. State y. Biyant, 10 Ycrg. 527, p. 608. State y. Buekner, 25 Mo. 167, pp. 90, 97, 98, 142. State y. J5ullard, 16 X. H. 1.39, p. 457. State V. Bullock, 63 N. C. 570, pp. 76, 270. State V. Bunger, 14 La. An. 461, pp. 98, 20i), 217, 228. 309, 339, 664. State y. Burgess, 24 Mo. 381, pp. 682, 715, 716, 725. State y. Burlinghain, 15 Me. 104, pp. 619, 651, 725. State y. Burns, 33 Mo. 483, pp. 385, 386. State V. Cadwell, 1 Jones L. 289, p. 139. TABLE OF CASES CITED. xllii State V. Cain, 1 Hawk-i, :r>2, pp. mo, GSl, 693, 690, :->(;. State V. Caldwell, 3 La. An. 435, p. 540. State V. Callioiin, 1 Dev. & B. 374, pp. 710, 714. State V. Calvert, 32 I.a. An. 224, p. 32(5. State V. Cameron, 2 Cliaiid. 172, pp. 110, 295. State V. Cantrell, 21 Ark. 127, p. fi3!l. State V. Cardoza, 11 So. Car. 195, i)p. 148, 286. State V. Carney, 20 Iowa. 82, pp. 622, 623. State V. Carson, 50 Ala. 134, p. 228. State V. Carstapheu, 2 Hay w. 238, pp. 370, 401, .548. State V. Carver, 49 Me. 588, p. 619. State V. Caultieid, 23 La. An. 148, pp. 301, 429, 452, 458, 533. State V. Cazeau, 8 La. An. 109, p. US. State V. Cliampeau, 52 Vt. 313, p. 622. State V. Chandler, 2 Hawks, 439, p. 709. State V. Chapman, 6 Nev. 320, p. 247. State V. Christian, 30 La. An. 367, pp.276, 327. State V. Clarissa, 11 Ala. 57, p. 638. State V. Clark, 32 La. An. 5.59, p. 208. State V. Clark, 18 Mo. 432, p. 736. State V. Clark, 42 Vt. 629. pp. 214, 227. State V. Clarkson, 3 Ala. 378, pp. 114, 116, 624, 626. State V. Clayton, 11 Ricli. L. 581, p. 627. State V. Clinton, 67 Mo. 380, p. 474. state V. Clough, 49 Me. 573, pp. 631, 647. state V. Cockman, 2 Winst. (N. C.) 95, pp. 216, 308. State V. Cohn, 9 Nev. 179, p. 32. State V. Cole, 9 Humph. 626, p. 69. State V. Cole, 17 Wis. 674, pp. 603, 613, 632. State V. Coleman, 27 La. An. 691, pp. 216, 219. State V. Coleman, 8 So. Car. 237, pp. 79, 255, 305, 310, 332. State V. Collins, 3 Dev. 117, pp. 709, 710, 714. State V. Collins, 70 N. C. 241, p. 216. State V. Collins, 6 Baxter, 151, p. 709. State V. Comstock, 27 Vt. 551, p. ,568. State V. Conley, 39 Me. 78, pp. 1,52, 729. State V. Connell, 49 Mo. 282, p. 610. State V. Conway, 23 Minn. 291, pp. 370, 619. State V. Cook, 20 La. An. 145, p. 101. State V. Cook, Kiley, 234, p. 731. State V. Cooper, 83 N. C. 671, p. 174. State V. Core, 70 Mo. 491, p. 228. State V. Corson, 12 Mo. 454, p. 705. State V. Coupenhaver, 39 Mo. 430, p. 540. State V. Courtney, 28 La. An. 789, pp. 174, 323. State V. Cowan, 1 Head, 280, pp. 652, 698, 703. State V. Cox, 8 Ark. 436, pp. 6, 9. State V. Cox, 6 Ired. L. 440, pp. 707, 710, 712, 714, 735. State V. Cox, 52 Vt. 471, pp. 635, 636. State V. Crank, 2 Bailey, (S. C.)66, p. 288. State V. Ci-aton, 6 Ired." L. 164, p. 147. State V. Creasman, 10 Ired. L. 3-5, pp. 254,310. State V. (freight, 1 Brev. 169, pp. 701, 733. State V. Creighton.l Nott& McC.256, pp. 703, 710. State V. Crosby, 4 La. An. 434, p. 385. State V. Crosby, Harper Const. Rep. (S. C.) 90, pp. 67, 71. State V. Cueuel, 31 N. J. L. 252, pp. 308, 369, 370, 371, 381, ,396,397,406,407,408, 415, 442, .523, .525, 538. .548. State V. Cummings, 5 La. An. 330, pp. 281,291,301. State V. Curtis, 5 Humph. 601, p. 301. State V. Dale, 8 Oreg. 22 », p. 91. State V. Daniels, 44 X. H. 383, p. 528. ^tate V. Darnal, 1 Humph. 290, p. OiiO. State V. Da Rocha, 20 La. An. 356, p. 113. State V. Darr, 63 N. C. 516, p. 718. State V. Davidson, 12 Vt. 300, pp. 708, 713. State V. Davis, 41 Iowa. 311, pp. 2s4, 307, 30-!, 742. State V. Davis, 14 La. An. 678. p. 642. State V. Davis, 22 Minn. 423, pp. 585, 597. State v. Davis, 29 Mo. 397, p. 2i8. State V. Davis, 14 Nev. 439, pp. 203, 206, 223, 235, 263, 284. State V. Davis, 2 Ired. L. 143, pp. 619, 646. State v. Davis, 80 N. C. 412, pp. 267. 383, 297, 301, 340. State V. Davis, 12 R. I. 492, pp. 003, 616, 617. State V. Davis, ,52 Vt. 376, p. 568. State v. Degonia, 69 Mo. 485, pp. 13, 287, 407, 408, 451. State V. Delue, 1 Chand. 166, p. 730. State V. Denton, 14 Ark. 313, p. 721. State V. Desmond, 5 La. An. 399, p. 385. State V. Desniouchet, 32 La. An. 1241, pp. 89, 216. State V. Dickson, 6 Kan. 20:i, pp. 275, 724. State V. Doan, 2 Root, 451, p. 176. State V. Dolling, .37 Wis. 396, pp. 367, 381, 383, 548. State V. Doon, R. M. Charlt. 1, pp. .540, 543. State V. Dotv, 32 N. J. L. 403, p. 438. State V. Dougherty, 1 West. L. J. 271, p. 364. State V. Douglass, 63 N. C. 500, p. 323. .State V. Douglass, 7 Iowa, 413, p. 553. State V. Douglass, 28 La. An. 425, p. 326. State V. Dove, 10 Ired. L. 469, pp. 21(i, 247, 250. State V. Dozier, 2 Speers L. 211, p. 68. State V. Drew, 51 Vt. 56, p. ,568. State V. Dubord, 2 La. An. 732, p. 99. State V. Duestoe, 1 Bay. 377, pp. 535, 717. State V. Dumphey, 4 Minn. 438, pp. 291, 346, ?,47, 536. State V. Duncan, 7 Yerg. 277, p. 603. State V. Durham, 72 N. C. 447, p. 523. State V. Earle, 24 La. An. 38, p. 1.52. State V. Easter, 30 Ohio St. 542, pp. 603, 607. State V. Eldridgc, 65 Mo. .584, p. .534. State V. P^lkins, Meigs, 111, p. 708. State V. Ellington, 7 Ired. L. 61, pp. 216, 250, 270. State V. Elliott. 45 Iowa, 486, p. 307. State V. England, 19 Mo. 386, pp. 729, 730, 7!3. State V. Englo, 13 Ohio, 490, p. 389. State V. English, 1 Murph. 435, p. 719. State V. Estes, 3 Lea, 168, p. 674. State V. Evans, 29 La. An. 321, p. 3S5. State V. Easset, 16 Conn. 457, pp. 680, 690, 693, 694, 695, 698, 739, 740, 744, 747. State V. Fne, 19 Wis. 963, p. 647. State V. Fellows, 2 Hay w. 340, p. 693. State V. Felter, 25 Iowa, 67, pp. .597, 615. State V. Ferray, 22 La. An. 423, pp. 99, 115. State V. F"isher,2 Nott& McCord,261,pp. 101, 339. State V. Fitzhugh, 2 Oreg. 227, p. 595. State V. Fitzpatrick, 8 W. Va. 707, pp. 71, 717. State V. Flemming, 66 Me. 142, pp. 608, 628. State V. Florez, 5 La. An. 429, pp. 291, 710. State V. Flower, Walker (Miss ),318, pp. 216, 218,2,54,255. xliv TABLE OF CASES CITED. stall" V. Klvmi, 4-.' Iowa, ir>4, p. TiTi. State V. Kdlko. '2 l.:i. An. 744, pp. tJT, 709. Stato V. FoishiuT, 4;! N. li. S'.t, p. 3.><. State V. FiLstcr, !• Tox. <■>.■>, pp. cm, (>\2. Stato V. FowUt, .V.' Iowa, lii.i, p. Gl.'i, (iliO, W:{, 0115. State V. F().\, 1 Gil. Dec. 35, pp. 353, 4:58. State V. Fo.\, !) N. J. L. 244. i)p. 3'28, 7:M. State V. Foj., -25 N. J. L. .5fi6, pp. ^iO, 2,'i8. State V. Flunk, 23 Lii. An. 213, pp. 'SSO, 385. .State V. Freeman, 5 t'onn. 34S, )i. 540. .Slate V. Fieenian,-21 Mo. 4si, p. TXi. State V. Freeman, 13 N. II. 488, pp. 682, 711, 712. State V. Fioi.setli, 16 Minn. 296, pp. 465, 6!t5. State V. Fruge, 28 La. An. 657, pp. 407, 445. State V. Fuente.s,5 La. An. 427, p. 19. State V. Fuller, .'U t'onn. 280, p. 30."). State V. Fuller, 39 Vt. 74, i).2r^ State V. Fiinek, pp. 340, 342. State V. Fury. 14 La. An. 827, p. 619. State V. Gainer, 2 Ilayw. (N. C.) 140, p. 143. State V. Garhart, 35 Iowa, 315, pp. 578, 646. State V. Garrand, 5 Oreg. 216, p, 425. State V. Ganigues, 1 Havw. 241, p. 353. State V. Gates, 9 La. An. 94, p. 326. State V. (iay, 25 La. An. 472, pp. 123, 152, ISO. state V. George, 8 Uob. (La.) 535, pp. 216, 222, 225, 233. State V. Gibbs, 39 Iowa, 318, pp. 615, 742, 745. State V. Gibbons, 4 X. J. L. 40, pp. 729, 730, 731,733, 7;M, 735. State V. Gibson, 21 Ark. 140, p. 318. State V. Gill, 14 So. Car. 410, p. 307, 311. State V. Gilliek, 10 Iowa. 98, pp. 225, 361, 387, 494 State V. Gilmore, 9 W. Va. 641, pp. 729. 935. State V. Given, 32 La. An. 382, p. 322. State V. Glasigow, Oonf. (\. C.) 38, p. 731. State V. Glover, 3 G. Greene, 249, p. 735. State v.Godfrev, Bravt. 170, pp. 213, 255. State V. (ionzale.s, 26 Tex. 197, p. 6.52. .State V. Gradv, MS. St. Louis Ct. of App. pp. 700, 72<'i, 745. State V. Green, 20 Iowa, 424, p. 288. State V. Green wade, 22 Mo. 298, p. 228. .State V. Greenwood, 5 Port. 474, p. (iOO. State V. Grittice, 74 N. G. 316, pp. 59i, 612, (522. State V. Groonie, 10 Iowa, 308, pp. 303, 338, 709. State V. Guidrv, 'iS La. An. 031, pp. 59, 100, 120, 225,"277. .State V. Guilford, 4 Jones I-. 83, pp. 732, 734. State V. Gunter, 30 La. An. .5.39, p. 98. State V. Gustin, 5 X. J. L. 744, p 729. State V. Gut, 13 Minn. :{41, p. 114. State V. Gutienez, 15 La. An. 190, p. 10. .State V. Hamilton, 27 La. An. 450, pp. 2fi6, 308,745. State V. Hamlin, 47 Conn. 95, pp. .589,603, 607, 690, 742. State V. Harden, 2 Kich. L. .533. ]). 620. State V. Hardin, 461owa, 623, p. 81. State V. Harding, 2 IJay, 267. i). 5:$5. State V. Harlow, 21 Mo. 446, pp. ;}.54, 363. State V. Harris, 30 La. An. 90, pp. 67, 322, 340, 342. State V. Harris, 73 Mo. 287, pp. .5S2, 725. State V. Harris, 12 Nev. 414, pp. :i54, 370. State V. Harris, 7X. J. L. 361, pp. 328, 734. State V. Harrison, 19 Ark. 505, pp. 718, 720. State V. Hart, 2!i Iowa. 2C>8, p. 61.'i. State V. Hartman, 46 Wis. 248, p. 494. State V. llarwood, 1 Winst. 228, p. 734. State V. Haseall,6 X. H.:{.52. pp. 71, 113, 127, 323, 4(16, 441, 4'.'5, .527, 547. State V. Haw kins, 10 Ark. 71, pp. 603, 646. State V. Hayden, 5 Vt. 2!«>, p. 346 State V. Hayden, 45 Iowa, 11, p. 679. State V. Hayiies, 54 Iowa, 109, p. 632. State V. Haywood, 73 X. C. 437, pp.612, 622, 623. State V. Hays, 23 Mo. 287, pp. 287, 295. State V. Ileuton, 77 N. ('. 505, \t. 176. Slate V. lleinv, 15 La. .Vn. 2'.i7, p. 98. State V. Ileiisley, 7 IJlackL 324, p. 615. State V. Hernandez, 4 La. An. 379, p. 101. State V. II(;rndon, 5 lilackf. 75, pp. 580, 603, (il7. Slate V. Hester, 2 Jones L. 83, p. 530. State V. llieknian, 8 X. J. L. 29!t, p. 73.5. State V. Hilton, 32 X.H. 285. p. 6(i4. ■^tate V. Hilton, 41 Tex. .5(>5, pp. 729,730. State V. llinklc, Kiowa, 380, pp.217, 615. State V. Ilodson, 74 X. C. 151, p. 720. State V. Hoffpauer, 21 La. An. 609, p. 609. State V. Ilogan, 31 Mo. 342, pp. 708, 736. State V. Hogg, 2 Murpb. (X. C.) 319, p. 34. State V. Holmes, 63 N. C. 18, p. 582. State V. Hopkins, 1 Hay, .572, pp. 3:58, 345. State V. Hopper, 71 Mo. 425, p. 492. State V. Home, 9 Kan. ir.l, pp. .540, 5.56. State V. Hornsby 8 Hob. (La.) 554, p. 3&5. State V. Horton, 63 X. C. .596, pp. 726, 741. State V. Howell, 3 La. An. 50, pp. 99, 100. State V. Howard, 63 Ind. 502, p. 2.53. State V. Howard, 10 Iowa, 101, pp. 615, 630, 647. State V. Howard, 17 N. H., 229, pp. 135, 215, 222, 276, 239, 340, .343. State V. Hoyt, 47 Conn. 418, pp. 121, 157, 217,218,220,253,309. State V. Hugel,27 La. An. 375, p. 219. State V. Hughes, 1 Ala. 6.55, pp. 638, 719 721. State V. Humphreys, 1 Overton, 306, pp. 139, 141. State v. Hunt, 4 La. An. 438, pp. 385, 630. State v. Hurt, 7 Mo. 321, p. 718. State V. Igo, 21 Mo. 459, pp. 353, 3&3. State V. Ingalls, 17 Iowa, 8, p. 615. State V. Ingrahaui, Glieves (S. C.) 78, p. 34. State V. Ivey, 41 Tex. 35, pp. 289, 291. State V. Jaekson, 12 La. An. 679, p. 101. State V. Jacobs, 6 Tex. 99, pp. 583, 635, 646. State V. Jennings, 15 Rich. L. 42, p. 176. State V. Johnson, Walker, 392, p. 217. State V. Johnson, IX. J. L. 219, p. 112. State V. Johnston, 11 La. An. 422, p. 99. ctate V. Joiner, 19 Mo. 224, p. 720. State V. Jolly, 7 Iowa, 15, p. 708. State V. Jones, 5 Ala. Ii6t), p, 317. State V. Jones, 61 Mo. 2.52, pp. (58, 321. State V. Jones, 64 Mo. 391, p. 182. State V. Jones, 9 N. J. L. 357, pp. 729, 730, 73L State V. Jones, 80 X. C. 4 5, p. 275. State V. Jones, 7 Xev. 408, pp. 4.58, 4.59, 533. State V. Judge, 11 La. An. 79, pp. Ill, .374. State V. Kane, 32 La. An. 999, pp. 90, 99. State V. Kautman, .54 Iowa, 578; «. c. 9 Cent. L. J. 313, p. 79. State V. Kennedy, 8 Uob. (La.) 590, pp. 208, ;542, 479. Ptate V. Ketcliey, 70 X. C. 621, p. 281. State V. Keyes, Smith (X. IL), 135, p. 711. TABLE OF CASES CITED. xlv ijtate V. Kilcrease, (J So. Car. 414. pp. 680, 682. State V. Kimball, 29 Iowa, 267, pp. 086, 725. State V. Kimball, ,^0 Me. 409, p. 481. State V. Kimbrougli, 2 Dev. 431, pp. 710, 728, 733. State V. King, 28 La. An. 425, p. 326. State V. Kingsbury, 58 Me. 238. pp. 225, 346. State V. Ivleinback, 2 Speers L. 418, p. 286. State V. Klinger, 48 Mo., 224, pp. 75, 97. «tate V. Kniglit, 43 Me. 11, pp. 171, 247. State V. Knight, 01 Mo. 373, p. 127. State V. Lamon, 3 Hawks, 175, p. 90. State V. Lautenschlager, 22 Minn. 514, pp. 253, 255. State V. Lantz, 23 Kan. 728, pp. 428, 481, 482, 485. State V. Larkin, 11 Nev. 314, p. 268. State V. Lartigue, 26 La. An. 642, pp. 217, 309. State V. Lassley, 7 Port. .126, pp. 606, 733. State V. Lawrence, 38 Iowa, 51, pp. 217, 229. State V. Lawry, 4 Nev. 161, p. 583. State V. Leicht, 17 Iowa, 28, pp. 196, 206, 263. State V. Levy, 5 La. An. 64, p. 545. State V. Lewis, 28 La. An. 84, pp. 24, 275, 277, 299. State V. Lewis. 3 Hawks, 410, p. 728. .State V. Lightbody, 38 Me 200, p. 628. State V, Ligon, 7 Port. 167, pp. 173, 606. State V. Lifcs, 77 X. C. 486, p. 634. State V. Litchfield, 58 Me, 267, p. 27.5. State V. Little, 42 Iowa, 51, pp. 679, 723. State V. Logan, 1 Nev. 509, pp. 693, 701, 746. State V. Love, 4 Humph. 255, p. 668. State V. Lovenstein, 9 La. An. 372 n., pp. 75 299 300. State 'v. Loving, 16 Tex. 588, p. 733. State V. Ludwig, 70 Mo. 412, p. 254. -Slate V. Lumbrick, 1 Car. L. Kep. 543, p 718. State V. Lupton, 63 N. C. 483, p. 720. State V. Lytic, 5 Ired. L. 58, pp. 88, 353. State V. Maddox, 1 Lea (Tenn.), 671, p. 636. State V. Madoil, 12 Fla. 151, pp. 2l4, 339, 343, 353, 3i;4. State V. Mahan, 12 Tex. 283, pp. 635, 731. State V. Maloney, 12 R. 1. 251, p.f;i9. State V. Mansfield, 41 Mo. 470, pp. 1, 7, 8 9 State V.' Marshall, 8 Ala. 302, pp. 176, 178, 274, 277, 299. State V. Marsliall, 36 Mo. 400, pp. 68, 321. State V. Martin, 2 Ired. L. 101, p. 619. Stale V. Martin, 28 Mo. ,530, p. 233. State V. Martin, 82 N. C. 672, pp. 612, 618, 627. State V. Massey, 2 Hill, (S. C.) 379, p. 113. State V. Matson, 38 Mo. 489, p. .534. State V. Matthews, 80 N. C. 417, p. 263. State V. May, .50 Ind. 170, p. 645, State V. McAfee, 64 N. C. 3:!9, p. 26i. State V. McCann, Meigs, 91, p. 719. State V. McCartey, 17 Minn. 79, pp. 78, 91, 582, 701. .State V. McCarty, 2 Chand. (Wis.) 199, p. 729. State V. McClear, 11 Nev. 39, pp. 6, 157, 177, 223, 225, 724. State V. McCourtnev, 6 Mo. 649, pp. 719, 722. State v. McCurrv, 63 N. C. ^^, p. 131. •State v. McDonald, 8 Uo. 283. p. 715. State V. McDonald, 8 Oreg. 113, pp. 338> 340. State V. McDonald, 9 W. Va. 4.56, pp. 341, 342, 346, 347. State V. McElmurray, 3 Strob. L. 33, pp. 71, 357. State V. McEntire, 2 Car. L. Rep. 267, pp. 605, 612. State V. McEvov, 9 So. Car. 208, p. 585. State V. McGrew, 13 Rich. L. 316, p. 152. State V. McJunkln, 7 S. C. 21, p. 115. State V. McLean, 11 La. An. ,546, p. 153. State V. McLean, 21 La. An. 546, p. 342. State V. McI>endon, 1 Stew. 195, p. 101. State V. McLeod, 1 Hawks, 344, p. 541. State V. McManus, 4 Humph. 258, p. 668. State V. McNamara, 3 Nev. 70, pp. 583, 589, 731. State V. McNlnch, 12 So. Car. 89, pp. 148, 655, 687. State V. McQuaige, 5 So. Car. 429, pp. 125, 309. State V. Mttdlicott, 9 Kan. 257, pp. 219, 229. State V. Melvin, 11 La. An. 535, p. 210. State V. Mertens, 14 Mo. 94, pp. 715, 725. State V. Mewherter, 46 Iowa, 88, p. 742. State V. Jleyers, 68 Mo. 266, p. 6. State V. Middleton, 5 Port. 484, pp. 173, 606, 633. State V. Millain, 3 Nev. 409, pp. 322, 597, 60S, 6;S). State V. Miller, 5 Ala. 343, p. 646. State V. Miller, .53 Iowa, 84, p. 580. State V. Miller, 26 La. An. 579, pp. 59, 120. State V. Miller, 1 Dev. & B. 500, pp. 354, 531. State V. Millican. 15 La. An. 557, pp. 540, 543. State V. Minis, 26 Minn. 183, pp. 267, 540. State V. Mix, 15 Mo. 153, pp. 354, 363, 395. State V. Moles, 9 Mo. 6)4, p. 718. State V. Monaciuo, T. U. P. Charl. 22, p. 151. State V. Monk, 3 Ala. 415, pp. 80, 321. State V. Montgomery, 7 Ohio St. 107, p. 664. State V. Mooney, 10 Iowa, 506, p. 581. State V. Moore. 28 Ohio St. 595, p. 150. State V. Morea, 2 Ala. 275, pp. 216, 283, 301. State V. Morgan, 20 La. An. 442, p. 113. State V. Morris Canal etc. Co., 22 N. J. L. .537, p. 733. State V. Morrison, 30 La. An. 817, pp. 704, 713. State V. Motley, 7 Rich. L. .327, p. 619. State V. Mullen, 14 La. An. 570, p. 208. State V. Munzenmaier, 24 Iowa, 87, p. 580. State V. ]Murphv, 9 Port. 487. p. 731. State V. Murph, 1 VVinst. (N. C.) 129, p. 76. State V. Murjjhy, 47 Mo. 274, p. 715. State V. Muzingo, Meigs, 112, pp. 707, 736. State V. Myers, 51 Ind. 145, pp. 582, 645. State V. Nash, 8 Ired. L. 35, p. 88. State V. Neagle, 65 Me. 468, p. 116. State V Negro Peter, 1 Ga. Dec. 46, p. 538. State V. Nelson, 32 Tex. 71, p. 36.5. Stale V. Newer, 7 Blackf. 307, p. 607. State V. Newfane, 12 Vt. 422, pp. 636, 6.37. State V. Newhouse, 29 La. An. 824, p. 115. State V. Newton, 28 La. An. 65, p. 34. State V. Nixon, 18 Vt. 70, p. 729. State V. Norton, 23 N. J. L. 33, p. 731. State V. O'Brien, 7 R. I. 336, pp. 353, 370, 398. State V. Off ut, 4 Blackf. 3.55, p. 744, State V. OHiradv, 3 Woods. 496, p. 156. State V. Oscar, 13 l.a. An. 297, p. 664. xl VI TABLE OF CASES CITED. State V. <)str;in(l«>r, is Iowa, 4:r>, pp. -lis, 274,'.'7(;, ;iC8. (i|-., l^n;, iJT'.i. State V. Owen, I'liill. L. 42'), p. l:!l. State V. Oxford, ;{() Tex. 418, pp. 01-2, Hi. State V. Talks, -21 La. Aii. 251, pp. ;«9, 341. State V. raniint, 1(1 Minn. 178, pp. 362, 387, 3114. 402. State V. rariish, S IIiiui))h. 80, p. ()74. State V. rate, Hi Mo. 4S8, iip. 5>^, 725. State V. Pate, lUisb. 244, pp. lilo, IOC, 31(;. State V. Patrick, 3 Jones L. 443, pp. 283. 339, 342. State V. Patterson, 45 Vt. 30S, pp. 420, 421, 425. State V. Perkins, (Mi N. C. 126, p. 297. State V. Penv. Husbee, (X. C.) 330, pp. 67, 76, 184, 688. State V. Peterson, 21 Ark. 140, p. 329. State V. Peterson, 2 La. An. 791, pp. 728, 731. State V. Petrie, 25 La. An. 38(>, p. 113. State V. Pliair, 48 Vt. 366, p. 214. State V. Phillips, 2 Ala. 297. p. 69. State V. Pliillli)s, 28 La. An. 387, p. 326. State V. Phillips, 24 Mo. 475, p. 76. State V. Pierce, 8 Iowa, 231, pp. 291, .580. State V. Pike, II Am. L. IJef,'. 223, p. 220. State V. Pike, (55 Me. Ill, p. .540. State V. Pike, 20 X. H. 344, pp. 341, .347, 472. State V. Pike, 49 X. H. 406, pp. 157, 269. 291. State V. Pile, 5 Ala. 74, pp. 328, 329, 619, 729. State V. Pitts, 58 Mo. .5.56, pp. 127, 297. State V. Populus, 12 La. An. 710, pp. 385, 394. State V. Potter, 18 Conn. 166, pp. 134, 171, 215, 216, 273, 294, 295, 316, 327. State V. Powell, 7 N. J. L. 244, p. 335. State V. Powell, 24 Tex. 135, pp. 709, 716. State V. Preseott, 7 X. H. 287, pp. 381,382, 462. State V. Price, 3 Mo. App. .568, p. 98. State V. Price, 11 X. J. L. 203, pp. 729, 730, 733, 734. State V. Price, 10 Rich. L. .-^51, p. 309. State V. Piimrose, 3 Ala. .546, p. 24. State V. Pritchard, 15 Xev. 74, pp. 209, 292, 296, 299. State V. Push, 23 La. An. 14, p. 180. State V. Putnam, 1 X. J. L. 260, p. 328. State V. (^larrel, 2 P.av. 1.50, pp. 338, :U2. State V. (,>niuil)v, 51 Me. 395, pp. 571, nl2. .State V. Ha7, p. 326. State V. Revolls, 31 La. An. 387, |.. .58. State V. Rickey, 9 X. J. L. 293, pp. 631, 637, 638. State V. Kickev, 10 X. J. L. 83, pp. 589, 603, 607. Stale V. I{ick.<», .32 La. An. 1098, p. 219. Sta'e V. RifTf,', 10 Xev. 2H4, i)p. 271, 323. State V. Roberts, 2 Dev. & B. 540, pp. 694, 72(!, 736. State V. Robinson, 29 X. H. 274, p. 719. State V. Robinson, 2 Lea, 114, pp. 668, 674. State V. Rockafellow, 6 X. J. L. 322, pp. 328, 592, 617. State V. Roderigas, 7 Xev. .328, pp. 289, 295, 322. State V. Rogers, 37 Mo. 367, p. 718. State V. RohlrLseht, 12 La. An. 382, p. 717. State V. Rollins. 22 N. 11. .528, p. 316. State V. Ross, 30 l.a. An. 1,5.54, pp. 87, 300. .state V. Rosscau, 2S La. \n. 579, p. 277. Sta'e V. Rountree, .32 l.a. An. 1144, p. 99. State V. Rousseau, 28 La. \n. 579, p. 17s, State V. Rvan, 13 .Minn. 370, pp. 21, 1.57, 361. state V. Sales, 2 Xev. 268, j). 436. State V. Salge, 1 Nev. 4.55, p. 174. State V. Sater, 8 Iowa, 420, p. 217. State V. .Scott, 25 Ark. 107, p. 720. State V. Scott, 45 Mo. 302, i)]). 474, 475. State V. Schnapper, 22 La. An. 43, p. 203. State V. Schoenwald, 31 Mo. 147, p. 329. State V. Seaborn, 4 Dev. 305, pp. 121, 605, 612, 622, 72 S. State v. Sharp, cited. 6 \. J. L. 332, p. 328. State V. Shaw, 5 La. An. 342, p. .322. State V. Shaw, 3 Ired. L. 532, pp. 148, 181,. 267. State V. Shay, 30 La. An. 114, pp. 101, 303, :146. State V. Sheeley, 15 Iowa. 404, p. 196. State V. Shehane, 25 Mo. .565, p. .534. State V. Shelledy, 8 Iowa, 447, pp. 225, 274,291,299, .340, 342. State V. Sherbourne, Dudley (Ga.) 28, p. 380, 403. State V. Slack, 1 Bailey (S. C), 330, p. 323. State V. Simmons, « Jones L. 309, p. 70. State V. Sims, 2 Bailey, (S. C.) 29, pp. 2 8,. State V. Smalls, 11 So. Car. 262. p. 286. State V. Small wood, 78 X. C. 560, p. .54i. State V. Smith, 31 La. An. 40(5, p. 025.' State V. Smith, (n.Mc. 328, p. 627. State V. Smith, 20 Minn. 376, p. 29.3. State V. bmith, 20 Ired. L. 402, pp. 148, 152. State V. Smith, 80 X. C. 410, 635. State V. Snnth, 6 R. 1.33, pp. 491, 493. State V. Smith, Mnlgs, 99, p. 674. State V. suvder, 20 Kan. 306, p. 429. State V. Soper, 16 .Me. 293, p. 1.52. State V. Sparrow, 3 Murph. 487, pp. 451, 457, 4.58. State V. Spaulding, 24 Kan. 1, p. 216. State V. Spencer, 21 X. J. L. 197, pp. 218, 229, 258. State V. Sprinkle, 65 X. C. 463, pp. 729,. 731. State V. Squaires, 2 Xev. 226, pp. 73, 121, 247. State V. Squire, 10 X. H. .560, pp. 70-i, 713. State V. Staley, 3 Lea, 565, p. 674. State V. Stalmaker, 2 Brevard, 1, p. 148. State V. Stanlev, 33 Iowa, .526, p. 724. State V. Stark, 72 Mo. 37, p. 428. State V. Stediuan, 7 Port. 49^, pp. 69, 629,. 710. State V. Steelev, r>5 Mo. 218, p. 287. .State V. S ephens, 11 So. Car. 319, pp. 92, .301,. 322. State V. stepheng, 13 So. Car. 2a5, pp. 7.5, 148. State V. .Stevens, 36 X. H. .59, p. 66t. S'ate V. Stokely. 16 Minn. 282, pp. 73, .540, .544. State V. .Stoughton, 51 Vt. .362, pp. 1.52, 153. State V. Straudi-r, 11 W. Va. 745, pp. .340, 343. State V. Summers, 4 T-a. An. 26, p. 429. State V Swayze, 2 Cr. L. Mag. 261, pp. 607,608. " State V. Swift, 14 La. .\n. 827, p. 646. TABLE OF CASES CITED. xlvii State V. Syinonds, 36 Jle. 128, pp. 57", 603, 644. State V. Taggart.38 Me. 298, p. 709. State V. Tatro, 50 Vt. 483, p. 214. State V. Taylor, 8 Blackf. 178 p. 633. State V. Taylor, 20 Kan. 643, p. 484. fctate V. Tazwell, 30 La. An. 884, pp. 180, 647, 732. State V. Terry, 30 Mo. 368, pp. 667,671. State V. Thayer, 4 Strobli. L. 286, p. 629. State V. Thon:as,32 La. An. 349, p. 322. State V. Thomas, 19 Minn. 484, p. 177. J^tate V. Thompson. 20 N. H.2.?0,p. 664. State V. Thompson, 9 Iowa, 188, p. 232. State V. Thorne, 81 K. C. 555, p. 194. State V. Tighlman, 11 Irecl. L. 513, pp. 530,531. State V. Tindall, 10 Rich. L, 212, pp. 486. 499, 503, 540. .State V. Tinney, 26 La. An. 460, p. 709. State V. Toby, 31 La. An. 756, p. 98. State V. Tom, 8 Oreg. 177, pp. 270, 271. State V. Tompkins, 71 JIo. 613, pp. 471, 474, 488. State V. Town, Wright (Ohio), 75, p. 451. State V. Tucker, 10 La. An. 501, pp. 385, 530. State V. Tucker, 20 Iowa, iJOS. p. 693. State v.TuUer, 34 Conn. 294, p. 304. State V. Turner, 6 La. An. 309, pp. 341, 343. State V. Turner, 25 La. An. 573, pp. 99, 324, 3.53, 370, .526. State V. Turner, 6 Baxt. 201, p. 521. State V. Underwood, 57 Mo. 40, pp. 540, 547. State V. Underwood, 6 Ired. L. 96, pp. 323, 019. State V. Underwood, 2 Overton, 92, p. 230. State V. Upton, 20 Mo. 397, p. 4.58. State V. Vahl, 20 Tex, 779, pp. 597, 619. State V. Van Buskirk, 59 Ind, 384, p. 747. State V. Vance, 31 La. An, 398, p. 115. State V. Van Matre, 49 Mo. 268, pp. 6, 9. State V. Vann, 82 X. C. 631, p. 300. State V. Vegas, 19 La. An. 105, p. 73. State V. Vestal, 82 N. C. .563, p. 300. State V. Vogel, 22 Wis. 4T1, pp. 177,3 5. State V. Walcott, 21 Conn. 272, pp. 661, 670, 692, 693, 694, 725. State V. Wall, 15 Mo. 208, p. 5.34. State V. Wall, 9 Yerg. 349, p. 171. State V. Wallahan, Tappan, 52, p. 3(54. State V. Wammack, 70 Mo, 410, p. 742. State V. Ward, 14 La. An. 673, pp. 100, 206, 219, 233, 263. State V. Ward, 2 Hawks, 443, p. 324. State V. Ward, 39 Vt. 225, pp. 208, 209. 275. State V. Wart, 51 Iowa, 587, pp. 361, 370, 428. State V. Waters, 62 Mo. 196; s. c, 1 Mo. App. 7, p. 282. State V. Waters, 1 Mo. App. 7, p. 101. State V. Watson, 31 La. An. 379, pp. 619, 647, 732. State V. Webster, 13 N. H. 491, pp. 225, 664. State V. Welch, 33 Mo. 33, pp. 597, 598, 610. State V. Wells, 46 Iowa, 662, p. 186. State V. West, 69 Mo. 401, pp. 176, 203, 208. 209, 458. .State V. White, 7 La. An. 531, p. 99. State V. White, (58 >'. C. 1.58, p. 339. State V. VVhitford, 12 Ired. L. 99, p. 32. State V. Whitman, 14 Rich. L. 113, |.. 275. State V. Whitney, 7 Oreg. 386, pp. 686. 687. State V. Wilburne, 2 Brev. 296, p. 703. State V. Wilhite. 11 Humph. 602, p. 703. State V. Willard, 79 N. C. 660, p. 34. State V. Williams, 5 Port. 130, p. 606. State V. Williams, 3 Stew. 454, pp. 59, 67, 120, 218, 229, 301, (506. State V. Williams, 30 Me. 484, pp. 185, 275. State V. Williams, 2 McCord, 301, p. 731. State V. Williams, 2 Hill (S. C ), 381, pp. 92, 173, 283, 323. State V. Williams, 1 Dev. & B. 372, pp. 31, 34. State V. Williams, 1 Rich. L. 188, p. 68. State V. Williamson, 42 Conn. 261, p. 359. State V. Wills, 11 Humph. 222, p. 608. State V. Wilson, 8 Iowa, 407, pp. 190, 264. State V. Wilson, 38 Conn. 126, pp. 214, 216, 220. State V. Wilson, 48 N. H. 398, pp. 21, 157, 299. State V. Wincroft. 76 N. C. 38, pp. 174, 176, 251. State V. Wise, 7 Rich. L. 412, pp. 148, 152. State V. Wolcott, 21 Conn. 272, pp. 661, 670, 692. 693, 694, 725. State V. Wood, 53 N. H. 484, pp. 740, 744. State V. Woodson, 41 Iowa, 425, p. 433. State V. Worthingham, 23 Minn. .528, p. 316. State V. Wright, 53 Me. 328, p. 38. State V. Yancey, 3 Brev. 306, p. 151. State V. Y'ancey, 1 Const. Rep. (S. C.) 237, p. 729. State V. Zellers, 7 N. J. L. 220, p. 254. St. Anthony Falls W. P. Co. v. Eastman, 20 Minn. 277, p. 291. St. Louis V. State, 8 Neb. 405, p. 208. St; Louis Brewery Co. v. Bodenuin, MS. St. Louis Ct. of Appeals, p. 520. St. Louis, etc. R. Co. V. Casner, 72 111. 384, p. 284. St. Louis, etc. R. Co. v. Lux, 63 111. 523, p. 307. St. Louis, etc. R. Co. v. Myrtle, 51 Ind. 566, p. .521. St. Louis, etc. R. Co. v. Wheelis, 72 111. 538, u. 282. St. Martin v. Desnoyer, 1 Minn. 156. pp. 510, 514, .542. 547. Staup V. Com., 74 Pa. St. 458, pp. 222, 223, 225, 236. Steele v. Logan, 3 A. K. Marsh. 394, p. 540. Steele v. Maloney, 1 Minn. 347, pp. 322, 339, 341. Steele v. State, 1 Tex. 142, pp. 693, 724. Stephens v. People, 38 Mich. 739, pp.228, 236,240,243,254. Stephens v. People, 19 N. Y'. 549, pp. 387, 395. Stepiiens v. People, 4 Park. Cr. R. 396 pp. 358, 363, 380. Steptoe V. Flood, 31 Gratt. 323, pp. 541, ■543. Sterling Bridge Co. v. Pearl, 80 111. 251, p. 291. Stevens v. People, 38 Mich. 739, p. 269. Stevenson v. Stiles, 3 N. J. L. 543, p. 247. Stewart v. Burlington etc. R. Co., 11 Iowa, 62, pp. 481, 482, 540, 5.54. Stewart v. Ewbank, 3 Iowa, 191, pp. 304, 340, 342, 347. Stewart v. People, 23 Mich. 63, p. 231. Stewart V. State, 13 Ark. 720, pp. 77,99, 214,231,251,300, 308,618. Stewart v. State, 58 Ga. 577, pp. 152, 347. Stewart v. State, 23 Ga. 181, p. :34. Stewart v. State, 24 Ind. 42, pp. 658, 695. Stewart v. State, 1 Ohio St. 66, pp. 276, 312. Stewart v. State, 15 Ohio St. 1.95, p. 306. Stinson v. State, 5 Tex. App. 31, p. 329. Stites V. McKibben, 2 Ohio St. 588, pp. 472, 479. xlviii TABLE OF CASES CITED. stix V. Pump, :?7 tin. MVl, p. :VM. Stowbiill V. Anst'll, C'oinli. lit;, p. 740. Stoikw fU V. Kiiilroutl Co., 4:i Iowa, 470, pp. 445, Tillt. Stokes V. People, 5:J X. Y. 1(U, pp. -21, 1,57, •240. Stokes V. State, '24 Miss. 021 , pp. (504, (>-23. Stokes V. State, 5 Uaxt. (Tenii.) (jl9, p. ."ili*. Stone V. Bird, IG Kan. 488, p. 394. Stone V. People, 3 111. 3'2(J, pp. 301, 323, .'j81,.t8<», (Sl'.t. Stone V. Scgiir, 11 Allen, .">C>8, p. ].")."). Stone V. state, 4 Humph. '27, pp. 380, 458, ■")38, r>:V.), .147. .stone V. State, 30 Inil. 11.'), p. 6-29. Storov V. People, 7it III. 4.'), p. (5.')3. Stott V. Smith, 70 Ind. iiKS, p. oU. Stout V. Hyatt, 13 Kan. ■23-2, pp. '275, 309. Stout V. People, 4 Park. Or. R. 132, pp. •211,'21G, iii, -284. Straker v. Graham, 4 Mee. & W. 721; s c, 7 Dowl. P. C. 2-23, pp. 514, 543. Strauder v. State, 100 U. S. 303, p. 26. Straushan v. State, 10 Ark. 37, pp. 583, 646. Strawn v. Cogswell, 28 111. 457, p. 202. Stroll V. Hinchman, 37 Mich. 490. p. 1.55. Stronji V. Kean. 13 Irish L. 93, p. 321. Strvker v. TurnbuU, 3 Caines, 103, p. 16. Stubber V. Wall, 1 Craw. & Dix. (Irish) Cir. .54, p. 111. Studley v. Hall, 22 Me. 198, pp. 225, 452, 464. Studstill V. State, 7 Ga. 2, p. 709. Stumm V. Hummel, 39 Iowa, 478, p. 197. Sturdivant v. Watkins, 47 Mo. 177, p. .534. Stutsman v. Barringer, 16 Ind. 363, p. 353. Sumrall v. State, 29 Miss. 202, p. 116. Sutliff V. Gilbert, 8 Ohio, 405, pp. 388,389, 391, 392. Suttle V. Batie, 1 Iowa, 141, pp. 88, 279. Sutton V. State, 9 Ohio, l;», p. 13. Sutton V. State, 41 Tex. 513, p. 316. Suttrell V. Dry, 1 Murph. 94, p. .540. Swan & .letfery's Case, Foster Cr. L. 104, p. 151. Swan's Case, 16 Mass. 220, p. 32. Swatm V. Ray, 3 Blackf. 298, p. 318. Swarnes v. Sitton, 58 111. 155, pp. 341, 343. Swart V. Kimball, 11 Cent. L. J. 71, p. 4. Swett, He., 20 Pick. 1. p. 34. Swigart v. State, 67 Ind. 287, p. 202. Swiss V. Stockstill, 30 Ohio St. 418, p. 270. Swofford V. State, 3 Tex. App. 76, pp. 99, 109, 3:55. Svkes V. Dunbar, Sel. N. P. 1091, pp. 670, 742. Symons v. Si)inosa, 3 Dyer, 357, pi., (45), p. 18. T. TaUman v. Wood worth, 2 Johns. 385, pp. Ill, 303. Talraadge v. Northrop, 1 Root, 4.54, p. 339. Tatum V. Preston, .53 Miss. &>4, pp. 291, 292. Tatum V. Young, 1 Porter, 298, p. 298. Taylor v. Betsford, 13 Johns. 487, pp.420, 427. Taylor V. Cal. Stage Co., 6 Cal. 228, p. 448. Taylor v. Everett, 2 How. Pr. 23, pp. 428, 431, 432, 439, .541, .543. Taylor V. Giger, 1 llurdin, .586, pp. .540, 542. Tavlor V. Greeley, 3 Me. 204, pp. .339, 342, ■346. Tavlor V. State, .52 Miss. 65, p. 4.34. Tavlor V. State, 3 Tex. App. 169, pp. 289; "295. Tavlor v. Western Paeifle, 45 Cal. 323, p. '282. Temi)le v. Sumner, Smith, (N. H.) 226, pp. 213, 254, 340, M-i. Terai)leton v. State, 5 Tex. App. 399, p. 451. Tenney v. Evans, 13 N. II. 462, pp. 338, 346; .547. Terrell v. Com., 13 Bush, 246, p. 268. Territory v. Anderson, 1 Wyoming, 20, p. 724. Territory V. Doty, 1 Pinney, (Wis.) 396, pp. 76, 87, 288. Territory v. Ingersoll, 3 Mont. 4.54, iip. 59<), 616. Territory v. Kennedy, 3 Mont. .520, p. 3 "3. Thaver V. People, 2 Doug. 417, pp. 589, .592, 6:52. Thayer v. Van V'leet, 6 X. H. 172, p. 423. Thoinas v. Chapman, 45 Barb. 98, pp, 431, 432, 439. Thomas v. Com., 2 Va. Cas. 479, p. 384. Thomas v. Com., 2 Rob. (Va.) 795, p. 744. Tiiomas V. Croswell, 4 Johns. 491, p. 17> Thomas v. Jones, 28 Gratt. 383, pp. 541, 544. Thomas v. People, 39 Mich. 36;i, p. 46. Thomas v. People, 67 X. Y. 218, pp. 242, 2(!9, 270, Thomas v. Rumsey, 4 Johns. 482, p. 17. Thomas v. State, 27 Ga. 287, p. 274. Thomas v. State, 5 How. (Miss.) 20, pp. 123, 731. Thomas v. State, 36 Tex. 315, pp. 194,228. 241. Thomas' Case, 1 Dj-er, 99, pi., (67), p. 20. Thomason v. State, 2 Tex. App. 550, pp. .597, 615, 733. Thompson v. Blackwell, 17 B. Mon. 624,. p. 328. Thompson v. Com., 8 Gratt. 637, pp. 339, 451,4,58,509,512, 5l3. Thompson v. Gibson, 8 Mee. & W. 281, p 1.5. Thompson v. Mallet, 2 Bay, 94, p. 520* Thompson v. Paige, 16 Cal. 78, p. 339. Thompson v. People, 3 Park. Cr. R. 467, p. 2(56. Thompson v. State. 26 Ark. 323, pp. 433, 523, 539. Thompson v. State, 9 Ga. 210, p. 647. Thompson v. State, 24 Ga. 2'.I7, p. 217. Thompson's Case, 4 Leigh. (577, p. 631. Thomson v. People, 24 111. 60, p. 226. Thorne v. Londonderry, 8 Bing. 26, p- 14. Thrall v. Lincoln, 28 Vt. 3.56, pp. 2.U, 347. Thrall v. Smiley, 9 Cal. 529, pp. 323, 413 415,485. Thrift v. Redman, 13 Iowa, 25, p. 417. Tidewater Canal Co. v. Archer, 9 Gill. & J. 479, pp. 32S, 339, 343. Tiernan v. Trewick, 2 Utah, .393, p. 418. Tillman v. Allies, 5 Smed. & M. 373, p. 5. Tilton V. Kimball, ,52 Me. .500, p. 304. Tindall's Case, Cro. Car. 29', p. 282. Tindle v. Xieliols, 20 Mo. 326, p. 745. Tii)ton V. State, Peck, 308, p. 729. Todd v. Boone Co., 8 Mo. 431, p. .521. Todd V. Branncr, .30 Iowa, 439, p. .531. Tomer V. Dcnsmore, 8 Neb. .384, p. .303. Tomlin v. Cox, 19 X. J. L. 76, pp. 438, 442. Tomlinson v. Crooke, E. 10 Jac. 1, p. 469. Tomi)son v. Mnssey, 3 Me. 305, p. 740. Tooel v. Cora., 11 Leigh, 714, pp. 301, 385, 386. Tooke's Case, 25 How. St. Tr. 1, p. 146. TABLK OF CASES CITED. xlix Toonev v. State, 8 Tex. App. 452, pp. ;507," so;). Torbock v. Lainy, 5 Jur. 318, p. 333. Ton-v V. Holmes, 10 Conn. Um, p. 5-27. Tower v. Hewett, 11 Johns. 134, p. 5'iu. Towle V. State, 3 Fla. 2G-2, pp. 721, 722. Townley's Case, Foster C. L. 7, p. 282. Townsencl v. Jeffries, 17 Ala. 276, p. 318. Townsenrt v. State, 2 Blackf. L51, p. 714. Traill V. Collins, 2 Pick. 145, p. 527. Trembly v. State, 20 Kan. 116, pp. 67, 78. Tremor v. Central Pac. R. Co., 50 Cal. 222, pp. 270, 309. Trimble V. Stiite, 3 G. Greene, 404, pp. 210, 230. Trinidad v. Simpson (Sup. Ct. Colo.), 22 . Alb. L.J. 409; s. c, 10 Cent. L. J. 149, pp. 176, 178. Trii>p V. Countv Comrs.. 2 Allen, 556, pp. 426, 454, 458, 464, 529, 532. Trohan v. Mcilanus, 2 La. An. 209, p. 547. Troxdnle v. State, 9 Humph. 411, pp. 225, 342. True V. Plumley, 36 Me. 466, p. 394. Trueblood v. State, 1 Tos. App. 650, pp. 304, 339, 343. Ti-ullin, J). 72i. United States v. .Johns, 4 Dall. »12 ; «. c, 1 Wnsh. V. V. 3ir., pp. 141, 14J, l.W. United Stales v. Johnson, 1 Crunch C. C. ;i71, p. •J.'il. United States v. Kelly, 4 Wush. O. C.528, p. 152. United States v. Krousc, 2 Crunch C. 0. 252, p. 142. Uniteil States v. Lambert, 2 Cranch C. C. 1:57, p. 130. United States v. Lawrence, 4 Cranch O. C. 514, p. 700. United Slates v. Lloyd, 4 Cranah C. 0. 4«7, pp. 71'.>, 721. United States v. Lonjiherj, 13 Blatch. 2t>7, pp. W, 91, 104, 284. United States v. Marchant,4 Mason, 158; s. c, 12 Wiieat. 4.SO, pp. 76, 147, 148, 149, 151, 1.53, 28(;. United States v. McIIenry, C Blatch. 503, pp. 210, 251. United States v. McKee,3Cent. L. J. 258, pp. 414, 415, 497. United States v. McLaughlin, 1 Cranch C. C. 444, p. 141. United States v. McMahon, 4 Cranch C. C. 573, pp. 19, 20r,. United States v. McPherson, 1 Cranch C. C. 517, p. 142. United .States v. Morris, 1 Curt. C. C. 23, p. 301. United States v. Mundol,6 CaL 245; s. c, 1 Hutches, 415, pp. 718, 719. United States v. Koelke, w Blatch. 554; ». c, 1 Fed. Hep. 420; 9 Reporter, 605, pp. 200, 202. United States v. Palmer, 2 Cranch C. C. 11, pp. 017, 08'J. United Slates v. Peter, 2 Crunch C. C. '.IH, p. 111. United States v. Pluramer, 3 Cliff. 28, p. 708. United States v. Porter, 2 Dall. 345, pp. 310, 740. United States v. Randall, 1 Deady, 524, p. 142. United States v. Randall, 2 Cranch C. C. 412, p. 300. United States v. Rawlins, 1 Cranch C. C. 8:5, p. 720. United States v. Reed, 2 Bhitfh. 4:?5, pp. 07, 1.50, 572, 590. 59ri, 017, 682, G83, 680, 092, 695, 739, 744, 745, 740. United States v. Reeves, 3 Woods, 201, lip. 008, 635, 636. United States v. Reid 12 How. (U. S.) 301 ; s. c, 3 HuKhes,.509, p. 415. United States v. Reynolds, 1 Utah, 319, p. 220. United States v. Rose, 6 Fed. Rep. 136, p. 94. United States v. Sandlord, 1 Cranch C. C.323, pp. 718, 721,722. United States v. Shackleford, 18 How. 38S; pp. 141,148, 150,722. United States v. Sharp, 1 Peters C. C. 118, 151. United States v. Shive, Baldwin, 510, p. 142. United States v. Singleton, 1 Cranch C. C. 237. p. 722. United States v. Smith, 1 Sawyer, 277, pp. .303, 343. United States v. Smithers, 2 Cranch C. C. 38, p. 142. United States v. Summers, 4 Cranch C. C. 334, p. 142. United States v. Tallman, 10 Blatch. 21, pp. 49, 1.56, 496. United States v. Toms, 1 Cranch C. C. 607, p. 142. United States v. Tompkins, 2 Crancli 0. C. 46, p. 070. United States v. Upham, 2 Mont. 170, p. 343. United States v. Ware, 2 Cranch C. C. 477, p. 207. United States v. Watkins,3 Crunch C. C. 578, pj). 80, 1D5, 213, 270, 279. United States v. Watkins, 3 Cranch C. C. 443, i)p. 249, 2.52, 282, 283. United States v. White, 2 Wash. C. C.29, p. 690. United States v White, 5 Cranch C. C. 73, p. 142. United States v. White, 5 Cranch C. O. 457, pp. .5.89, 007, 638. United States v. Williams, 1 Dill. 485, PI). 572, 589, .590, 008, 046. United States v. \Vilsoii, Baldwin, 78, pp. 147, 152, 194, 208, 214, 228, 236, 330. United States v. Wilson, 6 McLean, 604, pp. 30, 48, 49. United States v. Wood, 2 Cranch C. C. 104, p. 142. United States v. Woodruff, 4 McLean, 105, pp. 49, 51. Urquhart v. Powell, 59 Ga. 721, p. 338. V. Vaden v. Ellis, 18 Ark. 3.55, p. 318. Vanauken v. Beemer, 4 N. J. L. 364. p. 110. Van Blaricum V. State, 16 111. 364, pp. 275, 299. Van Buskirk v. Daugherty, 44 Iowa, 42, p. 458. Vance v. Com., 2 Va. Cas. 162, p. 11.5. Vance v. Ilaslett, 9 Bibb, 191, pp. 338, 340. Vanderwerker v. People, 5 Wend. 530, p. 79. Van Doren v. Walker, 2 Caines, 373, p. 379. Vanhook v. State, 12 Tex. 252, pp. 603, 035. Van Hook, E.V parte, 3 X. Y. City Hall Rec. 64, p. 053. Vanmetcr v. Kitzmiller, 5 W. Va. 381, p. 418. Vannoy v. Givens, 23 N. .J. L. 201, p. 181. Van Vacter v. McKillip, 7 Blackf. 578, p. 210. Van Vechten v. Hopkins, 2 Johns. 373, p. 17. Van Wyckv. Mcintosh, 14 N. Y. 439, p.. 474. Vasie v. Delaval, 1 T. R. 11, pp. 509, 513, 543. Vater v. Lewis, 36 Ind. 288, p. 390. Vattier v. State, 4 Blackf. 73, pp. 589, 603, 615. Vaughn V. Dotson,2 Swan, 348, pp. 406, 450, 458, 525. Vaughn V. Scade,30 Mo. 600, p. 10. Vaughn v. State, 4 AIo. 530, pp. 729, 730, 733. Veal V. Brown, 2 N. J. L. 72, p. 70. Veatch V. State, 56 Ind. 584, pp. 619, 645. Vennum v. Ilarwood, 6 111. 059, pi). 341, 342. Verinilvca, Ex parte, Cow. 555, pp. 211, 225,'229, 2.8, 25', 207. Vernon v. Manners, i Dj'er, 319 a. pi. (13), p. 110. Vest V. Cooper, 68 X. C. 131, p. 530. Vczain v. People, 40 III. 397, pp. 314, 722. Vicars v. Langham, Hob. 235, pp. 267, 282, 315. Vicarv v. Farthing, M. 1695, Cro. Eliz. 411, pp. 408,409, 49.J. Vidal V. Tliomp.son, 11 Mart. 23, p. 323. Vinton v. Peck, 14 Mich. 287, p. 474. Virginia v. Rives, 100 U. S. 313, pp. 27, 29. Virginia, Sx parte, 100 U. S. 339, p. 28. TABLE OF CASES CITED. li Voris V. Smith, 13 Serg. & R. 334, p. 476. Vy-vj'an v. V'yvyan, 30 Beav. 65, p. 344. W. Wade V. State, 12 Gu. 25, p. 338. Wad-lell V. Magee, 53 Miss. 687, p. 327. Waddell's Pase, 8 Jur. (X. S.) Pr. II, 181; s. c, Allen Tel. Cas. 496, u., p. 675. "Wadlin's Ca.se, 11 Mass. 142, pp. 644, 656. Waggett V. Sliaw, 3 Camp. 315, p. 15. Wait V. Maxwell, 5 Pick. 217, p. 527. Wakefield v. State, 41 Tex. 556, pp. 353, 365, 520. Wakeinan v. Sprague, 7 Cow. 720, p. 125. Walker v. Boston etc. 11. Co., 3 Cash. 1, p. 323. Walker v. Collier, ,37 111. 362, pp. 291, 319. Walker v. Green, 3 Me. 215, pp. 340,341. Walker v. Hunter, 17 Ga. 364, pp. 452, 453, 455, 485, 525. Walker v. Kennison, 34 X. II. 257, pp. 2S8, 297, 340. Walker v. State, 49 Ala. 369, p. .^28. Walker v. State, 37 Tex. 366, p. 413. Walker v. State, 6 Tex. App. 576, pp. 98, 09. Walker v. AValker, 11 Ga. 206, pp. 406, 452, 453, 525. Wall V. State, 23 Ind. 150, pp. 708, 736. Wallace v. Columbia, 48 Me. 436, pp. 90, 346. Wallace v. State, 2 Lea, 29, p. 619. Waller v. State, 40 Ala. 325, pp. 208, 209, 277, 300. Walsh V. Sun Mutual Ins. Co., 2 Robt. 646, p. 16. Walston V. Com., 10 B. Mon. 15, p. 157. Walter v. Junkins, 6 S. 4 R. 415, p. 391. Walter V. People, 32 X. Y. 147; s. c, 6 Park. Cr. R. 15; 18 Abb. I'r. 147, pp. 157, 205, 208. Walton V. Augusta Canal Co., 54 Ga. 245, p. 338. Waltz V. Robertson, 7 Blackf. 499, pp. 471, 484. 487. Wankonchawneekkavv v. United States Morris, 332, pp. 231, 714. Ward V. State, 8 Blackf. 101, p. 542. AVard v. State, 48 Ind. 289, pp. 608, 622. Ward V. People, 30 Mich. 116, p. 10. Ward V. State, 2 Mo. 120, pp. 671, 699. Ward V. State, 1 Humph. 254, pp. 2 53, 30!. Warden v. Warden, 22 Vt. 563, pp. 480, 501,502. Ware v. Ware, 8 Me. 42, pp. 275, 283. Wareham v. State, 25 Ohio St. 601, p. 328. Warnel- v. X. \. etc. R. Co.. 52 X. Y. 437, p. 393. Warner v. Robinson, 1 Root, 194, pp. 509, 517, 518. Warren v. Com., 37 Pa. St. 45, pp. 21, 148, 157. Warr«-n v. State, 1 G. Greene, 106, p. S28. Warren v. State, 9 Tex. xVpp. 619, pp. 366, 510. Wash V. Com., 16 Gratt. 530, p. 71. Washburn v. People, 10 Mich. 372, p. 664. Washington v. State, 60 Ala. 10, p. 32S. Washington v. State, 8 Tex. App. 377, p. 102. Wassels v. State, 26 Ind. 30, p. 709. Wasson v. State, 3 Tex. App. 474, pp. 289, 295. Wassum V. Feeney, 121 Mass. 93, pp. 339, 346. Waterford etc. Tp. Co. v. People, 9 Barb. 161, p. 148. Waters v. State, 51 Md. 430; s. c, 8 Re- porter, 560, pp. 216, 229. Watertown Bank v. MLs, 51 X. Y. 558, pp. 420,421,427,428. Watkius V. State, 60 Ga. 601, p. 301. VVatkins v. Weaver, 10 Johns. 107, pp. 111,303. Watson V. Walker, 23 N. H. 473, pp. 474, 499. Watson V. Walker, 33 N. H. 131, p. 288. Watson V. Whitney, 23 Cal. 375, p. 255. Watson V. State, 6.3 Ind. 548, pp. 275, 299. Watson V. Tripp, 11 R. I. 98; s. c, 15 Am. L. Reg. 282, p. 185. Watts V. Ruth, 30 Ohio St. 32, pp. 3.39, 342. Watts V. Territory, 1 Wash. T. (X. S.) 409, pp. 581, 742. Way V. Arnold, 18 Ga. 181, p. 484. Way V. Butterworth, 106 Mass. 75, p. 745. Weaver v. Devendorf, 3 Den. 117, p. 749. Webb V. State, 29 Ohio St. 351, p. 126. Webb V. State, 5 Tex. App. 596, p. 458. Webber v. Merrill, 34 X. H. 202, p. 394. Webster's Case, 5 Me. 32, pp. 702, 713. Wedderburn's Case, Post. Cr. L. 23, p. 302. Weeks v. Medler, 20 Kan. 57, p. 195. \Veeks v. State, 31 Miss. 490, pp. 627, 628, 629, 632. Weinzorpflin v. State, 7 Blackf. 186, pp. 729, 731. Weill V. Lucerne M. Co., 11 Xev. 200, p. 233. Weiss V. State, 22 Ohio St. 486, p. 365. Welch V. Welch, 9 Rich. L. 133, p. 388. Wellborn v. Spears, 32 Miss. 139, p. 317. Wells V. Cooper, 30 L. T. X. S. 721, p. 335. Wells V. Stale, 11 Xeb. 409. p. 542. Wenrick v. Hall, 11 Serg. & R. 153, p. 292. Wentworth v. Farniington, 51 X. H. 128, p. 323. Wesley v. State, 61 Ala. 282, p. 71. Wesley v. State, 11 Humph. 502, p. 394. West V. State, 7 Tex. App. 150, p. 289. West V. State, 8 Tex. App. 119, p. 2;;0. W^estmorland v. State, 45 Ga. 225, pp, 370, 3s0, 407, 458, 538. Wharton's Case, Yelverton, 24, p. 282. Whelan v. Reg., 28 Up. Can. (t^. B.) 2, pp. 285, 308, 309, U8. Wheeler v. State, 42 Ga. 30S, p. 60. White V. Bisbing, 1 Yeates, 400, p. 477. White V. Com., 6 Binn. 179, pp. 3, 69, 628. White v. Com., 29 Gratt. 824, pp. 714, 725. White V. Martin. 3 111. 69. p. 391. WMiite V. Moses, 11 Cal. 68, p. 223, White v. State, 52 Miss. 216, pp. 24, 208, 219, 275. 277. White V. State, 13 Ohio St. 569, p. 718. White V. State, 16 Tex. 206, pp. 69, 208. White V. W'hite, 5 Ravvle, 61, p. 540. WMiitehead v. (Jom., 19 Gratt 640, p. 734. WHiitehead v. Keys, 3 Allen, 495, p. 478. Whitehead v. Sta"te, 29 Ark. 99, p. 339. Whitehead v. State, 10 Ohio St. 449, p. 13. Whitehead v. Wells, 29 Ark. 99, p. 22. Whitehurst v. Davis, 2 Hay. (X. C.) 113, p. 5. Whitlevv. State, .38 Ga. 50, p. 279. Whitner v. Hamlin, 12 Fla. 18, pp. 195, 343. Whitney v. State, 8 Mo. 165, pp. 354, 363. Whitney y. Whitman, 5 Mass. 405, pp. 485, 498. Wickersham y. People, 2 III. 128, pp. 339, 343. Widder y. Buffalo etc. R. Co., 24 Up. Can. (t^. B.) 534, p. 305. Wiggin V. Plumer, 31 X. H. 251, p. 343. Wiggins y. State, 1 Lea, (Tenn.) 738, p. 153. Wilburn v. State, 21 Ark. 198. pp. 603, 608. Wilcox y. School District, 26 X. H. 303, pp. 71, 323. Wilder v. State, 25 Ohio St. 555, pp. 340, 342. WMlds y. Bogan, 57 Ind. 463, pp. 488, 49G • lii TABLE OF CASES CITED. Wiley V. Keokuk. C. Kiin. 95, pp. 308, 300. W'ili'V V. State, 1 Swan, -IM. p. .i\>i. "WilhVhn v. People. 7-J 111. 4(18, pi). .Ml, ]20. Willev V. Hellast. ill Me. ."ir.O, pp. ."ill, 51.'). WilleV V. State. 4t) Iiul. ;{li;!, i)i>. 705, 7'2y. ■Willev V. State, .VJ liul. 2tG, p. 582. Willi.iius V. Com.,'Jl Tu. St. 493, pp. 78, 88. Williams v. Gfeat W. U. Co., 8 Hurl. * N. 8C.it; s. c.,-.'S L. J. (lixch.) '->, pp. 339, 343. Will anis v. Godfrev. 1 lleisk. '.'99, p. 260. WlUiiiiiis V. Miller, 10 Iowa. 344, p. 3--'0. Williams v. Norris. -J Litt. 157, i). 3IS. Williauis V. l*oppleton, 3 Orey. 139, p. 303. Williams v. Smith, G Cow. 106, p. 187. Williams v. State, Ga. 391, pp. 623, 735. Williams v. State, 60 Ga. 367, p. 256. Williauis V. State, 45 Ind. 299, pp. 193, 352, 368. Williams v. State, 32 Miss. 380, pp. 208, 299, 301. Williams v. State, 37 Miss. 407, p. 339. AVilliams v. State, 9 Mo. 270, p. 721. Williams v. Stale, 12 Ohio St. 622, p. 7. Williams v. State, 3 lleisk. 376, p. 730. Williams v. State, ,30 Tex. 404, p. 729. AVilliams v. State, 44 Tex. 34, pp. 27, 109, I7(!, 265. Williamson v. Ileddish, 45 Iowa, 550, pp. 4.")S, 464. Williamson v. State, 16 Ala. 431, p. 721. Willint^ V. Swazev, 1 Browne (Pa.), 123, pp. 389, 408, 540. Willis V. State, 9 Tex. App. 297, p. 196. Willis V. State, 69 Ind. 286, pp. 174, 634. Willis V. State, 12 Ga. 444, pp. 199, 200, 20.5. Willis V. State, 2 Head, 157, p. 736. Wilson V. Ahrahams, 1 Hill (N. Y.), 207, pp. 451,458,459. Wilson V. Berryman, 5 Cal. 44, pp. 510, 514, 515. Wilson V. Butler, 2 Moo. & llob. 78, p. 14. Wilson V. I'eople, 94 111. 299, pp. 247, 308. Wilson V. l'eo])le, 4 Park. Cr. K. 61, pp. 431, 493. Wilson V. State, 31 Ala. 371, p. 297. Wilson V. State, 94 111. 299, p. 228. Wilson V. State, 1 Blackf. 428. p. 584. Wilson V. State, 6 Baxt. (Tenn.;, 206, p. 453. Wilson V. State. 3 Tex. App. 63, p. 200. Wilson V. State, .32 Tex. 112, p. 5S.\ Wilson V. State, 35 Tex. 365, p. 22. Wilson V. State Bank, 3 La. An. 196, p. 127. Windham v. Williams, 27 Miss. 313, p. 329. Winnesheik Ins. Co. v. Schueller, 60 111. 473, pp. 199, 102. 269. Winsett v. State, 57 Ind. 26, p. 79. Winslow V. Campbell, 46 Vt. 746, pp. 481, 485. Winslow V. Draper, 8 Piek. 170, p. 391. Winslow V. Morrill, 68 Me. 362, p. .520. Wirebach v. First Nat. Bank, 12 Re- porter, 571. Wischover v. German Mut. Fire Ins. Co., 71 111. 65, p. 2.53. Wise V. Bosley, 32 Iowa, 34, pp. 433, 442, 443. Withers V. Buckley, 20 How. 84. p. 661. Withers V. Fiseus, 40 Ind. 131, p. .542. Wlthipole's Case, Cro.Car. 134, p. 618. Wolfe V. Martin 1 How. (Miss.) 30, pp. 5, 327. Wood V. State, 34 Ark. 341, i)p. 3S], 45S. Wood V. Stewart, 7 Vt. 149, p. 480. Wood V. Stoddard, 2 Johns. 194. ^^. ia5. Wood V. Thomjison, 1 Car. & M. 9S, j). 82. Wood V. Thompson, 1 Cai. & M. 171, pp. 5, 82. Wood V. Wood, .52 N. 11.422, p. 181. Woodartl v. State, 9 Tex. App.412,p. 300. Woodbridge v. Baymond, Kirby, 279, pp. 189,338. Woodruff V. Uiehardson, 20 Conn. 238, l)p. 303. .528. Wot)d8 V. Uowan, 5 Johns. 133, p. 111. Woods V. State, 43 Mt.ss. 364, pp. 369, 380, 537. Woodsidcs V. State, 2 How. (Miss.) 655, P)). 102,116,731,733. Woodward v. Dean, 113 Mass. 297, p. 340. Woodward v. Leavitt, 107 Mass. 453, p. 346. Woolsev V. White, 7 Bradw. 277, p. 417. Worford v. Isbell, 1 Bibb, 247, p. .027. Work V. State, 2 Ohio St. 296, pp. 6. 10. Wormeley's Case, 10 Gratt. 658, pp. 223, 300. iVortham v. Com., 5 Rand. 669, pp. 718, 719.720, 721. Wrav V. Thorn, Wnies, 488, pp. 330, 331. Wright V. Burchfield, 3 Ohio, 54, p. 3.55. Wriglit V. Columbian Ins. Co., 2 Johns. 211, p. 16. Wright V. Clark, 50 Vt. 130. p. 494. Wright V. Com., 32 Gratt. 941, pp. 209, 218, 223. Wright V. Illinois, etc. Tel. Co., 20 Iowa, 195, pp. 510, 518, .540, 555. Wright V. Rogers, Pen. (N. J.) 546, pp. 487, 495. Wright V. State, 18 Ga. 383, p. 222. Wright V. State, 4 Himiph. 194. p. 216. Wright V. Stuart, 5 Blackf. 120, p. 79. Wroeklege v. State, 1 Iowa, 167, pp. 328, 705, 734. W^yatt V. Noble, 8 Blackf. .507, p. 296. Wyatt V. State, 1 Blackf. 257, p. 3.52. Wynehamer v. People, 13 N. Y. 378, p. 6. WS'Sor V. Com., 6 Gratt. 711, p. 634. Yancv V. Dow-ner, 5 Littcll, 8, p. 444. Yaney v. State, 63 Ala. 141, p. 578. Yaner v. People, 34 Mich. 286, p. 664. Yanez v. State, 6 Tex. App. 429. pp. 179, 339,341,342. Yates V. People, 38 HI. .527, pp. 519,730, 732. Yelin Jim v. Territory, 1 Wash. Ter. 76, pp. 91, 620. Young V. Marine Ins. Co.,1 Cranch C. C. 452, ])p. 182, 226. Young V. Slaughterford, 11 Mod. 228, p. 169. Young V. State, 2 How. (Miss.) 865, p. .584. Young V. State, 6 Ohio St. 435, pp.730, 731. Young V. State, 23 Ohio St. 577, pp. 276, 730. Zaehery v. State, 7 Baxt. 1, p. 647. Zeely v. Yansen, 2 Johns. 386. p. 87. Zickefoose v. Kuykendall, 12 W. V^a. 3»^ pp. 338,343. Zuber v. Geigar, 2 Yentes, 522, p. 510. . PART I. OF TRIAL JURIES. • TITLE L OF THE ORGANIZATION OF TRIAL JURIES. CHAPTER I. OF THE CONSTITUTION AND KINDS OF TRIAL JURIES. Article I. — The Ventje. SECTION. 1. Earl J' History — Jury of the Vicinage — Cliallenge for Want of Huiidredors. 2. Constitutional Provisions. 3. The Modern Jury of the Vicinage. Article II. — The Petit Jury. 4. Scope of the Discussion. 5. Must consist of Twelve Men. G. And this must appear by the Record. 7. And cannot be waived in Cases of Felony. S. Otherwise in Civil Cases. 9. How in Cases of Misdemeanor. 10. Power of Legislature to authorize a Jury of less than Twelve. 11. What if more than Twelve are impanelled. Article HI. — The Special Jury. 12. Origin of. 13. Under the Englisli Practice. (1) 2 CONSTITUTION AND KINDS OB^ TRIAL JIIJIES. [CH. I. (1.) When and how sinnnionc'd. (2.) The Jury struck must try the lisue — Abuses under this KuU'. (3.) Di.'fiiult of Special Jurors. (4.) Costs of. 14. Under American Statutes. (1.) Under what Circumstaaces granted. (2.) How struck. (3.) Jurors having special Qualifications. (4.) Costs of. Article IV. — The Jury de medietate Linguae. 16. Origin and History of. 17. Generally abolished by Statute. Article I. — The Venue. § 1. Early History — Jury of the Vicinage — Challenge for Want of Hundredors. § 2. Constitutional Provisions. § 3. The Modern Jury of the Vicinage. § 1 . Early Histoi*y — Jury of the Vicinage — Clial- leiige for Want of Hundredors. — In the early history of the common law it was regarded as highly essen- tial that the jury should be taken from the immediate locality where the cause of action or offense occurred. To use the expression of the common law, the jury must be of the vi.'oie or neighliorhood, it l)cing supposed that the neighl)ors, by reason of their superior knowledge of the matter in controversy, were better qualified to do justice in the premises than strangers.^ Out of this circumstance grew the right of challenge for want of hundredors, z. e., because a certain numl)er of the jurors were not of the hundred wherein the cause of action arose or the offense was committed.^ This right of cliallenge existed until a comparatively recent date, but gradually fell into disuse, J 2 Beeves' Hist, of Eng. Law, 3, 271. 2 1 Chit. C. L. 177, 501. § 2.] CONSTITUTIONAL PROVISIONS. 3 and was finally abolished by the English consolidated jury act,^ which at the same time enacted that the jurors should be taken from the body of the county. Upon the abolition of the function of jurors as witnesses, the contrary view naturally gained ground. What is now - sought is that the juror may approach the matter in con- troversy with a mind untrammelled by association with 7 parties in interest, and unbiased by preconceived opinions J as to the course justice ought to take. In this circum- stance is found an argument against taking jurors from the immediate vicinity where a controversy has arisen or a crime has been committed. Those are less likely to be im- partial jurors who come from the immediate neighborhood of the parties, and have been either eye-witnesses to the facts, or have had their minds imbued with the popular feeling as to the merits of the controversy.^ So completely are we divorced from the common law view as to the necessity of a jury of the visne, that it is re- garded as erroneous for the court to direct the sheriff to summon jurors upon a special venire in a capital case, " re- siding as near as may be to the place where the murder was committed." ^ A late statute of Virginia requires the summoning in capital cases of jurors " residing remote from the place Avhere the offense is charged to have been committed." * § 2. Constitutional Provisions. — The Constitution of the United States provides that " in all criminal prose- cutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of "the State and district wherein the crime shall have been committed." ^ A sim- 1 6 Geo. IV, c. 50, § 13. - Schmidt v. ISTew York, etc. Ins. Co., 1 Gray, 529. 3 Shaffer v. State, 1 How. (Miss.) 238. See also Hartshorne v. Patton, 2 Dall. 252; White v. Com., 6 Binn. 179. ^Poindexter v. Com., 33 Gratt. 766; Bacigahipo v. Com., 33 Gratt. 807, construing Acts of Assembly 1877-78, p. 310, § 4. ^ Const. U. S., Amend. Art. VI. This provision applies to civil as w ell as criminal cases. Com. v. Flanagan, 7 Watts & S. 415, 422, per Rogers, J. 4 COXSTITUTIOX AND KINDS OF TRIAL .TL'KIES. [CH. I. ihir pl•()^•isi()n is fouiul in the constitution of each State. The liL^ht thus nuaninteed lius, from the earliest times, l)een leuaided as " one of the irreatest securities of life, liberty and property of the citizen"^ Some of the early constitutions, and indeed a few which are in force at the present time, simply declare the common law in this respect, namehs that the accused shall ])e entitled to a jury " of the vicinage ; '' ^ hut usually provision is made for " an impar- tial jury of the county or district in which the crime shall have been committed." ^ § 3. The Modern Jury <»f the Vicinage. — In some States, if competent jurors cannot be conveniently found in the county in which the trial is to be had, they may be summoned from any other county by order of the court.* But the legislature, unless expressly authorized by the organic law, has no power to direct the summoning of a jury otherwise than from the vicinage. This is a substan- tial and beneficial incident, essential to the enjoyment of the right of trial by jury.^ 1 Const. Mass. 1780, Part I, Art. 13; Const. Md. 1776, Part I, § XXVIII; Const. N. II. 1792, Part I, Art. 17. 2 Const. Mich. 1835, Art. I, § 10; Const. Ky. 1850, Art. XIII, § 12; Const. Me. 1820, Art. I, § 6; Const. Va. 1870, Art. I, § 10; Const. Penn. 1873, Art. I, § 9. 3 Const. Ark. 1874, Art. IL § 10; Const. Ala. 1875. Art. I, § 7; Const- Colo. 187G, Art. II, § 16; Const. Ga. 1868, Art. V, § 12; Const. Fla.1865, Art. I, § 10; Const. 111. 1870. Art. II, § 9: Const. Ind. 1816, Art. I, § 13; Const. Kan. 1859, Bill of RIanic laws, tiic term is understood to have reference to the jury as constituted at common law, unless the contrary plainly appears. Such is the construction uniformly put upon that provision common in the constitutions of the several States, that " the right of trial by jury shall remain invio- late." ^ § G. And this must appear by the Record. — There- fore, where the record shows that the cause was tried by a jury of less than twelve men, the trial will be held to be a nullity ; the judgment will be reversed and the cause re- manded for a new trial. '^ § 7. And cannot he waived in Cases of Felonj. — There would seem to be little doubt that upon the trial 1 Cancemi v. People, 18 N. Y. 128, 135; May v. Wilwaiikee, etc. R. Co., 3 Wis. 219; State v. Cox, S Ark. 436; Work v. State, 2 Ohio St. 296; Brazier v. State, 44 Ala. 387. 392; Turns v. Com., 6 Mete. 224, 235; Lamb V. Lane, 4 Ohio St. 167; People v. Kennedy, 2 Park. Cr. R. 312; Byrd V. State, 1 How. (Miss.) 163, 177; Carpenter v. State, 4 How. (Miss.) 163,166; Redus v. AVofford, 4 Smed. & M. 579, 592; State v. McClear. 11 Nev. 39; Smith v. Atlantic, etc. R. Co., 25 Ohio St. 91, 102; Gibson V. State, 16 Fla. 291, 300; Wynehamer v. People, 13 Jf. Y. 378, 427; Crug-er v. Hudson, etc. R. Co., 12 N. Y. 190, 198; People v. Lane, 6 Abb. Pr. (N. S.) 105, 115. 2 Cancemi v. People, 18 N. Y. 128; s. c, 7 Abl). Pr. 271; Brown v. State, 8 Blackf. 561; Jackson v. State, 6 Blackf. 461; Madnska v. Thomas, 6 Kan. 153; Brown v. State, 16 Ind.496; Allen v. State, 54 Ind. 461; Hill V. People, 16 Mich. 351; Com. v. Shaw, 7 Am. Law Reg. 289; Dixon V. Richards, 2 How. (Miss.) 771; Ayres v. Barr, 5 J. J. Marsli. 286; Oldham v. Hill, 5 J^ J. Marsh. 300; Bone v. McGinley, 7 How. (Miss.) 671 ; Briant v. Russell, 2 X. J. L. 107; Denman v. Baldwin, 3 X. J. L. 945; State v. Van Matre, 49 Mo. 208; State v. Meyers, 68 Mo. 266. However, where the record states that ''a jury of twelve good and lawful men came,'' etc., but contains the names of eleven jurors only, an api)el- late court will presume that the name of one juror was omitted by mistake. Where] the record is contradictory, the legal presumption is that tliat portion is true which answers the requirements of the law, unless the contrary be made to appear bj* exception. Larillian v. Lane, 8 Ark. 372. In Foote v. Lawrence, 1 Stew. (Ala.) 483, the record showed the names of eleven jurors only, but as it elsewhere stated that the issue was tried by ''a jury of good and lawful men." the court presumed there were twelve jurors, the parties being in court, and no objection being made at the trial. § 8.] MUST COXSIST OF TWELVE MEN 7 of an indictment for a capital crime or felony, the require- ment of the law is imperative, that the jury shall consist of twelve persons.^ "The law in its wisdom has declared what shall be a leixal jury in the trial of criminal cases ; that it shall be composed of twelve ; and a defendant when he is upon trial cannot be permitted to change the law, and substitute another and different tribunal to pass upon his guilt or innocence. The law as to criminal trials should be based upon fixed standards, and should be clear, definite, uniform and absolute." ^ In a leading case,^ the deficiency in the panel was caused by the withdrawal of a juror at the express request of the prisoner who joined in a written stipulation " that the ver- dict in this cause be rendered by and taken from the remain- ing eleven jurors, and that the twelve names, now appearing of record as the jury in this cause, may remain, so that by record this cause shall appear to have been tried by twelve jurors." The prisoner was nevertheless entitled to a new trial. The reason for this rule is that the State has an inter- est in the preservation of the liberties and lives of its citizens, and will not allow them to be taken away Avithout due process of law.* Or, as stated by the Supreme Court of Michigan, the doctrine of waiver rests upon assent ; in other words, Avhen reduced to final analysis, upon contract ; a criminal proceeding is wholly in invitum and is not to be controlled in this manner,^ § 8. Otherwise in Civil Cases. — In civil cases a dis tinction has been taken. The constitutions of many of the States expressly provide that in such cases the parties may waive a trial by jury, or consent to a trial by a jury of less 1 Cancemi v. People, 18 N. Y. 128; State v. Mansfield, 41 Mo. 470; Brl V. State, 44 Ala. 393; Williams v. State, 12 Ohio St. 622; Allen v. State, 04 Ind. 461; Hill v. People, 16 Mich. 351. Bnt see State v. Kaufman, 51 Iowa 578; s. c, 9 Cent. L. J. 313. 2 41 Mo. 478, per Wagner, .J. 3 Cancemi v. People, supra. * 18 N. Y, 137. 5 Hill V. People, 16 Mich. 351. 8 CONSTITITION AND KINDS OF TRIAL JURIES. [CII. t. thjin twelve' But in the absence of such provisions, it is not clear that a waiver hy the litigant parties of a full jury would not be l)inding. As stated by the Court of Appeals of New York in a case before noticed: "Civil suits re- late to and affect, as to parties against whom they are brought, only individual rights which are within their indi- vidual control, and which they ma}-^ part with at their pleas- ure. The design of such suits is the enforcement of merely private obligations and duties. Any departure from legal rules in the conduct of such suits, with the con- sent of the defendants, is therefore a voluntary relinquish- ment of what belongs to the defendants exclusively." "^ In an Indiana case, although the Constitution provided that <' in all civil cases the right of trial by jury shall remain in- violate,"^ the court held that a party in a civil suit might con- sent to a verdict by a jury of less than twelve men.* § D. How in Cases of Misdemeanor. — This privilege of waiving a full jury has been extended to cases of mis- demeanor also.^ Chief Justice IShaw pointed out that even in the administration of criminal justice many legal provisions are made for the security and benefit of the ' Cal. Const., 1879, Art. 1, § 7; Colo. Const., 1876, Art. 2, § 23; Fla. Const., 1868, Art. 1, § 4; 111. Const., 1870, Art. 2, § 5; Md. Const., 1867, Art. 4, § 8. Amend, of 1875; Midi. Const., 1850, Art. 6, § 27; Minn. Const., 1857, Art. 1, § 4; Mo. Const., 1875, Art. 2, § 28; Xev. Const., 1864, Art. 1, § 3; X. J. Const., 1844, Art. 1, § 7; X. Y. Const., 1846, Art. 1, § 2; Penn. Const., 1873, Art. 5, § 27; Tex. Const., 1876. Art. 1. § 15; West Va. Const., 1872, Art. 3, § 13; Wis. Const., 1848, Art. 1, § 5. In California, three fonrths of the jury in civil actions may render a verdict. Cal. Const., 1879, Art. 1, § 7; see also Tex. Const., 1876, Art. 5 ,§ 13. 2 Cancerai v. People, 18 X. Y. 128, 136. See also Murphy v. Com., 1 Mete. (Ky.) 365, 366; State v. Mansfield, 41 Mo. 470, 476; Gillespie v. Benson, 18 Cal. 409; Cravens v. Gant, 2 T. B. Mon. US; Marlin v. Stockbridgo, 14 Tex. 165. But contra sec Lindsay v. McWilliam, 3 Craw. & Dix, Irish Cir. 27; Mitten, v. Smock, 3 N. J. L. 911. 3 Ind. Const., 1851, Art. 1, § 20. * Durham v. Hudson, 4 Ind. 501. ° The last constitution of California provides that --a trial hy jury may be waived in all criminal cases, not amounting to felony, by the consent of both parties expressed in open court." Cal. Const.. 1879. Art. 1, § 7. § 9.] MUST CONSIST OF TWELVE MEN. 9 accused, which it may be for his interest to waive ; for ex- ample, he may waive a trial altogether and plead guilty ; he jnay consent to the admission of testimony not strictly competent, in the hope that he may derive benefit therefrom. A speedy trial may be important to the preservation of his testimony, and, aided by competent counsel, it is proper to presume that he is the best judge of what will be for his advantage. Therefore having consented to a trial by less than the legal number, it is inconsistent Avith good faith that he should raise objections on this account.^ In the same case this learned judge thus met the argument which is sometimes made, that if the accused were permitted to consent to a trial by eleven jurors, so he might to any num- ber however small : "It appears to us," said he, " that it is a good answer to say that no departure from established forms of trial in criminal cases can take place without per- mission of the judge, and no discreet judge would permit any such extravagant or wide departure from these salutary forms as the question supposes, nor any departure, unless upon some unforeseen or urgent exigency."^ Perhaps the reasoning of the Massachusetts court goes a little too far ; for what is there said would be as applicable in a case of felony, as in a case of misdemeanor.^ The Supreme Court of Kentucky reached the conclusion that in prosecutions for misdemeanors, where the penalty imposed is merely a fine, an agreement by the defendant to be tried by a jury of less than twelve men is not inconsistent with any rule of law or public policy.'* The reason for this 1 Com. V. Dailey, 12 Cush. 80. To the same effect see State v. Borow- sky, 11 Xev. 119; State v. Cox, 8 Ark. 436, 447; Sarah v. State, 28 Ga. 576; State V. Van Matre, 49 Mo. 268. 2 Ibid. p. 83. ''^ The Supreme Court of Iowa has lately rendered a decision which probably stands alone, to the effect that in the trial of an indictment for felony even, the defendant may consent to go to trial with eleven jurors only. The court rely upon the reasoning in Com. v. Dailey, supra. See State v. Kaufman, 51 Iowa, 578; s. c, 9 Cent. L. J. 313. ^ Murphy v. Com., 1 Mete. (Ky.) 365, 367. So held by the Supreme Court of Missouri. State v. Mansfield, 41 Mo. 470. 10 COXSTITl'TIOX AND KINDS OF TRIAL JL'KIES. [cii. 1. ruling: is obvious. A iiiie concerns only one's estate. In the trial of a niisdenicanor thus i)unished, nothing more is involved in the issue than is fre<|uently involved in civil cases, as to which no good reason a})pears why the inter- ested parties may not waive a jury of the legal number. A later case, however, seems to disregard the distinction here taken, and to hold that agreements of the kind under discussion are good in the trial of misdemeanors geiierally.' § 10. PoAvcr <>f IjcgislatiiiM' to luitliorizc Jury of loss than TavcIv*'. — The legislature has no power, in the ab- sence of constitutional authorization, to pass an act fixing the number of the jury at less than twelve in cases, civil or criminal, tried in certain inferior courts of record. Such legislation is obnoxious to the familiar constitutional pro- vision preserving the right of trial by jury inviolate.-' But whenever facts are to be found in any proceeding in which a jury was not required by the common law, a jury of any number may be authorized, within the discretion of the legislature. Thus, justices' courts, not being courts of record, are not Avithin the constitutional provision just noticed. Juries did not form a part of the machinery of such tribunals at common law ; and so long as an appeal is provided for to the common law courts from their determi- nations, no constitutional objection can arise, whether the facts are found by the justice or by the aid of a jury of any number of men.^ And in courts Avhich exercised their 1 Tyra v. Coin., 2 Mete. (Ky.) 1. iiNorval v. Rice, 2 Wis. 23; May v. Milwaukee, etc. E. Co., 3 Wis. 219; Work v. State, 2 Ohio St. 296; Vaughn v. Scade, 30 Mo. 600; Fos- ter v. Kirby, 31 Mo. 496; Allen v. State, 51 Ga. 264; Henniug v. Hanni- bal, etc. R. Co.. 35 Mo. 408. See also (he opinion of the justices of the Supreme .Judicial Court of New Hampshire, upon questions jiroposed by the House of Representatives, June. 15. 1880, 41 N. H. 5.50. sEmerick v. Harris. 1 Binn. 416; Work v. State, 2 Ohio St. 206; Vaughn v. Scade, 30 Mo. 000. 604; Bryan v. State. 4 Iowa. 349; State v. Beneke, 9 Iowa, 203; Norton v. McLeary, 8 Ohio St. 205; Dawson v. Iloran, 51 Barb. 549; Knight v. Campbell. 02 Barb. 16 (overruling Bax- ter v. Putney, 37 How. Tr. 140) ; People v. Lane, 6 Abb. Pr. (xV. s.) 105; Ward V. People, 30 Mich. 116; State v. Gutierrez. 15 La. An. 190. The statutes generally provide that a justice's jury shall consist of six men, unless the parties agree upon a less number. § 12.] MUST CONSIST OF TWEL\ E MEN. 11 functions without the aid of a jury, prior to the adoption of a constitution providing that trial by jury shall remain " as heretofore," a conviction by a jury of less than twelve men will be legal. ^ The constitutions of many of the States, however, pro- vide that in criminal cases, tried before courts not" of record, or inferior courts, the number of the jury may be less than twelve, as prescribed by law.^ § 11. What if more than Twelve are impanelled. — If a jury of more than twelve has been impanelled, and the last juror sworn can be pointed out during the trial, he may be dismissed from the panel, and the trial will pro- ceed.^ Article III. — The Special Jury. SECTION. 12. Origin of. 13. Uuder the Eiiglisli Practice. (1.) yrheu and how summoned. (2.) The Jury struck must try tlie Issue — Abuses under tliis Kule. (3.) Default of Special Jurors. (4.) Costs of. 14. Under American Statutes. (1.) Under what circumstances granted. (2.) How Struck. (3.) Jurors liaving Special Qualifications. (4.) Costs of, § 12. Origin of . — This differs from the common jury in certain incidents of its formation. That it was early 1 Duffy V. People, 6 Hill, 75; People v. Justices, 74 N. Y. 406; People V. Clark, 23 Hun, 374. a Colo. Const., 1875, Art. 2, § 23; Ga. Const., 1S68, Art. 5, § 4, sub- sec. 5; Iowa Const., 1857, Art. 1, § 9; Amend, to Fla. Const., 1868, Art. G. § 12, ratified 1875; Mich. Const., 1850, Art. 6, § 28; Mo. Const., 1875,. Art. 2, § 28; Xeb. Const.. 1866-67, Art. 1, § 5 (Const. 1875, Art. 1, § 6) ; S. C. Const., 1865, Art. 9, § 7. »Muirhead v. Evans, 6 Exch. 447; Bullard v. State, 38 Tex. 504; Davis V. State, 9 Tex. App. 634. 12 COXSTITrTIOX AND KINDS OF TRIAL JIRIES. CH. I.] known to the eoniinon law, appears from the rule prescribed in Salkekl for its formation, which differs not materially from that generalU^ observed at the present day. Upon the authority of this reporter, it appears that a rule was made in the King's Bench, Trinity Term, 8 Will. Ill, that *' when the master is to strike a jury, viz., forty-eight out of the freeholders' book, he shall give notice to the attor- neys of both sides to be present, and if one comes and the other does not, he that appears shall, according to the ancient course, strike out twelve ; and the master shall strike out the other twelve for him that is absent." ^ Special juries appear to have been first introduced in the King's Bench, upon trials at bar, in causes of great conse- quence,^ or, as stated by Blackstone, " when the causes were of too great nicety for the discussion of ordinary freeholders ; or where the sheriff was suspected of partial- ity, though not upon such such apparent cause as to warrant an exception to him."^ Later the practice seems to have become quite general in all the courts of allowing them, upon simple application in any civil case, as a matter of course, or at least they seem to have been easily procured when the granting Mas within the discretion of the court.* § 13. Uiirtor the English Practice. — (1.) When and how summoned. — Under the English practice no rule for a special jury is granted before issue joined.^ A party applying for a special jury must do so in time to permit the jurors to be summoned ; otherwise the conmion jury will not be held to be superseded.'' But where the striking 1 Anon.. 1 Salk. 405. Whore a special jniy is improperly struck, a party wlio was represented by attorney at tlie strikin jui'v, ii-rcspcctive of the result, is l)ouncl to i)av tlio rosts of striking, sununoning, iin|)iii)('lliMg and <|ualifviiig, and one-half of the jury fees.^ Article ]\\ — 'I'iie Jirv-de Medietate Linguae. SECTION. IG. Origin and History of. 17. Generally abolished by Statute. § IG. C)rij;ui and History of. — This jtiry had an early existence at common law,- and seems to have owed its ori- gin to the policy of encouraging foreign merchants to come Avithin the realm for puri)oses of trade. A statute of Edw. III.^ enacted, that, when both merchants were foreigners, the jur}^ should be composed wholly of foreigners. Where one was a foreigner, and the other a denizen, half of the juiy should be foreigners and half denizens ; and if both were denizens, then all the jury should be denizens. The origin of this jury is generally attributed to this statute, but Mr. Forsyth alludes to an earlier statute of Edw. I., in which this jury is guaranteed in criminal cases also, ex- cepting those capital.^ B}^ a later statute of Edw. III.,^ the privilege of trial by this jury was extended to all foreigners, whether merchants or not, and in all cases, " although the King be a party." liut this privilege was afterwards cur- tailed in capital, and certain other cases." The alien was compelled to pra}^ for this juiy, before the general venire issued." The right of an alien to this jury was confirmed by the English consolidated jury act,"* in indictments of ' R. S, Oliio 1S80, § r)lSS; X. Y. Code Rem. Jus., § 1009; Conip. Laws Mich. 1871. § 600.-); Rev. X. J. 1877, p. .■)2D, § IS. 2 Forsyth, Trial by Jury, p. 228. 3 27 Edw. Ill, c. 8. * Forsytli. Trial by Jury, p. 220. •'- 28 Edw. III., c. 13, § 2. « Sherley's Case, 2 Dyer, 144, a, pi. (.-)9.) ' Symons v. Spinosa. 3 Dyer, 357, pi. (4.5.) * 6 Geo. IV, c. 50. § 47. § 17.] JURY DE MEDIETATE LINGUAE. 19 felony and misdemeanor, and illustrations of the practice are afforded by many modern cases in the English reports.^ § 17. Generally abolished by Statute. — But by a late English statute it is enacted that an alien shall be no longer entitled to this jury, l)ut shall be trial)le in the same manner as if he were a natural born subject.^ The right to ii jury of this character was recognized in a few eiu-ly the State law, could not be said to be such a " denial or disability to enforce in the judicial tribunals of the State the rights of colored men, as is contemplated by the removal act.^ Nor does this act embrace a case in which a right is denied by judicial action during the trial, or by discrimina- tion against the defendant, in the sentence, or in the mode of executing the sentence. As the statute authorizes a re- moval of the case only before trial, and not after a trial has commenced, a denial of right by the judicial tribunal itself cannot be made the ground of a removal of the case, because the defendant cannot know until during or after the trial, that the equal protection of the laws will not be ex- tended to him. Therefore, he cannot affirm that it is denied, or that he cannot enforce it in the judicial tribunals of the State. § 30. Remedy l>y Writ of Error from United States Supreme Court. — But wrongs of the character pointed out in the foregoing case are not remediless. It is the duty of the court, when such charges are not denied, or are supported by proof, to quash the indictment, or the panel of jurors returned for the trial. If the trial court refuses to do this, and its action is sustained by the courts of last resort in the State, the Supreme Court of the United States, by Avrit of error to the State court, will set aside the judgment in the case, as well as the order deny- ing the motion to quash. '^ Thus it is apparent that § 641 of the Revised Statutes refers to a denial of rights or an inability to enforce them, resulting from the constitu- tion or laws of the State, rather than a denial through the oppressive execution of the laws by State officers, or a par- tial administration thereof in the State courts. In such cases, the rights of the defendant are left to the revisory 1 Rev. Stat. U. S. § 641. 2 Virginia v. Eives, 100 U. S. 313, 322; Neal v. State (May, 1881), re- ported in 12 Cent. L. J. 514, and 23 Alb. L. J. 466. Mr. Chief Justice Waite dissented in tliis case, but only upon the ground of the insuffi- ciency of the proof offered to show tlie wrongful exclusion of colored persons in tlie selection of the jurors. Mr. Justice Field also dissented. 30 QUALIFICATIONS FOR JURY DUTY. [cil. II. l)u\vor of the liiglier courts of the State, and ultimately to the review of the Su[)reine Court of the United States, Avhieh power this court may exercise over the judgments of courts of the several States, whenever the rights, privileges or immunities, secured by the constitution or laws of the United States, arc withheld or violated. § 31. Qiialific'ation of Jurors in the Federal Courts. — The qualification of jurors in the Federal courts is reg- ulated by a statute passed in the 3'ear 1840,^ and sub- stantially incorporated into the Kevised Statutes of the United States at § 800. This statute provides that "jur- ors, to serve in courts of the United States, in each State re- spectively, shall have the same qualifications, subject to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors in the highest courts of law in such States may have." Except where otherwise specially provided by statute, the laws of the several States relating to the qualitications and exemptions of jurors are as bind- ing upon the Federal courts as upon the tribunals of the particular State. ^ 1 o Stat, at Large, 394. - United States v. Wilson, 6 McLean, 604; United States v. Gardner, 1 Woods, 514, 519; s. c, 5 Chic. Leg. N. 501 ; 18 Int. Rev. Rcc. 46. As to the manner of selecting jurors in the Federal courts, see Chap. IV, Art. II. § o4.] EXEMPTIONS FROM JURY DUTY. 31 CHAPTER III. OF EXEMPTIONS FROM JURY DUTY. :jECTION. 3-t. Exemptions in consideration of Public Services. 35. Constitutionalit}^ of tliese Exemptions. 36. Persons engaged in certain Occupations exempt. 37. But only while actuallj^ so engaged. 38. Honorary Members of Public Organizations — Assistant Clerks. 39. Exemption as a Vested Right. (1.) By Prescription in England. (2.) Exemption a Vested Riglit in Missouri. (3.) The Sonndness of this View questioned — Contrary Decisions. 40. The Privilege of Exemption not a Ground of Challenge. § 34. Exemptions in Consideration of Public Services. — It is quite clear that certain classes of citizens ought to be exempt from jury service. For example, those who already owe duties to the public, cannot be ex- pected to discharge them faithfully, and at the same time l)oar this additional burden.^ Thus, upon general principles, a member of the legislature ought to be excused from serv- ing as a juror, wdiile the legislative body is in session.'"^ Statutes, granting exemption from jury duty in consideration of petty public services, are quite common in this country.^ Illustrations of exemptions are those extended to the mem- 1 Piper's Case, 2 Bro. (Peun.) 59. 2 Com. V. Walton, 17 Piclv. 403. ''Under its constitutional authority" to establish post offices,"' Congress has authority to exempt postmasters from sei'vice upon juries in State courts. "Were the exemption given as a personal privilege," said Gas- ton, J., " it would present a different inquiry. But we do not so regard it."" State v. Williams. 1 Dev. & B. 372. 32 EXEMPTIONS FROM JURY DUTY. [CH. III. bers of incorporated and voluiilary fire companies, and of the militia. § 35. Constitutionality of these Kxeniptions. — The constitutionality of such statutes has l)ecn doubted, but they have been generally sustained upon the ground that, although it is true, as a general proposition, that every citizen ought to bear an equal share of the burdens of gov- ernment, it is also true that the legislature must be the judge of what is a fair and equal distribution of these bur- dens.^ Upon the same principle the legislature may exempt, for a certain interval, one who has already served as a juror in federal or the State courts. - § 3(3. Persons engaged in certain Occupations exempt. — The exemption generally does not end here. On the 1 McGunnegle v. State. 6 Mo.3G7; Ex parte Goodin, G7 Mo. 637; Bragg V. People, 78 111. 328, 330; Dunne v. People, 94 111. 120; Cortelyou v. VanBinndt. 1 Johns. 313; State v. Whitford, 12 Ired. L. 99; E:r parte House, 3G Tex. 83; Bloom v. State, 20 Ga. 443. In this case Lumpkin, J., intimated, that if it should be shown that the exemptions conferred in any case were so general as to impair the right of trial by jury, it might be for the serious consideration of the court, whether such a law did not infringe the constitutional provision that trial by jury should be as heretofore, and remain inviolate. The point, however, was not dis- cussed, as the record presented no such case. There are old authorities to the effect, that a custom to be exempt from serving on juries is void, where there are not a suflicient number of other qualified jurors to be had. Kex. V. Clark, 1 Sid. 272; Lady Northumberland's Case, 2 Mod. 182; Lofft, 214. The power of the legislature to grant exemptions was sustained to a doubtful extent in State v. Cohn, 9 Nev. 179. A statute of Nevada authorizes the judges of the several district courts to prescribe bounds within their counties, and to exempt any person residing within such limits, upon proof of such residence and payment of twenty-five dollars. This exemption continues "until the first Monday of Januarj^ next ensuing." (Comp. Laws Xev. 1873, § 1059; Laws Nev. 1875, ch. 81; Laws Nev. 1877, ch. 107.) The court admitted that the exemption in question tended to impose undue jury duty upon poor men in one direction, and in another " to foster and encourage that most baneful parasite upon the body politic — the professional juryman." These, however, the court considered to be arguments against the passage of such a law, rather than against its constitutionality, which was accord- ingly upheld. This conclusion hardly merits approval. See Proffatt on Jury Trial, § 120, note, citing Cooley Const. Lim. 390. 2 Swan's Case, 16 Mass. 220; Ex. parte Brown, 8 Pick. 504; Brewer v. Tyringham, 14 Pick. 196. § 37.] EXEMPTIONS FROM JURY DUTY. 33 contrary, it frequently extends to very numerous classes of citizens whose private eniplo^^ments are such, that a sudden demand upon them to perform this service must almost inevitiibly result in serious inconvenience to a portion of the public, or considerable pecuniary loss to the person whose service is demanded. A fair illustration of the classes generally exempt is found in the section relative to this subject in the New York Code of Remedial Justice.^ § 37. But only wliile actually so engaged. — It will be seen, from an examination of this provision and other statutes conferring similar exemptions, that the gratuity exists only during actual employment or service in the callings indicated. It has been considered that, during an intermission of duty, an officer of the government 1 § 1030. The classes are as follows: " 1. A clergyman or a minister of any religion, officiating as such, and not following any other calling. 2. A resident officer of, or an attendant, assistant, teacher, or other per- son, actually employed in a State asylum for lunatics, idiots or habitual drunkards. 3. The agent or warden of a State prison; the keeper of a county jail; or a person actually employed in a State prison or county jail. 4. A practicing physician or surgeon, having patients re- quiring his daily attention. 5. An attorney and counsellor at law, in actual practice as such, and not following any other calling. 6. A pro- fessor or teacher, in a college or academy. 7. A person actually em- ployed in a glass, cotton, linen, woolen, or iron manufacturing company, by the year, month, or season. 8. A superintendent, engineer, or col- lector, on a canal, authorized by the laws of this State, which is actually constructed and navigated. 9. A master, engineer, assistant-engineer, or fireman, actually employed upon a steam vessel, making regular trips. 10. A superintendent, conductor, or engineer, employed by a railroad company, other than a street railroad company; or an operator, or assistant operator, employed by a telegraph company; who is actually doing duty in an office, or along the railroad or telegraph line of the company, by which he is employed. 11. An officer, non-commissioned officer, musician, or private, of the national guard of the State, perform- ing military duty; or a person, who has been honorably discharged from the national guard, after five years' service in either capacity. 12. A person who has been honorably discharged from the military forces of the State, after seven years' faithful service therein. * * * 13. A member of a fire company, or fire department, duly or- ganized according to the laws of the State, and performing his duties therein; or a person who, after faithfully serving five successive years in such afire company, or fire department, has been honorably discharged therefrom. 14. A person otherwise specially exempted by law." (3) 34 EXEMPTIONS FUOM JURY DUTY. [CH. III. ought not to claim cxoniption or ask to ])c excused on ac- count of his official position. As was observed by the court in the case of a lieutenant of the United States Navy, who, while at home on a furlough, was summoned to serve as a juror, " the defendant was not in actual service, so that his duty to the United States could not conflict with his duty as a juror." ^ Judge Gaston, also, thought that a post- master, who had leisure to stand about a court room, might be summoned as a talesman.- And it has been so held in the case of a commissioner of navigation,^ and of a mem- ber of a fire company,^ both of whom were exempt by statute. But an attorney at law, although retired from practice, has at any time the right to practice, and there- fore ought to be held exempt under a statute granting ex- emption to " counsellors and attorneys at law." * § 38. Honorary Members of Public Organizations — Assistant Clerks. — An exemption granted to the mem- bers of any organization engaged in the public service, does not extend to honorary members of such bodies. In such cases, the actual service rendered and skill ac- quired by the regular members is the foundation of the exemption.^ An assistant clerk of a municipal police court is exempt under a statute granting the privilege to " officers " of the several courts of the State. ^ § 39. Exemption as a Vested Right. — (1.) By Pre- scription '^n England. — The earliest case touching upon this point is Hex v. Pugli^^ which was an indictment against the defendant as high constable of the Hundred of Battle, for not obeying a warrant of the justices in quarter 1 State V. Ingraham, Cheves (S. C.) 78, 80. 2 State V. Williams, 1 Dev. & B. 372, 374. 3 State V. Hogg, 2 Murph. (N. C.) 319. < State V. Willard, 79 N. C. G60. 8 Re Swett, 20 Pick. 1. See also 1 Bun's Trial, 374; Cora. v. Buzzell, 16 Pick. 153. 6 Stewart v. State, 23 Ga. 181; J?c Scraiiton, 74 111. 161, 102. But see Albert v. White, 33 Md. 297. 7 State V. Xewton, 28 La. An. 65. » 1 Douff. 179. § 39.] EXEMPTION AS A VESTED KIGHT. 35 sessions, commanding him to issue his precepts to the petty constables and others for the purpose of preparing lists of persons qualified to serve on juries, etc., and for not re- turning such lists to the justices at the sessions following. The indictment, having been removed by certiorari from the quarter sessions, was tried at the assizes. The case set forth, among other facts, a royal charter dating from the time of the Conqueror, confirmed by his successors, grant- ing various immunities and privileges, under which there had grown up an immemorial custom, that the residents within the hundred should not be returned to serve on ju- ries out of the hundred ; and that no precepts had ever been issued from time immemorial by the constable of Battle. The defendant was found guilty, subject to the opinion of the court upon the question whether the above charters and immemorial custom would exempt the inhabitants from serving on juries, and the high constable from issuing pre- cepts ; or whether the several acts of parliament, passed concerning jurors, had not taken away such exemption. The decision turned, not upon the power of parliament to annul an exemption of this sort, which power seems to have been conceded,^ but upon the form of the various statutes concerning jurors, which were held not to have this effect ; and a verdict of acquittal was entered for the defendant. (2.) Exemption a Vested RiglU in Missouri. — We find established in Missouri, upon the familiar principle of Dart- raouth College v. Woodward,'^ that the State may confer a 1 The Stat., 22 Hen. VIII, c. 5, § 4, in relation to the repair of bridges, conferred authority upon the justices of the peace and cou- stables >•' to tax and set every inhabitant iu every sucli city, town, or parish within the limits of their commissions and authorities, to such reasonable aid and sum of money, as they shall think by their discre- tions convenient and sutRcient for the repairing, re-edifying and amendment of such bridges." Lord Coke considered that " by these words [every inhabitant] all privileges of exemptions or discharges whatsoever from contribution, for the reparation of decayed bridges (if any were), are taken away, although the exemption were by act of parliament." 2 Inst. 704. - 4 Wheat. 518. 36 EXEMPTIONS FKOM JURY DUTY. [CH. III. perpet lal exemption which subsequent leirisiation cannot take away. The legishiture of Missouri, in 1845, granted a charter to certain persons incorporating a l)odj known as the " Firewardens of the City of St. Louis." This char- ter exempted the members of this body from service upon juries during their continuance as members.^ A subsequent amendatory act - provided that no member of this company should be compelled to do duty in it for a longer period than seven years, " when he shall be entitled to receive from the president and secretary, under the seal of the company, a certificate that he has served as a fire warden during the period of seven years." Another section pro- vided that "no person, having received such a certificate, shall be compelled to sit on any jury within the State." By a later act,^ all laws in reference to exemption from jury duty, in conflict with the general jury law of the State, were repealed. In one case it was held that, inas- much as the legislature reserved in the act of 1845 a power of repeal, a certificate of seven years' service conferred no right of exemption under the later act after the passage of the general repealing act.* But this decision was overruled in a subsequent case by a higher court. ^ "The State," said Sheravood, C. J., " by those statutes and their accept- ance by the petitioner, entered into a contract which was supported by a valuable consideration, to wit, the service to be rendered, and which, when rendered, constituted a com- plete and executed contract, which the State by subsequent legislation was pow^erless to annul or abrogate." ^ 1 Mo. Laws, 1S45, p. 114. 2 Mo. Laws, 1851, p. 481. 3 Mo. Laws, 1877, p. 280. * Be Powell, 5 Mo. App. 220. » Ex parte Goodin, 67 Mo. 637. * Ibid., p. 638. See also Ex parte House, 36 Tex. 83. It would seem clear, however, in the absence of language like that in the Missouri act of 1851, plainly indicating the intention of the legislature to confer a perpetual exemption in consideration of services performed, that char- ters granting to members of fire companies the exemption in question are not contracts within the purview of the Constitution of the United States (Art. I, § 10) ; therefore, in the wisdom of the legislature, no § 40.] EXEMPTION NOT A GROUND OF CHALLENGE. 37 (3.) The Soundness of this View questioned — Contrary Decisions. — But the wisdom of this conclusion may be strongly doubted. The fundamental question would seem to be, are the duties of citizenship a subject of bargain and sale? If exemption from one class of duties maybe the subject of purchase, so exemption from any and all such duties may be. But if, for example, in the opinion of the legislature the public exigencies should demand military service from all persons capable of bearing arms, it is con- ceived that a privilege of exemption, although earned ac- cording to the terms of an act of a prior legislature, could not avail against such a call.^ In the opinion of the Supreme Court of Illinois, " the duty of serving on juries, like the duty of bearing arms in defense of the govern- ment, is one of the inseparable incidents of citizenship, and can be exacted whenever and however the sovereign authority shall command. All exemptions of this kind are mere gratuities to the citizen, which cannot be the subject of contract between men and the State, and may be with- drawn at the pleasure of the law-making power." ^ There- fore, although the petitioner in the case noticed had earned his exemption by seven years' service in the fire depart- ment, in accordance with a section of the charter of the city of Chicago, it was held that the legislature retained the power to limit such exemption to members of the fire department engaged in active service.'^ § 40. The Privilege of Exemption not a Ground of Challenge. — The privilege of exemption is generally re- garded as a right of which the person exempt may avail himself or not at his pleasure. Some of the statutes ex- pressly provide that it shall not operate as a cause of chal- ouly may such exemption be revoked, but the charter itself may be amended. Bloom v. State, 20 Ga. 443, 449; Ex parte Rust, 43 Ga. 209; Cooley'e Const. Lim. (1st ed.) 383. 1 Cooley's Const. Liin. (1st ed.) 383. 2 Re Scranton, 74, 111. 161, 162. 3 See, also, Bragg v. People, 77 111. 328. Such is the law of Tennes- see. Beamish v. State, 6 Baxter (Tenn.) .530. 38 EXEMFTIONS FROM JURY DUTY. [cil. III. longc.^ Tliis is apparent also from the tonus of other statutes conferring the right, as where it is enacted that the exempt classes shall not be "compelled" or "liable" to serve, or that they shall be "relieved" of such duty.'^ It may be stated as a general rule, that in the absence of terms in the statutes granting the exemptions, amounting to a positive pi'ohibition or creating an incapacity for jury ser- vice, the exempt person may, when called, waive the priv- ilege conferred by law, and take his place upon the jury, unless otherwise subject to challenge.^ 1 Cal. Penal Code, § 1075; Conip. L. Ariz., ch. 11, § 321; Stat, at L. Minn. 1873, p. 105G, § 238; Bullitt's Ky. Codes (Cr.), p. 42, § 211; R. S. La. 187G, § 2131; Ark. Dig. Stat. 1874, § 1914; Miller R. C. Iowa, 1880, § 2777; R. S. 111. 1880, ch. 78, § 14; Comp. L. Nev. 1873, § 1965; Gen. Laws Oreg. 1872 (Civil Code), § 186; Laws Utah, 1878 (Code Cr. Proc.,) §243. 2 Bush Dig. Fla., ch. 104, § 2; R. S. Del. 1874, ch. 109, § 1; Supp. to Ga. Code of 1873, §§ 415, 41G, 417. 3 Mulcahj' V. Reg., Irish Rep. 1 C. L. 12; s. c, affirmed in L. R. 3 H. L. 306; State v. Forshner, 43 IS. II. 89; State v. Wright, 53 Me. 328; Moore v. Cass, 10 Kan. 288; Davis v. People, 19 111. 74; Murphy v. People, 37 111. 447; Chase v. People, 40 111. 352; Davison v. People, 90 HI. 221; Edwards v. Farrar, 2 La. An. 307; Breeding v. State, 11 Tex. 257; Greer v. Norvill, 3 Hill (S. C.) 262; Booth v. Com., 16 Gratt. 519. § 43.] SELECTION OF THE JURY LIST. 39 CHAPTER IV. OF THE SELECTION OF THE JURY LIST. Article I. — In the State Courts. SECTION. 43. Scope of this Chapter. 44. Selection by whom made at Common Law. 45. By whom made under American Statutes. (1.) Sheriff excUided. (2.) By Judges of General Elections. (3.) By Town Officers. (4.) By Special Boards. (5.) By Jury Commissioners. (6.) By County Courts. 4G. Penalty for Neglect to make Selection. 47. Statutes regulating Selection Directory. Article II. — In the Federal Courts. 48. Under Revised Statutes, § 800. 49. As modified by the Act of 1879. 50. Rule of Court Necessary to adopt the State Practice. 51. Qualifications and Exemptions the same as in the State Courts. 52. Mode of Selection before the Act of 1879. (1.) Discretionary Power of the Court over. (2.) Made by the Clerk and Marshal. (3.) Upon what Advice and Information. (4.) What Number. (5.) At what Time drawn. (6.) Marslial had not Common Law Powers of Sheriff. 53. In the Territorial Courts. § 43. Scope of this Chapter. — It is the purpose of tliis chapter to give a general view of the first step in the organ- ization of a jury, as practiced in the United States, namely, the selection, from the general public, of the names of 40 SELECTION OF THE JURY LIST. [CH. IV. those from whom the panel for a particular term or terms of court is to 1)0 drawn. This process is termed the making or selection of the oenerul jury list. It consists of nothing more than the making, by the officers designated thereto by statute, of a list of the names of those liable to do jury duty in the particular county or jurisdiction within a given period. Errors and irregularities in the making of this list can only be taken advantage of by chal- lenginir the panel or arra}-. These will, therefore, not be discussed in detail in the present chapter ; but will form an article in the chapter on "Challenge to the Array." § 44. Selection by whom made at Common Law. — Ko trace of that elaborate system provided by the statutes of the several States for the selection of jurors is found at common law. Under the English practice, jurors have al- ways been named in the discretion of some person ; in the case of oidinaiy juries, by the sheriff, coroner, or elisors ; in the case of special juries, before the statute of 3 Geo. II, c. 55, by an officer of the courts — a practice recognized and confirmed by the statute in general terms.' Under this practice, the matter of selection, which is usually so jeal- ously guarded by our statutes and wholly removed from the control of the summoning officer,^ had no existence as a distinct step in the process of procuring juries. The offi- cer selected at the same time he summoned. This unbridled discretion, vested in the sheriff and his subordinates, natu- rally resulted in many abuses, not only in the packing of juries, but also in the oppression of the community at large, by too frequent demands upon the same persons to devote their time to the public service in this respect, — a grievance measurably obviated l)}^ the statutes of the several States. The case in Cowper's reports^ of the corrupt summoning bailiff w4io was attached and fined .200 I. for demanding and receiving^^mone}' from the people to excuse them from iKex V. Edraiind^;, 4 Barn. & Aid. 471. 484. 2 But see Code Ala. 1876, §§ 4732. 1733; E. S. La. 1876, § 2127; Rev. N. J. 1877, p. 532, § 7. ' Rex V. Whitaker, Cowp. 752. § 45.] IN THE STATE COURTS. 41 serving, and for summoning such as refused to pay him more frequently than it came to their turn, — is an illustra- tion of the natural outgrowth of the informal system which prevailed at common law. § 45. By Avhoiu made xinrtor American Statutes.^ — (1.) Sheriff Excluded. — A substantial uniformity in the method of selecting is apparent in the statutes of the sev- eral States. Generally the sheriff is permitted to have no hand in the selection, although the contrary appears to be the case in Alabama and Louisiana,^ while in New Jersey the selection seems to be relegated to this officer solel3^^ The statutes usually specify the number to be annually se- lected in each county, which selection is made by town authorities, county courts, county commissioners, or other officers, and the list so prepared is transmitted to the clerk of the county or circuit court, where it is filed, and the names copied upon slips of paper which are placed in the jury box ready for the drawing. The systems of the several States will be briefly noticed.* (2.) Judges of General Election. — In Iowa, prior to each general election, the county auditor apportions to each election precinct of the county its quota of jurors, accord- ing to the vote of the last general election. The sheriff is required to notify the judges of election at each precinct of the number of jurors so apportioned. The latter make the ^ The following has reference only to such laws as are of general oper- ation throughout the States. No attempt is made to examine the jury laws applicable to specific cities or localities. The juries in many of the more populous cities are selected under such laws. See N. Y. Code Rem. Jus., §§ 1079, 1126; 1 Bright. Purd. Ta. Dig. 838, § 83; Sess. Laws Mass. 1876. oh. 207; Sess. Laws Mo. 1879, p. 28; 74 Ohio Laws, 218; 78 Ohio Laws, 95, 135. The constitutionality of the Ohio statute, first mentioned, was established in McGill v. State, 34 Ohio St. 228. 2 Code Ala. 1876, §§ 4732, 4733; R. S. La. 1876, § 2127. 8 Rev. N.J. 1877, p. 532. § 7. ^ The right of trial by jury is not violated by a change in the mode provided by law for the selection of jurors, although such may have been the mode at the time of the adoption of a constitutional provision making the right in question inviolate. All that the right includes is a fair and impartial jury. The particular mode of designating it is at all times witliin the control of the legislature. Perry v. State, 9 Wis. 19. 42 SELECTION OF THE JTRY LIST. [ciI IV. selection, and rolurn Ihc list with the returns of the elec- tion, Tn default of .sucii selection by the election judges, it is made b}- the count}^ canvassers at their meeting to cast up the returns of the judges.^ In Ohio the selection is also made on the occasion of the general election, but by the trustees of each township, and the councilmen of each ■ward, who deliver their lists to the judge of election, who returns to the clerk of the court the jioll book of the elec- tion. The list is returned at the same time with such poll book.-' (3.) By Town Officers. — In the New England States the system of selection differs in one respect from that Avhich generally prevails, the selection being made by the town authorities. The list is retained by the town or city officers, instead of being transmitted to the county author- ities. In Massachusetts the selection is annually made by the selectmen of each town, who post up the list ten days before each town meeting, to which it is submitted for ap- proval. The latter body is authorized by vote to strike out objectionable names, and insert others in their stead. ^ In cities the list is prepared by the mayor and aldermen. It is likewise published for ten days, and is then submitted to the common council for their revision.* Substantially the same method prevails in the other New EngHnd States.*^ In New York the selection is made by the supervisor, town clerk and assessors of each town, duplicate lists being filed with the town and count}' clerks.*"' In Kansas the trustee of each organized township and the mayor of each city make the selection, and certify the result to the clerk of the countyJ fn Wisconsin the supervisors of towns, trus- 1 Miller K. C. Iowa, 1880, § 234 rt seq. 2K. S. Ohio, 1880. § 51(54. 3 G. S. Mass. 1860, cli. 1:52, § G ct seq. * lb. § 21. 5See G. S. Vt. App. 1870, p. 117. § 80; K. S. Me. 1871, eh. 100, § 1 ; G. S. N. H., ch. 194, §§ 1 & 2; G. S. Conn. 1875. eh. X, § 1 ; G. S. K. I. 1872, p. 432, § 14. 6N. Y. Code Rem. Jus.. § 1035 etseq. ' Comp. L. Kan. 1870. !j 2(503. § 45,] IN THE STATE COURTS. 43 tees of villages, and the aldermen of cities perform this duty, certifying the result to the county clerk, who lays the lists before the county board to aid them in their selection.^ In Michigan the selection is made by the assessors and township clerk of each township, and the assessor and al- derman of each ward of the city of Detroit.^ (4.) By Special Boards. — In several of the States the selection is confided to standing boards of county officers, such as the supervisors or commissioners.^ In others the duty is performed by special boards composed of the sheriff, judge of probate and clerk of circuit court ;* the chairman of the board of county supervisors, the probate judge and the clerk of the district court f the county clerk and district judge f the treasurer, auditor, and recorder of the county ;^ the ordinary of each county, together with the clerk of the superior court and three commissioners ap- pointed by such court f the chairman of the board of county commissioners, the county auditor, and a jury com- missioner appointed by the governor f the clerk of the dis- trict court and judge of probate court -^^ the sheriff, parish judge and clerk of the district court, together with twa qualified electors ;" the judges of the probate and district courts, together with three commissioners appointed by the latter ;^^ the district judge and two commissioners.^^ 1 R. S. Wis. 1878, § 2526. 2K. S. Mich. 1871, § 5977. 8 Gen. Laws Colo. 1877, § 1462; Cal. Code Civ. Proc. § 204; Bush Dig. Fla., ch. 104, § 3; Battle's Rev. N. C. p. 194, § 229 a; R. S. 111. 1889, ch. 78, § 1; R. S. Wis. 1880, § 1681; Stat. Minn, at L. 1873, p. 221, § 23, cl seq; R. C. Miss. 1880, § 1681 ; G. S. Neb. 1873, p. 642, § 658. * Code Ala. 1876, § 4733. 5 Conip. L. Ariz., ch. 47, § 13. « Comp. L. Nev. 1873, § 1052. ' 2Iud. Rev. 1876, p. 29, § 1. « Code Ga. 1873, § 3907. 9 R. S. So. Car. 1873, p. 518, § 1. 1" Comp. L. Utah, 1876, p. 55. " R. S. La. 1876, § 2127. 12 Gen. Laws New Mexico, 1880, ch. OS, § 1. 13 I Bright Purd. Dig. p. 829, § 2. 44 SELECTION OF THE JURY LIST. [ciI. IV. (5.) Bii Jiu'ii Commissionevs. — In some of the States, as we have just seen, eoniniissioners are si)ecially a[)i)()inted to act with the county otheers. In others the duty is wholly i)erfonncd by hoards of jury coniinissioners, as in Kentucky,' and Texas. - (().) By Count ij Courts. — In Delaware the "levy" oourt makes the selection -^ in Virginia,'* the judge of the county or corporation court; in Missouri, Tennessee, West Virginia and Oregon, the county court.'' In jVIaryland the clerk of the county coniniissioners, after each general elec- tion, returns to the clerk of the circuit court a list of the tax-payers over twenty-five years of age. From this list jind from the poll books of the last general election, the selection is made bj-^ the judge of the circuit court." § 4(5. Penalty for Neglecting to make Selection. — Where the dniy of selection is confided to ministerial offi- cers, it is not uncommon to enforce its performance hy weighty fines. Thus, the Maryland Code, after set- ting out the duties of the clerk of the county com- missioners in this behalf, enacts that "for failure to per- form the duty hereby imposed, the said clerk to said •commissioners shall forfeit and pay a fine to the State, of not less than five hundred dollars, nor more than one thousand dollars, in the discretion of the court, to be re- covered by indictment as for a misdemeanor, and he shall be thenceforth wholly incapable of holding or exercising the duties of the said clerk to the county commissioners." ' § 47. Statutes Kegiilating" Selection Directory. — An abundance of authorities establish the proposition that a strict compliance with the statutory provisions as to the J G. S. Ky. 1879. p. 573, § 4. 2R. S. Tex. 1879. Art. 3030. ^R. C. Del., t'h. 109, § 2. •• Code Va. 1873, p. 1059, § 3. '- R. 8. Mo. 1879, § 2784; Stat. Teun. 1871, § 3981 ; R. 8. W. Va. 1879, <4». 109. § 7; Gen. Laws Oreg. 1872. Civil Code, § 921. « R. C. Md. 1878, Art. 62, § 2. 7 R. C. Md. 187G. Art. 62, § 1. See, also, G. S. Ky. 1879, p. 573, § 2; •Gen. Laws Xew Mexico, ISSO, ch. 68, §§ 8 and 9. § 47.] IN THE STATE COURTS. 45- time and mode of making the selection is unnecessary.' .Such provisions are, in general, purely directory. Thus, it is not a material irregularity that the officers charged with 1 Contrary to the general rule is a decision of the Supreme Court of Florida. Gladden v. State, 13 Fla. 623. It was here held to be a good cause of challenge to the array, that the county commissioners had fur- nished to the clerk of the county a list containing the names of three hundred and two persons qualified as jurors, instead of three hundred as required bj' law, from which the jury in this case was drawn. The court stated tlie rule to be that, "however unimportant the discrepancy may seem to be, we consider that the appellant had a right to demand a strict compliance with the law in tlie drawing and impanelling of a jury. Irregularities however slight, when they show a departure from the provisions of the law in respect to the selection, summoning and im- panelling of jurors, are proper grounds of objection to the juiy, and form grounds of challenge to the array." Ibid. p. 626. It is safe to say that this decision is destitute of support in recognized legal prin- ciples. Tlie authority of an eminent writer on criminal law was cited in connection with the foregoing. Whart. Cr. L., 3d ed., 1041. Here we read: "Generally speaking, under the statutes, the mistake or in- formality of the officers charged with summoning, returning, and im- panelling the jury will be no ground for a new trial, unless t^iere has been fraud or collusion, or material injury to the defendant." This is unquestionably sound law. But how does it apply to the case under discussion? Neither fraud nor collusion were charged. What was the possibility of "material injui-y?" None that can be conceived by the utmost strain of the imagination. The case is not so strong as that where the officers have failed to select as many as the law requires for a complete list. In such a case it might happen, through a chain of im- probabilities that, if the officers had filled the list, one or more of the persons, otherwise omitted, would have been drawn upon the panel to serve for the term at which the defendant was tried", would have been summoned so to attend; would have obeyed such summons; would have been impanelled upon the jury to try the defendant, and would have dif- fered in opinion from the remainder of the jurors, believing the defend- ant not guilt)'. "These contingencies," it has been observed, "reduce the chances of harm to a practical nonentity, and justl}' subject the alleged error to the operation of the maxim, " The laio careth not for small things.'''' Shankland, P. J., in People v. Harriot, 3 Park. Cr. K. 112. The apology for this extended notice of the Florida decision, is found in the circum- stance that it seems to have met with a measure of approval in a recent decision of another eourt. Harrison v. State, 3 Tex. App. 558. The facts of the cases, however, were not similar. Here it was held to be a fatal objection to a venire., that it directed the sunmiouing of seventy-five jurors, while the statute expressly provided that the number should not be more tlian sixty. But the correctness of this decision also is questionable. See Dolan v. People, 64 N. Y. 485, 493. 46 SELECTION OF THE JL'KV LIST. [CII. IV. tluit duty did not coirectly apportion the jurors among the respective townships of the county.^ So, although the statute require the board of supervisors of the town and the common council thereof to select and return the names of qualitied junn-s before a certain date, yet if the jurors are properly selected, there can be no valid objection to a re- turn being made subsequent to the time fixed by the stat- ute.'-^ There are limitations upon this rule, which will be stated in the chapter on Challenges to the Array. Article II. — In the Federal Courts. SECTION. 48. Under R. S. § 800. 49. As modified by the Act of 1879. 50. Rule of Court Xecessary to adopt the State Practice. 51. Qualifications and Exemptions the same as in the State Courts. 52. Mode of Selection before the Act of 1879. (1.) Discretionary Power of the Court over. (2.) Made by the Clerk and Marshal. (3.) Upon what Advice and Information. (4.) What Xumber. (5.) At what Time drawn. (6.) Marshal had not Common Law Powers of Sheriff. 53. In the Territorial Courts. § 48. Under R. S. § 800. — This, except as prescribed in a recent statute hereafter noticed, is regulated by an act of Congress passed in the year 1840,^ substantially incorpo- rated in § 800 of the Ke vised Statutes. The latter provides that " jurors, to serve in courts of the United States in each State respectively, shall have the same qualifications, sub- ect to the provisions hereinafter contained, and be entitled to the same exemptions, as jurors of the highest court of 1 Forsythe v. State, G Ohio, 19. But contra, see Clark v. Saline Co.. 9 Neb. 51G. ' Burlingame v. Burlingame, 18 "Wis. 285; Colt v. Eves, 12 Conn. 243; Thomas v. People, 39 Mich. 309. Contra, Buhol v. Boudousquie, 8 M-art. (N . S.) 425. « 5 Stat, at Large, 394. § 49.] IN THE FEDERAL COURTS. 47 lavv in such Stiite iiuiy have and be entitled to at the time when such jurors for service in the courts of the United States are summoned ; and they shall be designated by bal- lot, lot or otherwise, according to the mode of forming such juries then practiced in such State court, so far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and impanelling of juries, in substance, to the laws and usages relating to jurors in the State courts, from time to time in force in such State. [This section shall not apply to ju- ries to serve in the courts of the United States in Pennsyl- vania. ]:i" ^ § 49. As nioclified by the Act of 1879. — A recent act of Congress,- after repealing certain sections of the Revised Statutes,^ provides that " all such jurors, grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box containing, at the time of each drawing, the names of not less than three hundred persons, possessing the qualifications prescribed in section eight hundred of the Revised Statutes, which names shall have been placed therein by the clerk of such court and a commissioner, to be appointed by the judge thereof, which commissioner shall be a citizen of good standino;, residino- in the district in which such court is held, and a well known member of the principal political party in the district in which the court is held, opposing that to which the clerk may belong ; the clerk and said commissioner each to place one name in said box alternately, without reference to party affiliations, until she whole number required shall be placed therein. But nolhinsi; herein contained shall be construed to prevent any judg'i from ordering the names of jurors to be drawn from the boxes used by the State authorities in select- 1 The clause within brackets was repealed by § 2 of the act of June 30, 1879. See Laws U. S. 1870 (Sess. I), eh. 52. 2 Sec. 2 of the act of Jime 30, 1879; Laws U. S. 1879, (Sess. I.) ch. 52. 21 Stat, at Large, 43. 3 Sees. 801, 820, 821, and the flnal clause of § 800. 48 SELECTION OF THE JURY LIST. [CH. IV. ing jurors in the highest courts of the State : and no person shall serve as a petit juror more than one term in any one year; and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith : Providedy that no citizen, possessing all other qualifications which are or may be prescribed by law, shall be dis(]ualified for ser- vice as grand or i)etit juror in any court of the United States on account of race, color, or previous condition of servitude." § 50. Rule of Court Xccossary to adopt the State Prac- tice. — Section 800, it will be noticed, provides that the federal courts " may, by rule or order, conform the desig- nation and impanelling of juries, in substance, to the laws and usajxcs relatini>: to iurors in the State courts," etc. Under this clause it was held that the practice of the State courts in relation to the summoning of jurors, whether stat- utory or otherwise, did not become the practice of the United States courts until expressly adopted by the latter.^ For the same reason, the State practice having been adopted by rule of court, jurors were held to have been lawfully summoned under that rule, after a change had been wrought by statute in the State practice which had been adopted. The amendatory legislation could have ho effect, until adopted by rule of court.^ § 51. Qualifications and Exemptions the same as in the State Courts. — So far as qualifications and exemptions are concerned, the laws of the several States are as strictly binding upon the Federal courts as upon the tribunals of the State. In this matter, therefore, the former have no discretion.^ § 52. Mode of Selection before the Act of 1879. — (1.) Discretionary Power of the Court over. — But so far as concerns the mode of selection, the Federal courts were, before the act of 1879, vested with an exceedingly broad 1 Alston V. Manning, Chase's Dec. 460. 2 Ihid. 3 United States v. Wilson, 6 McLean, 004; United States v. Gardner, 1 Woods, 514, 519; s. c, 5 Cli. Leg. N. 501 ; 18 Int. Rev. Rec. 46. § 52.] IN THE FEDERAL COURTS. 49 discretion. Literal conformity was not required by the statute, and in fact would have been impossible, as tiiese courts were not possessed of the machinery indicated by the statutes of the several States for this purpose. Resort could not be had to the means provided by the States, as this would have placed the courts of the United States in an anomalous position of dependency upon State officers over whom they had no supervision or control.^ The selection was necessarily made by officers of the court. Substantial conformity to the statutes of the States was alone demanded ; ^ and whether this had been secured must, it was held, in each case be judged by what was practicable. This, as stated by "Woodruff, J., necessarily depended upon, "1. What Congress have furnished the court with the means of effecting; 2. What the court has power to effect; 3, What can reasonably be done, in consistency with the due discharge of other duties imposed upon the court and its officers." '^ (2.) Made hy the Clerk and Marshal. — The court could not be called upon to organize a board of commissioners to make the selection, similar to that existing in some of the States ; because, in the first place, it was without power to create such a board, and confer the powers usually pos- sessed ; moreover. Congress had provided no fund for the payment of such a body. Resort was therefore had to the permanent officers of the court, the clerk and the mar- shal, with such assistance as could be conveniently pro- cured.* 1 United States v. Collins, 1 Woods, 498, 503; United States v. Tall- man, 10 Blatchf . 21 ; United States v. Gardner, supra. 2 United States v. Tallman, 10 Blatchf. 21; United States v. Wilson, 6 McLean, C04; United States v. Collins, 1 Woods, 499; United States v. Gardner, sxipra. 3 United States v. Tallman, supra. * United States v. Tallman, supra; United States v. Woodruff, 4 Mc- Lean, 105; United States v. Collins, 1 Woods, 499: Rich v. Campbell. lb. 509. " All tliat is recluired," said Mr. Justice Bradley, " is that the mode of designating and impanelling shall be substantially the same; not that the officers to caiTy it into effect shall be the same either in rmk or in number; nor that the same kind of jury boxes, or material (4) 50 SELECTION OF THE JURY LIST. [cH. IV. (3.) Upon irhac Advice and Information. — The ; elec- tion was entirely independent of that made by the State's officers. Being within the discretion of officers of the c'onrt, with due regard to the quuliHcations prescribed by law, it was quite possible, but nevertheless perfectly regu- lar, that the list of jurors selected might contain a very considerable number of names not found in the lists pre- pared by the State authorities.^ In the performance of such duty the officers of the court were at liberty to take the advice of well informed persons as to who were best qualified to serve as jurors. The latter did not act offi- cially, but in a purely advisory capacity. Thus, it was^ proper to write to a postmaster requesting him to forward names of qualified jurors of his count}^ Such names, having been canvassed by the officers of the court, were properly included in the official list.^ (4.) Wliat Number. — The number of names to be se- lected might be fixed by order of court. It needed not to correspond to that fixed by the statutes of the State for any one or more counties. This was within the discretion of the court and uncontrolled by any provision of the Re- vised Statutes.^ Nor were courts of the United States bound by the number directed by the laws of any State to be summoned upon a venire. Upon this point, unless re- stricted by acts of Congress, they were governed by the common law.* (5.) At what Time Draion. — Identity of time, within which the drawing should be made, was not a matter essen- tial to a substantial compliance with the mode adopted hy of which the boxes are composed, whether wood or iron, shall be tiie same; nor that they shall be kept and guarded in tlie same manner, nor that the same number of names shall be placed in the box; nor that in any other matter of detail, a minute imitation of the State practice is to be observed." United States v. Collins, 1 Woods, 499, 504. 1 United States v. Collins, 1 Woods, 499; Rich v. Campbell, lb. .W); United States v. Gardner, lb. 514. - Rich V. Campbell, supra. 3 United States v. Collins, and United States v. Gardner, supra. * United States v. Dow, Taney Dec. 34; United States v. Insurgeuts» 2 Dall. 335, 341 : United States v. Fries, 3 Dall. 515. 52.] IN THE FEDERAL COURTS. 51 the State. In one case Mr. Justice Bradley held that where the drawing was made by the marshal and clerk, within thirty days after each term, and not as in the State court, on the last day of term in open court, this went only to a matter of practice and detail, and not to the sub- stantial mode of designating or impanelling juries in the respects demanded by the act of Congress.^ (6.) MarsJial had not Common Law Powers of Sheriff. — But w^here the State law provided for the selection of jurors by a board of county commissioners, from which selection jurors were to be drawn as needed for service, it is obvious that a rule of the Federal court for such State, which gave to the marshal of the court the same arbitrary power in the selection of each panel as possessed by the sheriff at common law, did not conform to the State prac- tice, as required by the foregoing section.^ § 53. In the Territorial Courts. — By a section of the Revised Statutes of the United States,^ each of the district courts of territories previously named * have and exercise the same jurisdiction in all cases arising under the consti- tution and laws of the United States, as is vested in the circuit and district courts of the United States. But this jurisdiction does not make these courts circuit and district courts of the United States.^ Jurors, therefore, for the trial of such causes must be summoned under the laws of the territory in this behalf.'' The power to select and summon jurors, although not given by statute, exists by force of the common law. Therefore, in the absence of a statutory regulation, such courts, when sitting for the trial of cases before mentioned, may cause jurors to be summoned from 1 United States v. Collins, supra. 2 United States v. Woodruff, 4 McLean, 105. 3 § 1910. ■• §1909, New Mexico, Utah, Dakota, Arizona, Idaho, Montana and Wyoming. ^ Per Mr. Chief Justice Waite in Rej'nolds v. United States, 98 U. S. 145, 154, citing American Ins. Co. v. Canter, 1 Pet. 511; Benner v. Porter, 9 How. 235; Clinton v. Englebrecht, 13 Wall. 434. « Clinton v. Englebrecht, 13 Wall. 434, 448; Hornbuckle v. Toombs, IS Wall. 648; Reynolds v. United States, supra. 52 SELECTION OF THE JURY LIST, [CH. IV. the body of the district, under an open venire directed to the marshal of the territory.^ Obviously, on the trial of a case not arising under the laws of the United States, the jury must be summoned according to the law of the ter- ritory. The summoning of a jury according to the provisions of an act of Congress regulating the procuring of juries for the Federal courts is not good as against a challenge to the array for this informality.- ' Beery v. United States, 2 Colo. 18G. 2 Clinton v. Englebiecht, 13 Wall. 4:54. §55.] DRAWING THE PANEL. 53 CHAPTER V. or THE DRAWING OF THE PANEL. SECTION. .55. The Usual Method statetl. 56. The New York Method stated by Way of Illustration. 57. Continued — The Drawing Proper, how conducted. 58. System in Xew Jersey — Extraordinary Power of the Sheriff. .59. System in New England. 60. Penalty for Neglect to make the Drawing. Gl. Certificate of Officers to Drawing. 62. List of Jurors drawn made Public. (]?>. General Views with regard to Irregularities in Drawing. § 55. The Usual Method stated. — The striking uui- formity in the method of drawing jurors as practiced in the several States renders unnecessary any discussion of the statutes in detail. The county clerk or other officer, on re- ceiving the list, selected as described in the preceding sec- tions, files tlie same in his office, and writes down the names contained in such list on separate pieces of paper, of the same size and appearance, or as nearly as may be, fold- ing up each of such pieces so as to conceal the name thereon, and deposits them in what is generally known as "the juiy box." In Pennsylvania a wheel is used instead of a box, whicli is carefully locked and sealed with the in- dividual seals of the jury commissioners, the key being kept by the sheriff. The time for drawing is generally prescribed by statute, a certain number of days before the first day of the term at which the jurors are to serve, although in some States the drawing takes place upon the order of the judge of the court for which the jurors are 54 DKAWINC; TJIK PANEL. [CH. V. ihawM. The drawing is usually conducted l)y a county offi- cer, the county clerk or clerk of the court, who calls to his assistance certain officers as i)rescribcd by law. The num- ber to be drawn is limited hy statute or subject to the order of the court. The provisions of the New York Code of Kemedial Justice afford a fair illustration of the prelim- inaries of a drawing, and the drawing proper as practiced in other States, with the exception of those in New England, which will be presently noticed. In some of the States jurors are drawn for each week of the term. A juror, however, who has served the week for which he is drawn, is not disqualified for further service during the term. At the most the statute confers only an -exemption which may be waived by the juror.' § 56. The New York Method stated hy Way of Illus- tration. — On a day designated by the county clerk, not less than fourteen, nor more than twenty days before the day appointed for the holding of the court for which the jurors are drawn, this officer must draw the names of thirty-six persons, and any additional number ordered ac- cording to law, to serve as trial jurors at the term.'^ At least six days before the drawing, the county clerk must publish a notice thereof in a newspaper of the county ; or, if there is none, he must affix a notice thereof on the outer door of the building where the term for which the jurors are to be drawn is appointed to be held. Three days be- fore the drawing he must notify the following officers to attend, — the sheriff of the county, the county judge or the special county judge, or a justice of the sessions.^ The attendance of these officers is required, although the sheriff ma}' send his under-officer.'* The drawing must be ad- journed until the next day, if the officers fail to attend. The county clerk notifies two justices of the peace to attend the adjourned drawing. If the sheriff or under-sheriif and 1 McAfee v. State, 31 Ga. 411. 2 New York Code Rem. Jus.. § 1042. « lb., § 1043. * Ih.. § 1044. § 58.] UNDER NEW YORK STATUTE. 55 the county judge, or if the sheriff, under-sheriff or county judge, together with two justices of the peace of the county, appear at the adjourned day, but not otherwise, the clerk must proceed to make the drawing in the presence of these persons.^ § 57. Contiiuied — The Drawing Proper — How Con- ducted. — The drawing must be conducted as follows : 1. The clerk must shake the box containing the ballots, so as thoroughly to mix them. 2. He must then, without seeing the name contained in any ballot, publicly draw out of the box one ballot at a time, until the requisite number has been drawn. 3. A minute of the drawing must be kept by one of the attending officers, in which must be en- tered the name contained in each ballot drawn, before Another is drawn. 4. If, after drawing the requisite num- ber, the name of a person has been drawn, who is dead, or insane, or who has permanently removed from the county, to the knowledge of an attending officer, an entry of that fact must be made in the minute of the drawing, and the ballot containing that person's name must be destroyed. Whereupon, another ballot must be drawn, in its place, and the name contained therein must be entered, in like manner, in the minute of the drawing. 5. The same pro- ceedings must be had, as often as necessary, until the requisite number of jurors has been obtained. 6. The minute of the drawing must then be signed by the clerk, and the other attending officers, and filed in the clerk's office. 7. A list of the names of the persons so drawn, showing the place of residence, and other proper additions, of each of them, and specifying for what court and term they were drawn, must be made and certified by the clerk, and the other attending officers, and delivered to the sheriff of the county.^ § 58 . System in New Jersey — Extraordinary Power of the Sheriff. — The system pursued in New Jersey differs materially from that in other States. We have[ previously 1 Ih., §§ 1045, 1046. 2/5., §1047. 56 DRAWING THE PANEL. [CH. V. noticed the extraordinary power possessed by the sheriff '-i the selection of the list of qualified jurors.^ Much tl,. same authority he retains in the process of drawing. The names are not drawn out of a box containing the names of all the. selected jurors. On the contrary, previous to each term, a special session of the court is held at which the sheriff and the county clerk appear. The court directs the number of jurors to be drawn. The sheriff consults his list, and, selecting double the number of jurors required, copies their names u]ion separate slips of paper which are folded and placed in a box containing no other ballots, from which the number ordered is drawn in open court. Thus it will be seen that this officer retains in a marked degree the dangerous power of selection possessed by the sheriff at common law. In this respect, it is believed, the systeui of procuring jurors in New Jersey is distinctly different from that practiced in any other State. ^ § 59. System in New England. — In the New England States, as previously noticed,^ the list of jurors selected is retained by the town authorities, instead of being certified to the county clerk ; therefore the drawing must necessarily be conducted by the former. This gives rise to a system differing slightly from those of other States. In Massachu- setts the clerks of the Supreme Judicial and Superior courts, " in due season before each term," issue writs of venire facias, requiring from each town and city a number of ju- rors, as nearly as may be in proportion to their respective number of inhabitants. These writs are delivered to the sheriff of the county, and by him transmitted to a consta- ble in each of the towns and cities to which they are respect- ively issued, who without delay serves the writ on the se- lectmen and town clerk.* When the jurors are to be drawn, the town clerk and selectmen attend at the clerk's office or some other public place appointed for the purpose ; and if the ^ Ante, §45 (1). 2 Rev. i\. J. 1877, p. 533, § 13. ^ Ante, § 45 (3). ^ G. S. Mass. 1860, p. C8J, § 10. e.t sej. § 61.] PENALTY FOR NEGLECT CERTIFICATE. 57 clerk is absent, the selectmen may proceed without him. The process of drawing which ensues is substantially the same as in other States.^ Any town may at a legal meet- ing order that all drafts for jurors therein shall be made in open town meeting ; in which case, when a venire is served upon the selectmen, it is their duty to cause a town meet- ing to be notified and warned for that purpose, in the man- ner ordered by the town or otherwise prescribed by law.'^ In cities the mayor and aldermen and the clerk severally exercise all the powers and duties with regard to drawing and all other matters relating to the drawing of jurors, which in towns are required to be performed by the select- men and town clerks ; therefore, all venires for jurors to be returned from a city are served upon the mayor and al- dermen.^ § 60. Penalty for Xeglect to make the Drawing'. — A neglect of the officers charged with the duty of making the drawing is generally punished by a fine, varying in the high- est amount from twenty dollars * in some States to fifty in others,^ and in one State it is five hundred dollars.*^ § 61. Certificate of OflScers to Drawing. — The statutes generally require that the officers, who have witnessed the drawing, shall certify to this effect. A literal compliance with the statutory form of this certificate is not demanded. The statutory form being " that said list of names has been duly selected in conformity with, and according to the spirit and intent of this act," it is sufficient if the certificate state 1 /^., § 16. See also G. S. N. H., ch. 194, § 10; G. S. Conn. 1875, tit. 19, ch. 10, § 6; G. S. Yt. 1862, ch. 37, § 5. ^ lb., § 18. In Maine the statute requires tlie drawing to take place before a town meeting duly convened for this purpose. R. S. Me. 1871, ch. 106, § 9. 3 G. S. Mass. 1860, ch. 132, § 22. See also G. S. R. 1. 1S72, p. 432, § 15. ;, 31 Tex. 72. <§ 66.] SUMMOXING AND ENFORCING ATTENDANCE. Ol CHAPTER VI. OF SUMMONING AND ENFORCING THE ATTENDANCE OF JURORS. SECTION. 66. SuramoTJS of Jurors at Common Law. (1.) Jm-ors originally summoned to Westminster Hall. (2.) Afterwards summoned to the Country Assizes. (3.) Panel arrayed four Days before the Session. (4.) The "Venire Facias supplemented by the Distringas. (5.) Different Kinds of Process — Precept, Venire, oral Command. 67. Technical Accuracy in Venire required at Common Law. 68. Otherwise under American Statutes. 69. Method of Summoning under these Statutes stated. 70. Unimportance of the Venire under these Statutes. 71. Distinction between Venire and Precept in New York. 72. Order for Venire need not be shown. 73. Variance between Order and Venire unimportant. 74. Instances of unimportant Defects in the Venire. (1.; Style of the Writ. (2.) Officer to whom direeted. (3.) Mandatory Clause. (4.) Enumeration of Qualifications of the Jurors. (5.) Misnomer of the Jurors. 75. Disqualification of Persons summoned no Objection to Venire. 76. Objection to Venire must be taken before Verdict. 77. Service by the wrong Officer no Objection. 78. Return of Venire. (1.) Necessity of. (2.) Neglect to sign. (3.) Within what Time made. (4.) Defects in. 79. Number of Jurors to be summoned. (1.) At Common Law and under Stat. Will. II. (2.) Under American Statutes. (3.) Full Panel need not always attend. (4.) In case of Persons jointly indicted. (■>2 SUMMONING AND ENFORCING ATTENDANCE . [cif. VI 50. Special Venire in Capital Cases. (1.) When j^ranted. (2.) How drawn. (3.) Grounds for Quashing. (4.) Xon-Attendance of Special Jurors. 51. Special Venire upon Default of Jurors. (1.) When ordered. (2.) Whether after Discharjije of regular Panel. (3.) lu the Absence of the regular Jury. (4.) Jurors must be summoned in prescribed Mode. (5.) Variance between Order and Copy. (6.) Jurors summoned from the ''Bodj' of the County. 52. Substitute for Sheriff as returning Oflicer. (1.) Coroner when Sheriff incompetent. (2.) Elisors when Coroner incompetent. 53. Fine upon non-attending Jurors. (1.) Under the English Practice. (2.) Under American Practice. (3.) In Case of Exempt Persons. 84. Provisions against Fraud in procuring Jurors. (1.) Statutes against Frauds of Officers. (2.) Statutes against Professional Jurors. 85. Procuring Jury in Justice's Court. § 66. Summons of Jurors at Common L,aw. — (1> Jurors originally simrmoned to Westminster Hall. — Origin- ally the king's court sat at times and places suited to his convenience and pleasure. It followed him in his uncertain movements, until a change took place in the reign of John, a provision of the Magna Charta requiring the holding of common pleas " ^?^ aliquo loco certo.''^ This is commonly known as the severance of the Court of Common Pleas from the Curia Regis ; for to this circumstance the Court of Common Pleas owes its separate existence.^ Westmin- ster Hall was selected by Henry HI. as the certain place for the seat of this court.- (2.) Afterwards sunmioned to the Country Assizes. — But the advantages of having a certain place for seeking justice were offset by a new grievance which became un- avoidable under the system. As observed l)y the author of J Bigelow's Hist, of Pi'oeedure in England, pp. 85, 92. - Gilbert's Hist. Com. PL, Introduction, p. 31, note. § 66.] AT COMMON LAW. 63 Trials per Pais,^ "All jurors, together with the parties, came up to the King's higher courts of justice where the cause depended, which, when suits multiplied, was to the intolerable burthen of the country." Therefore, as the justices were already in the habit of making periodical cir- cuits for the purpose of holding the assize in pleas of land, it was thought advisable to substitute them for the full court in banc at Westminster, in other cases also.^ Ac- cordingly, by the statute of Westminster the Second, c. 30,^ the writ of Nisi Prius was granted. This statute enacted that these justices should try other issues wherein small examination was required or where both parties de- sired it, and return the inquests into the court above.* This led to an alteration in the form of the venire ; and in- stead of the sheriff being simply ordered to bring the jurors to the courts at Westminster on a day named, he was now required to bring them there on a certain day, nisi prius, that is, unless before that day the justices of assize came into his county, in which case the statute directed him to return the jury, not to the court, but before the justices of assize.^ (3.) Panel arrayed four Days before the Session. — But under the statute just noticed the sheriff did not return the writ of venire until the day on which he brought the jurors into court where the justices were sitting. This pro- cedure deprived the parties of all knowledge as to the com- position of the panel, until actually confronted with the jurors. They were thus deprived of an opportunity for examination into causes of exception to the jurors. This seems to have been regarded as a great evil, and it was 1 Ed. of 1725, p. 64. 2 Forsyth, Hist, of Trial by Jury, 168. 3 13Edw. I. (A. D. 1285). ^ The language of the statute is " that all pleas in either bench, which require only easy examination, sliall be determined in the country before the justices of assize," etc. The statute, therefore, was held to authorize the trial in the country of criminal, as well as civil cases. 2 Hawk. P. C. ch. 42, § 2. ■' Forsyth, Hist, of Trial by Jury, p. 169. 64 SIMMOXIXG AND ENFORCING ATTENDANCE. [CH. VI. tliereforc onacted by the 42 Edw. III., c. 11, "that no in- 399; State v. Simmons, 6 Jones, L. 309. § 77,] SERVICE OF THE VENIRE^ 71 ground of challenge to the individual juror. The law does not require perfection in the list of selected jurors from Avhich those of the venire are taken, and such mistakes are clearly unavoidable and in general without detriment.^ § 7t). Objection to Venire must be taken before Ver- dict. — A motion in arrest of judgment will not be sus- tained upon the ground that the venire neither issued, nor was returned within the time specified by law. In pre- scribins; such time, the leoislature has nothino- more in view than to procure prompt action upon the part of the sum- moning officers."^ In general, an irregularity in the venire must be objected to before verdict.^ § 77. Service by tlie Wrong- Officer no Objection. — Ser- vice seems to be important, only that the jurors may be put in contempt in case they fail to appear. Therefore, it will be held good as against an objection of the defendant, even in a criminal case, although not served by the officer named in the statute. This is unequivocally decided by the Supreme Court of Michigan, the opinion being delivered by Cooley, J. " The first exception in this case," sai'd he, " is, that the jurors were summoned by the sheriff of Wayne County instead of by an officer of the metropolitan police. There is no claim that the jurors were improperly drawn, or that there was any improper conduct by the sheriff. The only complaint is that the wrong officer summoned them. We think there is nothing in this objection. If the juroi-s, after being properly drawn, had appeai'ed without being summoned at all, no objection could have been taken after- wards ; and at most the action of the sheriff can only b3 treated as a nullity. It is immaterial to this case, there- iPIall V. State, 40 Ala. 098; Fields v. State, 52 Ala. 348; Sparks v. Plankinhorne, 4 Yeates, 384; Wesley v. State. Gl Ala. 282; Boles v. State, 24 Miss. 445. 2 State V. McElmnrray, 3 Strob. L. 39; State v. Crosby, Harper Const. (S. C.) 91 ; People v. Justieei, 20 Johns. 310; Wash v. Com., IG Gratt. 530. 3 Brown v. State, 12 Ark. 623; Carinichael v. Howell, 2 N. J. L. 376; Plttstielcl V. Barnstead, 40 X. 11. 477; Bodge v. Foss, 39 N. H. 407; State V. Ilascall, G N. H. 352; "Wilcox v. School District, 2G N. 11. 303. 72 SUMMONING AND ENFORCING ATTENDANCE. [CII. VI. fore, which otHcor was entitled, uiulei- the .statute, to serve the venire.'" ^ § 78. Return of Voiiiro. — ( 1 . ) uVecessify of. — The return upon the venii-e is essential, since no other certain means is af- forded for identifying the jurors drawn with those jjresent in court or failinir to attend.'^ Altliouuh the statute regulating the drawing fails to enjoin this duty, this will not justify an omission to perform it. As said hy the Supreme Court of Pennsylvania in a late case, " This is a common law duty, and needs no legislative command." "' Such omission, how- ever, does not vitiate the array. It may be supplied by an order of the trial court upon the otiiccrs to return the venire. But where such order is not made, the judgment will not necessarily be reversed. In the case just noticed the court continued : " The error is more formal than sub- stantial ; and the court below appears to have had such evi- dence before it as satislied its conscience that the law had been complied with in all important particulars." * In an early Massachusetts case a juror was placed u[)on the panel upon his swearing that he had been summoned by the con- stable, although his name was omitted from the return.^ (2.) Necflect to sign. — The neglect of the sheriff to sign his return to the jury process directed to him is not a suffi- cient reason for quashing the array. On the contrary, the court will quash the return to the process, and on motion will direct the sheriff to amend his return l)y indorsing on the wa-it the execution thereof, and signing the same.'' (3). Within ichat Time made. — The time provided by statute, within which a return shall be made bv the sheriff, i People V. Willi:;nis. 24 :Midi. 150. 161. See iilso Kennedy v. Com., 14 Bush, 340. ^People v. Jones, 24 Midi. 21"). 3 Kolland v. Com., 82 Pa .St. 30(!. 322. < Pnd. 5 Patterson's Case, Mass. 4SG. 6 Dewar v. Speuce, 2 Whart. 211 ; Com. v. Miller. 4 Pliila. 210; Com. v. Green, 1 Aslmi. 289, 291; Com. v. Cliauneey. 2 Aslini. 90; Com. v. Parker. 2 Pick. 549. § 78.] RETURN OF THE VENIRE. 73 is generally regarded as purely directory. ^ The object of the requirement is to give the parties an opportunit}^ for in- specting the panel. Therefore, where the statute made it the duty of the sheriff to return the venire issued for the trial jury at least two days prior to the day fixed by law for the commencement of the term, a return upon the first day of the term was held to afford ample op})ortunity for in- specting the [)anel before trial. ^ But a conviction in a capital case was reversed, where it appeared that the return was not filed until the day upon which the defendant was sentenced, and two days after the trial. ^ (4). Defects in. — The requirement of the statute, that the sheriff shall specify in his return the manner in which the jurors were notified, is to enable the court to punish de- linquent jurors for non-attendance. An omission of this specification can give the parties no possible ground of ob- jection, especially where all the jurors appear. ^ The sheriff's return upon a special venire to supply a de- ficiency of jurors need not contain the names of the jurors 80 summoned, although the rule is otherwise as to the re- turn of jurors of the regular panel. ^ A return, although grammatically incorrect, is sufficient, if, " looking at it with the eyes of common sense," its true meaning is obvious. " In the New England States the jurors are drawn by the town authorities upon notice by the sheriff or his officer. Where the return of a constable read : " We have appointed J. C. a juror, etc.," the language, though in- accurate, was considered to be perfectly intelligible, the " we " having reference to the town of which the constable was an inhabitant.^ In the same case the venire directed the constable to cause a juror to l)e drawn not more than 1 Mowry v. Starbuck, 4 Cal. 274; State v. Squaires, 2 Nev. 220. - State V. Squaires. aupra. 3 State V. Vegas, 19 La. An. 105. ■» People V. Jones, 24 Mich. 215. 5 State V. Stolvely. 16 Minn. 282. 6 Maples V. Park, 17 Conn. 338. ^ Fellow's Case, 5 Me. 333. 74 SUMMONING AND ENFORCING ATTENDANCE, [CII. VI. twenty, iioi* less tliun six (lays before the sittiiii:: of the court. A return without date, that the juror was drawn " as al)ove directed," was held sufficient. A return of " not found" as to certain persons drawn on a special venire in a capital case is equivalent to " absent from the county," which under a statute justified the issue of an alias writ for other jurors to supply the deticiency.^ Where the issue of the venire precedes the drawing of the panel, it has been held to be unnecessary that it should ap- pear from the sheriff's return that the panel was drawn ac- cording to law. It will be presumed that the sheriff, who returns his writ executed, has proceeded according to law, "^ So, although the summoning officer omits to mention the day on which he summoned the jurors, they, being in attendance, may testify that they have been duly summoned and will thereafter be sworn.^ § 79. Xiimber of Jurors to be siimiuonod. — (!•) -4< Common Law and under Slat. Will. II. — Originally there seems to have been no restriction upon the discretion of the sheriff as to the number of jurors to be summoned for any given assize. By an early statute,^ however, which re- cites that " whereas the sheriffs were used to summon an unreasonable multitude of jurors to the grievance of the people," it was ordained that from thenceforth in one assize no more than twenty-four should be summoned. But, as was held upon the trial of Sir Harry Vane, this statute does not extend to jurors returned for criminal trials on the crown side of the court. The reason is obvious, that oth- erwise, in a capital case, an accused person could readily postpone his trial by the exercise of his peremptory chal- lenges. Therefore in the case just noticed, the sheriff, at the command of the court, returned a panel of sixty.'' 1 Davis V. State, 25 Ohio St. 369. 2 Com. V. Green, 1 Asian. 289. But contra see Eaton v. Com., G Binn.^ 447. » Anon., 1 Pick. 196. * Stat. W. II., c. 38. ^ Sir J Kclynge, 16. § 79.] NUMBER TO BE SUMJVIONED. 75 Upon the trial of certain persons for treason, in the United States Circuit Court for the district of Pennsylvania, it was held that inasm i li as no act of Congress fixed the number of jurors to be summoned, nor expressly adopted any State rule for this purpose, the necessary consequence must follow, that the number to be summoned would depend upon the rules of the common law ; " and by the common law," said Patterson, J., " the court may direct any num- ber of jurors to be summoned on a consideration of all the circumstances under which the venire is issued." ^ (2). Under American Statutes, — The statutes of the several States fix the number of jurors to be summoned for the term or for each week, and in general the ofiicers in drawing such panel will be guided thereby. But a literal compliance with such provisions cannot be demanded. Thus, upon the trial of an indictment for murder, the objection that the panel contained the names of forty-two persons in- stead of thirty-eight as required by the statute, was not allowed. "The objection," said Sebastian, J., "was an error of which the State, and not the defendant, had the right to complain." ^ (3). Full Panel need not always attend. — The parties cannot insist upon the attendance of the full panel directed to be summoned.^ The full panel is rarely summoned or in 1 United States v. Insurgents, 2 Dall. 335. See also, United States v. Fries, 3 Dall. 515. 2 Anderson v. State, 5 Ark. 444, 453 ; Ramos y. Bringier, 2 Mart. QS. S.) 192; Debuys v. Mollere, 2 Mart. (N. S.) 625; Prall v. Peet, 3 La, 274, 280. But contra see Harrison v. State, 3 Tex. App. 558; Burfey v. State, 3 Tex. App. 519; Jones v. State, 3 Tox. App. 575; Calthorp v. Newton, Cro. Jac. 647. In Louisiana it is provided by statute th.it it shall not be deemed a good cause of challenge to the array, that a num- ber of jurors actually drawn at anytime is not the exact number re- quired by law. E. S. La. 1876, § 2130. 3 Odom V. Gill, 59 Ga. 180; State v. Lovenstein, 9 La. An. 313; Pvol- land V. Com., 82 Pa. St. 306, 321 ; Sands v. Com., 21 Gratt. 871 ; State v. Brown, 12 Minn. 538; State v. Stephens, 13 So. Car. 285; State v. Klinser. 46 Mo. 224. But see Flower v. Livingston, 12 Mart. 681. In Anon.. 1 Bro. (Penn.) 200, it is stated that " all the persons who may be indicted will be entitled to their challenges out of the whole panel; if one single juror neglects to attend, in consequence of being illegally sum- 7»i SI M.MOXIXG AND ENFORCING ATTENDANCE. [CH. VI. atlondiiiK'c, l)ut tlio eoui't never awards a special venire to till the deficiency, unless the business of the term demands it.' (4). In Case of Persons jointh/ indicted. — Persons jointly indicted, who elect to be jointly tried, cannot de- mand a more numerous panel tlian would be awarded in the case of a single defendant.- § 80. Special Venire in Capital Cases. — (1). When f/ranfed. — The statutes of many of the States provide for the summons of a jury by a special venire in capital cases. 'Phis is in the nature of a privilege to the accused. Some of the sttitutes expressly provide that such special venire shall issue upon the demand of the accused ; in which case it is plain that, if the prisoner permits a jury to be formed from the regular panel, he cannot afterwards object to it as illegally constituted ;^ and this would seem to be generall}" true, whether such special venire is to issue upon the demand of the accused or otherwise.* (2.) Horv drawn. — The defendant cannot demand as a right that he shall be present wdien the special venire is drawn : '' nevertheless it has been thought proper that he nioued. the right of challenge is infringed. "' Tliis however is now con- tradicted by the settled rulfe that the right of challenge is a right to reject, and not a right to select. United States v. Marchant. 4 Mason, 158; .s. c. U Wheat. 48-2. ' Territory v. Doty, 1 Pinney (Wis.) 396. - State V. Phillips. 24 Mo. 475. 3 Jefferson v. State, 52 Miss. 767. •• State V. Perry, Busbee (N. C.) 330. A special venire cannot be de- manded in a case where the offense has ceased to be capital. State v. Bullock, 63 X. C. 570. Jnrors excused from the regular panel may be properly summoned upon the special venire. Brennan v. State, 33 Tex. "266. It is no ground for a challenge to the array, in a capital case, that it does not appear from an order for a special venire facias that it was made in the case of the prisoner. It is sufficient if it appear that it was m■.v^e at the term at which the trial was had. State v. ^liuidi, 1 Winst. (N. C.) 129. The court relied upon the common law rule that the chal- lenge must be grounded upon some default of the sheriff or other sum- moning officer. ■■ Pocket V. State. 5 Tex. App. 552; Cordova v. State. 6 Tex. App. 207; Handline v. State. 6 Tex. App. 347, 358. § 80.] SPECIAL VENIRE IN CAPITAL CASES. 77 should be present.^ Although the statute provides that the clerk of the court shall make the drawmg, this maybe done b}'^ a deputy sheriff in open court. ^ (3.) Grounds for Quashing. — It is no ground for quash- ing a special venire, that one of the jurors named therein is an alien. Such an objection is good only as a challenge to the individual juror .^ The causes for which a venire may be quashed must be either some fraudulent misconduct in the summoning officer, or some violation of law in select- ing, drawing or summoning the jurors.* (4.) J^on-attendance of /Special Venire-men. — Although the accused cannot insist that all the persons named in the special venire shall be returned into court, ^ there can be no doubt that in a case of neglect by the sheriff to summon a very considerable number of the jurors, as directed by the special venire, the court may quash the panel. But such neglect must be affirmatively shown. The court will not presume neglect from the fact that the sheriff has returned a considerable number as not found." And of course, the objection to the panel on this account must be made before proceeding to trial. ^ In general it may be said to be true that the accused, by going to trial without objection before a jury impanelled from those summoned upon a special venire, waives an}^ irregularity in the drawing, sum- moning and impanelling of such jurors.^ 1 Henry v. State, 33 Ala. 389; Hall v. State, 40 Ala. 698. 2 Pocket V. State, .5 Tex. App. 552. 3 Dunah v. State, 44 Miss. 789. */M(Z.,p. 796. 5 Stewart v. State, 13 Ark. 720, 735; Bates v. State, 19 Tex. 122; .Jack- son V. State, 4 Tex. App. 292, 298. 6 Logan V. State, 53 Miss. 431. ' Jackson v. State, 55 Miss. 530. ** .Jackson v. State, 4 Tex. App. 292; Gavigan v. State, 55 Miss. 533. The statute of Texas prescribes that upon the issue of a special venin the coui't shall caution the sheriff to summon onlj' those having the qualifications of jurors, stating at the same time what those qualifica- tions are; this, however, has no reference to the summons of talesmen to supply a deficiency upon such special venire. Dill v. State, 1 Tex.. App. 279. 78 SUMMONING AND ENFORCING ATTENDANCE. [CH. VI. § 81. Special Venire upon Default of Jurors. — (!)• W'/ien ordered. — Statutes are found in nearly every State, authorizing the court to direct the .sunnnons of jurors forth- with, when from any cause there are no members of the regu- lar i)anel in attendance, from which a juiy^ may be formed. Ill some States the formality of drawing must be observed, wiiile in others the court may direct the jurors to be taken from the countv at large. It is obvious that this lack of jurors may arise from a variety of causes. The officers charged with the duty of making the selection or drawing may have neglected or refused to perform their duty ; the lists of jurors may have been seized, lost, or destroyed ; the array may have ])een successfully challenged, and the panel quashed. ^ It cannot be permitted that circumstances like the foregoing should leave the court without the neces- sary machinery for the transaction of business, and there- fore ample provision is made for this emergency. ^ (2). Whether after Discharge of Regular Panel. — All the jurors of a regular panel for a term having been dis- charged from further attendance, this has been held to be *' an entire absence of jurors of the regular panel," which authorizes, under the statute, the issue of a special venire to supply the want. ^ But the better opinion would seem to be that a court can not thus capriciously break up the regular panel, and relegate the decision of a party's rights to the unsatisfactory array of jurors which a special venire, exe- cuted forthwith, is apt to produce. An absence of jurors caused by the discharge of the panel would seem to differ radically from a failure to appear, caused by a default of 1 A statute which provides that upon the quashing of a panel, by rea- son of the allowance of a challenge to the array by the defendant, the oourt shall have power to award a venire returnable forthwith for the trial of the cause, will not by implication extend the power of the court in this behalf to the case of a panel quashed upon a challenge to the ar- ray by the State. Williams v. Com., 91 Pa. St. 493. - Kussel V. Stitte, 53 Miss. 367; Trembly v. State, 20 Kan. 116; People V. Stuart, 4 Cal. 225; People v. Vance. 21 Cal. 400; People v. Williams. 43 Cal. 344; People v. Devine, 46 Cal. 46; People v. Davis, 47 Cal. 93. 3 State V. McCartey, 17 Minn. 76; Blemer v. People, 76 111. 265; Keed V. State, 15 Ohio, 217. §81,] SPECIAL VENIRE ON DEFAULT OF JURORS. 79 the officers charged with the driiwiug and summoning. ^ (3). In the Absence of the Regular Jury. — While the jury are absent in the jury room considering their verdict, the court may order the impanelling of a jury summoned forthwith for the trial of another cause, under the ordinary statute conferring power upon a trial court to summon jurors upon a special venire when the business of the court requires it.^ ( 4) . Jurors must he summoned in prescribed Mode. — The jurors must be summoned in the manner provided by law. If the statute prescribes that such jurors shall be drawn by the clerk, who shall thereupon issue a venii^e to the sheriff, the court cannot omit the drawing, and in the first instance issue a venire to the sheriff directing him to summon a cer- tain number of jurors.^ But it matters not that the sum- mons was more formal than required by law ; for example, that the jurors were summoned upon a venire, when by statute the verbal order of the judge was sufficient.* (5). Variance between Order and Copy. — It is no ground of objection to the regularity of the summons, that a vari- ance exists between the terms of the order issued to the sheriff, and the copy of the order upon which the sheriff made his return. Such a variance, as where the order recited *' that a sufficient number of petit jurors have not appeared," but the copy read " no petit jury having been drawn for the present term," can have no possible l)eari!ig upon the selec- tion of the jurors summoned.^ 1 Mosseauv. Veeder, 2 Oreg. 113; Judge v. State, 8 Ga. 173. - Evarts v. State, 48 lud. 422; Winsett v. State, 57 Ind. 26; Merrick v. State, 63 Ind. 327. The defendant in a criminal prosecution is not enti- tled to a continuance upon tlie failure of a jury of the regular panel to agree upon a verdict in his case. The court may, under such a statute, impanel a new jury iustanter for his trial. Pierce v. State, 67 Ind. 354; Vanderwerker v. People, 5 Wend. 530. 3 Gladden v. State, 13 Fla. 623; Gropp v. People, 67 111. 154; Lincoln V. Stowell, 73 111. 246; Rockford Ins. Co. v. Nelson, 75 111. 548; Wright V. Stuart, 5 Blackf. 120; Hight v. Langdon, 53 Ind. 81. 4 State V. Coleman, 8 So. Car. 237. ^ People V. Jones, 24 Mich. 215. ,80 SUMMONING AND ENFORCING ATTENDANCE. [CH. VI. ( 6). Jurors summoned from tJie " Bodi/ of the County.'''' — Upon an order to summon jurors " from the body of the county/" the sheriff and his deputies sulKciently comply with its terms, if jurors are taken from as many townships as can reasonably be expected within the time limited for making the return. It is not necessary that some jurors should be summoned fronr each township of the county.^ In executing a special venire for the return of a jury in- stanter, the sheriff is not obliged to go out into the country and summon every man he meets having the qualifications of a juror, until the desired number is obtained. He may resort to the assessment roll for the preparation of his list, and direct his deputies to summon those selected by him."^ § 82. Substitute for Sheriff as Returning Officer. — (1). Coroner when Sheriff Incompetent. — At common law the coroner was authorized to perform the duties of the sheriff in summoning a jury, when from any cause the lat- ter was incompetent to act ; ^ but incompetency does not include disability. Thus, the coroner is not authorized to summon a jury in case of the inability of the sheriff to act by reason of sickness or other cause.* As stated in an old case, " the coroners are not the proper officers of the court in any other case but where the sheriff is absolutely improper ; not where there is no sheriff at all. If the sheriff die, the coroner cannot execute." ^ The court, being satisfied that the sheriff is grossly igno- rant of the duties of his office, although there is no evidence of partiality or corruption, may direct his deputy to perform the duties of this officer in the summoning of tales jurors.'' There is no informality in this ; for, pro hac vice, the dep- uty stands in court clothed with the authority of the princi- l)al, answering for him, and delegated to perform all the ^ State V. Arthur, 39 Iowa. G31. - Cavanah v. State, 5G Mis^s. 299. See also, People v. Colt. 3 Hill, 432. ■5 Co. T.itt. 158. a.; Rex v. Smith, 2 Shower, 288; Rex v. Dolby, 1 Dow. &Ry. 145; s.c.,2 Barn. & Cress. 104. * State V. Monk, 3 Ala. 415. ^ Rex V. Warrington, 1 Salk. 152. 6 Kellv V. State, 3 Sni. & M. 518. § 82.] SUBSTITUTE FOR RETURNING OFFICER 81 duties connected with the court, which the law authorizes or requires the sheriff to do.^ It has been held, however, that the court cannot properly, hi advance of any objection by the parties, proceed to examine the sheriff for causes of bias, and having ascertained the same to exist, direct a venire to the coroner. Nevertheless, the remedy of the aggrieved party is not obvious. It is not in a challenge to the array of the coroner, there being nothing to show partiality or default on the part of this officer.^ There being two sheriffs, one of whom is a party to the suit, the venire may be executed by the other, although the return is made in the name of both.'^ It is only when the other is shown to be incompetent, that the process will be directed to the coroner.'* Statutes are common, authorizing the court when the sheriff or his deputies are disqualified, to direct the coroner or any other disinterested person to summon the jurors.^ And under some statutes this disqualification of the sheriff need not be formally ascertained. It is sufficient if a party will file an affidavit stating partiality, prejudice, consan- guinity, or interest on the part of the sheriff.^ (2). Elisors when Coroner Incompetent. — Under the English practice, as the effect of a challenge to the array would be to postpone the trial, it became usual for the plaintiff, who anticipated that such a challenge might be ef- fectually made, to apply to the court, and suggest the ob- 1 Com. V. Carson, 3 Phila. 219, 223; Conner v. State, 25 Ga. 515. 2 People V. Welch, 49 Cal. 174. 3 Rex V. Warrington, 1 Salk. 152; Rich v. Piayer, 2 Shower, 286. ^ Reg. V. Delme, 10 Med. 198. 5 Phillips V. State, 29 Ga. 105 ; Hanna v. People, 86 111. 243 ; State v. Hardin, 46 Iowa, 623. A statute providing that " if the case requires it," the court may appoint two citizens for tlie summons of jurors, was lib- erally interpreted. '• If from any cause," said the court " bias or par- tiality, sickness, absence, death, removal or resignation from office, refusal to obey the order to summon special jurors, or if for any other sufficient cause the court determine that the circumstances of the case require it, they may appoint two citizens to perform the duty mentioned in the act." Com. v. Carson, 3 Phila. 219. 6 Harriman v. State, 2 G. Greene, 271; State v. Hai'din, 46 Iowa, 623. (6) 82 SUMMONING AND ENFORCING ATTENDANCE [CH. VI. jectioii to the sheriff; and if this was not dcniotl, the court directed its process to the coroners of the county instead of the slieriff. And, in ease the coroners also were liable to objection, and this was suggested to the court, then the court appointed certain persons of its own nomination, called elisors, to whom the process should be directed. And Lord Tenterden, speaking in 1821, stated this to be the practice at that time.^ In such a case, the elisors are the par- ticular officers of the court, acting under its special author- ity, as distinct from the coroner and sheriff, who are the general officers of the law ; and although a challenge to the array might be made in the case of a jury summoned by the coroner, as well as when summoned by the sheriff, it was not allowed when the elisors acted.'- § 83. Fine upon non-attending Jurors. — (1-j Under the English Practice. — By the jury act of 6 Geo. IV., c. 50, any juror having been duly summoned, who, without a reasonable excuse (to be proved by oath or aflSdavit),^ shall fail to appear, or, having appeared, shall wilfully withdraw himself, may be fined as the court shall think proper.^ On the trial of an issue out of chancery, Avherc certain special jurors failed to attend, they were each amerced in the sum of fifty pounds.^ Ten pounds, however, seems to have been the fine usually imposed upon special jurors in such cases. ^ The rule was adopted under this act that personal service was not required before a fine could be imposed. It was sufiicient if the bailiff swore that the summons was left with some person at the usual abode of the juror. "That person," said Baron Hullock, "is, for the pur- poses of the act, the agent of the juror ; and it was his duty 1 Kex V. Edmunds, 4 Barn. & Aid. 471, 480. 2 Kex V. Edmunds, 4 Barn. & Aid. 471, 480, citing Co. Litt. 1.58. a. 8 It is not the practice for the court to hear counsel on behalf of per- sons it has thus fined. Carne v. Nicoll, 3 Dowl. 11.5. *Ib., §38. « Wood V. Thompson, 1 Car. & M. 98. See also Carne v. Nicoll, 3 Dowl. 115; Layburn v. Cri.sp, 8 Car. & P. 397; Reg. v. Fay, Irish Rep. 6 C. L. 436. * Ex parte Clarges, 1 Y. «& J. 401, note. § 84. ] PROVISIONS AGAINST FRAUD. 83 to apprise his principal of the summons, or if that were impossible, to attend and explain to the court the reason for non-attendance."^ But this severe rule does not ap- pear to have been uniformly followed.^ It was held to be a good excuse that the person sum- moned had let his house and was abroad, of which facts the summoning officer was informed.^ Likewise, where it appeared that the summons had by mistake been left at some other place than the a])ode of the juror ; but the court would not remit the fine until the summoning officer had explained upon oath how the mistake had happened.* (2.) Under American Practice. — The statutes of the several States quite uniformly provide that the juror may be personally notified to attend, or that a copy of the sum- mons may be left at his residence with a competent person. The attendance of jurors is secured in every State by fine for a default, without reasonable excuse, after due notice to appear. This fine varies greatly in amount, from the limit of five dollars in Connecticut,^ to five hundred dollars in Nevada.^ Twenty dollars appears to be a very common limit, although in many States it is considerably above this sum. (3.) In Case of Exempt Persons. — A person exempt from jury service should come into court and show his ex- cuse upon receiving a summons to serve. He may not, rely- ing upon such exemption, refuse or neglect to appear.^ § 84. Provisions against Fraud in Procuring Jurors. — (1.) Statutes against Frauds of Officers. — The impor- tance of securing the return of an impartial jury was early recognized in the constitutions of two States. In the Plan of Government of the Constitution of Pennsylvania, 1 Ex parte Clarges, 1 Y. & J. 399. 2 Ibid., 400, note. 3 Ex parte Ford, 1 Y. & J. 401. * Ex parte Brown, 1 Y. & J. 401. 5 G. S. Conn. 1875, ch. X., § 11. « Comp. L. Nev. 1873, § 1061. ^ People V. Holdridge, 4 Lans. 511. 84 SUMMONING AND ENFORCING ATTENT)ANCE. [CU. VI. adopted in the year 177(), the mailer is noticed as follows; *' It is recommended to the legislature of this State to pro- vide by law against every corruption in the choice, return, or appointment of juries." ^ Ample provision is made in this respect by the statutes of nearly, if not quite, all of the States. Fines in large amounts may be assessed against officers on conviction of fraud in the discharge of their duties in the selection, drawing and return of jurors, while in several States this offense is punished by imprisonment in the penitentiary.^ (2). jStatafes against Professional Jurors. — Statutes aimed at professional jurors and others seeking to force themselves into the jury box, are found in some of the States. Thus, a section of the Revised Statutes of Mis- souri provides that "if any person shall ask, procure, or offer to procure, for himself or for another, a place upon any jury, or shall seek to have himself or another placed up- on the list of regular jurors, or summoned as a talesman, he shall be deemed guilty of a misdemeanor." ^ In certain other States this conduct is punishable by a fine,* but in Michigan it simply renders the offender ineligible for jury service."'' § 85. Procuring Jury in Justice's Court. — The pro- ceedings by which a jur}^ is obtained in a justice's court, are purely statutory and must be strictly pursued. If the statute provides that the names of those summoned shall be wi-itten upon slips of paper, folded and placed in a box, from which the justice shall draAv six, or such further num- ber as shall be necessary after the allowance of challenges, the justice can not proceed to organize a ]\n'y when there are only five persons present in answer to the summons of the ^ § 25. Tliis identical provision is found in the constitution of Ver- mont, adopted in tiie following year. Id., Plan of Govt., § 22. 2 K. S. So. Car. 1873, p. 519, § 5; Stat. Teun. 1871, § 4804; Code, Ala. 1876, § 4122. 3 R. S. 1879, § 1432. < R. S. m. 1880, ch. 78, § 13; Comp. L. Kan. 1879, § 2991 ; 2 Ind. Rev. 1876, p. 392, § 80. 5 Comp. L. Mich. 1871, §5978. § 85.] PEOCURING JURY IN JUSTICE'S COURT. 85 constable. If the statute provides that in such a case the justice shall issue another venire to procure sufficient jurors to render the selection of six possible, this must be done upon the request of one of the parties. The refusal of such a request calls for a reversal of the judgment rendered in the case, regardless of the consideration whether the party making the request has been prejudiced or not.^ ^ Bristtane v. Macomber, 5G Barb. 375. 86 TALESMEN. [CH. VII. CHAPTER YII. OF TALESMEN. SECTION. 90. When suiunioiied. 91. Early History of . 92. Necessity of Summoning to be avoided. 93. Summoned to supply a Deficiency only. 94. Summoned in tlie Discretion of tlie Sheriff. 95. May be selected from Names on Jury List. 96. Number to be summoned Discretionary. 97. To sit only in Particular Cases. 98. May be assembled in Anticipation of Emergencies. 99. Summoning Otlicer not to interrogate. 100. Qualifications of. 101. Challenge to Array of. 102. Statutes against Professional Jurors. 103. Talesmen in case of Special Juries. 104. Talesmen in Federal Courts. § 90. Wlien sumnioncd. — If a sufficient number of jurors returned by the sheriff do not appear, the deficiency may be made up by impanelling bystanders present in court. ^ But this is not the only case in which a deficiency may occur. The panel present nuiy be reduced by claims of exemption, or by challenges of the parties ; and it is more frequent!}- to supply a deficiency from the latter cause, that resort to this process becomes necessary. These ju- rors are distinguished from those of the regular panel as tales de circumstantibus, or, more commonly, simply tales- > A tales c&n ncxev be ordered, unless there be a deficiency of jurors; otlierwise a new trial may be granted for this cause. United States v. Watkins, 3 Cranch C. C. 578. § !)2.] NECESSITY or SUMMONING TO BE AVOIDED. 87 men. Whether a proper emergency exists for the summons of talesmen, is for the court to decide according to the nat- ure and amount of the business pending.^ § 91. Early History of the Practice. — According to Mr. Forsyth, the first mention of the tales occurs in Stat. Hen. VIII, c. 6, where it is enacted that in civil causes the jus- tices, upon request made b} the party, plaintiff or defend- ant, shall have authority to command the sheriff to name and appoint, as often as need shall require, so many of such other able persons of the country then present at the assizes, or 7iisi prhis, as shall make up a full jury, which persons shall be added to the former panel, and their names annexed to the same. And by 4 & 5 Phil. & Mary, c. 7, the same rule was extended to criminal trials and actions upon penal statutes.^ In this country the power to summon talesmen has been regarded as usually incident to courts of record.* § 92. Necessity of Suniinoning to l>e Avoided. — The ne- cessity for the summoning of talesmen is to be avoided when possible, for the evident reason that they are selected with less deliberation than jurors of the regular panel, and are generally inferior in intelligence and probity.* In the or- ganization of the jury, the })roper practice is to exhaust the original panel before any talesmen are called in the case. ' And where the panel for the first week of a term was ex- hausted without procuring a jury, members of the regular panel for the next week, who happened to be present in court before the day stated in their summons, were held to have been properly directed to take their places upon the jury instead of the sheriff being directed to summon talesmen.** 1 Territory v. Doty, 1 Piniiey, 396. 2 Forsyth, Trial by Jury, 172. 3 Zeely v. Yansen, 2 .Johns. 386. * State V. Koss, 30 La. An. 1151; Barker v. Bell, 49 Ala. 284; Clough v. State, 7 iS^eb. 320; Lewis v. State. 3 Head, 127 ; People v. Lee, 17 Cal. 76. ^ Barker v. Bell, 49 Ala. 284. Although attachments are out against the absent jurors, the court is not obliged to delay the impanel- ling of the jury, but may order talesmen to be summoned for this pur- pose. Barthet v. Estebene, 5 La. An. 315. ^ Lambertson v. People, 5 Park. C. R. 200. See also Smith v. State, 55 Ahi. 1. 88 TALESMEN. [CH. VII. Althouirh tiilesmen have Ixtii suninioncd, an effort should he made to procure a jury from those sunniioucd upon the original veiihr ; and for this })urposc the names of such persons should be kept separate from those supernumerary jurors summoned upon a subsequent venire, or called in as talesmen.^ But no error is committed where it appears that the names were not kept separate, that a full jury- could not have been procured from the original panel, and that in fact, the i)risoner had the opportunity of excepting or rejecting all of the original venire.- § 93, Siinmioued to supply a I>eticieiicy of Jurors only. — In a former chapter we have stated the better view to be, that the court is not vested with the power to summon jurors upon a special venire after the discharge of the regu- lar panel. ^ For the reasons there stated it would seem clear upon principle, that a panel of jurors ought not to be summoned as talesmen to supply a total default of regular jurors.'* Thus, where the regular j^anel is absent in the jury room, making up their verdict in a case, the court can- not call another case for trial, and proceed to impanel a jury composed entirely of bystanders.^ However, where a portion only of the regular jurors are so absent, talesmen may be summoned to form a jury with the remainder of the panel. ^ If there remains but one of the regular panel, talesmen may be summoned to form a jury with this one ; ^ and if this one be challenged off in the process of impanel- ling, a jury may nevertheless be formed from the talesmen.^ 1 State V. Benton. 2 Dev. & B, 19G; State v. Xash, 8 Ircd. L. 35; State V. Lytle. 5 Ired. L. 58. 2 State V. Lytle, supra. Compare Bayoujon v. Criswell, 5 Martin (N. S.) 232. Other irregularities, without prejudice, are no ground for a venire de novo. State v. Nash, snpra. ^ Ante, §81, subsec. 2. *Kogers v. State. 33 Ind. 543; Williams v. Com., 91 Pa, St. 493. Contra, Suttle v. Batie, 1 Iowa, 141 ; Hunt v. Scobie, 6 B. Mon, 469. * Rogers v. State, .mpra. 6 Bradley v. Bradley, 45 Ind. G7; Ilondeau v. New Orleans Imp. Co., 15 La. IGO. 7 Fuller V. State, 1 Blackf. G3; Emerick v. Sloan, 18 Iowa, 139. * Fuller V. State, supra. § 95.] SELECTED FROM JURY LIST. 89 There can be no objection to the summoning of talesmen, where the reguUir panel has been exhausted without pro- curing a single juror. ^ § 94. Siiiiimoned in the Discretion of the Sheriff. — It will be seen from the statutes in a previous section,^ that talesmen were early selected in the discretion of the sheriff, as indeed were all jurors at common law. It is doubtless true that in this country the court is powerless to control this discretion, unless authorized by statute.^ Statutes of this description however are not uncommon. The flagrant abuses arising from the summoning of bystanders, in addi- tion to the dangerous power of the sheriff in making the selection, have called forth legislation in many of the States designed to check both evils.* § 95. May he selected from Names on Jury List. — The sheriff complies with the order of the court to summon duly qualified jurors " from the county at large," by taking the lists of grand and petit jurors at the ofiice of the county court, and copying therefrom, in the order of names as they stand upon such list, the number ordered by the court to be summoned.^ This step, although unnecessary, conduces to the impartiality of the body of jurors thus secured. The pris- oner certainly cannot complain that the sheriff chooses to put a check upon his own discretion in the execution of such sum- mons. Upon the same principle, where the court, in order- ing the sheriff to summon additional jurors for an adjourned term, used in the order the superfluous words " to be drawn by the clerk in the usual way," which order was duly exe- cuted, although the court neither had authority to order the clerk to make this drawing, nor could it properly control the estate v. Reeves, 11 La. An. 686: State v. Desmouchet, 32 I.a. An. 1^41. *§91. 8 People V. Cummino^s, 3 Park. C. R. 343, 353; Capehait v. Stewart, 80 N. C. 101. But where the sheriff chooses to submit to the dictation of the court in this matter, a party must show some prejudice arising from this fact, before he can complain of it. Ihid. , and not an ob- jection to the jurors individually. This challenge, like that to the regular panel, will be considered as waived, unless taken at the proper time/ § 102. Statutes against Professional Jurors. — The fre- quent necessity of summoning talesmen has had the effect of breedinof in every community a disrei)utable class of loiterers about court rooms, having no other purpose than to be selected for jury service. So conspicuous has this evil become of late years, that these persons have been dubbed with the distinctive title of " professional jurors." With the evident design of averting the necessity of sum- moning those who are technically bystanders, the statutes of many of the States provide that talesmen may be sum- moned from the l)ystanders, or from the count}' at large, as the court may direct. In other States the statutes ef- 1 Y(^lin Jim v. Territorj', 1 Wash. Ten'. 76; O'Connor v. State, 9 Fla. 215; I.ee v. Lee, 71 N. C. 139. It is not a positive objection to a tales juror that his name does not appear on the jury list as made out by the county autliorities. It is sufficient tliat at the lime of service he is pos- sessed of the quahfications required by hiw. Lee v. Lee, supra; Mc- Guffle V. State, 17 Ga. 497. 2 Com. V. Gee, G Cush. 174. ' Tlie simple verbal direction of the court to make this drawing- is held sufficient without a formal writ of venire. State v. Williams, 2 Hill (S. C.) 381 ; State v. Stephens, 11 So. Car. 319 ; Roberts v. State, 5 Tex. App. 141. * Gropp V. People, 67 111. 154 ; Mueller v. Rebhan, 94 111. 142. A formal demand that a venire shall issue seems to answer the purpose of a chal- lenge to the array. Passenger, &c. R. Co. v. Young, 21 Ohio St. 518. 4 i § 103.] IN CASE OF SPECIAL JURIES. 93 fectually exclude these persons, by expressly providing that in no case shall talesmen be taken from the bystanders.^ The Texas jury law of 1876 provides that tales jurors shall not be summoned from persons found in the court- house or yard, if procurable elsewhere.' But that a tales- man was so summoned does not constitute a statutory cause of challenge. A disposition, therefore, is evident to construe this provision as directory merely, a breach of it affording no ground of complaint, unless it tended to de- prive one accused of crime of a fair and imi)artial trial. ^ The same law provides that at the commencement of each term of court at which jury eases may be tried, the judge shall administer to the sheriff and his deputies an oath bind- ing these officers, among other things, to select according to the best of their skill and judgment "discreet, sensible, impartial men, when required to summon jurors not se- lected by the jury commissioners." A conviction will be reversed when it appears from the record that the oath as prescribed by statute was not administered to the sheriff or his deputies acting under him."* § 103. Talesmen in Case of Special Juries. — Unless expressly prohibited, the court has the same power, under statutes regulating the selection of special juries, to sum- mon talesmen to complete the panel, as in the case of com- mon juries.^ 1 Cal. Code Civ. Proc, § 227; Comp. L. Nev. 1873, § 1222; Comp. L. Utah, 1876, § 1385; Comp. L. Ariz., cli. 47, § 30; K. S. Ohio, 1880, § 5173; Miller's E. C. la. 1880, § 2775. As to penalty for seeking jury- service, see ante, § 84, sub. sec. 2. ■''This does not apply to persons found in the court house square, or in houses fronting upon the same. Baker v. State, 4 Tex. App. 223; Mat- thews V. State, 6 Tex. App. 23. Nor to one who was in court when the tales was ordered, but was subsequently summoned while in the street. Johnson v. State, 4 Tex. App. 268. 3 Matthews v. State, 6 Tex. App. 23; Frye v. State, 7 Tex. App. 94. ■* Hicks v. State, 5 Tex. App. 488; Samschen v. State, 8 Tex. App. 45. 5 Rex V. Hunt, 4 Barn. & Aid. 430; Snook v. Southvvood, Ryan & Moo. 429; Gatliff v. Bourne, 2 Moo. & Rob. 100; Atty. Gen. v. Par- sons, 2 Mee. & W. 23; Rex v. Hill, 1 Car. & P. 667; Rex v. Tipping, 1 Car. & P. 668; Burou v. Denman, 1 Exch. 769; People v. Tweed, 50 How. Pr. 286; Anon., 2 Dall. 382; Rankin v. Goddard, 4 Allen (N. B.) 94 TALESMEN. [CH. VII. § 104. Talesmoii hi Federal Courts. — Section 804 of the Revised Stiitutes provides: " When, from challenges or otherwise, there is not u petit jury to determine any civil or criminal cause, the marshal or liis deputy shall, by order of the court in which such defect of jurors happens, re- turn jurymen from the b3^standers sufficient to complete the panel." The process of procuring jurors in the Federal courts has been hitely very materially changed by an act of Congress which we have hitherto noticed.^ This act pro- vides that all jurors in the courts of the United States, "grand and petit, including those summoned during the session of the court, shall be publicly drawn from a box," etc., specifying thereafter how the l)ox shall be filled with the names of qualified pesons. It has been held that the calling of jurors from the bystanders, sutHcient to com- plete a panel under the order of the couit, is not a summon- ing of jurors in the sense in which the term " summoned " is used in the act of 1879. The section of the Revised Statutes previously noticed remains, therefore, unaffected by this act.^ This view is believed to be unsound. An as- sumption of the power of summoning bj-standers, instead of persons whose names have been regularly drawn from the box, opens the door to the very abuses which the act of 1879 was designed to prevent. 155; Atlee v. Shaw, 4 Yeate.«, 236; Kex v. Perry, 5 Term Rep. 45.3; Sparrow v. Turner, 2 Wils. 366; Demi v. Evaul, 1 N. J. L. 283; Hub- ley V. White, 2 Yeates, 133. 1 Act of June 30, 1879; ante, § 49. 2 United States v. Rose (U. S. Circuit Ct. So. Dist. Ohio, March, 1881, Swing, D. J.), 6 Fed. Rep. 136. § 108.] SERVICE OF THE PANEL ON THE ACCUSED. 95 CHAPTER VIII. OF THE SERVICE OF THE PANEL ON THE ACCUSED. SECTION. 108. A matter of Grace at Common Law. 109. But later guaranteed by Statute in England. 110. And also in the United States. 111. Policy of these Statutes. 112. Whether these Statutes Mandatory. 113. Whether List must be demanded. 114. Not entitled to List of Talesmen. 115. Nor to object where more is done than Law requires. 116. Jury not necessarily formed from the List served. 117. Imperfections in List. 118. Objections to Caption and Form of List. 119. Waiver of Eights as to. 120. Computation of Time as to Service. 121. Amendment of Sheriff's Return to show Service of List. 122. Record must show that no List was furnished. § 108. A Matter of Grace at Common Law. — At com- mon law a copy of the panel was not granted until the accused had pleaded/ and then only by the grace of the court. ^ Of this the accused were on one occasion reminded, when, after receiving a copy of the panel, complaint was made by one of them that they had not time enough to in- quire into the jury ; whereat the Lord Chief Justice ob- served : " Look you, we are not bound to do this, but you have it as soon as you have pleaded." The importunities for time to look after the jury were unheeded, and the de- fendants were directed to take notice that their trial would 1 Grahme's Case, 12 How. St. Tr. 665, 666. " 1 East P. C. 112 ; Foster C. L. 228. J»6 SERVICE OF THE PANEL. [CH. VIII. begin punctually at eiirlit o'clock on the followinir morning.^ § 109. But lator jj^iiarantoed by Statute in Kni^Iand. — However, by a statute of Will. III,'^ regulating trials in cases of treason and misprision of treason, it was provided that accused persons should have " copies of the panel of jurors who are to try them, duly returned by the sheriff, and delivered unto them and ever}" of them so accused and in- dicted respectively, two days at least before he or they shall be tried for the same." ^ § 110. And also in the United States. — The right of the prisoner to have a copy of the panel of jurors who are to pass upon his case is conceded by statute in many States. In some States, the right is restricted to those indicted for a crime the punishment whereof is capital ; * but in others, we find this grace of the law extended to the accused in cases where the punishment is less severe ; nevertheless the offense must be of a serious nature.^ Thus, by the statute of Missouri it is granted where the punishment is death, imprisonment for life, or an unlimited term of years, in the penitentiary.^ § 111. Policy of these Statutes. — The policy of these statutes seems to be that where life is at stake, or in other cases of a serious nature, the prisoner shall be allowed every facility for making his challenges. This, no doubt, is greatly promoted by the prisoner having previous knowl- 1 Gralime's Case, 12 Ho^v. Sr. Tr. 669. 2 7 Will. III., c. 3, § 7. 3 This Statute was supplemented by that of 7 Anne, c. 21, § 11, requir- ing the list of jurors to be delivered to persons so accused ten days be- fore the trial. See Rex v. Gordon, 2 Doug. 569. One accused of felony only cannot demand, as of right, a copj^ of the panel. Reg. v. Dowl- ing. 3 Cox C. C. 509. * See Code Ala. 1876, § 4782; G. S. N. H. 1867, ch. 243, § 1 ; R. C. Miss. 1880, § 3057; R. S. Ohio, 1880, {j§ 7271. 7273. 5 See, however, Stat. Tenn., 1871, § 5212; R. S. 111. 1880, ch. 38, § 421. «R. S. Mo. 1879, §§ 1900, 1904. See also, R. S. Me. 1871, ch. 134, § 14; R. S. La. 1876, § 992; R. S. 1879, ch. 55, § 1. It is clear that the pris- oner can have no right to a list of the jurors in any other case, than that provided by statute. Reg. v. Dowling, 3 Cox C. C. 509; Driskill v. State, 45 Ala. 21. § 113.] WHETHER LIST MUST BE DEMANDED. 97 edge of the names of the persons vvho are to try him. ^ It is a valuable right which the court cannot, against his con- sent, withhold from the accused.^ § 112. Whether these Statutes Mandatory. — Some of these statutes are evidently mandatory, requiring the list to be served, whether demanded or not. The provision of the code of Alabama would seem to be so. It reads : '< If the defendant is indicted for a capital offense, and is in actual contineraent, a copy of the indictment and a list of the jurors summoned for his trial, including the regular jury, must be delivered to him at least one entire day before the day appointed for his trial." ^ § 113. Whether List must he demanded. — Other stat- utes, however, provide that the list " shall be delivered,"^ "shall be furnished;"^ that the accused " shall have," ** "be allowed,"^ or "entitled"^ to the same. Some of these terms plainly show that, unless a demand is made for the list, the prisoner cannot avail himself of the objection that no list was furnished. The requirement of the Mis- souri statute is certainly as positive as any of the foregoing, and yet the prisoner is obliged to demand the list if he would have it. " It is simply a privilege," said Wagner, J., " which the statute extends to the accused for his benefit; and if he does not make the demand or require the list, he is presumed to have waived it." ^ However, the legislature of Illinois evidently intended similar language to be imper- 1 However, an ignorant person, unable to read, cannot demand that the copy of the panel served upon him shall be read over to him, and served also upon his counsel, where the statute requires neither of these steps. Aaron v. State, 39 Ala. 75. « State V. Buckner. 25 Mo. 167. 8 Code Ala. 1876, § 4872. * R. S. Mo. 1879, § 1904; R. S. Ohio, 1880, § 7273. » R. S. 111. 1880, ch. 38, § 421 ; R. S. Me. 1871, ch. 134, § 14. 6R. S. La. 1876, § 992; R, C. Miss. 1880, § 3057. f Rev. Stat. W. Va. 1879, ch. 55, § 1. « Gen. Stat. N. H. 1867, ch. 243. § 1 ; Stat. Tenn. 1871, § 5251. 9 State v. Klinger, 46 Mo. 224, 227. (7) 98: SERVICE OF THE PANEL. [CH. VIII. ative without any demand of the accused, as appears from a reading of the whole i)rovisi{)n.' Under the statute of Ahil)ania noticed in the preceding section, it is quite ol)vious that if the prisoner is not in ac- tual confinement, he is not entitled to a copy of the panel, •except upon application.^ § 114. Not entitled to List of Talesmen. — After an ex- haustion of the panel of jurors summoned upon a special venire in a capital case, the accused is not entitled to delay the trial by a demand that a list of the talesmen summoned shall be served upon him under the conditions which apply to the regular panel .^ § 115. Nor to object where more is done than Law re- -qiiires. — Nor, having been furnished, as a matter of grace, with a list of the regular jurors for the term, in addition to those specially summoned for his trial, can the prisoner ■complain of defects in such regular list ;'' nor that the list was served two weeks before trial, instead of two days as required by the statute.^ § 116. Jury not necessarily formed from the List served. — The prisoner, however, is not entitled to insist upon the attendance; of all the jurors named in the list with which he is provided ;" nor, unless the statute so directs, to ^ "Every person charged with treason, murder or other felonious crime, shall be furnished, [iievious to his arraignment, with a copy of Ihe indictment, and a list of the jurors and witnesses. In all other cases "he. h\\i\\\, at his request or the request of his cownseZ, be furnished with a copy of the indiciment and a list of the jurors and witnesses." R. S. 111. 1880, ch. 38, §421. 2 Bill V. State, 29 Ala. 34. 3 Gardenhirev. State. G Tex. App.147; Harris V. State, 6 Tex. App. 97; Johnson v. State. 4 Tex. App. 208; Drake v. State, 5 Tex. Ajtp. 049; Sharp V. Slate, Tex. Ai)p. 050; State v. Buckiier, 25 Mo. 107,171; Green v. State, 17 Fla. CGI; State v. Price. 3 Mo. App. 580; State v. Reeves, 11 La. An. 085; State v. Bunger, 14 La. An. 401; State v. Bennett, 14 La. An.-OSl; State v. Henry. 15 La. An. 297; State v. Gua- ter, 30 La. An. 539; Colt v. People, 1 Park. Cr. R. Oil. But see People V. Coyodo, 40 Cal. 580. * Clianey v. State, 31 Ala. 342. « State V. Toby, 31 La. An. 750. « Jackson v. State, 4 Tex. App. 292, 298; Walker v. State, Tex. App. § 117.] IMPERFECTIONS IN LIST. 99 have tliera called in any particular order. The places of absentees maybe summarily supplied by talesmen, as where any panel is exhausted.^ § 117. Imperfections in List. — The Supreme Court of Arkansas considered the statute requiring a service of the list of jurors upon the prisoner within a certain time to be imperative; that the prisoner might rest upon his right to have a perfect list. Therefore, where the list contained an error in the christian name of one of the jurors, and the prisoner made objection, before the jury were impanelled, that the list furinshed was imperfect, it was held that the court erred in forcing him to trial without furnishing a per- fect list under the conditions of the statute.^ But this has been denied, and the better rule would seem to be that the trial, under such circumstances, may proceed ; and, unless some prejudice is shown to have resulted from a trilling error of this kind, the judgment will be allowed to stand.^ It is no oi)jection to the list served that it does not set out the christian names of the jurcn's in full, but only the initial letters of the same, at least in the absence of evidence showing that the prisoner was deceived or misled thereby.* Upon the same principle, it will be a sufficient description of the juror, although the name of the township from which 576; Logan v. State, 53 Miss. 431; State v. Kane, 32 La. An. 999; State V. Ho well, 3 La. An. 50; Stale v. Joliuston. 11 La. An. 422; Stale v. Kennedy, 11 La. An. 479; State v. Rouutree, 32 La. An. 1144. The cou- fitruction pnc upon the Texas statute cJiiec^tin'; ihe sniuinoning of jurors upon a special venire for the trial of capital eases, prevents the court from excusing any such juror until called in ilie case. Kobles v. Siale, 5 Tex. App. 346; Bejarauo v. State, 6 Tex. App. 265. See also Parsons V. Slate, 22 Ala. 50. But contra. State v. Kane, 32 La. An. 999; State y. White, 7 La. An. 531; State v. Koiailree, 32 F.a. An. 1144. 1 Stewart v. State, 13 Ark. 720, 735; Bates v. Siate, 19 Tex. 122; State V. White, 7 La. An. 531 ; State v. Bennett, 14 La. An. 651 ; State v. Fer- ray, 22 La. An. 423. 2 Stewart V. State, 13 Ark. 720, 736. " Goodhue v. People, 94 111. 37; State v. I'urner, 25 La. An. 573; Mc- Carty v. State, 26 xMiss. 299; State v. Kane, 32 La. An. 999; State v. Dubord, 2 La. An. 732; Swofford v. State, 3 Tex. App. 76. In Alabama such defects are cured by star.nce. Il.dl v. S^ace, 51 Ala. 9. ■* Aikin v. State, 35 Ala. 39lt; Bill v. Slate, 29 Ala. 34. . 100 SERVICE OF THE PANEL. [CH. VIII. he is drawn is abbreviated in the list, provided that such abbreviation is perfectly intelligible.^ The prisoner, under the statute of Texas,' is entitled to a list of the persons actually summoned. It is not sufficient that a list of those drawn is served.^ But this particu- larity is not required in Louisiana.* Nevertheless the Su- preme Court of this State held that the officers did not com- ply with the statute by serving upon the prisoner a list of one hundred and fifty-six persons, of whom, to the knowl- edge of the officers at the time of service, one hundred and twent}' had either been previously excused, or were ex- empt from jury duty, or were not summoned. "A list,'* said King, J., " containing other names than those of the jurors who are really to be presented on the trial, necessa- rily tends to embarrass the accused in his searches for in- formation, and to confuse him in preparing his challenges, and thus defeats the ends of the law. Such a list is not a compliance with either the letter or the spirit of the statute, although it may at the same time contain the names of all the jurors who are to pass on the prisoner's trial." ^ § 118. Objections to Caption and Form of List. — The service of the bare list of jurors upon the accused will in general be sufficient, if he has other means of assurance that such is the list of jurors for his trial. Therefore, tech- nical objections to the form of the caption are not favored.^ Thus, in one case it was objecied that the copy of the panel served showed neither the name of county, the court, nor the case for which it was drawn. "But," said the court, " it was served at the same time with the copy of the indict- ment in which all these things appear. There was no rea- son for repeating them upon what is only intended by the statute to be a mere list of the jur3^" ' » State V. Brooks, 30 N. J. L. 356. « Pascb. Dig., § 302-2. 8 Harrison v. Stato. 3 Tex. App. 558; Drake v. State, 5 Tex. App. 649. ♦ State V. Ouidry, 28 La. An. 631. 5 State V. Howell, 3 La. An. 50, 52. •State V. Ward, 14 La. An. 673; State v. Brooks, 30 N. J. L. 356; Aikin v. State, 35 Ala. 399. ^ State v. Brooks, supra. §121,] AMENDMENT OF RETURN SHOWING SERVICE. 101 § 119. Waiver of Rights as to. — By going to trial with- out objection, the defendant waives any informality or in- accuracy in such list known to him to exist ; ^ or the omis- sion to furnish such list ; '^ or that it was not furnished within a reasonable time prior to the trial.^ So, where the statute entitled the prisoner to demand that the list of jurors should be served upon him forty-eight hours before trial, and he agreed with the State's attorney that his trial might proceed within less than forty-eight hours, this was held to be an implied waiver of his rights under the statute to a list of jurors forty-eight hours before trial.* § 120. Computation of Time as to Service. — Where, as is common in the statutes of the several States relating to this matter, the statute provides that the prisoner shall be served with a copy of the panel a certain number of days before trial, in computing this time the days of delivery and trial are excluded.^ Fractions of days cannot be counted. A day, in contemplation ot law, comprises all the twenty- four hours, beginning and ending at twelve o'clock at night. ^ Where the statute which directs the service of a copy of the panel prescribes no time in which it shall be done, it would be proper to allow him a reasonable length of time for an examination of the same ; but the accused cannot demand a continuance for this purpose.^ § 121. Amendment of Sheriff's Return to show Service of List. — Where the sheriff's return on the venire in a capital case does not show that a copy was served on the prisoner one entire day before the day appointed for the J State V. Shay, 30 La. An. 114; Bell v. State, 59 Ala. 55; Pressley v. State, 19 Ga. 192. 2 State V. Fisher, 2 Xott & McCord, 261, 264; State v. Cook, 20 La. An. 145; State V. Jackson, 12 La. An. (579; State v. Hernandes, 4 La. An. 379; Peterson v. State, 45 Wis. 535. 8 Crafty. Com., 24 Gratt. 602, 609. * State V. Waters, 1 Mo. App. 7; s. c, 62 Mo. 196. * This is the settled construction under the English statute. See 1 East P. C. 112. « State V. McLendou, 1 Stew. 195; Robertson v. State, 43 Ala. 325. ^ Craft V. Com., 24 Gratt. 602. 102 SERVICE OF THE PANEL. [CII. A III. trial, as required by statute,^ the defect may be supplied by amendment, when a motion is made to (juasli the venire oii account of it.'^ § 122. Record must show that no List was furnished. — If the prisoner, when the case is called, announces him- self ready for trial, and makes no objection that he has not been furnished with a list of the jurors as required by law, in the absence of an affirmation in the l)ill of exceptions that no list was furnished, the mere silence of the record on the subject will not afford a ground for reversal.^ The Su- preme Court of Alabama at one time held that, the accused being in actual confinement, the record nmst show affirma- tively that a list of the jurors, as required by law, was served upon the prisoner;^ that his counsel were supplied with a copy was not sufficient.'^ But all these decisions are now overruled.^ 1 Eev. Code, Ala. § 4171. 2 Gray V. State, 55 Ala.. 86; Washington v. State, 8 Tex. App. 377. In Woodsides v. State, 2 How. (Miss.) 6G5, it was held that the return of the sheriff that he had served the prisoner with a correct list of the jury could not be collaterally questioned. 8 Benton v. State, 30 Ark. 328, 344; Freel v. State, 21 Arli. 212; Daw- son V. State, 29 Ark. 116 ; Durrah v. State, 44 Miss. 789 : Logan v. State, 50 Miss. 269; Lewis v. State, 51 Ala. 1; Mitchell v. State,. 58 Ala. 417; Paris V. State, 36 Ala. 232; Rash v. State, 61 Ala. 89. *Lacy v. State, 45 Ala. 80; Bugg v. State, 47 Ala. 50; Flanagan v. State, 46 Ala. 703 ; Morgan v. State, 48 Ala. 65. Robertson v. State, 43 Ala. 325. 6 See Lewis v. State, 51 Ala. 1; Mitchell v. State, 58 Ala. 417, 420; Rash v, State, 61 Ala. 89. CH. IX.] CHALLENGE TO THE ARRAY. 103 CHAPTER IX. OF THE CHALLENGE TO THE ARRAY. SECTION. 125. Two General Divisions of Challenges. 126. At Common Law. 127. Under the English Consolidated Jury Act. 128. Not allowed for Bias or Misconduct of Particular Persons. 129. Difference between the Mode of Selecting Jurors at Commou, Law and nnder American Statutes. 130. Challenge for Partiality of Summoning Officer. 131. Consanguinity or Affinity of Summoning Officer. 132. Summoning Officer a Party or the Advocate of a Party to the Suit. 133. " Nomination " of .Jurors by a Party. 134. Irregularities in Selecting the UeneraFList. 135. Continued — Eule in New England. 136. Failure to record the General List. 137. Informality in the Certificate of Selection. 138. Objection to the Officer who made the Selection. 139. Imperfections of the Jury List. 140. List Incomplete througli Fraud. 141. Filling and re-filling the Jury Wheel. 142. Custody of Jury Wheei. 143. Irregularities in Drawing the Panel. (1.) Statutes Directory. (2.) But Essential Provisions must be followed. (3.) Provisions of Particular Statutes. 144. Persons who may conduct the Drawing. (1.) In Case of Common Juries. (2.) In Case of Special or Struck Juries. 145. Time of Conducting tiie Drawing. 146. Irregularities in Summoning the Panel. (1.) Process of Summoning under American Statutes. (2.) Defects in Venire Facias no Ground of Challenge. (3.) Objections to tlie Clerl< who issues the Venire Facias^ (4.) Failure to issue Venire Facias. (5.) Failure to summon Particular Persons drawn. 104 CHALLENGE TO THE ARRAY, [CH. IX. (6.) Failure to m:iko Keturn. (7.) Defects in JJeturn. (S.) Time of niakiii., 485; State v. Fer- ray, 22 La. An. 423. ^Hoare v. Broom, Cro. Eliz. 309. But compare Anon.^ Dyer, 177. b. pi. (34;. s Elkins V. The State, 1 Tex. App. 539. See also, Shackleford v. The State, 2 Tex. App. 385. * State V. Vance, 31 La. An. 398 * State V. ISTewhouse, 29 La. An., 824. 116 CHALLENGE TO THE ARRAY. [CH. IX. array.' Nor is it })€r se evidence to support a challenge to the array, that a great disproportion exists between the number of persons of different religious beliefs upon the panel ; ^ nor, a rich man being defendant, that there are very many poor men upon it.^ Decisions are even found which go to the length of holding that a list valid upon its face is conclusive ujion the prisoner as to its regularity.* § 140. Li.st Incomplete through Fraud. — Suppose, however, that a trial or series of trials is to take place, involv- ing questions which excite great public interest. Sujipose, also, that the officers of the State whose duty it is to make the jury list omit therefrom a large number of persons whose opinions or affiliations are such as would probably make them favoral)le to the accused. In other words, sup- pose the jur}^ list to be incomplete through fraud ; that this fact is set up as ground of challenge to the array, and that it is admitted by a demurrer. This was Daniel O'Connell's case.* O'Connell and others were indicted for conspiracy in the Irish Queen's Bench. A challenge to the array was interposed, on the ground that the list of jurors, required to be made by the Irish Jury Act,'' had been illegally and fraudulently prepared by persons unknoAvn, for the purpose of prejudicing the parties upon trial. To this challenge the attorney-general demurred. It appeared that the special jury list, from which the panel in this case was » People V. Tweed, 50 How. Pr. 280; Maffett v. Tonkins, 6 N. J. L. 228; Dolan v. People, 64 N. Y. 485; Foust v. Com., 33 Pa. St. 338; Jewell V. Com., 22 Pa. St. 94; Com. v. Walsh, 124 Mass. 32; Woodsides V. State, 2 How. (Miss.) 655; Malone v. State, 49 Ga. 210; Brinkley v. State, 54 Ga. 371 ; Foster v. Speed, 32 La. An. 34 ; Sumrall v. State, 29 Miss. 202; State v. Xeagle, 65 Me. 468. But see Compton v. Legras, 24 La. An. 259. 2 Regina v. Mitchel, 3 Cox C. C. 1. 3 Per Lefroy, B., Ibid., p. 30. ^Gardiner v. People, 6 Park. C. R. 157, 198; State v. Allen, 1 Ala. 442; State v. Clarkson, 3 Ala. 378; State v. Brooks, 9 Ala. 9. "11 CI. & Fin. 155; s. c, 1 Cox C. C. 304. See also Reg. t. Fitzpatrick, Craw. & Dix (Irish) 513; Reg. y. Conrahy, 1 Craw. & Dix (Irish) Cir. 56. «3«fc4Will. IV., c. 91. § 140.] LIST INCOMPLETE THROUGH FRAUD. 117 struck, contained upwards of seven hundred names, but it was proved that the names of fifty-nine persons qualified as such jurors had been omitted from tlie list.^ The matter was adjudged in favor of tlie crown at the trial, and after- wards, before the full court, on motion for a new trial. ^ The case was next brought before the House of Lords upon this and other points, where the matter was again fully argued, and the decision of the court below afiirmed. The opinions of the judges were, upon this occasion, requested for the assistance of the Lords. As to this challenge, the judges were unanimously of opinion that it could not be taken, for the cause alleged and admitted by the demurrer. This opinion was adopted by Lord Lyndhurst, L. C, and Lord Brougham ; Lords Denman and Campbell were of the contrary opinion, while Lord Cottenham expressed no opin- ion. Although the Lords were thus divided, the opinion of the judges has been regarded as settling the question that a deficiency in the jury list is not a good ground for challenging the array. ^ A decision of the former Supreme Court of New York may be profitably considered in connection with O'Connell's case. This case grew out of the abduction of Morgan, charged to have been done b}^ members of the Masonic fra- ternity. A motion was made to quash an indictment, for the reason that the supervisors, in preparing the list of grand jurors for the county, had intentionally omitted the names of competent and qualified men, for no other reason than that they Avere members of the Masonic fraternity. This was held no ground for quashing the indictment.* But this decision does not go the length of O'Connell's case. ^ The statute required the list of special jurors to be made from the general "Jurors' Book," by taking therefrom the names of aW persons possessing the qualifications demanded by law of special jurors. 3 & 4 Will. IV. c. 91, ^ 24. ' 7 Irish L. 261. Ferrin, J., dissenting. 3 Reg. V. Eea, 16 Irish C. L. (N. S.) 428; Brown v. Esmonde, Irish Rep. 4 Eq. 630; Hayes v. Reg., 2 Cox C. C. 105; Fogarty v. Reg., tbid. ; Reg. V. Burke, 10 Cox C. C. 519. * People V. Jewett, 3 Wend. 314. 320. 118 CHALLENGE TO THE AKKAV. [CH. IX. The liish statute required, as we have sveu, that the names of aU persons possessing the qualifications required by law for jury service should he })ut upon the list. The statute of Kew York, under Avhich the jur}' list in this case was pre- pared, required only that the supervisors of the county should prepare a list of three hundred names of persons to serve as grand jurors, being " such persons only as they know or have good reason to believe are possessed of the qualifications by law required of persons to serve as jurors for the trial of issues of fact, and are of ai)i)roved integrity, fair character, sound judgment, and well informed." ' The supervisors were unquestionably guilt}^ of reprehensible con- duct, if, as alleged, they rejected any man qualified for jury service for no other reason than that he was a member of the Masonic fraternity. Chief Justice Savage observed : " I do not approve of the exclusion by the supervisors of any set of men, on the ground of their belonging to any particular association or fraternity. A grand jury should be selected with a single eye to the qualifications pointed out by the statute, without inquir}' whether the individuals selected do or do not belong to any particular society, sect, or de- nomination, social, benevolent, political or religious."'^ At the same time, the supervisors did all that the law required of them when they selected a list of jurors of the number and qualifications required by law. The discretion neces- sarily vested in the supervisors in making this selection could not be reviewed by the court. " Whilst those who are selected are unexceptionable," said Savage, C. J., " the fact that others e(iually unexceptionable are excluded, is no cause of challenge to the array." ^ The grand jury, it must also be remembered, is merel}' an accusing l)ody ; and the liberty of the citizen does not require that nice inquiry should be made into the manner in which it has been organized. The main cjuestion is whether the prisoner has been justly accused or not, and an attack upon 1 X. Y. Laws, 1827. p. 312. §§1,4. ^3 Wend. 320. ^Pjid., p. 321. . 141.] FILLING AND EE-FILLING THE JURY WHEEL. 119 the legality of the grand jury is almost always a rogue's de- fense. Such attacks have liecn successful in American courts with scandalous frequency, and almost universally to the thwarting of public justice and the injury of society.^ But with reference to the constitution of the body which is to try the prisoner, the question is entirely different. A com- mon sense of justice and fair play abhors a packed jury. When the statute requires that the names of all residents of the county possessing the qualifications demanded by law for jury service shall be put upon the list, and when the officers who make up the list deliberately omit therefrom all persons otherwise properly qualified, who, from known af- filiations or opinions, are likely to be more favorable to the accused than those who are selected, a panel of jurors drawn from such a list ought to be dismissed and the officers punished. It is to be hoped that the time will never come when any American court, in which the question arises as to the constitution of a trial jury, will deliberately put its seal of approval upon the opinion of the judges in O'Connell's case. The law of this country is confidently believed to be that, while a challenge of an array will not be sustained merely because of a deficiency of the list from which it was drawn, yet the rule is otherwise where that deficiency is the result of fraud, or of manifest prejudice against prisoners about to be tried. ^ § 141. Filling and re-filling- the Jury Wheel. — A stat- ute provided that the sheriff and commissioners should select and deposit a sufficient number of names in the jury wheel, so that at the last drawing in each year the number requisite for one drawing should remain in each wheel. This provision was not violated hy emptying the wheel, and 1 See the oliai)ters relating to grand juries, j)os^ 2 People V. Tweed, 50 How. Pr. 264; People v. Dolan, 64 N. Y. 485; Maffett V. Tonkins, 6 N. J. L. 228. This rule is recognized in some of our statutes. I^ast^ § 143, sub-sec. 3. O'Connell's case has been fre- quently cited by American courts to tlie point that a mere deficiency in the general jury list will not support a challenge to the array; overlook- ing the fact that the deficiency in that particular case was admitted to have been the result of fraud. 120 CHALLENGE TO THE AKRAV. [CH. IX. refilling it with new iiiimcs, before the expiration of the year.^ And it was also held to be no objection to the array that the sheriff and ooniniissioners were enijajjed several weeks in tilling the wheel with names ; that they employed a clerk to copy off the jury list upon ballots for this purpose ; that the names as copied were not immediately placed in the wheel, but in a box which w^as not kept with the same scrui)ulous care as the wheel itself.^ § 142. Custody of Jury "Wheel. — Where the law provided no place for the custody of the wheel from which the drawing was made, the jury commissioners were considered to have amply provided for its security by placing it in the vault of the county treasurer, upon the condition that no one but a jury commissioner should have access to it, the sheriff keep- ing the key to the wheel. '^ P^ach jury commissioner and the sheriff should seal the wheel with their individual seals,, different in each instance. The wheel may thus be said to be in the custody of all instead of a single ofiicer, where one seal is used.^ § 143 . Irregularities in drawing the Panel . — ( 1 ) . Stat- utes Directory. — Statutory provisions respecting the draw- ing of the panel are generally regarded as directory merely,* and irregularities therein, unless plainly operating to the prejudice of the challenging party, form no ground for challenging the array ; "^ as, for instance, where the names are drawn alternately for the two panels of grand and 'petit 1 Com. V. Lippiud, 6 Serg. & R. 395. 2 Ibid. 3 Curley v. Com., 84 Pa. St. 151. See also Rolland v. Com., 82 Pa. St. 306. *Ibid. Brown V. Com., 73 Pa. St. 322. 5 Ante, § 63. 6Eafe V. State, 20 Ga. 64; State v. Williams, 3 Stew. 454; Friery v. People, 2 Abb. App. Dec. 215; s. c, 2 Keyes, 424; 54 Barb. 319; Ferris v. People, 35 IS . Y. 125 ; s. c, 31 How. Pr. 140 ; 48 Barb. 17 ; 1 Abb. Pr. (N. S.) 193; State v. Guidry, 28 La. Au. 030; Pratt v. Grappe, 12 La. 451; State v. Miller, 20 La. An. 579; Mapes v. People, 69 111. 523; Wil- kelm V. People, 72 111. 468. § 143.] IRREGULARITIES IN DRAWING THE PANEL. 121 jurors ; ^ or where the oflScers failed to destroy the slips as drawn, containing the names of persons absent or deceased, and to draw others in their stead ;^ or where the oflBccrs, having discovered an informality in the drawing, returned all the names into the box and began the drawing anew.^ Upon like considerations, a challenge was disallowed upon the following facts, although presenting numerous informal- ities on the part of the officers charged with the drawing : The proper officers did not attend or witness the drawing ; no minutes were kept of the jurors as drawn ; no minutes of the drawing were signed or certified by any attending officer ; some of the attending officers signed blank certifi- cates, which the clerk filled up after the drawing ; no copy of the minutes of the drawing was delivered to the sheriff ; the ballots of the jurors drawn were delivered to the sher- iff, in lieu of a copy of the minutes, and from these he summoned the jury ; the panel or list of jurors filed was not a copy of the minutes of the drawing. There was,, however, no allegation of fraud or corruption against any of the officers who drew or summoned the jury, or certified to the list ; neither was there any of injury or prejudice to the prisoner.* And there are many other cases where the irregularity might amount to a misdemeanor and subject the officers to punishment, and yet afford no ground for chal- lenging the array.'' (2). But Esseiitial Provisions must he folloived. — It is^ otherwise where the essential provisions of such a statute ^ Dotson V. The State, 62 Ala. 141. See also Crane v. Dj^gert, 4 Wemi. 675. 2 Rolland v. Com., 82 Pa. St. 306, 321. Contra, Jones v. State (Sup. Ct, Ohio, 1851), 8 West. L. J. 508. 3 Lindley v. Kiudall, 4 Blackf. 189. * Friery v. People, 2 Abb. App. Dec. 215; s. v., 2 Keyes, 424; 54 Barb. 319. 5 Ferris v. People, 35 N. Y. 125; s. c, 31 How. Pr. 140; 4S Barb. 17; 1 Abb. Pr. (N. S.) 193; Gardiner v. People, 6 Park. C. K. 155; People v. Rogers, 13 Abb. Pr. (N. S.) 370; State v. Squaires, 2 Nev. 227; Peopl<- v. Ah Chung, 54 Cal. 398; Pierson v. People, IS Hun. 239; Cox v. People,. 19 Hun, 430; Dolanv. People, 64N. Y. 485; Claussen v. LaFranz, 1 Iowa,. 226, 241 ; State v. Seaborn, 4 Dev. 305. 122 CHALLEN(;E TO THE AURAV. [CII. IX. have been palpably disregarded ; as, for instance, whore the officers took the names from the list according to their dis- <'rotion, instead of drawinir them by lot ; ^ or assumed to reject names duly drawn as beinir names of persons unfit for jury duty ; -' or where fifteen jurors only were drawn instead of twenty-four:^ or where names Avere i)ut u[)on the panel by the cleric of the court at the request of the persons themselves, without being regularly drawn;* or w^here the names of the jurors were drawn from an open box in such n manner that the names upon each ballot were exposed to A lew before l)eing drawn ; '' or where the clerk, having to ■draw two panels for different courts, drew the entire num- ber of names at once, and then ai-bitrarily designated half of them to serve as jurors in one court and half in the other." (3) Provinons of Particular Statutes. — The policy of Park. C. R. 308. Such persons are termed non-jurors; they are mere interlopers, and, not being subject to chal- lenge personally, their presence vitiates the whole panel. Norman v. Beamont, Willes, 484; Abbott, C. J., in Rex v. Treniaine, 7 Dowl. & Ry. 084. G87; .s-. c, 16 Eng. C. L. 318; «. c, sub. nam. Kcx v. Tremearne, f) Barn. & Cress, 254; 11 Eng. C. L. 218. * Pringle v. Huse, 1 Cow. 432. ^ Gardner v. Turner, 9 Johns. 2G0. Aliter. where he drew each panel sei)arately. though botli were drawn at the same time. Crane v. D5'gert, 4 Wend. G75. '' Cal. Penal Code, § 10.^9; Comp. L. Xev. 1873, § 1947; Laws Utah, 1878, Code Cr. Proc, § 227; Miller, R. C. Iowa, 1880, §§ 27G4, 4400; Stat. at Large, Minn. 1873, p. 1054, § 221; Ark. Dig. Stat. 1874, § 1902; Bul- letfs Ky. Codes (Crim.). p. 40, § 199. The grounds of challenge stated § 144.] WHO MAY CONDUCT THE DRAWING. 123 array shall be permitted because of any informality in the impanelling or selecting of a jury." ^ In Mississippi no challenge to the array is i)ermitted except for fraud. '"^ In Texas but one cause of challenge to the array is allowed, and that relates, not to the drawing, l)ut to the summoning of the jury.^ By the New York Code of Criminal Pro- cedure " a challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure in re- spect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn."'* § 144. Persons who may condvict the Drawing". — (!•) In Case of Common Juries. — The clerk, jury-commis- sioner, or other officer whose duty it is to draw the panel, is regarded for many purposes as the substitute of the sheriff at common law.^ But he has no discretion, such as is vested in the sheriff at common law, as to what per- sons he will place upon the panel. On the contrary, as may be inferred from what has preceded, the duty is purely ministerial. It may, therefore, be performed by a deputy, when legally appointed," and a general statute authorizing olerks of courts to appoint deputies to perform the duties of such clerks is sufficient to render valid the drawing of a panel by such a deputy, in the absence of the clerk, although the statute regulating the drawing of jurors makes no mention of such a substitution." Nor is it any ground for objecting to the legality of the drawing that, besides in such statutes are exclusive. State v. Arnold, 12 Iowa. 479; State v. Kaymoiid, 11 Nev. 98. 1 2 Ind. Stat. 1876, p. 30. § 6. ^ Rev. Code Miss. 1880, § 1G94. See Hare v. State. 4 How. (Miss.) 189 ; Thomas v. State, 5 Id. 20; King v. State, 5 Id. 730. ? Ante, § 130, note. < Laws N. Y. 1881, ch. 442, § 362. * Gardner v. Turner. 9 Johns. 260: Jones v. State, 3 Blaekf. 37; Mit- chell v. Likens, Id. 258; Mitchell v. Denbo, Id. 259. 8 State V. Gaj', 25 La. An. 472. ' People V. Fuller, 2 Park. C. R. 16. 124 CHALLENGE TO THE ARRAY. [CH. IX. the proper officers, another was in attendance and par- ticipated in it.' Nor will an occasional absence of one of the officers charged with the drawing affect its validity, where no names are drawn during his absence.^ An appel- late court will not review the finding of the trial court as to whether a quorum of the body of officers charged with the duty of drawing the panel was present when this was done.^ By the present law of New York it is not a good cause of challenge to the array, in an action in a court of record, that the officer who drew the panel is a party to, or inter- ested in the action, or counsel or attorney for, or related to a party ; nor that the officer by whom the jurors were sum- moned is a party to, or interested in the action, or related to a party, unless it is shown that one or more of the jurors drawn were not notified to attend, and that the omission was intentional.'* An earlier statute of the same State pro- vided, in the case of a constable, that the officer who served either the original or jury process in the case, might act as the attorney for either party in any other stage or proceed- ing in the cause, except to appear and advocate for either party at the trial. ^ The mere fact, then, that the constable appeared for the defendant and put in the plea of the gen- eral issue, did not disqualify him from serving the jury process, or furnish good cause of challenge to the array ; nor did the fact that the constable who served the jury proc- ess, acting as the agent of one of the parties, engaged an attorney to appear for such party at the trial.'' Nor was it in that State a good ground of challenge to the array that, at the trial, the circuit clerk was attorney for one of the parties, and was so at the time of drawing, making and arraying the panel. The reason was that the legislature 1 Hunt V. Mayo, 27 La. An. 197; State v. Bohan, 19 Kan. 28. 2 State V. Arata, 32 La. An. 193. 3 Ibid. * N. Y. Code Rem. Jus., §§ 1177, 1178. See also Comp. L. Mich. 1871, §§ 6013, 6014. * 2 R. S. 233, § 44. « Miles V. Pulver, 3 Den. 84. § 144.] WHO MAY CONDUCT THE DRAWING. 125 had provided that clerks of the circuit court might practice as attorneys in the Supreme Court. ^ In Indiana a person interested in a suit cannot participate in the drawing of the panel by which it is to be tried. ^ The Supreme Court of South Carolina lays down the rule that all the obligations and disabilities which the common law imposed upon the sheriff in the selection of juries, will be enforced whenever the acts of those charged with the same duty are m question. " The rights of parties in civil cases," said Moses, C. J., " are in no way diminished by the change in the mode, and those accused by indictments are entitled to the benelit of any exception which would avail them under the common law system." Accordingly it was held to be a good ground of challenge to the array, that the jury commissioner who assisted in the drawing was a first cousin of the person for whose murder the challeng- ing party was upon trial .^ But this decision is believed to be unsound, especially since the almost universal practice is to draw the names by lot, in which case the officer objected to could not influence the drawing except through an act of positive fraud, which the law ought not to presume. (2.) In Case of Special or Struck Juries. — It seems to have been a matter of some doubt according to the early cases, whether a panel of special jurors was for any cause subject to a challenge to the array. In Rex v. Burridge,^ an information for a misdemeanor, after each party bad struck twelve from a panel of forty-eight, and the remain- ing twenty-four had been returned for the trial of the cause, the defendant challenged the array for want of hundredors ; ^ Wakeman v. Sprague, 7 Cow. 720. The court in this case could per- ceive hardly a chance for the clerk to make an unlawful selection, even if so minded. The names were drawn by lot in public, after ample public notice of the time and place of drawing. The clerk's character of attorney was known to the opposite party, who might have attended the drawing, and for any specitic abuse of the clerk, the right of chal- lenge still remained. '^ 2 Ind. Stat., 1876, p. 29, § 1. * State V. McQuaige, 5 So. Car. 429. ■• 1 Strange, 593 ; s. c, 2 Ld. Raym. 1364. 126 CHALLENGE TO THE ARRAY. [CH. IX, whereupon the proseeutor moved for an attachment against the defendant us being guilty of a contempt. It appearing upon the motion that the defendant's agent, in striking out his twelve, had expunged all the hundredors, the attach- ment was granted. In a later case, however,^ an informa- tion in the nature of a quo ivarranto, a jury having been struck, the prosecutor took out the venire to the sheriff of Cheshire. The d(>fendant challenged the array on account of an interest the sheriff had as ])eing a freeman of Chester whose rights were to be tried. It w^as of course insisted that the interest of the sheriff had not controlled the selec- tion of the jurors, since his duty was only to return the list as struck. But inasmuch as the sheriff retained the power of marshaling the panel, and putting whom he pleased first, it was determined to be a good cause of challenge, and the array was quashed.^ But unindifferency, as it is termed in the English books, of the officer by whom a special or struck jury has been nominated, was never ground in England for challenging the array .^ So, in this country, the fact that the clerk and auditor, l)y whom the list of such a jury was selected, had expressed an opinion as to the guilt of the defendant, based upon evidence which they had heard upon a former trial, was held no ground for challenging the array.'* But fraud in the preparation of the list from which a special jury is struck will afford a good ground for such a challenge ; ^ and in New Jersej^ where the sheriff exercises powers with re- spect to the summoning of jurors, similar to those exercised by the sheriff at common law, it has been held a good ground for challenging the array of a special jury, that it 1 Rex V. Johnson, 2 Str. 1000. * Says the reporter : " The case of Bnrridge was cited ; * * ♦ but the court did not seem to relisli that case, and said it might be an au- thority in one exactly circumstanced as that was, but in no other." 2 Str. 1001. 3 Rex V. Edmunds, 4 Barn. & Aid. 471. See, also, Rex v. Despard, 2 Man. & Ryl. 406. < Webb V. State, 29 Ohio St. 3.51. 6 Maffett V. Tonkins, 6 N. J. L. 228. § 146.] IRREGULARITIES IN SUMMONING THE PANEL. 127 was returned by a sheriff's deputy who had not taken the oath of office.^ In New York it has been held that the statutory mode of obtaining a special jury, being a special proceeding, designed for a particular purpose, must be strictly pursued.^ § 145. Time of Conducting' the Drawing. — Provisions of statutes respecting the time when the drawing shall take place are also treated as being merely directory to the officers.^ But where the statute provided that the drawing* should take place at least fourteen days prior to the com- mencement of the term, and the panel was drawn fourteen days prior to the holding of the court, it was held good ground for challenging the array ; the purpose of thtv statute being, in the opinion of the court, to allow both the people and the accused fourteen days in which to examine the list, and investigate the character, qualifications, and bias of the persons drawn .^ But a panel drawn more than two months prior to the holding of the court was held good under the same statute.^ § 146. Irregularities in Summoning the Panel. — (!•) Process of Summoning under American Statutes. — In a previous chapter we have discussed and distinguished the process of summoning jurors at common law from that practiced in the several States.*^ We there showed the diminished importance of the writ of venire facias, or other process performing the functions of this writ under another name.^ (2.) Defects in Venire Facias no Ground of (Jhallenge . — The important steps in procuring a jury are the selecting and drawing of the jurors who are to serve. The act of J Denn v. Evaul, 1 N. J. L. 283. 2 People V. Tweed, 50 How. Pr. 262, 263. 3 Wilson V. State Bank, 3 La. An. 196, 198; State v. Pitts, 58 Mo. 55G; State V. Knight, 61 Mo. 373. * Powell V. People, 5 Hun, 69. » Crane v. Dygert, 4 Wend. 675. But see State v. Hascall, 6 N. H. 35i, 360. • Ante^i § 66, et seq. ^ Ante, § 70, ct seq. 128 CHALLENGE TO THE ARRAY. [CH. IX. simimoniiig them is nothing more than the act of notifying them to attend ; and the writ which issues to the sheriff for that purpose is little more than a memorandum of the names of those he has to summon, on which he may make a return, to the end that those who are thus notified, and who do not attend, may be punished for contempt. In point of substance and sense, it is wholly immaterial whether they attend after being summoned or witJioul being summoned.^ It follows that objections to a panel, on account of defects and informalities in the writ under which they were sum- moned, will not be listened to.^ (3.) Objection to the Cleric who issues the Venire Facias. — For like reasons it is clear that no defect in the clerk, who performs the merely ministerial function of issuing the writ of venire facias, will afford ground for challenging the array. It has been so held in New England, where, under a system already pointed out,'^ the clerk still possibly retains some power in determining from what towns jurors shall be selected. Accordingly, where the clerk of the court was a party to the suit, it was held to be no ol^jection to the array that he issued the warrant to the constable to summon the jury. In the particular case the clerk simply designated four towns from which the panel was to be sum- moned. The jurors were drawn in each town by the author- ities thereof from the list prepared by the town council.* (4.) Failure to issue Venire Facias. — Where the names constituting a panel have been regularly selected and drawn, and the panel thus selected and drawn have assembled in court, it is clear upon principle that it is wholly immaterial how they w^ere induced to attend, — whether a formal writ issued, or whether they were notified ]>y the sheriff or some other officer, without the issuing of a formal writ. To dis- miss a panel, or to arrest a judgment, for this reason, would exhibit a childish adhesion to mere form, reproachful J Ante, § 77. 2 Ante, §§ 70, 74. => Ante, § 59. " Hart V. Tallmadge, 3 Day, 381. § 146.] IRREGULARITIES IN SUMMONING THE PANEL. 129 to llie administration of justice.^ However, the reports present some decisions of this character.'^ (5.) Failure to summon Particular Persons drawn. — The omission of the sheriff to summon one or more of the persons who have been drawn as jurors is one of the means still left him, even under the carefully guarded American statutes, of influencing the composition of particular juries f and where this omission is intentional, it is recognized in several of our statutes as a ground for challenging the array.* But the failure to summon a particular juror whose name has been drawn is not per se ground of challenging the array. Thus, where a special jury had been struck, and the testimony disclosed that the under-sheriff directed the summons of a person who had been selected as one of the panel, but the inferior officer, whose duty it was to serve the summons, sent it to the person named in a very negli- gent manner, instead of serving it himself, the court of King's Bench regarded this circumstance as affording no inference of partiality in the mind of the high sheriff or his under-sheriff.^ (6.) Failure to make Return. — Although, where the writ issues, a return ought regularly to be made thereon, even though not expressly required by statute, yet, the failure to make a return is only a formal defect, and will not afford ground for challenging the array .^ (7.) Defects in the Return. — For stronger reasons, de- fects in the return will afford no grounds for such challenge,^ though for substantial defects, such as a failure to sign the return, it may be quashed, or the court may direct the offi- cer to amend it.** J Ante, § 70. 2 Ibid. 3 Ante, § 130. * Ante, § 143, subsec. 3. '' Rex V. Edmunds. 4 Barn. & Aid. 471, 489. See also, Rex v. Hunt 4 Barn. & Aid. 430. ^ Ante, § 78. subsec. 1. ' Ante, § 78, subsec. 4. * Ibid., subsec. 2. (9) 130 CHALLENGE TO THE AUUAY. [CH. IX. (8.) Time of Mal-ing Return . — We have previously seen that, 1)V analogy to the rule rehiting to statutes which prescribe the time of drawing the names of the panel,' it has been held that the time prescribed by statute, within which the sheriff should make return of the writ, is direct- ory merely .- (9.) Jury summoned bij Jmproper Officers. — Where the list of those to be summoned is selected and drawn, as al- ready stated, it would seem, for reasons already suggested, unimportant whether they are summoned by the officer des- ignated by statute, or by some other officer,'^ unless the cir- cumstances raise a suspicion that some of them have been purposely returned not found. Thus, it has been held that, when the sheriff has been directed to summon a jury, he may do it himself, or cause it to be done by his deputies, or by constables.* But this statement will obviously not hold good in case of the summons of a special venire, as practiced in some of the States. We allude to jurisdictions in which the sheriff is directed to go out, in case of a deficiency of the regular panel, or where a special venire is awarded in a capital case, and bring in such persons as he sees fit. Here he exercises the power of selection confided to the sheriff at common law, and the character of the person by whom such an important duty is performed is very material.* But where the special venire consists of additional names drawn from the jury box or wheel, and the officer acts merely as a messenger to notify them to come into court, it is not, in the absence of circumstances creating a suspicion of an in- tentional omission to summon some of them, a matter of much moment by whom the duty is ix-rformed. i^nfe, §145. 2 Ante, § 78, siibsec. 3. * Ante, §§ 77, i:W. * People V. McGeeiy, (5 Park. Cr. R. 6."):?. 5 By the Criminal Practice Act of California, § WM (Penal Code Oal., § 1064), it is provided that wlien a panel is formed from persons whose names are not drawn as jurors, a challenge may be taken to the panel on account of any bias of the ofHcer who summoned them, which would be a good cause of cliallenge to a juror. See People v. Coyodo, 40 Cal. § 147.] RE-SUMMONING MEMBERS OF QUASHED PANEL. 131 (10.) Objections to Particular Persons smjimoned. — Ob- jections to the persons summoned, in the absence of fi'aud, such as we have already considered, are generally, if not always, made by challenges to the polls, and not by chal- lenges to the array. Thus, it is not a good cause of challenge to an array brought in under a special venire^ that some of the persons summoned are incompetent, there being no evidence of unfairness on the part of the summoning officer ; ^ nor that some of them are non-resi- dents, if they were summoned through inadvertence merely. But it is otherwise where such persons have been inten- tionally summoned by the sheriff ; but this fact must be demonstrated to the satisfaction of the court by the party complaining, upon the motion to quash. ^ Nor is it a ground of such challenge that the sheriff had knowingly summoned persons who were witnesses for the prosecu- tion, or who had sat as jurors upon a former trial of the same case.^ § 147. Re-suniiiioning Members of Quashed Panel. — The inutility of making challenges to the array, under the American system, is illustrated by a series of cases which hold that where the array has been challenged, the chal- lenge sustained, the panel quashed, and a special venire or other order or precept issued to the sheriff to bring in new jurors, he may properly re-summon the members of the quashed panel,* unless the panel has been quashed 586; People v. Welch, 49 Cal. 174; People v, Rodriguez, 10 Cal. 50. Undoubtedly this statute is nothing more than a declaration of a rule of the common law, under which the sheriff exercised both the office of selecting and summoning, and any bias in a juror which constituted a good cause to challenge him would, if it existed in the sheriff, be a good cause of challenge to the array. Ante, § 130. 1 Mitchell V. State, 43 Tex. 517. » Gray v. State, 55 Ala. 86; Hall v. State, 40 Ala. G98. See also Hayes V. Reg., 10 Irish L. 53. 3 Commander V. State, 60 Ala. 1; Baker v. Harris, 1 Winst. (N". C.) 277. * Caperton v. Nickel, 4 W". Va. 173; State v. Degonia, 69 Mo. 485; State V. Owen, Phill. L, 425; State v. McCurry, 63 N. C. 33; Smith v. State, 4 N'eb. 277. But see Combs v. Slaughter, Hard. (Ky.) 62. It has 132 CHALLENGE TO THE ARRAY. [CH IX. because the wheel lias been tampered with ; ' and this ex- ception, on principle, will extend to cases where the panel has been quashed on account of any other fraud. been held that, upon process directed to the coroner, that officer can summon the same panel. Paj^ne v. McLean, 1 Up. Can. K. B. (O. S.) 444. Compare Norbury v. Kennedy, 3 Crawf. & Dix, (L-.) Cir. 124. 1 Kell V. Brillinger, 84 Pa. St. 276. CH. X.] PEREMPTORY CHALLENGES 133 CHAPTER X. or PEREMPTORY CHALLENGES. SECTION. 152. Kinds of Challenge to tbe Polls. 153. Lord Coke's Classification of Challenges o the Polls. 154. Peremptory Challenges at Common Law. 155. The Right how affected by Early Statutes. 156. The Eight not restricted to Capital Cases. 157. Challenging more than allowed by Law. 158. The Eight of the Prosecution to stand .Jurors aside. (1.) History and Practice in England and Canada. (2.) Practice in the United States. 159. The Eight of Challenge not a Eight to select. 160. The Eight confined to the Trial of the Main Issue. 161. Not allowed in Case of Special Jurors. 162. Peremptory Challenges by Defendants jointly indicted. (1.) To the same Number as allowed a single Defendant. (2.) Such Defendants jointly or severally tried in Discretion of Court. (3.) Separate Trials cannot be demanded as a Matter of Eight. (4.) Number of Peremptory Challenges allowed the Prosecu- tion against Joint Defendants. (5.) The foregoing, how affected by Statute. 163. By several Persons, Plaintiffs or Defendants, in a Civil Suit. 164. Peremptory Challenges in Federal Courts. 165. Peremptory Challenges under the Statutes of the several States. (1.) Power of Legislature over. (2.) Granted in Civil Cases. (3.) How in Felonies and Misdemeanors. (4.) — (41.) Under Particular Statutes. 166. Construction of the foregoing Statutes. (1.) Suits prosecuted upon Information, whether Civil or Criminal. (2.) Where the Punishment may be Capital. (3.) Or for a Definite Term of Imprisonment. 134 PEREMrTORY CHALLENGES. [CH. X. § 152. Kinds of Challenge to the Polls. — A challenge to individujil jurors may be either, 1. rcremptory ; or, 2. For cause. The })eremptory challenge was allowed at common law in criminal cases only, and seldom in any other than those punished capitally. As stated by Lord Coke, it was allowed the accused " upon his owne dislike without shew^ing of any cause ;" ^ and this is a correct definition of the challenge to-day, as it exists in both civil and criminal cases. The challenge for cause has from the earliest period been taken in one of two forms: 1. Principal; or, 2. To the favor. These will be recognized as the same divisions which originall}' existed in the challenge to the array.' And what we have before said in respect to the distinction between these forms, as applied to the array, is true as applied to the indi\idual juror, mutatis mutandis. The principal challenge shows a cause which positively disquali- fies the juror from sitting in the case.^ The challenge to the favor, on the contrary, is grounded upon circumstances from which a suspicion of bias in the mind of the juror for or against a party may arise. The effect of such circum- stances upon the mind of the juror is examined by triors, who find the challenge true or not according to their dis- cretion. The principal challenge, however, is always tried by the court.* We have hitherto seen that the distinction between the two forms of challenge to the array has become obsolete. This is true in a measure of the forms of challenge for cause ; but in the challenging of individual jurors the dis- tinction is not without value, and will probably be retained, in theory at least, for some time to come. In a late opinion by the Court of Appeals of New York it was stated per curiam: " There has always been a distinction between 1 Co. Litt. 156. b. 2 AnU, § 126. 3 People V. Stout, 4 Park. Cr. K. 71. 109; State v. Potter, 18 Conn. 166, 171. * See post, chap. XII. § 153.] LORD coke's classification. 135 these two causes of challenge ; and there is yet, notwith- standing modern legishition on the subject." ^ "In modern practice," said Hallett, C. J., "triors have not been called, and the fact as well as the law has been determined by the court ; but it is considered that this circumstance does not furnish ground for disregarding the distinction be- es Co tween the principal causes of challenge and challenges to the favor." ^ § 153. Lord Coke's Classification of Challenges to the Polls. — Lord Coke's classification of challenges to the polls is as follows. Primarily he divided them into four classes: 1. Peremptory; 2. Principal; 3. Which induce favor; 4. For default of hundredors. He subdivided the principal challenge as follows : 1 . Propter honoris re- spectum; 2. Propter defectum; 3. Propter affectum-, 4. Propter delictum. The first was based upon that clause of the Magna Charta which granted to every freeman a trial by a juiy of his peers. One of the nobility, there- fore, if accidentally placed upon a jury, might be chal- lenged by either party, or by himself, in respect of honor as the phrase is translated. The three other subdivisions are familiar, and exist in practice to-day, — the second being based upon some deficiency in the juror in respect to the qualifications required by law ; the third, upon the par- tiality of the juror ; the fourth, upon his conviction for some offense suflSciently heinous or infamous in law to ex- clude him from jury service. At this point we must note a defect of classification not uncommon in the writings of this learned commentator. Challenges propter defectum he subdivides into challenges for defect of country, freedom, freehold and hundredors .^ This last will be recognized as one of the main divisions of chal- lenges to the polls. The climax of confusion is reached when the challenge propter affectum is subdivided into principal 1 Greenfield v. People, 74 N. Y. 277. 2 Solander v. People, 2 Colo. 48, 58. See also State v. Howard, 17 X. H. 171, 191. 3 Co. Litt. 157. a. 136 rEREMPTORY CHALLENGES. [CH. X. challenges and those to the favor. ^ This unhappy arrange- ment is a matter of historical interest only. It causes no confusion in practice at the i)resent time, since the divisions- previously indicated have long since become recognized as sufficiently definite for purposes of practice. § 154. Peremptory Challenges at Coininon Law. — It is clear that the right of peremptory challenge had no ex- istence in civil cases, and was confined to a limited number of criminal cases, viz., treason, misprision of treason and felonies. The number originally allowed was thirty-five, one short of three complete juries.^ ^Vhy this particular number was pitched upon, is a matter of uncertainty which it would be profitless to investigate, as the old writers afford little in the way of cogent reasons for the choice.^ The number is probably arbitrary like the challenge itself. § 155. The Rlj?ht how affected hy early Statutes. — By an early statute * the allowance was reduced to the number of twenty in cases of petit treason, murder, and felony. This legislation appears to have been designed for a tem- porary purpose, the concluding clause of the section being, "this act to endure to the end of the next parliament." The act, however, was continued in force until finally, by a subsequent statute,'^ it was made perpetual. This statute, it will be noticed, left unaffected challenges in cases of high treason and misprision of high treason, which, by a later statute of the same reign, were entirely taken away," but were afterwards restored by the con- struction put upon a statute providing that "all trials hereafter to be had, awarded or made for any treason, shall l)e had and used, only according to the due order 1 Co. Litt. 157. a. 2 Co. Litt. 1.56. b; 2 Hawk. P. C, ch. 43, § 7; 2 Hale P. C. 2GS; Trials per Pais, (172.5) 455. !) See an explanation in Bac. Abr.'Juries E. 9, from Lanibard, Bk. 4, c. 14; Gilbert \s Hist. C. P. 99. < 22 Hen. VIII., c. 14, § G. » 32 Hen. VIII., c. 3. « 32 Hen. VIII., c. 23, § 3. § 156.] RIGHT NOT RESTRICTED TO CAPITAL CASES. 137 and course of the common laws of this realm, and not otherwise." ^ § 156. The Riglit not restricted to Capital Cases. — It is said again and again by the early text writers that peremptory challenges are allowed in favorem vitm.'^ There is also a dictum of Lord Chief Justice North upon the trial of an indictment for a misdemeanor, where, upon the accused attempting to challenge peremptorih^ he said : "You cannot challenge peremptorily in this case, it not being for your life." ^ The language of Blackstono is familiar: "In criminal cases, or at least in capital ones, there is, in favorem vitoe, allowed to the prisoner an arbi- trary and capricious species of challenge to a certain number of jurors, without showing any cause at all, which is called a peremptory challenge." * From the foregoing it is evident that a doubt possessed the mind of the great jurist, whether the right of peremptory challenge could be considered as pertaining to any felony not capital. Other authorities state this right of challeno:e to be an in- cident of felony generally, without any mention that it is in favorem vitm.'° In Heg. v. Geach/' which Avas a trial for a felony not capital, the accused was permitted to challenge twenty jurors peremptorily. The authority of this case, how- ever, is not to be relied upon, since Baron Parke, before whom the trial was had, subsequently solemnly stated that the point was neither taken by counsel nor considered by him, but the matter passed as one of ordinary course.' MPh. &M.,c. 10, § 7. 2 Co. Litt. 156. b.; 2 Hawk. P. C. 570, B. 2, c. 43, § 5; 2 Hale P. C. 267; 1 Chit. Cr. L. 535; Trials per Pais (1725) 455; Bac. Abr. Juries E. 2 ; Ibid., 9 ; Doctor & Student, 29. See comments upon the foregoinj^ bj' Lord Chief Baron Pollock in Keg. v. Gray, 11 CI. & Fin. 427, 479. 3 Reading's Case, 7 How. St. Tr. 201. < 4 Bl. Com. 353. 5 Com. Dig. Challenge, c. 1; Ibid., Indictment M; Ibid., Justices W. 2;. Finch Law, Bk. 4, c. 36, p. 414. 6 9 Car. & P. 499. 7 See Graj^ v. Reg., 11 CI. & Fin. 427, 471. 138 PEKEMITOHY CHALLENGES. [CH. X. Such \v:is the .sttite of authority at the time of the trial of the great case of Reg. v. Gray,^ m 1843. Here the matter was first thoroughly investigated, and it proved to be a qiKcstio vexata indeed. This case was an indict- ment for shooting with intent to kill. The offense was not a felony at common law, but was declared a felony by statute. By previous statutes, at this time repealed, the offense had been capital ; but by a subsequent statute,^ the punishment was fixed at transportation or imprison- ment. Here, then, was a felony of a serious nature, but not capital, and the question was whether the right of peremptory challenge was an incident of the offense. On the trial at the assizes the right was denied, and this ruling was afiirmed by the Irish Court of Queen's Bench.^ It was here shown that there was a conflict in the practice of the English and Irish courts. The practice in England had uniformly been to allow the challenge.'* However, no <;ase could Ije found in the English reports where the point had been raised and decided. Jn the Irish })ractice, on the contrary, the matter had on several occasions come under the observation of the judges, and the majority of the court in this case were able to refer to reported cases and manuscript opinions showing that the right claimed had been repeatedly denied.* ' 6 Irish C. L. 259; .v. c, reversed in IToii«e of Lords. 11 CI. & Fin. 427; also reported in 6 Irish C. L. 482. 2 1 Vic, c. 85, § 21. 3 6 Irish C. L. 259. Terrin J., dissenting. ■• When this case was before the House of Lords, Mr. Baron Gurney *;aid : "During the whole of a long professional life I liave witnessed the constant exercise of the right of challenge in all felonies, and no distinction ever made as to whetlier they were clergyable or not clergy- able, whether felonies at common law or felonies created by statute. If there was any legal proposition which was considered as undoubted bv every professional man practicing in courts of criminal justice, it was that every person accused of felony had the right of peremptory Irish C. L. 281, 288. An odd reason was assigned by Crampton, J., as |)0BSibly accounting for the contrary practice in England. That prac- § 156,] RIGHT NOT RKSTEICTED TO CAPITAL OASES 139 An insuperable obstacle stands against the contention that this challenge Avas allowed only in favor em vitoe. This difficulty is its recognized existence upon an indictment for misprision of treason, which certainly was not punished capitally, being a misdemeanor only.^ But this is not the only exception to the rule under discussion. This right of challeno-e was admissible in those felonies even to which the benefit of clergy was an incident.^ If the challenge was allowed only in favorem vitce, here, certainly, was a proper case for the application of the maxim, cessante ratione legis, cessat et ipsa lex. But this was not done. On the con- trary, no case of clergyable felony is known where the right of peremptory challenge was ever doubted ; '' although there is no recorded case of a person being executed for a clergyable felon3^^ It is also to be noticed that peremptory challenges were tice be considered to be the result of iudulgence and coneessiou, gi-ow- ing out of that spirit of candor and fair dealing, and tenderness for per- sons unde'"going the ordeal of public trial, which he considered eminently characterized the conduct of criminal trials in England. (See the same unmerited eulogy in i Bl. Com. 353.) In Ireland, he thought, " there may be, on both sides, more of the spirit of combat, and more of the desire for victory in the forensic contests, and perhaps on that ac- coimt the rights both of the prosecutor and the prisoner may have been more jealously and rigidly asserted in Ireland than in England." 6 Irish C. L. 283. Mr. Justice Williams, in his opinion in this case be- fore the House of Lords, strongly expressed himself to the contrary. " To attribute this prevalence to connivance or concession," said he, " or to anything but right, seems to me a solution of a very unsatisfactory description. Why should an unauthorized indulgence, not founded upon any warrant or principle of law, have been conceded, if it could have been resisted, in this case in particular above all othei's? I should rather think it probable that, as a peremptory challenge may be for any reason wholly imknown, and therefore to a certain extent of a personal and offensive nature, it would have been resisted, if resistance had been considered practicable." 11 CI. & Fin. 4.54. 1 4 Bl. Com. 120; 3 Co. Inst. 27, 36. 2 See for example in this country, United States v. Lambert. 2 Cranch C. C. 137; United States v. Craig, 2 Cranch C. C. 36; State v. Cadwell, 1 Jones L. 289; State v. Humphreys, 1 Overton, 306. s Per Perrin, J., 6 Ir. C. L. 272. < Patteson, J., in 11 CI. & Fin. 464; Tindal, L. C. J., Ibid., p. 485; Perrin, J., 6 Ir. C. L. 272. 140 rEREMrroRY challenges. [cii x. not allowed upon the trial of collateral issues,^ and yet life might be in jeopardy upon the trial of such an issue, as is shown b}'^ several reported cases. ^ Although, generally speaking, felonies at common Uiw were capital, yet, in true legal theory and in strict con- struction of the law, all felonies were not capital.^ " Prop- erly," says Bhiekstone, " it is a crime to be punished by forfeiture, and to which death may or may not be, though it generally is, superadded."^ Such being the fact, an inspection of the English statutes regarding the right of peremptory challenge will show that, while the origin of the privilege in felony may have been that capital punish- ment was usually an incident of that grade of crime, never- theless, the law, without distinction, annexed this privilege of challenge to the crime, and recognized it as an incident to felony generally.^ The expression, therefore, in favorem vitce tends rather to show the origin of the rule, than to govern the application of it at common law/' It will be seen that while benefit of clergy lasted, the question could hardly arise as to whether the right of peremptory challenge was incidental to felonies of a trivial character, because, in general, felonies of all degrees of heinousness were punished capitally, the rigor of the law being abated bv the allowance of the benefit of clergy. With the abolition of the benefit of clergy, however,^ came a reform in the punishment prescribed by law for felonies which, by the exercise of this fiction, had not been capital. 1 2 Hale P. C. 267. 2Ratcliffe's Case, 1 Win. Bl.:3; n. c, Foster Cr. L. 40; IS IIow. St. Tr. 429; Rex v. Okey, 1 Levinz, 61. Fost, § IGO. 3 Crampton, J., in 6 Irish C. L. 278; 4 Bl. Comm. 97. * 4 Bl. Comm. 98. 6 22 Hen. VIH., c. 14, § 6; 32 Hen. VHI., c. 3, § 3; 33 Hen. VH[., c. 23. § 3; 6 Geo. IV., c. 50, § 29; 7 & 8 Geo. IV., c. 28, § 3; 9 Geo. IV., e. 54, § 9. Xote the language of the judges in Gray v. Reg., 11 CI. it Fin., at pp. 449, 4.53, 4.->S. 479; Foster Cr. L. 305. fi Note the language of Mr. Justice AVilliams in Gray v. Reg., 11 CI. & Fin. 457, and that of Lord Chief Baron Pollock, Ibid , 479. "Abolished in England by 7 and 8 Geo. IV., c. 28, § G; in Ireland, by 9 Geo. IV., c. .54, §12. § 156.] EIGHT NOT RESTRICTED TO CAPITAL CASES. 141 The punishment of felonies which had been clergyable was, after the abolition of the fiction, made in many cases much heavier than before. Thus, while the fiction lasted, the extreme punishment for a clergyable felony was burn- ing in the hand, and imprisonment not exceeding twelve months.^ The case of lieg. v. Gray^^ shows a felony which formerly had been clergyable, but after the abolition of the benefit was punished in the extreme by transportation for life. In that case the great question for discussion was whether, the fictitious death penalty and the benefit of clergy being abolished, the right of peremptory challenge was taken away by implication. By implication it must have been taken away, if at all ; because the statutes, which abolished the benefit of clergy, re-enacted that the right of peremptory challenge should continue in treason and felony. "It is a principle of law," said Mr. Justice Perrin, when this case was before the Irish Court of Queen's Bench, " that no incident can be taken away except by express words." ^ Stating the language of Lord Coke, which clearly shows the right of peremptory challenge to be such an incident,* he said: "On what principle can it be in- ferred that the wise precaution, the just privilege intended for the just object of just trial, is withdrawn? I should require cogent and stringent authority to bring me to that conclusion, and to take away that incident to felony, which according to the authorities can only be taken away by the express words of an act of Parliament."^ Of the same 1 Per Perrin J., Reg. v. Gray, G Irish C. L. 273. ^ 6 Irish C. L. 259, 482; s. c, 11 CI. & F. 427. 3 6 Irish C. L. 273. See also The Coalheaver's Case, 1 Leach Cr. L. 76. * " The end of challenge is to have an indifferent tryall, and which is re- quired by law; and to bar the party indicted of his lawfuU challenge, is to bar him of a piincipall matter concerning his tryall." 3 Co. Inst. 27. * 6 Irish C. L. 273. See also Barrett v. Long, 3 H. L. Cas. 395; Hooper V. State, 5 Yerg. 422, 426; State v. Humphreys, 1 Overton, 306; United States v. Johns, 4 Dall. 412; s. c, 1 Wash. C. C. 363; United States v. Shackleford, 18 How. 588; United States v. Browning, 1 Cranch C. C. 330; United States v. McLaughlin, 1 Cranch C. C. 444; United States v. Peter. 2 Cranch C. C. 98; United States v. Gee, 2 Cranch 142 rEREMlTOKV CHALLENGES. [CH. X. opinion wciv tlic judges generally and the Ilonse of Lords when this case came before them npon a writ of error. ^ It was here dcHnitcly settled as a i)rinciple of law, ai)plicable to Enirland and Ireland alike, that at common law the right of a defendant to a peremptory challenge of jurors, to the statutory number existed, in all cases of felony, and was not contined to those piuiished capitally. We have considered this matter thus at length, because the opinion has generally prevailed in this country that peremptory challenges were allowable at common law in capital cases only.-' § 157. Clialleuj»iHj; more than allowed by Law. — At common law, if a person on trial challenged jurors peremp- torily in excess of the number allowed by law in a case of treason, he was regarded as saying nothing, and judgment of death was pronounced; but in felony or petit treason, the prisoner was put to the iavYxhXQ peine forte et dure, i. e. pressing to death. ^ At the present time, however, no C. C. 16.3; United States v. Wood, 2 Cranch C. C. 164; United States v Summers, 4 Crandi C. C. :{34; United States v. Dow, Taney Dec. 34; State V. Buckner. 25 Mo. 167, 170. Neither, it is held, is the converse of this principle true, namely, that the right of challenging jurors per- •mptorily will attach to an offense made a felony ])y statute. United States V. Shive, Bald. C. C. 510; Shuster v. Com., 38 Pa. St. 206; Com. V. Hand, 3 Phila. 403. But, contra, see Reg. v. Gray, supra. ^ Upon this occasion the question arising upon the challenge was for- mulated into a stated case, and the opinions of the judges were re- quested. Opinions were delivered in favor of the right by Justices Wightman, Coltman, Williams, Pattcson, Baron Gurney, Lord Chief Baron Pollock and Lord Chief Justice Tindal, Baron Parke dissenting at length. The opiuious of the majority of the judges were adopted by the lords, the Lord Chancellor (Lyndhurst), Lords Brougham and Campbell expressing the judgment of the House. » See United States v. Hand. 3 Phila. 403; United States v. Cotting- ham, 2 Blatch. 470; United States v. Carrigo, 1 Cranch C. C. 49; United States v. McPherson, 1 Cranch C. C. 517; United States v. Toms, 1 Cranch C. C. 607; United States v. Smithers, 2 Cranch C. C. 38; United States v. Johns, 4 Dall. 412; United States v. Black, 2 Cranch C. C. 195; United States v. Krouse, 2 Cranch C. C. 252; United States v. White, 5 Cranch C. C. 73; United States v. Randall, 1 Deady, 524; Shuster v. Com., 38 Pa. St. 206. 3 2 Hale P. C. 268. Sir J. Kelyng notes a case in which the person so § 158.] RIGHT TO STAND JURORS ASIDE. 143 importance whatever is attached to this act of the chal- lenging party. By statutes in Enghmd and this country^ if an attempt is made to exceed the legal limit, such chal- lenges are simply disregarded, and the trial proceeds with- out interruption. It is a remarkable circumstance that such conduct on the part of an accused person was ever regarded as of any note whatever. The right of the court to direct the trial to proceed in disregard of such challenffingr would seem to have been clear. ^ § 158. The Right of the Prosecution to stand Jurors aside. — ( 1 . ) History and Practice in England and Can- ada. — Previous to the statute 33 Edw. I. Stat 4, the ♦'Ordinance for Inquests," the crown might peremptorily challenge jurors without limit. ^ In this way the crown could, in an arbitrary manner, on every criminal trial, challenge so many of the jurors returned on the panel by the sheriff that twelve did not remain to make a jury ; and the trial might be indefinitely postponed, pro defeciu juratorum} This statute, however, narrowed the challenges of the crown down to those for cause shown.* It was held to apply to all cases, civil and criminal, and thus the de- fendant, from occupying a position decidedly at a disad- vantage as compared with the crown, would seem to have become suddenly possessed of an equally unfair advantage over the crown itself. But the courts and the crown challengfino; was mercifully hanged instead of being pressed to death, Kel. p. 36. Later, the punishment of hanging was not enforced. The challenge was simply overruled, and the prisoner put upon his trial. Trials per Pais (1725) 456. 1 State V. Gainer, 2 Hayw. (N. C.) 140; Funk v. Ely, 45 Pa. St. 444. 2 1 Chitty Cr. L. 533. 3 This has been attempted even under the statute. See Reg. v. McMahon, Irish Rep. 9 C. L. 309. See also Cowper's Case, 13 How. St. Tr. 1108. * The following is the text of the statute : " Of inquests to be taken before any of the justices, and wherein our lord the King is party, howsoever it be, it is agreed and ordained by the King and all his coun- cil, that from henceforth, notwithstanding it be alleged, by them that sue for the King, that the jurors of those inquests, or some of them, be 144 rEREMPTORY CHALLENGES. [CH. X. lawyers evidently would not liiivo it so, and ticcordingly the effect of this statute was early mitigated ])y a rule of practice not to compel the crown to show cause against the juror at the time of challenge. The juror might be directed to stand aside until the whole panel had been gone over in this manner.^ The defendant having completed his challenging, if a jury could l)e procured from what un- objectionable persons remained upon the panel, these were selected. But in case of a deficiency, the crown was then called upon to sho^vv cause in respect to those members of the panel who had been directed to stand aside .^ This right of ordering jurors to stand aside might, in cases of misdemeanor, be exercised by a private prosecutor equally not indifferent for tlie King, yet such inquests sliall not remain untaken for that cause ; but if they that sue for the King will challenge any of those jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to the cus- tom of the court." This statute was re-enacted in 6 Geo. IV., c. 50, § 29. See Keg. v. Frost, 9 Car. & P. 129, 137. It was ruled in a nisi prius case shortly after the passage of this last act, that the crown must show cause upon making the challenge. See Sawdon's Case, 2 Lewin C. C. 117. Such, however, is not the law. The later stat- ute made no change in the rule, Mansell v. Reg., 8 El. & Bl. 54; Rex V. Parry, 8 Car. & P. 836. J "There was," said Lord Campbell, C. J., "no intention of taking away all power of peremptory challenge from the crown, while that power, to the number of thirty-five, was left to the prisoner. Indeed, unless this power were given under certain restrictions to both sides, it is quite obvious that justice could not be administered; for it must often happen that a juror is returned on the panel who does not stand indif- ferent, and who is not fit to serve upon the trial, althougli no legal evidence could be adduced to prove his unfitness." Mansell v. Reg., 8 El. & Bl. 54. 71. 2 Staunford P. C. 1G2, b. ; 2 Hawk. P. C, ch. 43, § 3; 2 Hale P. C. 271; 1 Chitty Cr, L. 5.34; Bac. Abr. Juries E. 10; 4 Bl. Com. 353; Fitzharris' Case, 8 How. St. Tr. 43G; Count Conigsmark's Case, 9 How. St. Tr. 12; Staplcton's Case, 8 How. St. Tr. 503', Lord Grey's Case, 9 How. St. Tr. 128; s. c. Skin. 82; Cook's Case, 13 How. St. Tr. 318; Cowper's Case, 13 How. St. Tr. 1108; Layer's Case, 16 How. St. Tr. 135; Brandreth's Case, 32 How. St. Tr. 755, 772; Reg. v. Geach. 9 Car. & P. 499; Kog. v. Frost, 9 Car. & P. 129; Mansell v. Reg. SEl. &B1. 54; Reg. v.Dougall, 18 Low. Can. Jur. 85. The panel having been gone over and a jury not procured, the proper practice was to call over the whole of the panel in the same order as before, omitting those § 158.] RIGHT TO STAND JURORS ASIDE. 145 with the crown. ^ When it is considered that the court might in its discretion direct the sheriff to return any number of jurors for the trial of a particuhir case,^ and that not infrequently it openly took sides against the ac- cused, it will be seen that under this practice the crown still possessed no mean advantage. So settled had this practice become that in 1699, upon one occasion, after the panel had been gone over without procuring a juror, when the prisoner demanded that the crown now show causes for the challenges which had been made, the counsel of the King boldly said : "I conceive we, that are retained for the King, are not bound to show any cause, or the cause is sufficient if we say they are not good for the King, and that is allowed to be a good cause of challenge ; for what other cause can we show in this case? You are not to show your cause, you challenge per- emptorily ; so in this case the King does." ^ It will be seen that in making this claim the crown lawyer considered that the government's right of challenge was entirely unaffected by the statute under discussion ; for, previous to the stat- ute, it was a sufficient ground of challenge to jurors " quia non sunt boni pro rege." '^ " I do not know," he contin- ued, " in all my practice of this nature, that it was ever put upon the King to show cause, and I believe some of the King's counsel will say they have not known it done." This claim, however, was not supported by the court. On the contrary, it appears that the crown could not in- sist upon this practice as matter of right. This point was who had previonsl}' been challenojecl by the prisoner, and, as each juror appeared, for the projecuting counsel to state the crown's cause of chal- lenge. If tliis challenge was not allowed, and tiie juror remained unchal- lenged by the accused, he was sworn. Reg. v. Geach, 9 Car. & P. 499. The panel might be gone over a second time, and the same jurors stood aside a second time, if certain members of the panel, absent when their names were first called, returned in season for the second calling. Coolv's Case, 13 How. St. Tr. 311, 317; Mansell v. Reg.. 8 El. & Bl. 51. 1 Reg. V. McGowen, cited in Reg. v. McCartie, 11 Ir. C. Ij. (N. S.) 188. ^Ante § 79. Cowper's Case, 13 How. St. Tr. 1108. 1 Chitty Cr. L. 533. (10) 146 PEREMPTORY CHALLENGES. [CH. X. noticed by Lord Chief Justice Eyre in the trial of Home Tooke for high treason in 1794.^ After stilting the practice, he said : "At the same time I feel that the circumstance, which is become absolutely necessary, of making the panels "vastly more numerous than they were in ancient times, might give to the crown an improper advantage, arising out of that rule ; and whenever we shall see that improper ad- vantage attempted to be taken, it will be for the serious consideration of the court, whether they will not put it into some course to prevent that advantage being taken." ^ Taking advantage of this expression of opinion, Mr. Scott, of counsel for one of the defendants in the trial of O'Coigly and others in 1798, bitterly "and ably inveighed against the legality of the practice itself. Eleven of the panel had been thus set aside by the crown, when, burning with indignation, he exclaimed : "I must be chained down to the ground, my lords, before I can sit here, engaged as I am for the life of one of the gentlemen at the bar, and submit to these challenges of the crown without cause."* Citing the expression of Lord Chief Justice Eyre in Tooke'' s Case, he arraigned the practice as agamst reason, authority and policy, charging it to be the most monstrous violation of law and justice that could be attempted. Com- menting upon each of the reported cases in Avhich the prac- tice had been permitted, in heated language he denounced the authority of each and all of them to establish a practice to subvert an act of Parliament. But the judges were im- passive. Mr. Justice Buller said: "I have no difficulty in saying, that I am most clearly of opinion the law is as firmly and as fully settled on this point, as anyone question that can arise on the law of England. I will go farther, and say, that every case which has been quoted against the conduct of the attorney-general in this instance, is a direct proof in favor of the power which he has exercised. I will 1 25 How. St. Tr. 1, 25. 2 Ibid., p. 25. But see Erandreth's Case, 32 How. St. Tr. 755, 772. 3 O'Coigly -s Case, 26 How St. Tr. 1191, 1231. •§ 158.] RIGHT TO STAND JURORS ASIDE. 147 also add that the statute itself is not against it." ^ The other judges, Heath and Lawrence, delivered opinions in favor of the practice. Since this time the validity of tho practice seems occasionally to have been questioned, but never with success.- The practice continues in England, and but slightly affected hy statute.^ (2.) Practice in the United States. — In this country it is an established principle that, after the independence of the colonies was declared, the respective States and the people succeeded to the rights and prerogatives of the crown, and the law continued the same as before, unless altered by the constitution or laws of the particular State. Accordingly the statute under discussion, being a part of the common law, was early held to be applicable to those jurisdictions in which the government had no peremptory challenges guaranteed by law.^ This statute, as a part of the common law of this country, was brought into jjrom- inent notice by Mr. Justice Story in United States v. Mar^ chant,^ and afterwards received general recognition.^ 1 Ibid., p. 1240. 2 "The rule," said Lord Campbell, C. J., " (with a view probably of conveying to the bystanders the notion that it operates harshly against the prisoner) has often been questioned ; but it has as often been recog- nized and established by the presiding judges. The last instance of this was on the trial of John Frost for high treason in the year 1840.' Mansell v. Keg., 8 El. & Bl. 54, 72; s. c, Dears. & B. 375. The same objection was again made without success in the same case, which was tried in 1856. See also Reg. v. Benjamin, 4 Up. Can. C. P. 179; Reg. v. Fellowes, 19 Up. Can. Q. B. 48. 3 By 37 Vict., ch. 38, § 11, applicable to Canada, "The right of the crown to cause any juror to stand aside until the panel has been gone through, shall not be exercised on the trial of any indictment or infor- mation by a private prosecutor for the publication of a defamatory libel." Under this statute, the fact of the prosecution beiug conducted by a counsel appointed by and representing the attorney-general was held to make no difference. Regiua v. Pattesou, 36 Up. Can. Q. B. 129. * Com. V. Addis, 1 Bro. (Pewn.) 285, and cases cited in note; State v. Barrontine, 2 Nott & McC. 553. 6 12 Wheat. 480. ^ United States v. Wilson, Bald. C. C. 78, 82 ; Com. v. Marrow, 3 Brewst. 402; s. c, sub nom. Com. v. Marra, 8 Phila. 440; Jewell v. Com., 22 Pa. St. 94; Com. v. Jolliffe, 7 Watts, 585; State v. Arthur, 2 Dev. 217; State 148 PEREMPTORY CHALLENGES. [CH. X. The right to stand jurors aside has l)ccii j)rcserved to the State even after the passage of statutes granting to the prosecution a certain number of peremptory challenges.^ But this view of the law is fairly open to criticism. The inordinate advantage enjoyed by the prosecution under the established interpretation of 33 Edw. I., Stat. 4, has been the subject of frequent observation from the bench, and vehement protestation by the counsel for accused persons. It would seem that the rule ought to cease with the reason for it. The practice grew out of the lack of perem[)tory challenges on the part of the prosecution after the passage of the statute; but where such challenges are allowed, the practice cannot be supported.^ It is, however, worthy of consideration whether the right ought not to exist where the number of peremptory challenges allowed to the State is very small in comparison with the number allowed to the accused. § 159. The Right of Challenge not a Right to select. — It is a settled maxim of the law that the right of peremp- tory challenge is not a right to select, but a right to reject jurors.^ The right to say who shall not try the case is all that the privilege of challenging confers. In the language V. Craton, G lied. L. 164; State v. Benton, 2 Dev. & Bat. 196; State v. Stalniaker, 2 Brevard, 1; Sealy v. State, 1 Ga. 213; United Slates v. Douglass, 2 Blatch. 207; Com. v. Twitehell, 1 Brewst. 651; Waterford, eti'., Tp. V. People, 9 Barb. 161; People v. Aichinson, 7 How. Pr. 241; People V. Henries, 1 Park. Cr. R. 579; State v. Siiaw, '6 Ired. L. 532; State V. Bone, 7 Jones, L. 121. But see Montague v. Com., 10 Gratt. 767; United States v. Shackleford. 18 How. 588. 1 Warren v. Com., 37 Pa. St. 45; State v. MoNinch. 12 So. Car. 89; State V. Benton, 2 Dev. & B. jfO; Slate v. Stei)hens, 13 So. Car. 285. 2 Sealy v. State, 1 Ga. 213; Reynolds v. State, 1 Ga. 222; United States V. Butler, 1 Hughes, 457. The latter case was tried before Chief Justice Waite in the United States Circuit Court for the District of South Carolina. April, 1877. s United States v. Marchant, 4 Mason, 1,58; s. c, 12 Wlieat. 480; State V. Wise, 7 Rich. L. 412; Slate v. Cazeau, 8 La. An. 10!); State v. Car- doza, 11 So. Car. 195,249; Maton v. People, 15 111. 536,539; Cruce v. State. 59 Ga. 83, 90; State v. Smilli, 2 Ired. L. 402; State v. Arthur, 2 Dev. 217; Turpin v. Slate (Sup. Ct. Md., Oct. 1880), 2 Criui. L. Mag. 532. §160.] CONFINED TO TRIAL OF MAIN ISSUE. 149 of the distinguished jurist to whom the law is indebted for the first lucid statement of this fundamental principle, ^' What jurors in particular shall try the cause depends upon the order in which they are called ; and the result is a mere incident following the challenges, and not the absolute selection of the prisoner, resulting from his power of chal- lenge," ^ An illustration of this principle is found in the practice which followed upon the statute of 33 Edw. III., which we have previously noticed.^ It was considered that the de- fendant suffered no injury if permitted to make the number of challenges allowed by law, although the representative of the crown might stand any juror aside who, he had reason to believe, was eligible in the eyes of the defendant. Likewise, persons jointly indicted could not demand sepa- rate trials as a matter of right, in order that their selection of a jury might not be impeded by the challenges of co- defendants.^ § 160. The Right confined to the Trial of the Main Issue. — On the trial of preliminary and other collateral issues, peremptory challenges were never allowed, although challenges for cause mij^^ht be.'' Thus, certain of the regi- cidcs of Charles I., having been attainted by an act of par- liament, escaped, but, upon being retaken, were brought to the bar, where they pleaded that they were not the same persons mentioned in the act ; and upon the trial of this issue of identity, the right of challenging the jurors per- ■emptorily was denied.* So, upon the preliminary trial of the sanity of an accused person, the defendant cannot ex- ercise his right of challenging jurors peremptorily, as guar- anteed by statute.^ 1 Mr. Justice Story in United States v. Marchant, 12 Wheat. 480, 482. 2 Ante, § 158. 3 p^,,^^ § 162. *2 Hale. P. C. 267; Bac. Atr. Juries E. 9; Foster Cr. L. 42: 4 Bl. 'Coram. 353, 396; Co. Litt. 156. b.; Rex v. Ratcliffe, 1 W. Bl. 3, 6; s. c, IS How. St. Tr. 429; Ecx v. Okey, 1 Levinz, 61; s. c, Sid. 72; Sir J. Xelyng, 13; 1 Keble,244; Reg. v. Key, Temple & Mew, 623. * Reg. V. Okey, supra. See, also. Rex v. Ratcliffe, supra. * Freeman v. People, 4 Den. 1, 22. In Opothle-Yoholo v. Mitchell, 2 150 PEREMPTORY CHALLENGES. [CH. X. § IGl. Xot allowed in Case of Special Jurors. — A Btiitute granting perem})toi'j challenges has no ai)plication in special jury causes. The right of peremptory challenge is considered to have been exercised in striking the jury.^ A struck jury was never granted at common law for the trial at bar of a capital case,^ and the reason in one case was stated to be, "for then the prisoner would lose his chal- lenges.'' ^ § 162. Peremptory Challenges by Defendants jointly in- dicted. — ( 1 . ) To the Same Number as allowed a Single De- fendant . — It appears never to have been doubted that at common law, in the case of persons jointly indicted, each was entitled to the same number of peremptory challenges which he might claim if indicted singly.* In other words, joint defendants could not be compelled to join with each other in making their challenges ; ^ therefore, a juror challenged by any one of them w^as withdrawn from the panel, or, as it is commonly said, was " drawn against all." ^ Stew. & Port. ] 25, there had been a judgment by default rende»-ed against the defendant in an action of assumpsit, and a writ of inquiry awarded to ascertain the amount of the damages. It was held that upon the trial of this issue the defendant was entitled to challenge jurors peremptorily^ as allowed by law in civil cases. Contra, see Anon., 3 Salk. 81. f 1 Schwenk v. Umsted, 6 Serg. & R. 351 ; Schuylkill Xav. Co. v. Farr, 4 Watts & S. 362; Blauchard v. Brown, l^Wallace Jr. 309; State v. Moore,. 28 Ohio St. 595; O'Byrne v. State, 29 Ga. 36; Cleveland, etc. R. Co. v. Stanley, 7 Ohio St. 155. But see McDermott v. Hoffman, 70 Fa. St. 31. And where less than twelve of the special jurors appeared, and the jury was completed by talesmen, peremptory challenges were allowed.. Cleveland, etc. R. Co. v. Stanley, supra. 2 Farlngton's Case, Sir T. Jones, 222. 8 Rex V. Duncomb, 12 Mod. 224. * 2 Hale, P. C. 263 ; 1 Chitty C. L. 535. * In an early case decided by the Supreme Court of Georgia, it was held that when two persons are tried together for an offense which requires their joint action or concurrence, such tliat an acquittal of either will operate as an acquittal of both, they may be required to join in their challenges. Hawkins v. State, 13 Ga. 322. But contra, it would seem, was the opinion of the court in a later case. Cruce v. State, 59 Ga. 83. 88. « 2 Hawk. P. C, ch. 41, § 9; Bac. Abr. Juries E. 9; The Case of the Regicides, 5 How. St. Tr. 979; s. c, Sir J. Kelyng, 9. § 162.] BY DEFENDANTS JOINTLY INDICTED. 151 (2.) Such Defendants jointly 07' severally tried in Dis- cretion of Court. — The result followed that joint defend- ants, by insisting upon their right of several challenge, might very easily exhaust a numerous panel, and thus the trial was frequently postponed for lack of jurors. Lord Hale alluded to this circumstance as a great inconvenience ; " and, therefore," says he, " in such case they anciently used to sever the prisoners, and so put them to challenge apart, whereby they may possibly hit upon the same persons." ^ In other words, the prisoners were severally tried, although jointly indicted. They were usually given their choice of consenting to join in their challenges, or being severally tried. ^ (3.) Separate Trials cannot he demanded as a Matter oj Right. — But can persons jointly indicted insist upon sepa- rate trials as a matter of right? Obviously, it might be highly advantageous for one to sever from his co-defend- ants, that he might secure for his trial certain jurors whom the others would challenge off. The old reports contain little positive authority upon this point. In one case it was briefly decided that they could not.^ Whether they should be jointly or severally tried seems to have been left to the discretion of the court. ^ The whole subject received an exhaustive examination at the hands of Mr. Justice Story in United States v. Marchant,^ in which he reached the conclusion that, certainly upon principle, and probably upon authority, persons jointly indicted had no right to insist upon a several trial, in order that they might exercise a more extensive choice in the selection of the panel by ^ 2 Hale P. C. 263; 2 Hawk. P. C, ch. 41, § 9. 2 1 Chitty Cr. L. 535; Cliarnock's Case, 3 Salk. 81 ; s. c, Holt, 133; 12 How St. Ti-. 1378; Swan and Jeffery's Case, Foster Cr. L. 104, lOG; Grah- me's Case, 12 How St. Tr. 673 ; Stale v. Monaquo, T. U. P. Chavlt. 22 ; People V. McCalla, 8 Cal. 301 ; State v. Yancey, 3 Brev. 308. » Noble's Case, 15 How. St. Tr. 731,746. See also State v. Yancey, 3 Brev. 306. < People V. Howell, 4 Johns. 296. Contra, United States v. Sharp, 1 Peters C. C. 118. * 4 Mason, 158. 152 PEREMPTORY CHALLENGES. [CH. X. which they were to be tried. This decision was afterwards affirmed by the Supreme Court of the United States,^ and has been subse(iuently regarded as settling the law that separate trials are granted only in the discretion of the court .- However, cases may occur when it would be very proper, if not the duty of the court, to grant an application for a separate trial of joint defendants.' Conversely, if in the judgment of the court good cause exists for trying joint defendants severally, the court may order a severance, contrary to the desire of the defendants to be tried jointly.* In some States the right is granted by statute to a defend- ant in a joint indictment to demand a separate trial, or to waive this right and be tried jointly.^ (4.) Number of Peremptory Challenges allowed the Prosecution against Joint Defendants. — In the case of per- sons jointly indicted and jointly tried, although the defend- ants may be permitted severally to challenge jurors per- emptorily, to the statutory number, this does not increase the right of challenge on the part of the prosecution. The State is restricted to the number of peremptory challenges allowed it in the case of the indictment of a single person.' 1 ]2 Wheat. 480. 2 United States v. Wilson, Baldw. C. C. 81 ; Hawkins v. State, 9 Ala. 137 ; Bixbe V. State, 6 Ohio, 86; State v. Wise, 7 Rich. L. 412; Hill v. State, 2 Yeig. 246: Maton v. People, 15 111. 536; State v. McGrew, 13 Rich. L. 316; United States v. Gibert, 2 Sumn. 19; United States v. Kelly, 4 Wash. C. C. 528; State v. Soper, 16 Me. 293; State v. Conley, 39 Me. 78; State v. Smith, 2 Ired. L. 402; State v. Stoughton, 51 Vt. 362; 8. c, 8 Reporter, 762. 3Com. V. James, 99 Mass. 438; United States v. Collyer, Whart. on Horn. App. 489. * Stewart v. State, 58 Ga. 577. « People V. McCalla, S Cal. 301; Caldwell v. State, 34 Ga. 10; Home V. State, 37 Ga. 80; R. S. Ohio, 1880. § 7271; Rev. Stat. W. Va. 1879, ch. 55, § 8. fl Mahan v. State. 10 Ohio, 232; State v. Earle. 24 La. An. 38; State v. Gay, 25 La. An. 472. The statutes of Texas allow the State one-half the number of peremptory challenges which may be exercised by each of the joint defendants. R. S. Tex. 1879 (Code Cr. Proc), Arts. 635, 652. § 162.] BY DEFENDANTS JOINTLY INDICTED. 153 A reason for this rule is found in the election of the proso- cutioQ to indict and try the parties together.^ (5.) The Foregoing how affected by Statute. — Applying the familiar rule that, in construing statutes changing the common law, the latter shall not be considered as altered further than the plain provisions of the statute require, each defendant in a joint indictment will be held to be entitled to the statutory number of challenges, unless the import of the statute is plainly to the contrary.'^ Statutes which guar- antee the right of challenge to " every person," which is the general form in those relating to peremptory challenges in criminal cases, plainly indicate that the defendants are severally entitled to the specified number.^ The construc- tion is otherwise where it is specified that " each party," or » Wiggins V. State, T Lea (Tenn.), 738. 2 United States v. Marchant, 4 Mason, 158; s. c, 12 Wheat. 480; United States V. Johns, 4 Dall. 412; Hill v. State, 2 Yerg. 246; Hawkins v. State, 9 Ala. 137; Brister v. State, 26 Ala. 107; United States v. Haskell, 4 Wash. C. C. 412, n; Bixbe v. State, 6 Ohio, 86; Maton v. People, 15 111. 536; State v. McLean, 11 La. An. .^46; State v. Reed, 47 N. H. 466; Cruce V. State, 59 Ga. 83; State v. Stoughton, 51 Vt. 362; s. c, 8 Re- porter, 762; Smith v. State, 57 Miss. 822. 8 Ibid. A statute of Xew Hampshire provided that " every person ar- raigned and put on trial for any offense, which may be punishable by death or by confinement to hard labor for life, except when standing mute, may challenge twentj^ of the jurors peremptoril}^, and any others for sufficient cause." R. S., ch. 228, § 8. A later statute enacted that *' either party in all civil causes, and the respondent in all criminal causes not capital, shall, in addition to challenges for cause, have two peremptorj" challenges.'' Constrning these provisions, Perley, C. J., said: " It is the respondent., and not a respondent., nor every respondent., nor every person^ as in capital causes, that has the right. Looking to the language of the statute, it evidently does not contemplate several rights of challenge belonging to different persons on the same side of the cause; the statute, as in civil actions, appears to recognize but one collective party respondent." State v. Reed, 47 X. H. 466. The Mississippi Code of 1871, § 2761, provides that " in cases not capital, the accused shall be allowed four peremptory challenges, and the State two." This statute has been lately construed, and the court made the correct distinctioa (which is not noticed in the New Hampshire case) that, inasmuch as the common law originally allowed thirty-five peremptory challenges in all felonies, so far as felonies are concerned, no other cliange is made than to reduce the number of challenges to four. Therefore the defendants to 154 PEREMITORY CHALLENGES. [CH. X. *' either party " shall be entitled, etc., which is the general form in statutes relating to challenges in civil cases. ^ The statutes of the United States and of many of the States expressly require that joint defendants shall join in their challenges.^ In other States each defendant is allowed his separate challenges.^ In Texas, persons jointly indicted are entitled to challenge separately, but not to the same number as is allowed a single defendant.'* § 1G3, By several Per.soiis, Plaintiffs or Defendant.s, in a Civil Suit. — Peremptory challenges in civil cases, as we have previously seen, had no existence at common law.^ By the terms of the statutes granting peremi)tory chal- lenges in such cases, the number specified is generally to be exercised by "each party" or "either party." All the defendants to a suit constitute but one party in the sense in which the term is here used. The statute of Illinois, for example, provides that "in all civil actions, each party shall be entitled to a challenge of three jurors, without showing cause for such challenge."^ This statute, as stated in a recent case, has been in force since 1827, and has been always understood to mean that " each side to the case, without reference to the number of persons in each, in all civil cases, have bat three peremptory challenges ; and this is true whether there be one or a number of per- a joint indictment for a felony may each insist upon His several right of challenge to the statutory number. Smith v. Slate, 57 Miss. 822. 1 Post^ § 1G5, sub-sec. 2. 2 Rev. Stat. U. S., § 819; R. S. Mo. 1879, § 1902; Comp. L. Nev. 1873, § 1944; E. C. Miss. 1880, § 3070; Stat, at Large, Minn. 1873, p. 1054, § 219; Gen. Laws Oreg. 1872 (Cr. Code), § 154; Code Va. 1873, p. 1247, § 14; Bullitt's Ky. Cr. Code, p. 40, § 198; Cal. Tenal Code, § 1050; Ark. Dig. Stat. 1874, § 1920; R. S. Del. 1874, oh. 133, § 16; Laws Utah, 187S (Code Cr. Proc), § 225; Rev. Stat. W. Va. 1879,. ch. 55, § 8; Comp. L. Ariz., p. 1077, eh. 11, §300, " R. S. Ohio, 1880, § 7281 ; G. S. Neb. 1873, p. 827, § 470; 1 Bright. Purd. Pa. Dig., p. 384, § 43; Battle's Rev. X. C, p. 338, § 77; R. S. Wis. 1878, § 4689. * R. S. Tex. 1879 (Code Cr. Proc.), Arts. 635, 052. * Ante, § 154. « Rev. Stat. 1874, ch. 110, § 49; Rev. Stat. 1845, p. 417, § 29. § 164.] IN THE FEDERAL COURTS. 155 sons, plaintiff or defendant." ^ A distinction, however, has been taken by the Supreme Court of Michigan in an opin- ion delivered by Cooley, C. J.^ Construing the Michigan statute, which is in form substantially the same as the Illi- nois statute just noticed, he held that where several defend- ants unite on one issue presented by the same counsel, and content themselves with a joint defense, they become by such voluntary action but one party before the court, and may properly be restricted to the statutory number of chal- lenges allowed to a single party .^ But where such defend- ants plead separately, by different counsel, it is legally supposable that each may have a distinct and separate defense ; that their interests may not be identical, and, therefore, that they may differ widely as to the propriety of challenging in a given instance. Under such circum- stances, since the right of challenge could not be exercised without agreement, it might be lost altogether, and it was accordingly held that each of the defendants so pleading separately was entitled to the number of challenges named in the statute.* § 164. Peremptory Challenges in Federal Courts. — By an early statute ^ the number of challenges, in cases of trea- son and other crimes punishable by death, was fixed at thirty-five in the former, and twenty in the latter. In all ^ Schmidt v. Chicago, etc. K. Co., 83 111. 405. To the same effect, see Snodgrass v. Hunt, 15 lud. 274; Sodousky v. McGee, 4 J. J. Marsh. 267, 269; Stone v. Segur, 11 vVllen, 568; Bryan v. Harrison, 76 N. C. 360; State V. Reed, 47 N. H. 466; Blackburn v. Hays, 4 Coldw, 227. The statutes of the United States and of many of the States expressly re- quire the parties plaintiff or defendant in a civil case to join in making their peremptory challenges. Rev. Stat. U. S., § 819; Rev. Stat. Mo. 1879, §2795; Gen. Laws Oreg. 1872 (Civil Code), §187; Miller's Rev. Code Iowa, 1880, §§ 2763, 4399; Stat, at Large, Minn. 1873, p. 812, § 153; Gen. Laws New Mexico, 1880, ch. 68, § 19. The Compiled Laws of Nevada provide that the several persons plaintiffs or defendants must join in a challenge before it can be made, " unless the court otherwise order or direct." § 1224. See also Comp. L. Utah, 1876, § 1387. ii Stroh V. Hinchman, 37 Mich. 490. ' See Fraser v. Jennison, 42 Mich. 206. *See also Reynolds v. Rowley, 2 La. An. 890. fi Act of April 30, 1790; 1 U. S. Stat, at Large, 119, § 30. 156 PEREMPTORY CHALLENGES. [CH. X. other offenses no challenges of this description were per- mitted until Jifter the passage of the act of 1840/ which, among other provisions, enacted that courts of the United States should at all times have power to make all necessary rules and I'cgulations for conforming the designation and impanelling of juries, in each State, in substance to the laws and usages in force in such States. This statute en- abled these courts to adopt the laws and usages of the sev- eral States in respect to the challenges of jurors, whether peremptory or for cause, and in cases, both civil and crim- inal, with the exception of those cases specifically provided for by the laws of the United States.^ But in the absence of any such adoption by rule of court, a party to a suit in such court could not claim the benefit of any challenges guaranteed by the statutes of the State.' Now, however, the number of challenges and the trial thereof in all cases, civil and criminal, is regulated by a statute of the United States.* Upon the trial of a case re- moved to the United States Circuit Court, under the pro- visions of the Revised Statutes,^ the right of the parties to challenge jurors is regulated by the law of the United States, in case of a conflict between the statutes of the State and the latter in this particular.^ § 165. Peremptory Challenges under the Statutes of the Several States. — (1-) Power of Legislature over. — The legislature has power at all times to increase or dimin- ^ 5 U. S. Stat, at Large, 304. « United States v. Sliackleford, 18 How. .588; United States v. Reed, 1 Blaicli. 435; United States v. Cottinghain, 2 Blatch. 470; United States v.Tallman, 10 Blatch. 21. ' United States v. Shackleford, supra; United States v. Devlin, 7 Int. Rev. R. 94; s. c, 6 Blatch. 71 ; United States v. Reed, 2 Blatch. 435. ■• In cases of treason, or where the punishment is capita], the defend- ant has twenty peremptory challenges, the government five; in all other felonies the defendant lias ten, the government three; in all other cases the defendant and government have three each. Act of 1872. cli. 333, 17 U. S. Stat, at Large, 282; Rev. Stat. U. S., § 819. Construing this sec- tion as to challenges in felonies, see United States v. Coppersmith, 4 Fed. Rep. 198. 5 § 643. « State v. O'Grady, 3 Woods, 496. § 165.] UNDER STATUTES OF TflE SEVERAL STATES. 157 ish the number of peremptory challenges to be allowed the State or the defendant in a criminal cause. The familiar constitutional provision that " the right of trial by jury shall remain inviolate," which is believed to be a part of the organic law of each State, is in no respect violated by such an act. "I entertain no doubt," said Wright, J., " that it is entirely competent for the legislature to declare that either the people or the accused may have their challenges without assio-ning cause, and to limit the immber of them. The subject of peremptory challenge has always been un- der legislative control, and it is onl}^ within a comparatively recent period that the right has been extended even to the accused in a minor class of criminal offenses. Even if it were a right given by common law, it could be restrained, limited, or withheld altogether, at the legislative will." ^ In criminal cases no objection can be raised to the consti- tutionality of a statute, passed after the offense was com- mitted, upon the ground that it unfavorably affects the de- fendant by increasing the number of peremptory challenges of the prosecution. Such a law is not, in the technical sense, ex post facto.^ Any legislation which merely points out the mode of securing' to the citizen the constitutional right of trial by jury cannot be considered as an infringement of the right.^ As observed by Mr. Justice Cooley, in his author- itative treatise upon Constitutional Limitations, " So far as mere modes of procedure are concerned, a party has no more right in a criminal than in a civil action to insist that 1 Walter v. People, 32 N. Y. 147, 159. See, also, Jones v. State, 1 Ga. 610; Boon v. State, 1 Ga. G18; Com. v. Walsh, 124 Mass. 32; State v. Wilson, 48 N. H, 398; State v. Pike, 49 N. H. 406; Com. v. Dorsey, 103 Muss. 412; liartzell v. Com., 40 Pa. St. 462; Warren v. Com. 37 Pa. St. 45; Mountfort v. Hall, 1 Mass, 443; Hndgins v. State, 2 Ga. 173; Slate v. McClear, 11 Nev. 39, 49; Cregier v. Bunton,2 Strob. L.487; Dowliiig v. State, 5 Sm. & M. 664; State v. Eyau, 13 Minn. 370; Stokes v. People, 63 N. Y. 164; State v. Hoy t, 47 Conn. 518. 2 State V. Hoyt, 47 Conn. 518; VValston v. Com., 16 B. Mon. 15; State V. Ryan, 13 Minn. 370. 3 Dowliiig V. State, 5 Smed. & M. 664; Eafe v. State, 20 Ga. 60; Jesse V. State, 20 Ga. 156; B'iers v. Beers, 4 Coini. 535, 539; Colt v. Eves, 12 Conn. 243; Be Peiin. Hall, 5 Pa. St. 204,208. 158 PEREMPTORY CHALLENGES. [CH. X. his case shall be disposed of under the law in force when the act to be investigated is charged to have taken i)lace." ^ (2.) Granted in Civil Cases. — The statutes of many of the States allow a small number of peremptory chal- lenges in civil cases. The number is variously fixed at two,'^ three,^ four,* and five.* In Kentucky the number allowed is indefinite. Each party is entitled to challenge peremptorily one fourth of the jurors summoned.* In England no peremptory challenges are allowed in civil cases. On one occasion Baron Parke stated that in prac- tice it had been usual, as a matter of courtesy, to allow peremptory challenges in civil cases and misdemeanors, but in neither instance could they be demanded as a matter of right.^ (3.) How in Felonies and Misdemeanors. — Another striking innovation wrought upon the common law is in respect to challenges allowed the defense and prosecution in criminal cases. The number allowed the defendant, as finally settled by the early English statutes, remains un- changed in some of the States in capital cases. In others, however, this has been varied according to the discretion of the legislature. But generally our statutes do not confine 1 Cooley Const, lim. (4th ed.), 331. See upon this point Stokes t. People, 53 N. Y. 164. 2 K. S. Me. 1871, ch. 82, § 66; Comp. L. Mich. 1871, § 6027; Bupp. to G. S. Mass., Acts of 1862, ch. 84, § 1; G. S. Vt. App. 1870, p. 1031, No. 39; R. S. So. Car. 1873, p. 523, § 26; Gen. Stat. N. H., ch. 212, § 10; R. S. Ohio, 1880, § 5177; N. Y. Code Rem. Jus., § 1176; Stat. Tenn. 1871, § 4012; G. S. Conn. 1875, title 19, ch X., § 16. 3 Rev. N. J. 1877, p. 530, § 40; R. S. 111. 1880, ch. 110, §49; Laws Minn. 1878, ch. 21, § 1; Comp. L. Kan. 1879, §3799; R. S. Wis. 1878, §2851; Bush Dig. Fla., ch. 104, § 33; Gen. Laws Oreg. 1872 (Civil Code), § 187; R. S. Del. 1874, ch. 109, § 19; Ark. Dig., Stat. 1874, § 3702; R. S. Mo. 1879, § 2795; R. S. Tex. 1879, Art. 3085 (in county court); Gen. Laws New Mexico, 1880, ch. 68, § 18; Comp. L. Utah, 1876, § 1771. 4 Code Ala. 1876, §3016; Cal. Code Civ. Proc. §601; Rev. Stat. W. Va., ch. 109, § 23; Civil Code Prac. La., Art. 512; Battle's Rev. N. C, p. 861, § 229 m; 1 Bright. Purd. (Penn.) Dig., p. 837, § 72; R. C. Miss. 1880, § 1708; Comp. L. Nev. 1873. § 1224; Colo. Civil Code, § 161. 5 Miller's R. C. Iowa, 1880, § 2771. 8 G. S. Ky. 1879, p. 572, § 12. ' Creed v. Fisher, 9 Exch. 472. § 165.] UNDER STATUTES OF THE SEVERAL STATES. 159 the right of peremptory challenge to felonies alone. It frequently extends to misdemeanors. Nor is the number of challenges the same for all felonies. Naturally, the highest number is incidental to those felonies punished capitally or by imprisonment for life. As to felonies of a lesser degree, the number is generally graduated according to the severity of the punishment. The statutes have also quite generally restored the right of challenge possessed by the prosecution at common law, but not the unlimited right. The government generally possesses the right wherever it is granted to an accused person, but not usually to the same extent. The policy of those statutes which discriminate against the prosecution in this particular is not apparent.^ The government certainly has the same right to an impartial jury as an accused per son, and, it would seem, ought to be possessed of equal facilities for procuring it. The legislature of Connecticut ^ It is probable that the advantage of the accused in the matter of per- emptory challenges grows out of a vague conception that, in the ante- cedent steps of procuring the attendance of the jurors, the State has au opportunity of affecting the constitution of the panel, inasmuch as the jurors are necessarily brought in by its own officers. There was doubt- less a rational ground for this feeling under the common-law system of summoning jurors. We have seen that they were selected in the discre- tion of the sheriff (ante, § 44), and Lord Coke laments that, "through the subtilty and untrue demeanor of sheriffs and their ministers, great extortions and oppressions be and have been committed and done to many of the king's subjects, by means of returning, at sessions holden within counties and shires for the body of the shire, the names of such persons as, for the singular advantage, etc., of the said sheriffs and their ministers, will be wilfully foresworn and perjured by the sinister labour of the said sheriffs and their ministers, by reason whereof many sub- stantial persons, the King's true subjects, have been wrongfully indicted of murders, felonies and misdemeanors." 3 Co. Inst. 33. The sheriff is here made the scape-goat of the untimely taking off of " substantial '' persons, which was doubtless instigated by ministers of the crown, that rich forfeitures might ensue. It is clear that this officer was too fre- quently subservient to the wishes of the crown in matters of this kind. But all this apprehension of fraud in the return of jurors ought to be dissipated by the ample checks of our statutes, which generally have utterly shorn the sheriff of all power of selection possessed at common law (ante, §§ 45, 69) . 160 PEREMirrORY CHALLENGES. [CH. X. has lately adopted this view. Prior to the year 1879, the State was entitled to only two i^ereniptory challenges, as against a liberal allowance to the defendant.^ By a statute of this year it was provided that, "upon the trial of any criminal prosecution, the State may challenge peremptorily as many jurors as the accused is allowed by law to chal- lenge peremptorily in such case." ^ A more striking illus- tration of the growth of this view is seen in the legislation of Massachusetts. Prior to the year 18Gy, the defendant in capital cases, and in those punished by imprisonment for life, was entitled to twenty peremptory challenges, against which the commonwealth had none. The legislature of this year granted to the commonwealth five peremptory challenges in such cases,^ which allowance was later increased to ten,* and finally to twenty-two,* without any increase in the number previously allowed to the defendant. (4.) In Alabama, in capital cases, the defendant has twenty-one peremptory challenges, the State fourteen ; in felonies not capital, the defendant has fifteen, the State ten ; in misdemeanors, the defendant has six, the State four.^ (5.) In Arkansas, in all felonies, the defendant has twenty, the State ten ; in misdemeanors, the defendant and State have three each.' (G.) In California, in capital cases, or where the punish- ment is imprisonment for life, the defendant has ten, the State five ; in other cases the defendant has five, the State three. ^ (7.) In Colorado, the people and the accused are en- titled each to fifteen in capital cases, and in all other cases where the punishment may be imprisonment in the peniten- tiary, to ten each.^ ^ See infra, subsec. 8. 2 Laws Mass. 1879, p. 363. 3 Laws Mass. 1869, eh. 151. * Laws Mass. 1873, ch. 317, § 2. 6 Laws Mass. 1875, ch. 107. § 1 « Code Ala. 1876, §§ 4879, 4880. 1 Avk. Dig. 1874, §§ 1912, 1913. Cal. Penal Code, § 1070. 9 Laws Colo. 1877, § 873. § 165.] UNDER STATUTES OF THE SEVERAL STATES. 161 (8.) In Connecticut, in capital cases, the defendant has twenty ; in cases where the punishment is imprisonment for life, ten ; in cases where the punishment is imprisonment in the penitentiary for a period less than life, four ; in all other cases he has two. The State has an equal number in «ach case.^ (9.) In Delaware, in capital cases, the defendant has twenty, the State none ; in cases of other crimes and mis- demeanors, the defendant has six, the State three. But if the State exercises this right of challenge, the defendant is entitled to challenge, beyond the number of six, as many as are challenged by the State. '^ (10.) In Florida, in capital cases, the State has six; in cases not capital, the State and the defendant have four «ach.^ (11.) In Georgia, in felonies punished by death or by imprisonment in the penitentiary for four years or longer, the defendant has twenty challenges, the State ten ; in other felonies the defendant has twelve, the State six.* (12.) In Illinois, in capital cases or where the punish- ment is imprisonment for life, the defendant and the State have twenty each ; in cases where the punishment is more than eighteen months' imprisonment, the defendant and the State have ten each ; in all other cases the defendant and the State have six each.^ (13.) In Indiana, in capital cases, the defendant has twenty, the State six ; in other felonies, the defendant has ten, the State three ; in misdemeanors, tlie defendant and the State have three each.^ (14.) In Iowa, in capital cases or where the punishment is imprisonment for life, or may be so in the discretion of the court, the defendant has twenty, the State ten ; in any 1 G. S. Conn. 1875. p. 538, § 5; Sess. Laws Conn. 1879, p. 3G3. 2 Laws Del. 1874, ch. 133. § 16. 3 Biisirs Dig. Fla., p. 444, § 34. * Code Ga. 1873, § 4643. » R. S. 111. 1880, ch. 38, § 432. •« 2 Ind. Rev. 1876, p. 393, §§ 81 and 82. (11) 162 PEREMTTORY CHALLENGES. [CH. X. other felony, the defendant has twelve, the State six ; in misdemeanors, the defendant has six, the State three.' (15.) In Kansas, in capital cases or where the punish- ment is imprisonment for life, the defendant has twelve, the State six ; in other cases, where the punishment is a term of years in the penitentiary, but no extreme limit is fixed, the defendant has eight, the State six; in other cases, punished by imprisonment in the penitentiary, the defendant has six, the State three ; in misdemeanors, the defendant has four, the State two.^ (16.) In Kentucky, in all felonies, the defendant has twenty, the State five ; in misdemeanors, the defendant and State have three each.'^ (17.) In Louisiana, in cases where the punishment is^ imprisonment at hard labor for twelve months or more,, the defendant has tAvelve, the State six.* (18.) In Maine, in capital cases, the defendant may challenge ten while the jury is being formed, and one more after it is complete.'^ (19.) In Maryland, in capital cases or where the })un- ishment is imprisonment for life, the defendant has twenty, the State four.^ (20.) In Massachusetts, in capital cases or where the punishment may be imprisonment for life, the defendant has twenty, the State twenty-two ; in other cases the State has two.^ (21.) In Mississippi, in capital cases, the defendant has twelve, the State six ; in cases not capital, the defendant has four, the State two.^ (22.) In Missouri, in capital cases or where the pun- ishment is imprisonment for life in the penitentiary, the 1 Miller's K. C. Iowa, 1880, § 4413. 2 Comp. L. Kan. 1879, §§ 4G90 and 4691. 3 Bullitt's Cr. Code, p. 41, §§ 203, 204. * R. S. La. 1876, §§ 997, 998. 5R. S. Me. 1871, ch. 134, § 12. 6R. C. Md. 1878, p. 563, §18. ^ G. S. Mass. 1860, ch. 172, § 4; Acts of 1875, ch. 167. § 1. » R. C. Miss. 1880, § 3076. 165.] UNDER STATUTES OF THE SEVERAL STATES. 163 defendant has twenty ; if the offense be punishable by- like imprisonment, not less than a specified number of years, and no limit to the duration of such imprisonment is declared, the defendant has twelve ; in any other case punishable by imprisonment in the penitentiary, the de- fendant has eight ; in cases not punishable with death or imprisonment in the penitentiary, the defendant has four. In cases specified in the first of the foregoing clauses, the State has eight ; in cases specified in the second, six ; in all other cases, four, except that, in cities having a popu- lation of over one hundred thousand inhabitants, the State has, in cases specified in the first clause, fifteen ; in cases specified in the second clause, ten ; in all other cases, four.^ (23.) In Michigan, in capital cases, the defendant has thirty, the State fifteen.^ (24.) In Minnesota, in capital cases or where the pun- ishment is imprisonment for life, the defendant has twenty, the State seven; in other cases, the defendant has five, the State two.^ (25.) In Nebraska, in capital cases, the defendant has sixteen, the State three ; in cases where the imprisonment may exceed eighteen months, the defendant has eight, the State three ; in all other cases, the State and defendant have three each.* (26.) In Nevada, in capital cases, the defendant has ten, the State five ; for any other offense, the defendant has five, the State three. ^ (27.) In New Hampshire , in capital cases, the defendant has twenty ; in other cases, the defendent has two ; in each of the foregoing instances, the State has two.^ (28.) In New Jersey, in capital cases, misprision of trea- son, .sodomy, rape, arson, burglary, robbery, forgery, per- jury, or subornation of perjury, the defendant has twenty, 1 R. S. Mo. 1879, §§ 1900, 1902. 2 Gomp. L. Mich, 1871, § 7951. 8 Stat, at Large, Minu. 1873, p. 1055, § 231. * G. S. Neb., p. 826, § 467. 5 Comp.L. ISTev. 1873, § 1960. 6 Gen. Stat. N. II. 1867, p. 493, §§ 8 and 9. 164 PEREMPTORY CHALLENGES. [CII. X. the State ten ; in other cases, the defendant has three, the State three. ^ (29.) In Xeiv York, in capital cases, the defendant and the State have thirty each ; in fch)nics punished by impris- onment in the penitentiary for ten years or more, the de- fendant has twenty ; in all other cases, the defendant has five; in all felonies and misdemeanors, the State has the same number as the defendant.^ (30.) In Nortli Carolina, in capital cases, the defendant has twenty-three, the State four; in other cases, the de- fendant has four, the State two." (31. ) In Ohio, in capital cases, the defendant has twenty- three, the State two ; in other cases, the defendant and State have two each."* (32.) In Oregon, in capital cases, or where the punish- ment is imprisonment for life in the penitentiary, the de- fendant has twelve, the State six ; in other cases, the defend- ant and State have three each.^ (33.) In Pennsylvania, in capital cases and certain other heinous offenses, the defendant has twenty ; in other cases the defendant has four; in all cases, the State has four.® (34.) In Rhode Island, the defendant and the State may each challenge one juror m six.^ (35.) In South Carolina, in cases of murder, man- slaughter, burglary, arson, rape, or grand larceny, the de- fendant has twenty, and in all other criminal cases, five ; the State has two only, in all cases. "^ (36.) In Tennessee, in capital cases, the defendant has thirty-five ; for other offenses above the grade of petty lar- ceny, he has twenty-four. The State has ten in each of the 1 Rev. N. J. 1S77, p. 280, § 71 ; p. 530, § 40; p. r)31, § 41. 2 3 Rev. Stat.N. Y. (6th ed.), p. 1029, § H seq.; N. Y. Code Cr. Proc. (ch. 442, Laws of 1881), § 370. 3 Battle's R^v. N. C, p. 338, § 77. 4 R. S. Ohio, 1880, §§ 7272, 7274, 7277. 5 Gen. Laws Oreg. 1872 (Cr. Code), § loo. « 1 Bright. Purd. (Pa.) Dig., §§ 39 and 40. 7 Gen. Stat. R. I. 1872, p. 434, § 34. 8 R. S. So. Car. 1873, p. 747, § 2. § 166.] UNDER STATUTES OF THE SEVERAL STATES. 165 foregoing cases. For offenses below the grade of petty larceny, the State and the defendant have five each.^ (37.) In Texas, in capital cases, the defendant has twen- t}^ the State ten ; in other cases, the defendant has ten, the State five.^ (38.) Ill Vermont, in all criminal prosecutions in the county court, the defendant has six ; the State has two.^ (39.) In Virginia, upon the trial of a felony, a panel of sixteen is formed, from which the defendant may strike four. The State has no right of peremptory challenge.^ (40.) In West Virginia, upon the trial of a felony, a panel of twenty is formed, from which the defendant may strike eight. No other peremptory challenge is allowed the defendant, and the State has none.^ (41.) In Wisconsin, in capital cases, the defendant has twenty-four, the State twelve. In other cases, the defend- ant and the State have four each.*^ § 166. Construction of the foregoing Statutes. — (1)- Suits prosecuted upon Information, lultetJier Civil or Criminal. — For the purpose of making peremptory chal- lenges, a bastardy proceeding, prosecuted by the State upon information, has Ijeen regarded as a civil suit." The object of such a suit is not to punish the defendant for an act done to the injury of the public,- but to indemnify the county against a liability for the support of a bastard child, of which the defendant is by law the reputed father.** Likewise, in a complaint under a statute of forcible entry and detainer,'* and in an action of debt brought by a city council to recover a penalt}^ imposed by 1 Stat. Tenn. 1871, §§ 4013, 4014. 2 K. S. Tex. 1879 (Code Cr. Proc), Arts. G35 and 652. 3 R. L. Vt. 18S0, §§ 1653, 1654. * Code Va. 1873, p. 1246, §§ 7 and 9. 5 Rev. Stat. W. Va. 1879, cli. 55, §§ 3 and 4. 6R. S.Wis. 1878, §4690. ' State V. Pate, Busb. 244. s Ibid. '•' Qiiiaebaug Bank v. Tarbox, 20 Conn. 510; Miner v. Brown. _'(> Conn. 519. 166 PEREMPTORY CHALLENGES. [CH. X. an ordinance for keeping for sale spirituous liquors with- out a license,' either party may have the peremptory challenges allowed in civil cases. The test in^ doubtful cases has been stated to be this : *' When the" proceeding is by indictment, it is a criminal suit ; when by action or other mode, although in the name of the State, it is a civil suit." ^ But it was held in a pro- ceeding in rem against certain intoxicating liquors kept and sold contrary to law, that, under a statute giving the State a limited right of peremptory challenge in all criminal cases, the prosecution might challenge a juror peremptorily. " The present complaint," said Ames, J., " although primarily a process in rem, to procure the con- demnation and forfeiture of liquors illegally kept for sale, involves a criminal charge specifically set forth, of which the forfeiture is the punishment." ^ The test, therefore, prescribed by the North Carolina court does not seem to be conclusive. (2.) Where the Punishment may he Capital, the num- ber of challenges guaranteed to a defendant in a capital case must be allowed. The eri'or of a refusal to allow such number will] not be cured by the ]\xvy assessing the pun- ishment at imprisonment only."* (3.) Or for a Definite Term of Imprisonment. — Upon the same principle, under a statute allowing peremptory challenges " for an offense punishable with death or impris- onment^in a State prison ten years or any longer time," the right [to] such peremptory challenges exists where the defendant may be 'punished by imprisonment in a State prison for ten years, although the case is one in which the court may^impose'a shorter term of imprisonment.^ ^ Kleinback v. State, 2 Speers L. 418. 2 State V. Pate, Busb. 244. '^ Com. V. Certain Intoxicating Liquors, 107 Mas?. 216. * Fowler v. State, 8 Baxt. 573. •'• Dull V. People,'4 Den. 91. CH. XI.] GROUNDS OF CHALLENGE FOR CAUSE. 167 CHAPTEE XI. OF THE GROUNDS OF CHALLENGE FOR CAUSE. ARTICLE T. — Various enumerated Grounds. II. — Bias. Prejudice or Opinion. ARTICLE I. — Various enumerated Grounds. section. 170. Challenges for Principal Cause. (1.) In General. . (2.) In Criminal Cases. 171. Challenges to the Favor. 172. The Distinction disappearing. 173. A Distinctive Statutory Sj'stem in some States. 174. Lack of Statutory Qualifications. (1.) Juror must be qualified at the Time of Senice. (2.) Non-resident. (3.) Not a Voter. (4.) Not a Freeholder. (5.) Not a Householder. (6.) Not a Tax-Payer. 17.5. Statutory Causes of Challenge not Exclusive of Others. 17(L Alienage. 177. Ignorance of the English I,anguage. (1.) In Genei-al. (2.) Not a Ground of Challenge in Colorado. (3.) A Contrary Rule in Texas and other States. 175. Consanguinity and Affinity. (1.) Common Law Rule as to Consanguinitj'. (2.) Meaning of the Term Affinity. (3.) Common Law Rule as to Affinity. (4.) General Rule that the Relationship must be to a Party of Record. (").) Exceptions to this Rule. (6.) Mode of reckoning Degrees. 168 GROUNDS OF CHALLENGE FOR CAUSE. [CII. XI. 179, Interest, Public or Corporate. (1.) Tax-Paj-er in ^luuicipal Corporation disqualified at Coninion Law. (2.) Tills Disqualitlcation removed by Statute. (3.) Members of Private Corporations. ISO. Interest. Private. (1.) Direct Interest in Result of Suit. (2.) Contingent Interest as Surety. 181. Membersbip in Associations for the Suppression of Crime. 182. Membership in Benevolent Associations. 183. Prior Service. (1.) In General — Statutes against Professional Juror (2.) In the same or a similar Case. 184. Landlord and Tenant. 185. Business Relations — Employer and Employee. 18G. Previous Misconduct as a Jui-or. 187. Party to another Suit at same Term. § 170. Challenges for Principal Cause. — (1.) In Gen- eral. — "We have hitherto considered the challenge to the array and the peiemptory challenge to the individual juror. These are important aids in the process of procuring an impartial jury, but are not of superior importance to chal- lenges for cause. The peremptory challenge, as we have seen,^ was allowed at common law only in cases of treason,, misprision of treason and felony ; but challenges for cause coidd be made in all cases, criminal and civil. In a civil case, the lack of any of those qualifications demanded by the writ of venire facias was a pointed cause of challenge^ Thus, the writ directed the summoning of liberos et Jegales homines, and, therefore, villeins, outlaws, excom- municated persons and aliens were excluded. The sheriff was directed to take them devicineto, and therefore, origin- ally, they were subject to challenge if not of the same hundred where the cause of action arose, though later this challenge became obsolete, it being sufficient that they were taken de corpore comitatiis. The next qualification de- manded by the writ was " quorum, quilibet liaheat qiiatuor Uhras terixe, teneriienl. vel reddit per annum ad minus ;. hence the challenge for want of freehold. Finally, a gen- eral fitness was suggested by the clause "^;er quos ret 1 Ante, § 156. § 170.] VARIOUS ENUMERATED GROUNDS. 16^ Veritas melius sciri potest," and ii particular cause of dis- qualification by the injunction " qui nee (the plaintiff) 7iec (the defendant) aliqua afimtate attingunt. Therefore^ Lord Chief Baron Gilbert says : " All causes of objection from partiality or incapacity, consanguinity and affinity, are contained in the writ ; if the juror be under the power of either party, as if counsel, serjeant of the robes, or tenant, these are expressly within the intent of the writ ; so that, if he has declared his opinion touching the matter, or has been chosen arbitrator by one side, or done any act by which such an opinion might be conceived, as if he has eaten and drank at the expense of either party after he is returned. All incapable persons, as infants, idiots and people of non-sane memory, are likewise excluded." ^ All of the foregoing are laid down by the old authorities as principal causes of challenge,^ and, as we have before stated, positively exclude the juror .^ These causes plainly show that the juror obnoxious to such objections cannot be one by whom the truth may best be known, as demanded by the writ. (2.) In Criminal Cases. — What we have hitherto said as to challenges for principal cause and to the favor has reference to these challenges in civil actions. It is obvious that many of these challenges would be good also in crim- inal cases. Serjeant Hawkins enumerates other principal causes of challenge which were allowed in criminal cases,* viz. : That the juror was one of the body which found the indictment of felony or trespass against him ; ^ that the 1 Gilbert's Hist. C. P. 95. 2 Co. Litt. 157. a.; Bac. Abr. Juries E. 5; Trials per Pais (6th ed.). 137, et seq. ^ Ante, § 126. * 2 Hawk. P. C, ch. 43, § 27 et seq. 5 So enacted by Stat. 25 Edvv. HE., c. 3. See Gates' Case, 10 How. St. Tr. 10S2; Cook's Case, 13 How. St. Tr. 311, 339; Kex v. Percival, 1 Sid. 243; Young v. Slaughterford, 11 Mod. 228; Com. v. Hussey, 13 Mass. 221. In au action for malicious prosecution, for causing the plaintiff to be indicted, he may challenge any of the jurors who were on the grand jury that found the indictment. Eogers v. Lamb, 3 Blackf. 155. 170 GROUNDS OF CHALLENGE FOK CAUSE. [CH. XI. juror hath a claim to the forfeiture which shall be caused hv the party's attainder or conviction ; or that he hath de- <-lared his opinion beforehand that the party is guilty, or will be hanged, or the like ; that the juror hath given his - (jualified from serving la the ease on trial. § 375. General Causes of Challenge. — 1. A conviction for a felouj'. 2. Lack of qualifications required by law (Code Kem. Ju,-.. §§1027, 1028). § 376. Particular Causes of Challenge. — These are of two kinds. 1. For such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify tlie juror, and which is known in this code as implied bias. 2. For the exist- ence of a state of mind on the part of the juror, in reference to the case, or to either party, wliich satisfies the court, in the ex- ercise of a sound discretion, tiiat such juror cannot try the issue imi)ai-- tially and without prejudice to the substantial rights of the party clial- lenging, and which is known In this code as actual bias. [But the previous expression or formation of an opinion or impression in refer- ence to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sutticient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes tliat such opinion or impression will not iullu- ence liis verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied tluit he does not entertain such a present opinion or impression as would influence his verdict.] § 377. Grounds of Challenge for Implied Bias. — 1. Consan- guinity or affinity within the ninth degree, to the person alleged to be injured by tlie crime charged, or on whose complaint the prosecution was instituted, or to the defendant. 2. Bearing to hiuj the relation of guardian or ward, attornej" or client, or client of the attorney or counsel for the people or defendant, master or ser- vant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or n his employment on wages. 3. Being a party adverse to the de- § 174.] VARIOUS ENUMERATED GROUNDS. 173 § 174. Lack of Statutory Qualifications. — (1.) Juror must be Qualified at Time of Service. — The juror's quali- fication must exist at the time of service. It is in general not sufiicient that he possessed the qualification at the time the jury list was prepared.^ (2.) Non- Resident. — The residence of a juror within the county dates from the formation of a bona fide inten- tion to make that county his home, which is carried into effect by actual residence for a period, however short. As stated by the Supreme Court of California, " If he had resided but one day with the bona fide intention of making the county his home, and then left with the animus revertendi, and ac- tually did return, his residence would have dated from the day of his first settlement or arrival in the county, and not from the date of his return." ^ But as it is impossible for a man to have two residences at one and the same time, the fendant in a civil action, or having complained against, or been ac- cused by him in a criminal prosecution. 4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment. 5. Having served on a trial jury, which has tried another person for the crime charged in the indictment. 6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside, or which was discharged without a verdict, after the cause was submitted to it. 7. Having served as a juror, in a civil action brought against the de- fendant, for the act charged as a crime. 8. If the crime charged be pun- ishable with deatli, the entertaining of such conscientious opinions as would preclude his finding the defendant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. § 378. Challenge for Actual Bias. — To be taken only for the cause specified in section 376. 1 2 Hawk. P. C, c. 43, § 13; Kelley v. People, 55 N. Y. 565; Armsby V. People, 2 Thomp. & C. (N. Y.) 157; State v. Williams, 2 Hill (S. C.) 381; Orcutt v. Carpenter, 1 Tyler, 250; Conway v. Clinton, 1 Utah, 215. But see State v. Middleton, 5 Port. 484, 486; State v. Ligon, 7 Port. 167. Where the statute required that the juror should be a citizen who had resided in the district during the six months next preceding his selec- tion, it was held not a sufficient eompliance with the law that certain of the jurors who served at a term had been residents of the district the length of time required by law, but had not become eitizens until two days after the commencement of the term of court at which they served. People v. Shafer, 1 Utah, 260. 2 People V. Stonecifer, 6 Cal. 405, 410. 174 (iROUNDS OF CIIALLEXGE FOR CAUSE. [CH. XI, :icqiiisiti(Mi of u residence after ii removal Avill contradict any intention of returning wliich may have at one time ex- isted.^ (3.) Xot a Voter. — Under a statute requiring, as one of the qualitk'ations of a juror, that he shall be a voter, it is suiticient if he possesses the qualitieations of a voter, whether registered or not.- (4.) Not a Freeholder. — It is not sufficient that the juror is possessed of the qualification of freehold outside of the county. It must be of the same county wherein the issue is tried. '^ One having an equitable interest in land, and entitled to call for the legal title, is a freeholder.* So one who is in possession of land under a title bond, con- ditioned that the obligor will convey the title in fee upon payment of the purchase money, has, before the purchase money is paid, such an interest in the land as will qualify him to act as a juror, in a case where the law requires the jury to be composed of freeholders.^ A statutory requirement of freehold qualification for tales- men will not l)y implication be extended to members of the regular panel. ^ (5.) Not a Householder — The term "householder" has no reference to a holding of property.' It is understood 1 Graham v. Trimmer, 6 Kan. 231. 2Crafc V. Com., 24 Gratt. 602; State v. Courtney, 28 La. An. 789^ State V. Salge, 1 Nev. 455. The constitutionality of a statute pre- scribing this qualification has been denied. Gibbs v. State, 3 Heisk. 72; Gunter v. Patton, 2 Heisk. 257. 3 2 Hawk. P. C, c. 43, § 13; Day v. Com., 3 Gratt. 630; Wills v. State, 69 Ind. 286. See also State v. Cooper, 83 N. C. 671; 21 Vin. Abr., 250, § 21. But contra, see New Orleans, etc. E. Co. v. Hemphill, 35 Miss. 17. * Com. V. Helmondoller, 4 Gratt. 536; State v. Ragland, 75 N. C. 12; Com. V. Carter, 2 Va. Cas. 319. » Hawkins, uhi supra; New Orleans, &c. R. Co. v. Hemphill, 35 Miss. 17. See also Com. v. Burcher, 2 Eob. (Va.) 826; Kerby v. Com., 7 Leigh. 747; Com. v. Cunningham, 6 Gratt. 695. But one who has sold all the land owned by him when his name was put upon the list of jurors, and has taken a mortgage thereof to secure payment of the purchase money, is no longer a competent juror. Kelley v. People, 55 N. Y. 565; 2 Th. & C. (N. Y.) 1.57. 6 State V. Wincroft, 76 N. C 38. ' Nelson v. State, 57 Miss. 286. § 174.] VARIOUS ENUMERATED GROUNDS. 175 to mean the "head, master, or person who has the charge of and provides for a family, and does not apply to the subordinate members or inmates of the household." ^ Such is the construction of the term under a statute of exemp- tions.^ The same construction is adopted where this term is found in jur}^ acts. The Supreme Court of Alabama thus define it : "Householder, in our statute, implies some- thing more than the mere occupant of a room or house. It implies in its term the idea of a domestic establish- ment — of the manao-cment of a household." ^ And bv the Mississippi Court it is understood to mean " a person who has a family, whom he keeps together and provides for, and of which he is the head or master. He need be neither a father nor a husband, but he must occupy the position towards others of head or chief in a domestic establishment."* The Texas Court of Appeals have got the matter down to the point that they have declared one to be a householder who simply " rents a room and boards."^ So liberal a view, however, makes the quali- fication almost nugatory. It is evident that " house- holder " means something more than a mere occupant of a room or house.'' (6.) Not a Tax-Payer. — Under a statute prescribing a property qualification for jurors, if the juror is expressly re- quired to be " assessed on the last assessment roll of his township or county, on real or personal property belonging to him," the assessment itself is a prerequisite which cannot 1 Bowne v. Witt, 19 Wend. 475. * Thomp. OQ Homesteads and Exemptions, § 65, and aatliorities tliere cited. See also Callioun v. Williams, 32 Gratt. 19, to the effect tliat an unmarried man, having no children or other persons dependent upon him living with him, though he keeps house and has persons hired by him living with him, is not a houseliolder within the meaning of the Vir- ginia statute of exemptions. That one may be a freeholder, and not a householder, is obvious. Bradford v. State, 15 lud. 347. » Aaron v. State, 37 Ala. 106. * Nelson v. State, 57 Miss. 286; Brown v. State, 57 Miss. 424; Lester V. State, 2 Tex. App. 432. 5 Kobles V. State, 5 Tex. App. 347. 6 Aaron v. State, 37 Ala. 106; Parmele's Case, 2 Mart. 313. 17() GROUNDS OF CHALLENGE FOR CAUSE. [CII. XI. be disregarded ; ^ otherwise the simple possession of the property, tilthouiih not listed, is a sufficient qualification.^ A juror is not discjualified by reason of a failure to [)ay his taxes for the preceding year, when the county oflScers have been enjoined by law from collecting the same.^ Where the selection of jurors is confined to those " assessed for taxes," and who have paid taxes for the current year, this will n«t include those who have paid a poll tax on\y. The term " assessed " has reference to a property valuation.* § 175. Statutory Causes of Challenge not Exclusive of others. — Certain causes of challenge enumerated in a stat- ute are not exclusive of all others. The grounds of chal- lenge for cause are so various that any attempt to collate them in a statutory provision must necessarily be only par- tially successful. Causes of a most positive character are liable to arise out of the facts of specific cases, which must result in a failure of justice if the statutory causes only are to be recognized. Such was the rule laid down by the Su- preme Court of Alal)ama,^ which was afterwards departed from,® and still later re-adopted.^ This rule exists in other States.^ It results from this consideration : The statutory causes of challenge correspond quite closely to what were termed principal causes of challenge at common law. But we have hitherto seen that a great variety of objections, not less positive in their character, might arise in any case. 1 People V. Thompson, 34 Cal, 671. 2 State V. Doan, 2 Eoot, 451. ^ State V. Heaton, 77 N. C. 505. The finding of tlie trial court as to ^vllether a juror had paid his taxes, with a view to determinine; his com- petency, is final, and will not be reviewed upon appeal. State v. Win- croft, 76 X. C. 38. •* State V. Jennings, 15 Rich. L. 42. 5 State V. Marshall, 8 Ala. 302. " Boggs V. State, 45 Ala. 30; Lj-man v. State, 45 Ala. 72. 7 Birdsongv. State, 47 Ala. 68; Smith v. State, 55 Ala. 1. *« Chouteau v. Pierie, 9 Mo. 3 ; State v. West, 69 Mo. 401 ; Lyles v. State, 41 Tex. 172 ; I.#eter v. State, 2 Tex. App. 433 ; Williams v. State, 44 Tex. 34; Caldwell v. State, 41 Tex. 80; Trinidad v. Simpson, (Sup. Ct. Col.; 22 Al'j. L. J. 409; s.c , 10 Cent. L. J. 149; Quesenberry v. State, 3 Stew. «fe Port. 308 ; Dumas v. State, 63 Ga. 600. § 176.] VARIOUS ENUMERATED GROUNDS. 177 namely, causes of challenge to the favor, which in the words of Lord Coke were " infinite." Although many of the statutes make no reference to the challenge for favor, still it exists as a challenge for cause. ^ In this connection it is proper to observe that, in a well reasoned case, the Supreme Court of Nevada recently held that it was not within the power of the legislature to deprive a citizen ac- cused of crime of the right to challenge a juror for " actual bias," which we have before stated to be a modern appella- tion for a recognized cause of challenge to the favor at common law.'^ § 176. Alienage. — This has always been held to be a good cause of challenge.^ An alien is not legalis homo. The objection however must be taken before the juror is' sworn.* It has indeed been held that, if the alienage was not discovered until after verdict, the objection might be made even then ; ■' but the weight of authority is decidedly to the contrary.^ It is stated in one case to have been decided that alienage was not a good cause of challenge.^ It does not appear, however, from the fuller report of the same case, as decided by the Supreme Court of the United States, that the juror objected to was an alien, but simply a non-resident of the county, the cause being tried in Washington, and the juror being a resident of the county of Alexandria, Virginia. Besides, the objection was not taken until after the juror was sworn.*^ 1 Ante, § 152. 2 state V. McClear, 11 Nev. 39. The statutory causes of challenge for " itnplied bias " are held to be exclusive of all others under this head. People V. Cotta, 49 Cal. 166; People v. Welch, 49 Cal. 174, 178. See also State v. Thomas, 19 Minn. 484. But the definition of " actual bias " is sufficiently broad to embrace the most important objections formerly taken to the favor. 3 Ante, § 170. ■* HoUingsworth v. Duane, 4 Dall. 353; Kex. v. Sutton, 8 Barn. & Cress. 417; s. c, 15 Eng. L. & E(i. 252; Com. v. Thompson, 4 Phila. 215;, Borst V. Beecker, 6 Johns. 332. 5 Schumacker v. State, 5 Wis. 324; State v. Vogel, 22 Wis. 471. " ^Qd post, ch. XV. ' Mima Queen v. Hepburn, 2 Cranch C. C. 3. V. Hepburn, 7 Cranch, 290, 297. (12) 178 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. § 177. Ijpiorance of the English Langfiiagc. — (1.) In General. — No doubt exists as to the power of the court, in the exercise of its discretion, to set aside a juror, where it appears, in the process of imi^anelling, that he is ignorant of the English hmguage ; ^ but is the court bound to do so upon the objection of a party to a suit? In other words, does this ignorance of the hmguage in which judicial pro- ceedings are conducted constitute a cause of challenge? It has been held that it does not. (2.) N'ot a Ground of Challenge in Colorado. — It was so held in a late case decided bA'the Supreme Court of Colorado.'^ The statute prescribing the qualifications of jurors was in the common form : "All male inhabitants of the State, of the age •of twenty-one years, who are citizens of the United States, or have declared their intention to become such citizens, and i\^ho have not been convicted of felon}^, shall be competent to serve as grand and petit jurors in all courts and judicial proceedings in the State." Three Mexicans, who stated ui)0u the voir dire that they were unable to understand the English language, were challenged for this cause by the |)laintiff in error, and the challenge was overruled. The <-ause of action arose in a county which, with others, for- merly belonged to the Eepublic of Mexico, but had been acquired by treaty by the United States, at which time the inhabitants were largely and almost exclusively a Spanish speaking people. "These peoj^le," said the court, "are in all respects citizens, and the association of alienage and its disabilities with ignorance of our language is to be dis- missed." In view of the fact that the legislation under the territorial and State governments of Colorado had proceeded without any express reference to the consideration that, in the counties before mentioned, the administration of justice would chiefly depend upon these Mexican citizens, the court held that it could not liave been the intention of the legisla- 1 Atlas Mining Co. v. Johnston, 23 Micli. 36; State v. Rousseau, 28 La. An. 579; People v. Arceo, 32 Cal. 40; State v. Marshall, 8 Ala. 302; Montague V. Com., 10 Gratt. 767, 772. « Trinidad v. Simpson, 22 Alb. L. J. 409; s. c, 10 Cent. L. J. 149. § 177.] VARIOUS ENUMERATED GROUNDS. 179 ture to defeat the administration of tiie law, or greatly to hamper it in these districts, by excluding the native inhab- itants from jury service and putting that duty upon a very limited number of English speaking people. The court considered that the rule that judicial proceedings must be conducted in the English lanjruage ^ did not affect the case. " This proposition," said Elbert, J., " must be taken sub- ject to the practical necessities that daily arise in the ad- ministration of the law in courts of justice." The object of the provision, he contended, was to secure a record in En- glish, which would in nowise be impaired by conducting the trial through the intervention of an interpreter. (3.) A Contrary Mule in Texas and other States. — In view of the discretionary power of the trial judge to exclude persons incapable of understanding the English language, and the disadvantages of employing an interpreter, as above suggested, it is probably true that only in cases of pressing necessity would the court permit such persons to sit upon the jury. So, the question as to whether the exclusion may be effected by challenge has been rarely discussed, and probably seldom will be. A contrary conclusion to that reached in the case just noticed has been reached by the highest courts of Texas.- The refusal to allow the chal- lenge for this reason was considered as an invasion of that provision found in the constitutions of the several States, that " the right of trial by jury shall remain inviolate." ^ " It cannot be considered," said the court, " as remaining inviolate when the jurors can neither sjjeak nor understand the language in which the proceedings are had. If the trial by jury is to remain a substantial fact and an important right, and is not to be substituted by a legal fiction bearing the name, but wanting in the most important qualification of a 1 Civil Code, § -405; Duntou v. Montoyo, 1 Colo. 99. - Lyles V. State, 41 Tex. 172 ; Yanez v. State, 6 Tex. App. 429 ; Etheridge V. State, 8 Tex. App. 133; McCampbell v. State, 9 Tex. App. 124; Noleu V. State, 9 Tex. App. 419. '■^ See the constitutional provisions upon this point collated in Thomp. ■Charging the Jury, § 25. 180 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XT. jury, uaiiiely, tho capacity to understand what the pleadings contain, what is said by the counsel in tlioir addresses to the jur}^ and utterly una))le to coniin-ehend the charge of the court, — then it is necessary that jurors unable to speak the English language should be excluded from the panel." ^ § 178. Consangaiinitj and Affinity. — ( 1. ) Common Lam Itule as to Conmruiuiniti/. — Lord Coke stated the rule to be that if a juror be of kin to either party in any degree.^ however remote, he is disqualified to serve. "^ But it would seem that so stringent a rule could hardly be necessary in order to secure an impartial jury ; and therefore the pi-ac- tice seems to have settled down to excluding only those jurors who are related to either of the parties within the ninth degree. At least, the rule is so stated by the best authorities.^ (2.) Meaning of the Ter^n Affinity. — "Affinity," said Chancellor Walworth, "properly means the tie which arises from marriage betwixt the husband and the blood relatives of the wife, and between the wife and the blood relatives of the husband. Consequently, while the mar- riage tie remains unbroken, the blood relatives of the Avife stand in the same degree of affinity to the husband as they do in consanguinity to her. Thus, the father of the wife stands in the first degree of affinity to his son-in-law, as he does in the first degree of consanguinity to his daughter. Relationship by affinity may also exist between the husband and one who is connected by marriage with a blood relative of the wife. Thus, where two men marry sisters, they become related to each other in the second desrree of affinity, as their wives are related in the second degree of consanguinity." ^ 1 Lyles V. State, 41 Tex. 172.177. The same view was taken at ni.vt pHxis in Fisher v. Philadelphia, 4 Brewst. 305. and by the Supreme Court of Louisiana in State v. Push, 23 La. An. 14 (disregarding Gay v. Ardry. 14 La. 28S) ; State v. Gay, 25 La. An. 472; State v. Tazwell, 30 La. An. 884. 2 Co. Litt. 157. a. 3 3 Bl. Comm. 363: 1 Chitty Cr. L. 541 ; Tidd's Pr. 853. * Paddock v. Wells, 2 Barb. Ch. 331, 333. See also Dailey v. Gaines, 1 Dana. .529. § 178.] VARIOUS ENUMERATED GROUNDS. 181 (3.) Common Law Rule in Regard to Affinity. — The rule in respect to affinity has been stated as follows : •' Affinity, or alliance by marriage, is a principal challenge, iind equivalent to consanguinity, when it is between either of the parties ; as if the plaintiff or defendant marry the ■daughter or cousin of the juror, or the juror marry the daughter or cousin of the plaintiff or defendant, and the same continues, or issue be had. But if the son of the juror hath married the daughter of the plaintiff, this is no principal challenge, but to the favor, because it is not be- tween the parties." ^ The issue here referred to must be living.^ If either party to the marriage which creates the iiffinity be dead, and no issue living, the tie is broken and the disqualification removed.^ (4.) General Rule that the Relationship must be to a Farty of Record. — The general rule, as stated by Lord ■Coke,* is that the consanguinity or affinity which will afford ^ ground of challenge for principal cause must exist be- tween the juror and a party to the suit. Undoubtedly, this is still the general rule. Thus, it is not a principal cause of challenge to a juror that he is an uncle or a brother-in- law to one of the counsel in the case ; ^ that his sister and niece are wives of two of the brothers of a party to the suit ;^ that the juror's sister is the wife of a nephew of one of the parties ;^ that the juror's brother is the husband of i\ sister of one of the parties;^ that the juror married the 1 Co. Litt. 157. ;i. •'•'Co. Litt. 15G. ;i.; Paddock v. Wells, 2 Barb. Cli. 331; Mounson v. West, 1 Leon. 88; Jaqiies v. Com., 10 Gratt. 690; Deaimond v. Dear- auoiid, lOInd. 191. 3 Cain V. Ingham, 7 Cow. 478; Carman v. Newell, 1 Den. 25; Vaunoy V. Givens, 23 N. J. L. 201; State v. IShaw, 3 Ired. L. 532. ^ Supra, subsec. 3. 5 Funk V. Ely. 45 Pa. St. 444; Wood v. Wood, 52 N. H. 422; Pipher V. Lodge, 16 Serg. & R. 214. Aliter, where the counsel have a lieu for their fees upon the proceeds of the suit. Melson v. Dickson, 63 Ga. 685. s Johnson v. Richardson, 52 Tex. 481. 7 Rank v. Shewey. 4 Watts, 218. * Chase v. Jennings, 38 Me. 44. 182 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. widow of the prosecutor's uncle-/ that he is the father-in- law of the prosecuting attorney;'^ that the juror is a half uncle of the plaintiff's wife.^ On the other hand, carrying out the rule, in a suit by an administrator, a juror who is an uncle of the plaintiff may be challenged for this cause. "A partv," said Black, C. J., "who is an administrator has no more right to be tried by his relations than one who sues in his own right."* (5.) Exceptions to this Rule. — But instances are found of challenges allowed on this ground, where the relation- ship did not exist between the juror and a party to the record. The allowance of the challenge in such cases has been defended as being at least within the reason of the rule. Thus, in a suit to which a corporate body is a party, relationship to a member of such corporation was anciently considered to be as good a cause of challenge as if such member were a party of record to the suit.* And this is recognized as the rule at the present time.^ So, upon a trial for arson, a conviction was reversed because the nephew of the Avife of the person whose house was burned was held to be a competent juror. ^ Likewise, the near relatives of the owner of a slave indicted for robbery w^ere excluded upon challenge for this cause. ^ On the indict- ment of a jail-keeper for negligently suffering prisoners in his charge to escape, it was held to be a good cause of challenge to certain jurors, by the prosecution, that they were relatives of the prisoners who had escaped.^ But in 1 Oneal v. State, 47 Ga. 229. 2 State V. Jones, 64 Mo. 391. Nor, in a civil suit, that the juror is a hrother of one of the counsel of the parties. Pipher v. Lodge, 16 Serg. & R. 214. 3 Eggleston v. Smiley, 17 Johns. 133. * Balsbaugh v. Frazer, 1!) Pa. St. 95, 98. So, pecuniary interest of a juror as an executor, in the event of the suit, is as good a ground of challenge as personal interest. Sniull v. Jones, 6 Watts. & S. 122. 5 Co. Litt. ir)7. a. « Quinebaug Bank v. Leavens, 20 Conn. 87; Georgia Railroad v. Hart, 60 Ga. 550; Young v. Marine Ins. Co., 1 Cranch C. C. 452. " Jaques V. Com., 10 Graft. 090. » State V. Anthony, 7 Ired. L. 234. 9 State V. Baldwin, 80 X. C. 390. § 178.] VARIOUS ENUMERATED GROUNDS. 183 an action against a sheriff for the act of his deputy, the hitter having been released from liability, the father of the deputy was held to be a competent juror. ^ A challenge for such causes, as observed by Lord Coke,^ may doul)t- less be made for favor ; but, when decided by the court, the finding ought to be conclusive, as was the decision of the triors at common law.^ (6.) Mode of reckoning Degrees. — It must be remem- bered that degrees of relationship are generally reckoned according to the rules of the civil law, as distinguished from the canon law. The canon law, however, was the English law of descent.* Persons were considered as nearly related to each other as they were to their common an- cestor. As explained by Blackstone, "We begin at the common ancestor and reckon downwards ; and in whatso- ever degree the two persons, or the most remote of them, is distant from the common ancestor, that is the degree in which they are related to each other." ^ But in settling degrees of relationship in this country we are guided by our own law of descent, and that, as stated by Chancellor Kent, is according to the rules of the civil law.'' By this law two persons are considered related to each other only in that number of degrees which exists between them, to be counted by reckoning from one up to their common an- cestor, and then down to the other. ^ Bearing this rule in mind, and that the blood relatives of the wife stand in the same degree of aifinity to the husband as they do in consanguinity to her, the degree of relation- ship within which the juror stands in any case to a party in suit becomes a simple matter of calculation. First cousins are related to each other in the fourth degree. Therefore,, 1 Seavy v. Dearborn, 19 X. H. 351. 2 Snpra, feubsec. 3. ^ Ante, § 152. 4 4 Kent Comm. 374. 5 2 Bl. Comm. 206. 6 4 Kent Comm. 412, 413. ^ Ibid. See an instructive note by the reporter to Hardy v. Sprowle,. 32 Me. 310. 184 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. one of the jurors, being a tirst cousin of the defendant's Avife, is incompetent under a statute excluding jurors re- lated within the sixth degree.^ So is a juror whose wife's father is cousin to the defendant.^ Under the common law rule, which excludes persons within the ninth degree of relationship, a juror is disqualified by the circumstance that his great-grandmother and the grandmother of one of the parties to the cause w^ere sisters.^ And so is a juror who has married a niece of one of the jDarties,^ or the daughter of the defendant's brother,^ On a criminal trial, a juror stated, on his voir dire, that he w^as related to the prisoner, not so near as second cousin, but thought he might be a third cousin. He was held to have been properly ex- cluded.** § 179. Interest, Public or Corporate. — (!•) Tax-Payer in Municij)al Corjwration disqualified at Common Law. — The law is indebted to Lord Mansfield for a stringent declaration of the rule disqualifying summoning officers and jurors from acting in a case where they are even remotely interested. This rule was laid down in Hesketh v. Brad- dock,'' which was an action by the treasurer of the city of Chester, upon a] by-law of the corporation, against the de- fendant for keeping an open shop, not being a freeman of the city. A jurv of freemen and citizens of Chester had been summoned b}'^ the sheriff, who was also a freeman and citizen. The defendant challenged both the array and the polls. Upon a writ of error to the King's Bench, his lordship stated that the minuteness of the interest could not relax the objection ; that degrees of influence could not be measured ; no line could be drawn but that of total exclu- 1 Hardy v. Sprowle, 32 Me. 310. See also Hudspeth v. Herston, G4 lud. 133; Rust V. Shackleford,47 Ga. 538; Morrison v. McKiiinon, 12 Fla. 552; Hartford Bank v. Hart, 3 Day, 4S1. 2 Churchill v. Churchill, 12 Vt. GOl. 3 State V. Perry, 1 Busb. 330. * Trullin^er v. Webb, 3 Ind. 108. 6 Denn v. Clark, 1 X. J. L. 440. « O'Connor v. State, 9 Fla. 215. ' 3 Burr. 1847. § 179.] VARIOUS ENUMERATED GROUNDS. 185 sion of all degrees whatever. Both challenges were held, therefore, to have been well taken. ^ So, in an early case in New York,^ a qui tarn action, which, under an act for pre- venting usury, gave a moiety of the sum to be recovered to the poor of the town where the offense was committed, and the other moiety to the prosecutor, it w^as held to be a good cause of challenge to all the jurors summoned, that they were inhabitants of the town which was entitled to a moiety of the penalty. In an action by or against a city, the authorities are uni- form, where the rule has not been changed by statute, that tax-payers of such municipality may be excluded from the jury, by the court, ex 7nero motu, or upon a challenge for this cause, as being responsible for or to be benfited by a ratable proportion of w^hatever verdict might be rendered for or against the city, and to that extent pecuniarily inter- ested in the event of the suit.^ But upon the trial of a person charged with burning the county jail, citizens of the county are competent as jurors. They cannot be said to be pecuniarily interested, since, in the event of conviction or acquittal, they would have to con- tribute the same sum to the building of a new jail.* Nor are such citizens disqualified in a contest in respect of the 1 See also Day v. Savadge, Hob. 85. Compare Martin v. Eeg., 12 Irish L. 399. 2 Wood V. Stoddard, 2 Jolins. 194. ;> Garrison v. Portland, 2 Oreg. 123; Boston v. Tileston, 11 Mass. 468; Hawkes v. Kennebeck, 7 Mass. 461 ; Watson v. Tripp, 11 E. I. 98; s. c, 15 Am. L. Eeg. 282; Alexandria v. Brockett, 1 Craueh. C. C. 505; Diveny v.Elmira, 51 N. Y. 507; Hawes Gustin, 2 Alien, 402; State v. Williams, 30 Me. 484; Dively v. Cedar Falls, 21 Iowa, 565; Cramer v. Burlington, 42 Iowa, 315; Davenport Gas Company v. Davenport, 13 Iowa, 229; Gib- son V. Wyandotte, 20 Kan. 156; Eberle v. St. Louis Public Schools, 11 Mo. 247; Fine v. St. Louis Public Schools, 30 Mo. 166; Columbus v. ., ch. 139, § 47; /ft., ch. 34, § 32; R. S. La. 1876, § 2134; Supp. to Ga. Code of 1873, § 409; R. S. W. Va. 1879, ch. 33, § 63; R. S. Wis. 1878, § 2850; Stat, at J-arge, Minn. 1873, p. 217, § 5; G. S. Neb. 1873, p. 232, § 5; R. S. Mo. 1879, § 2801; Comp. L. Kan. 1879, § 1391. «Respublica v. Richards, 1 Yeates, 480; Silvis v. Ely, 3 Watts & S. § 179.] VARIOUS ENUMERATED GROUNDS. 187 company is not competent to sit as a juror upon an inquest impanelled to determine the necessity of taking land, and the compensation to be paid to the owner of land taken, for the use of the corporation. It is obviously indecent for a juror, so directly interested in the conclusion to be reached^ to assist in determining the matter. The defect of the juror is of so positive a character, that if not discovered until after verdict, it vitiates the result.^ Likewise, one who has given his note to a railroad com- pany to aid in the construction of its road, is disqualified as a juror in proceedings to condemn land for its right of way. This is a disqualification which cannot be removed by stipu- lation betw^een the parties.'-' But a person who was active in the formation of a company, whose name even appeared in the act of incorporation and the list of subscribers of stock, but who in reality held none, has been considered to be a competent juror in an action brought by the company.^ And in an action by or against a corporate body, it is no objection to the competency of a juror that he is an officer of, or a stockholder in, another corporation organized f(jr 421; Fleeson v. Savage S. M. Co., 3 Nev. 157. Compare Williams v. Smith, 6 Cow. 166. This was an action against the gate-keeper of a turnpike company for unlawfully demanding toll. ' The gate-keeper alone was responsible for the penalty, and therefore a stockholder of the company was held to be a competent juror. 1 Peninsular R. Co. v. Howard, 20 Mich. 18. It was so held, where it appeared that one of the jurors Avas a stockholder in another railroad corporation, which, at the time of the trial, had a contract with the cor- poration taking the land to run and manage both roads, the joint net income to be divided between them in proportion to the sums expended in constructing and completing each. Page v. Contocook Valley R. Co., 21 N. H. 438. But, in Com. v. Boston, etc. R. Co., 3 Cush. 25, the same persons being summoned as jurors to assess the damages severally sus- tained by two railroad corporations, for the taking of their lands lying contiguous to each other, by a third railroad corporation for the road of the latter, it was held to be no objection to the competency of one of the jurors to sit as such in the cause first tried, that he was a stock- holder in the other corporation petitioning, whose cause was to be tried immediately afterwards. 2 Michigan, etc. R. Co. v. Barnes, 40 Mich. 383. 3 Portland, etc. Ferry Co. v. Pratt, 2 Allen (N. B.) 17. 188 OKOUNDS OF CHALLENGE FOU CAUSE. [CH, XI. the same or a similar purpose.' And so, where the corpo- ration is not even remotely interested in the litigation, it is no ground of challenge, either for principal cause or to the favor, that the plaintiff and the juror arc both stockholders in the same turnpike company. - It was held to l)e no objection to a juror upon the trial of an indictment for passing counterfeit money, that the bill passed was a counterfeit of the Bank of the State of 8outh Carolina, of which corjjoration the juror in question was a director. Such a juror had no other interest in the prosecution than that which was conuiion to all the citizens of the State. ^ In an action between the trustees of different religious denominations, involving the right of possession of lands, the members of each denomination are, by reason of inter- est, incompetent to act as jurors.* § 180. Interest, Private. — (1.) Direct Interest in Result of Suit. — That a juror is interested in suits similar to that which he is called upon to try, or depending upon the event of such a suit, is a pointed cause of disqualification.* Thus, it is a valid objection to a juror upon -i criminal trial, that he is indicted and untried for an offense of the same kind as that charged against the prisoner.^ So, in an action of ejectment, it a})peared that one of the jurors was the execu- tor of a testator to whom the former plaintiff in the suit was indebted. This plaintiff had died insolvent, and his heirs at law were substituted. Therefore, the land in ques- tion, if recovered, Avould have constituted a fund to be applied to the payment of the debts of the deceased iusol- 1 Craig V. Fenn, Car. & M. 43; Miller v. Wild Cat Gravel Ed. Co., .rJInd. 51. - Brittaiu v. Allen, 2 Dev. 120. » Billis V. State, 2 McCord. 12. * Cleage v. Hydeii, 6 lieisk. 73. 5 Courtwright v. Strickler, 37 Iowa, 382; Lord v. Brown, 5 Den. 345; Davis V. Allen, 11 Pi«iv. 40G; Flagg v. Worcester, 8 Cush. 09; Gardner v. Lanning, 2 N. J. L. 651. But see Com. v. Boston, etc. K. Co., Z Cush. 25. « McGuire v. State, 37 Miss. 369. § 180.] VARIOUS ENUMERATED GROUNDS. 189 vent debtor. The juror was held to be interested in a re- covery by the plaintiffs, and, therefore, incompetent.^ It is not, however, a principal cause of challenge that the plaint- iff Jtas had against the juror a suit like the one about to })e tried, and involving like issues, where it does not appear that the suit is still pending. At the most, this can only support a challenge to the favor, '^ (2.) Contingent Interest an Surety. — It is obviously a good cause of challenge that a juror is bound for the costs of the prosecution of the suit.^ In one case the court held that, having once had a direct interest in the event of the suit, the juror's mind could not be so purged of this bias, by a discharge of his interest, as to be qualified to sit upon the jury.* So, one who is surety for the appearance of the accused to answer a criminal charge, is not competent to sit upon the trial of the iadictment.^ This objection was held to be good also as against the son-in-law and brother-in-law of the surety ; ^ but it was denied where an attempt was made to apply it to the tenant of the surety.^ Where the juror was a surety for one of the parties in a matter un- connected with the trial, the result of which might affect the ability of the principal to pay, it was held to be a good 1 Smull V. Jones, 6 Watts. & S. 122. Compare Gratz v. Benner, 13 Serg. & R. 110, a decision wliich it is difficnlt to understand. For a further illustration of disqualification of an administrator by reason of contingent interest in the event of the suit, see Meelier v. Potter, 5 N. J. L. 586. A juror has been permitted to release his interest in lands claimed in ejectment, in order that he might sit upon the trial. Isaac V. Clarke. 2 Gill, 1. 2 Austin V. Cox, GO Ga. 520. 3 Glover v. Woolsey. Dudley (Ga.) 85. ^ Phelps V. Hall. 2 Tyler (Vt.) 401. But, after verdict, Mich an objec- tion cannot be raised. " The part}',*' said Scates, eT., " will not be al- lowed to allege, as a surprise and a ground for a new- trial, that he was ignorant in fact of the pleadings and files in the case." Bradshaw v. Hubbard, G III. 390, 394. s Brazleton v. State, 11 Reporter, 291 ; People v. McCollister, 1 Wheeler C. C. 391; Anderson v. State, 63 Ga. 675. ^ Sehorn v. Williams, 6 Jones L. 575; Woodbridge v. Raymond, Kirby, 279. 7 Brown v. Wheeler. 18 Conn. 199. 11)0 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. <.'ause of challenge, especially when tlic juror himself de- clared that by reason of this circumstance he did not con- sider that he was a fit juror to sit in the case.^ § 181. Meml>ersliii) iii Assoeiatioiis for the Suppression of Crime, etc. — It is quite clear that a i)rejudice against a particular crime will not disqualify a juror from sitting upon the trial of such an offense.'- But how is it in relation to members of an association, who combine for the suppres- sion of such crime? Associations of this sort uniformly re- quire funds for their support, which, from time to time, are contributed by the menil>ers. The few decisions regarding the competency of such members do not leave the matter in satisfactory shape. In Commonweal tit v. Livermore^^ Metcalf, J., delivering the opinion of the court, said: ^' We deem it to be our dutjs however, to say that, in our judgment, the members of any association of men, com- bining for the purpose of enforcing or withstanding the execution of a particular law, and binding themselves to contribute money for such purpose, cannot be held to be indifferent, and therefore ought not to be permitted to sit tis jurors, in the trial of a cause in which the question is whether the defendant shall be found guilty of violating that law." * In a later case it was held by the same court that it did not, per se, disqualify a juror that he was a member of an association for the suppression of the offense which was then ui)on trial ; nor that, for the purposes of the association, he ^Ferriday v. Selser, 4 How. (Miss.) 506. 2 United States v. Hanway, 2 Wall. Jr. 139 ; Williams v. State, 3 Ga, 453 : Davis v. Hunter, 7 Ala. 135. 3 4 Gray, 18. * Ibid. p. 20. (See also Keg. v. Nicholson, 8 Dowl. P. C 422; s. c., 4 Jur. 558.) The juror in this case was not excluded, but why, it is diffi- cult to understand, as his testimony showed him to be directlj^ within the rule stated. In State v. Wilson, 8 Iowa, 407, the court very briefly decided that membership in an association for the pi-osecution of per- sons arrested for horse-stealing did not disqualify a juror on the trial of one indicted for this offense. But this conclusion seems to have been based upon the theory that the causes of challenge enumerated in the statute were exclusive of all others. § 181.] VARIOUS ENUMERATED GROUNDS. 191 had paid the full amount of his subscription before the commencement of the prosecution.^ The court, however, seemed to consider that, if the juror was under an obliga- on subsequentl}^ to contribute towards the expenses of the prosecution, he might be regarded as having a pecuniary in- terest in the event of the suit.^ But a decision of the Su- preme Court of Illinois makes no such distinction.^ A recent decision by the Supreme Court of Colorado reviews i Com. V. O'Neil, 6 Gray, 343. See also United States v. Borger (U. S. Cir. Ct. So. Dist. X. Y., May, 1881, Blatchford, J.), 7 Fed. Rep. 193; s. c, 12 Reporter, 134. In Proffatt ou Jury Trial, § 169, Com, V. CNeil is relied upon as authority for tlie statement that members of these associations are not incompetent when they have 7iot paid in their subscriptions. The mistake, however, is not unnatural. If a member of such an association is disqualified at any time, it would seem equally reasonable to hold that he is so after a payment of money to the associa- tion, as bj^ the fact that he is bound to make a future payment. Com- pare Mylock V. Saladine, 1 W. Bl. 480; People v. Lee, 5 Cal. 353; Peo- ple V. Graham, 21 Cal. 261. 2 Com. V. O'Neil, 6 Gray, 343. One of a committee who, without a warrant, arrested a person accused of arson, and kept him in custody ten days, is not competent to sit upon the trial of the prisoner, especially where it is shown that the members of the committee have agreed to indemnify each other against an}^ prosecution which the accused might institute for an unlawful imprisonment. Fleming v. State lllnd. 234; Pierson v. State. 11 Ind. 341. ^Musick V. People, 40 111. 268. "In one sense," said Chief Justice Walker, " all pei'sons living under a civilized form of government are members of such an association. The very object of all government is to protect individuals in their rights, and to punish persons who invade such rights. And every citizen who pays a tax contributes money to aid in convicting persons guilty of crime." In Missouri, etc. R. Co. v, Munkers, 11 Kan. 223, an action to recover the value of services in load- ing and unloading cattle, two jurors answered in the negative the ques- tion on the voir dire, " Have you been, or are you interested in any action pending against the defendant? " This answer was held to be correct, although these jurors were subscribers to a fund raised for the support of a suit contesting the validity of certain bonds issued to the defendant, which suit was prosecuted by other citizens of the county, against the county authorities, in the form of an action to restrain the latter from collecting taxes levied for the payment of the interest and principal of the bonds in question. Neither the jurors nor tlie railway company were parties of record in this suit, and hence the former were held not subject to challenge, under the Kansas statute, which provides, as one of the principal causes of challenge, that a juror " has an action pending between him and either party." G. S. Kan. 1868, p. 680, § 270. 192 (illOUNDS OF CHALLENGE FOR CAUSE. [CH. XI. tho authorities, and docidcs merely that ineinl)ership of an tissoeiation combined to check a certain crime does not, per fte, disqualify jurors upon the trial of such crime.^ Upon the whole, the hmguage of Metcalf, J., pre- viously cited, seems not to be supported by the subsequent authorities ; and, on principle, it can hardly be said that a member of an association of this character has a greater pecuniary interest in the conviction of an offender after he has paid his contribution than before he has done so. Crime is obnoxious to every good citizen. The law recognizes this fact, and, regardless of prejudices in the abstract, holds the juror to be competent. A zealous sentiment for the enforcement of the law may properly dictate the contribu- tion of private means to this end, and, whether the contri- bution be past or prospective, may be totally disassociated from an unreasonable prejudice against an accused person.'^ § 182. Membership in Benevolent Associations. — On one occasion the Supreme Court of North Carolina consid- ered it to be a good ground of challenge that the plaintiff and one called as a juror were members of an association imposing personal obligations upon its members — obliga- tions arising from benevolence and good will towards each other, as distinct from a mere partial union of funds for profit.^ This opinion, however, was outside of the facts of the case in judgment. The point was decided, contrary to this intimation, by the Supreme Court of New York, upon a challenge to a freemason, one of the parties to the suit 'Boyle V. People, 4 Colo. 176. In this case the court state that '• nothing was elicited to show that the jurors had agreed to contribute anything toward the expense of the prosecution, nor that they were liable or bound in any way to such contribution, or were affected by any pecuniary interest whatever in the case, present or future." 2 The refusal of the judge to ask persons summoned as jurors whether they belong to any association formed for the purpose of enforcing the law under which the defendant is indicted, is no ground of exception, if the defendant's counsel disclaims any knowledge or suspicion of such connection, and assigns no ground for making the request. Com. v. Thrasher, 11 Gray. .55; Reg. v. Stewart, 1 Cox C. C. 174. Contra, Lavin V. People, 69 111. 303. 3 BrittaiR V. Allen, 2 Dev. 120. § 183.] VARIOUS ENUMERATED GROUNDS. 193 being also a member of this fraternity.^ Chief Justice Savage considered that the oath of a master mason, as set forth in the challenge, enjoined only duties of benevolence iind charity, and contained no evidence of bias or partiality in favor of brethren, or prejudice against others in matters of litigation.^ For the same reason, in an action by the Grand Lodge of this order in one State, two members of subordinate lodges, established under the authority of the Grand Lodge, were held not to be obnoxious to the charge of interest in the event of the suit.^ § 183. Prior Service. — (1.) In General — Statutes against Professional Jurors. — Statutes are found in many States, designed to exclude professional jurors, or to relieve the citizen from too frequent demands to serve as a juror. Many of these expressly provide that the fact of service within a given period, either as a meml)er of the regular panel or as a talesman, shall constitute a cause of challenge.'* Thus, a statute of Michigan provides that "it shall be a good cause of challenge to any juror in any court of record in this State, in addition to the other causes of challenge allowed by law, that such person has served as a juror upon the regular panel, or as a talesman, in such court, at any time within one year previous to such challenge." ^ 1 Purple V. Horton, 13 Wend. 11. 2 7frtd., p. 23. 3 Burdine v. Grand Lodge, 37 Ala. 478. 4 Brooks V. Bruyn, 35 111. 392; Bissell v. Ryan, 23 111. 566; Barker v. Hiue, 54 Ind. 542; Christie v. State, 44 Ind. 408; Kassebaum v. State, 45 Ind. 277; Demaree v. State, 45 Ind. 299: Williams v. State, 45 Ind. 299. 6 Sess. Laws Mich. 1860, p. 106, § 3. Under this statute, a foolish ob- jection was interposed in one case, that one of the regular panel sum- moned for the term was subject to challenge, in subsequent cases at the same term, after having rendered one verdict. Of course, this objection was not sustained. Service for the term npon the regular panel is necessary to constitute a cause of challenge, according to the clear im- port of the statute. Burden v. People, 26 Mich. 162. In a statute making it a cause of challenge that the juror has " served for one week in the district court within six months preceding, or in the county court within three months preceding^'''' the word "preceding" has reference to a prior terra of com-t. A previous week's jury-service during the (13) 104 GIU)I'NDS OF CHALLENGE FOR CAUSE. [CIF. XI. The fact that one was within the prescribed time drawn and summoned on a special venire, hut did not serve upon the trial of the case, constitutes no objection to his subsequent service within the time limited by statute.^ A statute, however, which provides that "any i)erson who shall have served once already on a jury as a talesman in the trial of any cause in the same court during the term, maybe challenged for such cause," ^ etc., was held to ex- clude a person called as a talesman who had already served as a tales juror at the same term, so far that he had been sworn and heard all the evidence in the case, although the case was then compromised and the jury discharged with- out rendering a verdict.^ (2.) Ill the same or a similar Vase. — At common law, if persons jointly indicted severed upon their trial, the cir- cumstance that certain jurors found some of the defendants guilty did not operate as an objection to their competency upon the trial of the others ; for, as stated in the resolution of the judges upon the trial of the Regicides, "though they are all indicted in the same indictment for the same offense, yet in the law it is a several indictment against every one of them, and the crime is several, and one may be guilty and not another ; and the jury are to give their verdict upon particular evidence, against every several per- son, and therefore the finding one guilty is no argument or presumption that those jurors will find another guilty." * However, a juror who had once given a verdict in a case was earl}"^ regarded as disqualified for service in the same case pending term is not a cause of challenge. Garcia v. State, 5 Tex. App. 337; Tuttle v. State, 6 Tex. App. 55(5; Myers v. State, 7 Tex. App. 640; Etheridge v. State, 8 Tex. App. 133. 1 State V. Thorne, 81 N. C 555. See Prov. Inst. v. Burnham, 128 Mass. 458; Texas cases cited supra. 2 4 Curvven, (Ohio) Stat., § 3180. 3 Famulener v. Anderson, 15 Ohio St. 473. * 5 How. St. Tr. 978 (Resolution 7) ; s. c, Sir .J. Kelyng, 9. See also Cranburne's Trial, 13 How. St. Tr. 222,235; Thomas v. State, 36 Tex. 315; Bowman v. State, 41 Tex. 417; United States v. Wilson, Bald- win, C. C. 84; Rex v. Hanly, 1 Craw. & Dix Cir. (Irish) 188, note. § 183.] VARIOUS ENUMERATED GROUNDS. 195 upon a subsequent trial. ^ Members of a panel, which have found the defendant guilty upon an indictment, are not by this circumstance incapacitated to sit upon the trial of another indictment of the same defendant at the same term, althoucrh for a similar offense.^ Members of the panel which, in a previous suit of the same kind brought by the same plaintiff at the same term, but against other defendants, returned a verdict for the plaintiff, are not for this reason to be excluded upon the objection of the defendant in another suit.^ Not so, how- ever, where the cause involves the same questions tried pre- viously, and which are to be determined upon the same evi- dence.* It has also been held that after a juror has been reg- ularly sworn and impanelled, the fact that he was a juror in a previous trial of the same cause, in which no verdict was rendered by the jury, either because a verdict was ordered ])y the court, or because the jury could not agree, furnishes no ground of objection at this stage of the proceedings.^ But under a statute prescribing as a disqualification that one " has formerly been a juror in the same cause," it was held to be sufficient to exclude a juror upon a subsequent trial, that he had been one of a jury before which the case had been formerly partially tried, a portion of the evi- dence having been heard.® The Revised Statutes of Texas, enumerating the persons disqualified to sit as jurors in par- ticular cases, mention " any person who has sat as a petit juror in a former trial of the same case, or of another case involving the same questions of fact." ^ This has been con- 1 Co. Litt. 157. b. ; Argent v. Darrell, 2 Salk. 648. '^ United States v. Watkins, 3 Cranch, C. C. 578; Com. v. Hill, 4 Allen, 591. 3 Dew V. McDivitt, 31 Ohio St. 139; s. c, 17 Am. L. Keg. 621 ; Algier V. Steamer Maria, 14 Cal. 167; Nugent v. Treiiagnier, 2 Martin, 205; Smith V. Wagenseller, 21 Pa. St. 491. * Spear v. Spencer, 1 G. Greene, 534; Garthwaite v. Tatum, 21 Ark. 336. But see Sheppard v. Cook, 2 Hay. (N. C.) 238. » Whitner v. Hamlin, 12 Fla. 18; Atkinson v. Allen, 12 Vt. 619. « Weeks v. Medler, 20 Kan. 67. "> Sec. 3012, subdiv. 5. 196 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. sti'ucd as applical)lc to criminal as well as civil cases, althonirh the Code of L'riminal Procedure declares simply that it is a ground of disqualification that a juror " has served on a petit jury in a former trial of the same case." ^ The former is a part of a more recent enactment which is regarded as a revision of the previous jur}' law, in the main, and, unless otherwise provided, as relating to both civil and criminal cases. ^ A section of the Iowa Revision of 1800, specified as one of the causes of challenge for "implied bias," "having served on a trial jury, which has tried another defendant for the offense charged in the indictment."^ This pro- vision was construed as having reference to cases where two or more persons had been jointly indicted for the same offense and had severed in their trial, and not to cases of persons charged with the same kind of offense in different indictments.* § 184, Landlord and Tenant. — It has always been held to be a good ground of challenge for principal cause that the juror is a tenant of one of the parties to the suit.* But that a party to the suit is a tenant of the juror, is ground for a challenge to the favor only.*' The disqualification incident to the relation of landlord and tenant continues, although the landlord's right to distrain for rent may have been abolished.' There is no such relation existing between an innkeeper and his guest as will afford a ground for a J Sec. 636. 2 Dunn V. State, 7 Tex. App. 600; Jacobs v. State, 9 Tex. App. 278; Willis V. State, Tex. App. 297. 3 Rev. of 1860, §4771. ^ State V. Sheeley, 15 lovva^ 404; State v. Leiclit, 17 Iowa, 28. * Co. Litt. 1.57. a.; Bac. Abr. Juries E. 343; Anon., 2 Dyer, 176. a. pi. (27); Pipher v. Lodge, 16 Serg. & K. 214; Harrisburg Bank v. Foster, 8 Watts, 304. But this relationship was held not to afford a ground of objection where the juror was tenant of a nobleman, not a party to the suit, but whose interest was supposed to be affected. Marsh v. Cop- pock, 9 Car. & P. 480. A juror who is the tenant of a bondsman for the prosecution of the suit is not disqualified upon the trial of the case. Brown v. Wheeler, 18 Conn. 199. « People V. Bodine, 1 Den. 306. " Hathaway v. Helmer, 25 Barb. 29. § 186.] VARIOUS ENUMERATED GROUNDS. 197 challenge, propter affectum, to the guest hi a case where the innkeeper is a party. ^ § 185. Business Relations — Employer and Employed. — A person sustaining close business relations with either of the parties is incompetent to sit in a case — for example, a partner in business with one of the parties.'^ The clerk of one of the parties to a civil suit is disqualitied as a juror therein.^ But the fact that one is in the employment of a stockholder does not disqualify him from serving as a special juror in a case to which the corporation is a party.* An employee of a railroad company is not a competent juror to try a case in which the company employing him is a party .^ '*The power of employer over employee," said Jackson, J., "is that of him who clothes and feeds over him who is fed and clothed. Hence the common law excluded all servants, and our statutes have nowhere altered the rule, and it should not be altered. A close relative is a less dan- gerous juror, if not a dependent kinsman, than one who is dependent on his employer." ^ § 186. Previous Misconduct as a Juror. — When it is shown that a juror grossly misbehaved himself upon a for- mer occasion, as by declaring that he had tried to acquit every one whom the judge desired to convict ; and further, that he '■' would as lief swear on a spelling book as a bible, because he was a Tom Paine man," — this is a good ground of challenge. " It would destrov all confidence in the admin- istration of justice," said Black, C. J., "if the most im- portant criminal causes should have to be submitted to men who avow themselves reckless of both human and divine laws."' J Ouminings v. Ganu, 52 Pa. St. 484. 2 Stumm V. Hummel, 39 Iowa, 478. 2 Hubbard v. Rutledge, 57 Miss. 7. * Fredericktou Boom Co. v. McPherson, 2 Haniiay (N. B.) 8. 5 Central E. Co. v. Mitchell, 63 Ga. 173. 6 Ibid. See Co. Litt. 157. b. ; Gilb. Hist. C P. 95; 3 Bl. Com. 363 ; Bae. Abr. Juries E. ; 2 Tidd Pr. 853. ^ McFaddeu v. Com., 23 Pa. St. 12, 17. At nisi prius, however, it was ruled by Coleridge, J., to be no ground for a challenge, that th.." juror 1K8 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI, § \^7. Party to another Suit at same Term. — It has been made a statutory cause of challenge tiiat a juror has a suit pending for trial at the term of court for which he has been summoned as a juror. ^ ARTICLE 11. — Bias, Prejudice, or Opinion. Section. 191. Prejudice and Bias distinguished. 192. No Presumption of Bias after Peremptory Cliallenge. 193. Prejudice against the Crime charged. 194. Prejudice arising otherwise. 195. Prejudice against a Party's Occupation. 196. Prejudice against a Party's Nationality. 197. Prejudice against the Character of tiie Accused. 198. Belief that the Accused is Innocent. 199. A Feeling of Lenity. 200. The .Juror unwilling to trust himself. 201. A Preference in Case the Evidence is equally balanced. 202. Conscientious Scruples or Opinions against Capital Punishment. 203. Opposition to Capital Punishment ujjon Political Grounds. 204. Opinion upon the Subject-matter of a Civil or Criminal Case. 20.5. (Continued.) A Ground of Challenge for Principal Cause or to the Favor. 206. Formation without Expression of Opinion. 207. Opinions which do not disqualify. (1.) Lord Mansfield's Standard of Impartiality now Imprac- ticable. (2.) The Rule as declared by Chief .Justice Marshall, the settled Law. (3.) This rule to be guardedly applied. 208. An Hypothetical Opinion. 209. Impression — Meaning of this Teim. 210. Particular Expressions of Oi>inion not affecting the Juror's Competency. 211. Nature of Disqualifying Opinion. had .sat on several cases during the assize, and in no instance had con- sented to a verdict for the crown. Sawdon's Case, 2 Lewin. C. C. 117. Nor that, in a previous case, the juror had shown some dissatisfaction with the law as laid down by the judge in favor of thechalleuging party. Pearse v. Rogers, 2 Fos. &Fin. 137. ' Riley v. Bussell, 1 Heisk. 294; Plummer v. People 74 111. 361. § 191.] BIAS, PREJUDICE, OR OPINION. 199 212. An UiKinalified Opiuion. 213. Opinion derived from an Authentic Source. 214. Opinion based upon Reports of the Testimony of Witnesses. 215. Opinion whicli may be removed by Evidence. 216. Opinion based upon Personal Knovi'led^e. 217. Opinion upon Particular Facts involved in the Issue. 218. Opinion embodying a Conclusion of Law. 219. Disqualifying Effect of, when Indicative of Bias. 220. A Disqualifying Opinion cannot be laid aside. 221. A' Change of Opinion. 222. The Disqualification arising from a Preconceived Opinion re- moved by Statute. 223. Constitutionality of the New York Statute of 1872. 224. Construction of this Statute. § 191. Prejudice and Bias distingiiislied. — A preju- dice has been said to be in some sense an opinion.^ It is a prejudgment of the case, and, as such, in the eye of the hiw, has no degrees.^ Perhaps it would be more accurate to say (what further appears in the cases cited) that " prejudice " or " prejudgment " signifies a *' fixed," " set- tled," or "absolute" opinion, as distinguished from an opinion casually formed.^ Thus, the language of the court in an early case is as follows: " J^rejudging and giving an opinion on the statement of certain facts are very dif- ferent things. The first implies a strong disposition to favor the one side or the other, — a determination to find in one way, let the evidence be what it will. The last involves the truth of certain facts and propositions in the sentiments delivered ; and impressions thus made may be effaced by the production of other evidence." * The popular meaning of the term "prejudice" is probably something more than sim^jle prejudgment. It is frequently considered as involving some grudge or ill-will, as well as a preconceived opinion. And this is probably the meaning which most jurors attach to the term. Hence 1 Cora. v. Webster, 5 Cush. 297; Winnesheik Ins. Co. v. Schueller, 60 111. 473. 2 People v. Reyes, 5 Cal. 347, 349. 3 Willis v. State, 12 Ga. 444, 448. •* McCausland v. McCausland, 1 Yeates, 372, 378. 200 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XK it is, that although they may have formed decided opinions, yet entertaininu- no irrudij^e towards a prisoner, and feeling- no ill-will towards him, they answer that there is no preju- dice resting on their minds. ^ Bias, on the other hand, has been defined to be <' a ])ar- ticular influential power, which sways the judgment; the inclination of the mind towards a i)articular object."^ This term, where it occurs in statutes, suggests another and somewhat different ground of disqualification from what is indicated by the term "prejudice." A man cannot be prejudiced against another without being biased against him ; but he may be biased without being prejudiced.^ § 192. Xo Presumption of Bias after a Peremptory Challenge. — It is not a good cause of challenge to a juror that, upon a previous trial of the same case, he was peremp- torily challenged by the party now challenging, unless it can be shown that, by reason of such peremptory challenge, the juror evinced a bias towards the challenging party.* It is obvious, then, that a juror cannot be challenged for bias supposed to arise from the fact that he had been previously challenged peremptorily, upon the trial of another person concerned in the same crime with which the challenging party is charged.'* § 193. Prejudice against the Crime charged. — A prej- udice entertained by a juror against a particular crime will not constitute a ground of challenge against such juror, when called to try an indictment for such offense,*' nor will it in a civil case irrowino- out of such criminal act." A 1 Willis V. State, 12 Ga. 444, 448. per Nisbet, .J. 2 Bouv. L. Die. 3 Willis V. State, supra. * Wilson V. State, 3 Tex. App. 63; Com. v. HailsLoek. 2 Gnitt. ."iW. 5 Cargen v. People, 39 Mich. 549. « United States v. Hanway, 2 Wall. Jr. 139; Williams v. State, 3 Ga. 453; Parker v. State, 34 Ga. 262; United States v. Noelke, 17 Blateh. 554; s. c, 1 Fed. Rep. 426; 9 Reporter, 50.i. ' Davis V. Hunter, 7 Ala. 135. In an action for the killing of sheep by dogs, a juror who said that he had such a bias or prejudice about the mat- ter of dogs killing sheep as would interfere with his impartial judgment m § 195.] BIAS, prp:judice, or opinion. 201 prejudice against a person who is engaged in a business prohibited by law, arising solely from the fact of his being engaged in such business, is no more than a prejudice against the crime involved in being engao-ed in the business.^ § 194. Prejudice arising- otherwise. — It is error for the court, upon the trial of a challenge, to disregard all kinds of hostility between the juror and the party challenging, except- ing that relating to the particular cause upon trial. The juror should be impartial in all respects. Causes apparently slight are good causes of challenge. Thus, at common law, a good cause of challenge to the array was that an action which implies malice is depending between the sheriff and the party challenging. From any similar cause the law implies a want of indifference as between a party and the individual juror. ^ § 195. Prejudice against a Party's Occupation. — The fact that the juror is prejudiced against the business of the party, but not against him, is not a sufficient ground of challenge for principal cause. ^ But, in a case growing out of the exercise of an obnoxious calling, a juror's prejudices, although nominally directed against the calling itself, may indicate a strong feeling against the person engaged therein. Thus, in an action against a liquor-seller, under a statute giving damages under certain circumstances to a wife for the sale of intoxicating liquor to her husband, one juror stated upon his voir dire that he considered the business of selling and manufacturing lager beer a perfect nuisance, a curse to the community, and would do all in his power, except rais- ing mobs, to break up the sale of it. The Supreme Court of Illinois was of opinion that a man who would stop short of mob violence only, to suppress the business of another,. the ease, was held to have been properly excused, upon a challenge for cause. Anson v. Dwiglit, IS Iowa, 241. i United States v. Borger (U. S. Ch-. Ct. S. D. X. Y., May, 1881'), 7 Fed. Rep. 193; United States v. Duff (same court, January, 1881), & Fed. Rep. 45, 48. See in this connection, post, § 105. 2 Brittain v. Allen, 2 Dev. 120. SMaretzek v. Cauldwell, 2 Abb. Pr. (N. S.) 407; s. c, 5 Robt. 660;: 202 GROrXDS OF CUALLEN'GE FOR CAUSE. [f 11. XI. would intlic-t danuigcs, regardless of the evidence, in a case growing out of the calling.^ In a civil suit, a i)rejudice of a juror against a person not ii party to the suit, although sustaining close business rela- tions with one of the parties, has l)een held to form no ob- jection to his competency.'- There would, however, seem to be no good reason why the court should not, in the exer- cise of its discretion, stand such juror aside, and complete the panel from those free from the suspicion of prejudice. § 196. Pi'ejiuUce against a Party's Nationality. — A slight prejudice against people of a particular nationality will not necessarily exclude a juror on the trial of one of that nationality for a criminal offense. Thus, upon the trial of an Italian for murder, a juror testified in sub- stance that he had had some business relations with the Italians ; that they were a race he was ' ' not particularly fond of, and did not think much of, judging from those we have here ; " and yat he was allowed to serve.^ § 197. ProjiKlice af;aiiist the Character of the Ac- cused. — It is quite generally considered that an unfavora- ble impress'on of the character of an accused person, de- rived from his general reputation, constitutes no ground of challenge to a juror called for the trial of such person upon a criminal charge. Any other rule would place the most Uuited States v. Noelke, 17 Blatcli. 554; s. c, 1 Fed. Kep. 42G; 9 Ke- porter, .505; Kroer v. People, 78 111. 294. J Albrecht v. Walker, 73 111. 69. See also Wimieslieik Ins. Co. v. Schueller, CO 111.465; Swigart v. State, 67 Iiid. 287; s. c, 21 Alb. L. J. 278; Keisev v. Lines, 57 Ind. 431. Compare Elliott v. State, 73 Ind. 10. In a similar case a juror is properly rejected whose prejudice against the defendant's business is such that he cannot give the testimony of a person engaged in the same business as tlie defendant the same weight ■which he could the testimony of other persons. Robinson v. Randall, 82 111. 515. Aliter, where the business is per se unlawful. See ante, § 193. This distinction was overlooked in Meaux v. Whitehall, 8 Bradw. 173. * Straw n v. Cogswell, 28 111. 457. 3 Balbo V. People, 19 Hun, 424; s. c, aUhmed, 80 X Y. 484. Compare People V. Christie, 2 Park. Cr. R. 579; s. c, 2 Abb. Pr. 256; People v. Reyes, 5 Cal. 347; People v. Gar Soy (Sup. Ct. Cal., Doc. 1880), 23 Alb. L. J. 418. § 198.] BIAS, PREJUDICE, OR OPINION. 203 notorious offenders in a position decidedly more advan- ta^eous tlian the law affords to those whose misdeeds have not rendered them infamous. Either they could not be tried at all, or the administration of justice in such cases would necessarily fall to the lot of juroi-s hopelessly igno- rant or strongly in sympathy with the offenders themselves. ^ But jurors thus prejudiced should not be allowed to sit upon the trial of the ol^jects of their unfavorable opinion, unless they are able, for the time being, to lay aside pre- possessions of this character, and to give the accused a fair trial as guaranteed by law, and render a verdict according to the evidence.'- § 198. Belief that the Accused is Iimoceiit. — In all criminal trials, without exception, there is given to the State, or to the prosecution, precisely the same right of challenging a juror for cause as is given to the defendant. In the matter of selecting a jury, the accused generally en- joys an advantage over the prosecution in the number of peremptory challenges."^ In all other respects there is an equality of right, and, as has been frequently said, " It is difficult to find any sufficient reason for requiring the State to submit its cause to a jury composed of men who have determined in advance to acquit, which would not equally justify a requirement of the accused that he should submit to be tried by a jury predetermined to convict." * A specious argument is sometimes based upon the pre- sumption of innocence which the law iuteri)oses for the benefit of accused persons. Thus, upon the trial of Aaron Burr, the defendant addressed the couit as follows : ^' The law presumes every man to be innocent, until he has 1 People V. Loluiian, 2 Barb. 450; People v. Knickerbocker, 1 Park. Cr. R. 302; People v. Allen, 43 N. Y. 28; Anderson v. State, 14 Ga. 710; Willis v. State, 12 Ga. 444; State v. Schnapper, 22 La. An. 43; People v. Mahoney, IS Cal. ISO; State v. Davis, 14 Xev. 439, 450; Monroe v. State, 23 Tex. 210. * Ibid. See also :Martin v. State, 25 Ga. 494. 2 Ante § 165; subsccs. 4-41. ^ State V. West, 69 Mo. 401, 403, per llenrjs J. See also Com. v. Lesher, 17 Serg. & R. 155; Commander v. State, GO Ala. 1. 204 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. been proved to be guilty. According to the rules of law, it is! the duty of every citizen who serves on this jury to hold himself completely unbiased ; it is no disqualification, then, for a man to come forward and declare that he l)elieves me to be innocent." ^ This contention, however, was briefly disposed of by Chief Justice Marshall. " The law," said he, " certainly presumes every man to be inno- cent till the contrary be proved ; but if a juryman give an opinion in favor of the prisoner, he must be rejected." '^ § 199. A Foeliiijj;- of Lenity. — The expression of a wish or desire that a party may prevail is more plainly a cause of challenge than a deliberate expression of opinion that such party ought to prevail.^ One who had expressed an opinion that a person who had been convicted and sentenced for a criminal offense had been sufliciently punished there- for, and who had signed a petition for his pardon, was not competent to sit as a juror, upon the trial of a civil action against the same person, founded upon the criminal act.* § 200. Tlie Juror iiinvilling to trust liimself. — Jurors have been held to be competent who believed that they would be guided by the evidence if sitting upon the jury, but at the same time expressed a feeling of unwillingness to trust themselves, on account of certain sympathies for one of the parties.'^ '• This remark," said Bkockenbkough, J., dissenting from his brethren,'' " is such an one as almost any man of delicacy and uprightness would have made of himself in such a situation. The remark, if accom- panied by an open and ingenuous manner, would seem to indicate that the venire-man would cautiously keep watch on his own feelings and prepossessions, and is entirely com- patible with a high sense of justice, and a scrupulous im- partiality." The contrary, however, is maintained in 1 1 Burr's Trial, p. 425. 2 Ihid. * Pike County v. Griffln, &c. Plank Eoad Co., 15 Ga. 39. < Asbuiy Ins. Co. v. AVarren, 66 Me. 523. 5 Com. V. Webster, 5 Cush. 295, 298; Montague v. Com., 10 Gratt. 767. overruling upon this point Lithgow v. Com., 2 Va. Cas. 297. « 2 Va. Cas. 313. §201.] BIAS, PREJUDICE, OR OPINION. £05 other cases. ^ Thus, a juror who, upon examination, testi- lies that he has conscientious scruples as to finding a ver- dict in a capital case, is incompetent, although, upon further examination, he states that his scruples consist only in tender feelings towards the prisoner, — a fear that he may do him wrong.- And so, although he declares that, if forced to serve and sworn to render a verdict accordinc; to the evidence, he would respect his oath, at the same time adding, " but I should not feel willing to be sworn in the case." ^ In such a case, it has been observed, the juror's standard of evidence is unknown, and may be as far re- moved from the legal and general sense of justice as are his scruples.* § 201. A Preference in Case the Evidence is evenly balanced. — A juror who declares that his feeling for one of the parties is such that, if the evidence in the case were evenly balanced, his mind w^ould incline in favor of that party, but who at the same time states that if the evidence were against such party, he would so decide the case, and would do his duty as a juror under the instructions of the court, has been held not incompetent.'' The soundness of this conclusion may be doubted. It is, in general, a good cause of challenge that, unaffected by evidence, the mind of the juror will " lean"' one way or the other.*' It may ^ McLarea v. Birdsong, 24 Ga. 265; Edwards v. Fairar, 2 La. An. 307; Dejarnette v. Com. (Sup. Ct. App. Va., 1881), 11 Reporter, 653. 2 O'Brien v. People, 36 N. Y. 276. » Walter v. People, 32 X. Y. 147; s. c, 6 Park. Cr. K. 15; 18 Abb. Pr. 147. * O'Brien v. People, 48 Barb. 274, 277, per Leonard, J. 5 McFadden v. Wallace, 38 Cal. 51; Trenor v. Central Pacific R. Co., 50 Cal. 222. « Chicago, etc. R. Co. v. Adler, 56 111. 345. In this case one of the jurors stated upon the voir dire that, in a contest between a railroad company and a citizen, he should " lean against " the corporation, be- cause the company " were able to stand it," and he thought a private individual should " have a little mite the advantage." Such views are very common, but seldom so ingenuously expressed. See also Curry v. State, 4 Neb. 545; Sam v. State, 13 Smed. & M. 189, 193; Richey v. Mis- souri, etc. R. Co., 7 Mo. App. 581. It has been held that jurors may be asked as to which way they would be inclined to decide the case, if, upon 206 GKOUNDS OF CHALLENGE FOll CAUSE. [CH. XI. happen that the l)urden of proof lies upon that party to- wards whom the preference exists. A juror is clearly in- competent wlio would decide in favor of this part}', when the evidence preponderates in favor of neither party.' § 202. Conscientious Scruples or Opinions against Cap- ital Punishment. — These do not seem to have been as ten- derly regarded formerly as in later times. Thus, in a report of nisi prius cases in Pennsylvania''^ we find that in one case a juror, on being called up and requested to go into the jury-box, declared that he was conscientiously scrupu- lous about sitting on a case of life and death, and could never, upon any evidence which might be given, join in a ver- dict the consequence of which might be to inflict the pun- nishment of death. The prosecuting attorney, however, did not challenge him. " He stood, then," said the court, " in the situation of a juror having no legal cause to assign, refusing to be qualified or to perform his duty. Nothing, of course, remained but for this court (who are imperiously bound to obey the law) to imprison him for contumacy."* hearing the testimony, they should find it evenly balanced. Chicago, etc. R. Co. v. Adler, 56 111. 345; Chicago, etc. R. Co. v. Buttolf. G6 111. 347; Galena, etc. R. Co. v. Haslam, 73 111. 494; Richmond v. Roberts, 98 ni. 472. In this last case the juror made answer to the above ques- tion, that in that case he should feel inclined to find for the plaintiff, but, upon further examination, stated that he had neither formed nor ex- pressed an opinion; that he had no bias or prejudice against either of the parties, and knew no reason why he could not sit as an impartial juror, and decide the case according to the evidence. The court held the juror competent, distinguishing its opinion in this case from that in Chicago, etc. R. Co. v. Adler, supra. " What was there said,'' observed Craig, J., " might seem to sustain the position of counsel here; but the juror went further in this case than did the juror in the case cited. * * * We are of opinion such a person is a competent juror." Courts generally, however, will not permit hypothetical questions to be put to a juror upon the voir dire, with a view to testing his competency. See State V.Arnold, 12 Iowa, 479; State v. Davis, 14 Xev. 439; State v. Leicht, 17 Iowa, 28; State v. Ward, 14 La. An. 673; State v. Bennett, 14 La. An. 651; State v. Bill, 15 La. An. 114. 1 Mima Queeu v. Hepburn, 7 Cranch, 290; ^leaux v. Whitehall, S Bradw. 173. 2 Com. V. Gross, 1 Ashmead, 281,287. s Ibid., p. 287. In United States v. McMahon, 4 Cranch C. C. 573, the § 202.] BIAS, PREJUDICE, OR OPINION. 207 This matter was first decided in favor of the challenge by Mr. Justice Story in the year 1820.^ Two Quakers^ upon being called to be sworn in a capital case, excepted to themselves as disqualified. They believed that men might be rightfully punished with death for the causes set down in the divine law, but for none others ; and in point of con- science they could not give a verdict for a conviction where the punishment was death, unless the case was directly within the terms of the divine law. Upon these facts the enlightened jurist said: "It is well known to us all that our laws annex the punishment of death in several cases where the divine laAv is silent, and under circumstances dif- ferent from those expressed in that law. To compel a Qua- ker to sit as a juror on such cases is to compel him to decide against his conscience, or to commit a solemn per- jury. Each of these alternatives is equally repugnant to the principles of justice and common sense. To insist on a juror sitting in a cause, when he acknowledges himself to be under influences, no matter whether they arise from inter- est, from prejudices, or from religious opinions, which will prevent him from giving a true verdict according to law and evidence, would be to subvert the objects of a trial by jury, and to bring into disgrace and contempt the proceedings of courts of justice." ^ This was followed by the decision of the Supreme Court of Pennsylvania to the same effect,* question was submitted to triors, whether a person liaving the conscien- tious scruples above stated was a competent j uror in a capital case. Later, such scruples were held to be good ground for a challenge for cause. United States v. Ware, 2 Cranch C. C. 477. In Mansell v. Reg., S El. & Bl. 54, the point was raised, but it became unnecessarj' to decide it. 1 United States v. Cornell, 2 Mason, 91, 104. 2 Ibid., p. 105 .In People v. Ryan (tried in 1823), 2 Wheeler Cr. C. 47, a Quaker was excused from service as a juror in a capital case, on the ground that the tenets of his religion would not justify him in taking the life of any human being for any crime. On the same trial another juror who was not a Quaker was compelled to serve, although he alleged conscientious scruples against finding a verdict that would put in jeop- ardy the life of the prisoner. Later, however, such a juror was excused. People V. Jones, Edm. Sel. Cas. 112. ' Com. v. Lesher, 17 Serg. & R. 155. 208 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. since which time this challenge has been generally al- lowed.^ Some courts have held that a juror, although conscien- tiously opposed to capital punishment, ought to be per- mitted to serve ui)on the trial of a capital offense, when confident of his ability to do justice between the State and the accused, notwithstanding his scruples.'^ The wisdom of 1 See O'Brien v. The People, 36 N". Y. 276; s. c, 48 Barb. 274; Loweii- burg V. The People, 5 Park. Cr. R. 414, 425 ; United States v. Wilson, Baldwin, C. C. 83 ; Clore's Case, 8 Gratt. 606 ; Lewis v. State, 9 Smed. & M. 115; Williams y. State, 32 Miss. 389; State V.Kennedy, 8 Rob. (La.) 590; Com. v. Twombly, 10 Pick. 480, note; Burrell v. State, 18 Tex. 713; Hyde v. State, 16 Tex. 445; White v. State, 16 Tex. 207; Montague v. Com., 10 Gratt. 767; People v. Sanchez, 24 Cal. 17; Waller v. State, 40 Ala. 325; People v. Tanner, 2 Cal. 257; Pierce v. State, 13 N. H. 536, 556; State v. Ward, 39 Vt. 225; Etheridge v. State, 8 Tex. App. 133; Com. V. Sherry, Wliart. on Horn. 481 ; Martin v. State, 16 Ohio, 364; Haywood v. Calhoun, 2 Ohio St. 164; St. Louis v. State, 8 Neb. 405; Williams v. State, 3 Ga. 453; Russell v. State, 53 Miss. 367; White T. State, 52 Miss. 216; Fortenberry v. State, 55 Miss. 403; Jones V. State, 2 Blackf. 475; Gross v. State, 2 Ind. 329; Driskill V. State, 7 Ind. 338; Fahnestock v. State, 23 Ind. 231; Greenley v. State, 60 Ind. 141; Monday v. State, 32 Ga. 672; State v. West, 69 Mo. 401 ; People V. Wilson, 3 Park. Cr. R. 199; State v. Mullen, 14 La. An. 570; State V. Reeves, 11 La. An. 685; State v. Clark, 32 La. An. 559. This question was set at rest in New York as early as 1801 by a statute which declared that " no Quaker or reputed Quaker shall be comi^elled to serve as a juror upon the trial of any indictment for treason or murder." At the time this statute was passed it was supposed that the Society of Friends alone were opposed to capital punishment. It subssquently ap- pearing that persons other than of this sect denied the propriety of such punishment, it was enacted that " persons of any religious denomina- tion whose opinions are such as to preclude them from finding any de- fendant guilty of an offense punishable with death, shall not be com- pelled or allowed to serve as jurors on the trial of an indictment for an offense punishable with death." 2 Rev. Stat. 734, § 12. In a case arising under this statute, it w^as contended that this sec- tion embraced those only who belonged to a religious denomination which, as a body, entertained such opinions. But C'lief Justice Savage rejected this construction, and held any person entertaining such opin- ions to be unfit to be a juror vmder the circumstances. People v. Damon, 13 Wend. 351, 354. The grounds of the conscientious scruples of a partic- ular juror are of no importance. It is sufficient to exclude him from the panel that they exist. Walter v. People, 32 N. Y. 147, 161 ; O'Brien v. People, 36 N. Y. 276, 278; Gordon v. People, 33 N. Y. 501. 2 WilUams v. State, 32 Miss. 389 ; People v. Wilson, 3 Park. Cr. R. 199. § 202.] BIAS, PREJUDICE, OR OPINION. 209 this conclusion may be strongly questioned. One con- scientiously scrupulous of taking human life by process of law ought not, although Avilling, to be placed in such a posi- tion that, to observe his oath as a juror, he may be called upon to violate his conscience ; or, on the other hand, to fol- low the dictates of his conscience, he may violate his oath. A juror ought not to be permitted to serve, having, in one breath, affirmed and disaffirmed his competency.^ Doubt- less such a juror would require more evidence to induce him to render a verdict of guilty in a case where the pun- ishment is death, than where it is imprisonment merely. This circumstance alone ought to disqualify him.^ And so, where the juror declares that his conscientious scruples are limited to cases in which circumstantial evidence is relied upon for a conviction.^ This kind of evidence the law recognizes as of equal value with other evidence, and a juror in any case w^ho cannot give it due weight ought to be excluded.* The rule of exclusion holds good, although the offense may be punished capitally or otherwise, in the discretion of the jury. Thus, on the trial of an indictment for grand larceny, punishable with imprisonment or death, one called as a juror, who stated that he would hang a man for mur- der, but would not hang him for stealing, was held to have been properly rejected. " He was not," said Murray, C J., "in a position to exercise that discretion, upon a full 1 Waller v. State, 40 Ala. 325. A juror who stated upon the voir dire that he did not think he could do the prisoner justice, was held incom- petent, although he subsequently stated that he could come to the trial with an unbiased and unprejudiced mind. Wright v. Com., 32 Gratt. 941. 2 State V. Ward, 39 Vt. 225. 3 Shafer v. State, 7 Tex. App. 239; Jones v. State, 57 Miss. 684; State V. Pritchard, 15 Nev. 74; Smith v. State, 55 Ala. 1; People v. Ah Chung, 54 Cal. 398; State v. West, 69 Mo. 401 ; Gates v. People, 14 111. 433; s. c, 2 Am. L. Eeg. 671; State v. Bunger, 11 La. An. 607. 4 Smith V. State, 55 Ala. 1; People v. Ah Chung, 54 Cal. 398; State V. West, 69 Mo. 401 ; Gates v. People, 14 111. 433 ; Jones v. State, 57 Miss. 685; State v. Bunger, 11 La. An. 607. (14) 210 (iUOUNDS OF CHALLENGE FOR CAUSE. [CH. XT, hearing of the case, which the hiw contemplated he should possess.' § 203. Opposition to Capital Punislimout upon Politi- cal Grounds. — One opposed to capital punishment "on principle " is not incompetent to sit upon the trial of a case involving the death penalty. As observed by the Supreme Court of California on one occasion, " Many men are op- posed on principle to capital punishment, because, as often remarked, they believe that the worst use that can be made of a man is to hang him. They believe that society would be benefited by the adoption of some other mode of pun- ishment, and yet, as long as the law provides that certain crimes shall be punished with death, would feel no con- scientious scruples in finding a verdict of guilty against one accused of such crime. With them it is a principle founded on political prejudices, or public policy, with which con- science has no connection whatever." ^ § 204. Opinion upon the Subject-matter in a Civil or Criminal Case. — The reports furnish a large body of au- thority upon this topic. It has acquired especial promi- nence in criminal cases, where the conscientious efforts of courts to do full justice to accused persons, especially in capital cases, have resulted in many metaphysical and im- practicable distinctions which have produced great confusion and injustice in the administration of the law. This is obvious from the experience of practitioners and fre- quent observation from the bench, that upon no question of civil or criminal practice have the decisions of the courts been more inharmonious than upon this question of qualifi- cation or disqualification of jurors, arising from the forma- 1 People V. Tanner, 2 Cal, 257. See also Caldwell v. State, 41 Tex. 87; State v. Melvin, 11 La. An. 535; Driskill v. State, 7 Ind. 338; Greenley v. State, 60 Ind. 141. ' People V. Stewart, 7 Cal. 140, 143, per Murray, C. J. See also Com. V. Webster, 5 Gush. 295, 298; Atkins v. State, 16 Ark. 568. It is no evi- dence of the existence of the conscientious scruples in question that a juror, when inteiTOgated upon the subject, simply says that he " would not like for a man to be hung." Smith v. State, 55 Miss. 410. §205.] BIAS, PREJUDICE, OR OPINION. 211 tioii 01 expression of opinion of the guilt or innocence of the accused.^ In a late decision of the Texas Court of Appeals, Clark, J., delivering the opinion of the court, took a despondent view of this subject. " It would be a useless and almost interminable task," said he, "to explore the various deci- sions of the several States for the purpose of reconciling them, and deducing therefrom a uniform rule as to the com- petency of a juror in a criminal case. The decisions of scarcely any one State are reconcilable with each other, and the mind would be lost in bewilderment at the threshold of the attempt. Evidently, in the adjudication of particular cases, the courts have not been guided by any fixed principle, and, as a consequence, our jurisprudence in this respect has long since been launched upon a sea of chaos." ^ We cannot, therefore, endeavor to explore all the ex- quisite distinctions which the books afford, but in the fol- lowino; sections an effort will be made to set forth the car- dinal rules, and to discuss the tendency of recent decisions upon this subject. § 205. (Continued.) A Ground of Challenge for Prin- cipal Cause or to tlie Favor. — Where the distinction is retained between challenges for principal cause and to the favor, the formation or expression of an opinion tending to disqualify a juror will afford a principal cause of challenge.^ But the impressions or opinions entertained by the juror may not be sufficient in law to affect his competency ; wherefore, a challenge to the favor may be taken, in which case the triors may properly find the juror to be incompe- tent.* And where a challenge to the favor is taken in the 1 People V. Reynolds, 16 Cal. 128. 2 Rothschild v. State, 7 Tex. App. 519, 542. 'Pringle v. Huse, 1 Cow. 432; Ex parte Vermilyea, 6 Cow. 555; Peo- ple V. Vermilyea, 7 Cow. 108; People v. AUen, 43 N. Y. 28; Rice v. The State, 1 Yerg. 432 ; McGowan v. The State, 9 Yerg. 184 ; Com. v. Lesher, 17 Serg. & R. 156. * Freeman v. People, 4 Den. 9, 35; People v. Honeyman, 3 Den. 121; Smith V. Floyd, 18 Barb. 522; People v. McMahon, 2 Park. Cr. R. 663; Anderson v. State, 14 Ga. 709; Ray v. State, 15 Ga. 223; Stout v. Peo- ple,;4JPari:. Cr. R. 132; Schoeffler v. State, 3 Wis. 823. 212 GROUNDS OF CHALLENGE FOR CAUSE. [CII. XI. first instance, although the facts proved before the triors would support a challenge for principal cause, yet the ques- tion of competency belonging cxclusivelj' to the triors, the court cannot be called upon to rule, as matter of law, that the juror, upon the facts proved, is incompetent. The prisoner, by taking a challenge in this form, remits the de- cision of the question to the discretion of the triors. The triors may, therefore, properlj find the juror to be compe- tent.^ § 206. Formation without Expression of Opinion. — The simple formation of an opi)iion, without any expression of it, does not seem to have been considered to be a cause of challenge at common law. Indeed, at common law it was only the expression of such opinions or beliefs as showed ill-win which disqualified the juror. ^ However, a careful study of the cases relating to the competency of jurors «hows a tendency in modern times to multiply the causes of disqualification. Accordingly, we find in the early trial of Juries for treason against the United States that Mr. Justice Chase allowed this form of question to be put to the jurors : " Have you ever formed or delivered an opinion as to the guilt or innocence of the prisoner, or that he ought to be punished?" ^ But during the same year, in another famous trial before the same judge, the form of the question was: "Have you ever formed and delivered an opinion upon the charges contained in the indictment?" * These cases show that it was quite uncertain whether a bare formation of an opinion as to the guilt of an accused person would per se disqualify the juror. Upon the presenta- tion of the articles impeaching Mr. Justice Chase, in the year 1805, his conduct during the trials of Fries and Callender, before noticed, as showing oppression in office, and an overweening desire to convict, were the substantial charges. The question allowed in Callender's Case became J People V. Allen, 43 N. Y. 28. 2 2 Hawk. P. C.,ch. 43, § 28; Rex v. Edmunds, 4 Barn. & Aid. 471,492. 3 VVliMi-t. St. Tr. 610, 614. ^ Callenders Case, Wnart. St. Tr. 688, 696. § 206.] BIAS, PREJUDICE, OR OPINION. 213 the target of especial invective from the counsel for the prosecution, as being in the conjunctive instead of the dis- junctive form. "Being put in the conjunctive," said Mr. Randolph, "the most inveterate foe of the traverser who was artful, or cautious enough to forbear the expression of his enmity, would, therefore, have been admitted as com- petent to pass between the traverser and his country in a criminal prosecution."^ Two years later, when it became the duty of Chief Jus- tice Marshall, upon a charge of treason against the United States, to sit at the trial of the presiding officer of the body before whom Mr. Justice Chase had been arraigned, the form of question adopted by the latter upon the trial of Callender was approved, not only once, but many times during the examination of the jurors."^ The Chief Justice pointedly said: "The rule is, that a man must not only have formed, but declared, an opinion, in order to exclude him from serving on the jury." ^ Upon this point the Tennessee court, in an early case, observed that the juror might be asked " whether he has given an opinion 1)eforehand, but not whether he has formed an opinion ; for such is the nature of the human mind that it cannot remain in perfect suspense. The best men, hearing of any transaction in society, will unavoid- ably receive some impression, but still may stand indifferent between the parties as respects the investigation and deter- mination of the cause. But when the relation of a trans- action so interests the mind as to enable it to retain a recol- lection of its circumstances, so as to give an opinion, we cannot well presume a perfect indifference. Giving an opinion is a proof of a strong impression having been made, which is certainly improper in a juryman."* And this is the view of other courts.^ 1 Chase's Trial, p. 117. 2 Trial of Aaron Burr. pi). 4:?, 44, 370, 371, 115, 416. 417. 419, 42o. 3 Ibid., p. 44. ■* Berry v. Walleu, 1 Overton (Tenn.) 187; Temple v. Sumner, Smith (N. H.) 226,231. * State V. Godfrey, Brayt. (Vt.) 170; United States v. Watkins. 214 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. The bettor view, liowevcr, would seem to bo that the mere exjmssion of an opinion is not an ossontial condition of disqualification. The expression of tiie oi)inion is only an evidence of its existence. If the juror, upon his voii- dire, manifests or admits the existence of an opinion amountinir to a prejudgment of the case, he is disqualified whether he has ever expressed the opinion or not.' And the statutes of the several States at the present time quite uniformly declare that the fornuition as well as the expres- sion of an opinion upon the case to 1)0 tried shall constitute a cause of challenge. § 207. Opinions which do not disqualify. — (1.) Lord Mansfield's /Standard of Impartiality note Impraclicahle. — At the outset it may be remarked that the standard of im- partiality as stated by Lord Mansfield in Mylock v. 8ala- ' dint^ has long since ceased to be regarded as attainable.^ " A juror," said he, " should be as white paper, and know neither plaintiff nor defendant, but judge of the issue merely as an abstract proposition upon the evidence pro- duced before him. lie should be superior even to a sus- picion of partiality." The courts have uniformly reached the conclusion that, with the present means of disseminat- 3 Cranch C. C. 565 ; United States v. Devaughan. 3 Cranoh C 0. 84; State V. Madoil. 12 Fla. 151; Boardniaii v. Wood, 3Vt. 570; State v. Clark, 42 Vt. 629; State v. Phair, 48 Vt. 366; State v. Tatro, 50 Vt. 483; Noble V. People, 1 111. 29; Hudgins v. State, 2 Ga. 173; Boon v. Stat«, 1 Ga. 619; Reynolds v. State, 1 Ga. 228; Baker v. State, 15 Ga. 498; Griffin V. State, 15 Ga. 476. 1 Osiander V. Com., 3 Leigh, 780; Annistead"s Case, 11 Leigh, 657; State V. Wilson, 38 Conn. 126; United States v. Hanway (Walsh's Case), 2 Wall. Jr. 139 ; United States v. Wilson, Bald. C. C. 84 ; People v. Christie, 2 Park. Cr. R. 579; «. c, 2 Abb. Pr. 256; Com. v. Knapp, 9 Pick. 496. 498; Corn. v. Webster, 5 Cush. 295,298; People v. Hettick, 1 Wheeler Cr.'c. 399; People v. Melvin, 2 Wheeler Cr. C. 265; People v. .Johnson, 2 Wheeler, Cr. C. 361, 367; Romaine v. State, 7 Ind. 63: Stewart v. State, 13 Ark. 720;''Maize v. Sewell. 4 Blackf. 447; Front v. Williams, 29 Ind. 18. 2 1 W. Bl. 480, 481. 3 In a case decidnd by the Snprenie Court of Pennsylvania in the year 1794. the court remarked : " It were much to be wished that the minds of the jurors should be as white paper, but it can scaicely be expected § 207.] BIAS, PREJUDICE, OR OPINION. 215 ing information, a jui'or's mind cannot reasonably be ex- pected to be " as white paper." ^ It is no objection to a juror that he has heard much about the case, provided that he has formed no opinion thereon ; ^ nor that what he has heard has taken shape in his mind, and impressed itself as a fact. The books afford no better statement of the law upon this point than the language of Chief Justice Mar- shall, upon the trial of Aaron Burr. (2.) 77^6 Rule as declared by Chief Justice Marshall the settled Law. — " Were it possible," said he, " to obtain a jury without any prepossessions whatever, respecting the guilt or innocence of the accused, it would be extremely desirable to obtain such a jury ; but this is perhaps impos- sible, and therefore will not be required. The opinion which has been avowed by the court is, that light impres- sions which may fairly be supposed to yield to the testi- mony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no suffi- cient objection to a juror ; but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will com- bat that testimony, and resist its force, do constitute a suffi- cient objection to him." ^ where they come de vicineto .''^ McCausland v. McCausland, 1 Yeates, 372, 378. 1 " We must either recede," said Cliief Justice Agnevv, "• and go back to the practice of an age when ignorance of passing events constituted a characteristic of the times, and exclude every juror who has formed any opinion, even the slightest; or we must stand abreast with the present age, when every remarkable event of to-daj' is known all over the country to morrow, and exclude those only whose opinions are so fixed as to be pre-judgments, or have been formed upon the known evi- dence in the cause. It is needless to say the world moves and carries us with it, and if we lag behind we must commit the trial of the most im- portant causes in life to those so ignorant that their dark minds have never been smitten by the rays of intelligence." O'Mara v. Com., 75 Pa. St. 424, 428. See also Keynolds v. United States, 98 U. S. 145, 15G. ^ State V. Howard, 17 N. H. 171 ; State v. Potter, 18 Conn. 166; Cora. V. Thrasher, 11 Gray, 57. 3 Trial of Aaron Burr, vol. I. p. 416. See also Boon v. State, 1 Ga. 618, 625; Nelms v. State, 13 Smed. & M. 500, 504; Smith v. Earaes, 216 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. The foregoing expression of opinion by this distinguished jurist, delivered in a case whicli at the time excited univer- sal attention, has ever since exerted a marked influence upon the determination of questions of this character. Thus, it is frequently stated, that if the juror's opinion will " readily yield " to the evidence presented in the case, he is not incompetent to sit ui)on the trial of the issue. ^ Such an opinion is generally formed from the reading of nevv^s- papers, or from any other source of rumor, and is so un- substantial in its nature that a contradiction from the same source would be as readily accepted as true as the origi- nal statement upon which the opinion was formed.'^ Vague 4 111. 76; Leach v. People, 53 111. 311 ; Black v. State, 42 Tex. 377; State V. Desniouehet, 32 La. An. 1241. 'Sci-aaton v. Stewart, 52 Ind. 68; McGregg v. State, 4 Blackf. 101; Van Vacter v. McKillip, 7 Blackf. 578; Morgan v. Stevenson, 6 Ind. 169; Rice v. State, 7 Ind. 332; Lithgow v. Com., 2 Va. Cas. 297, 313; Ulrich V. People, 39 Mich. 245; State v. George, 8 Rob. (La.) 535; State v. Coleman, 27 La. An. 691, 692; Guetig v. State, 66 Ind. 94. A juror whose frame of mind is such that he is in doubt as to whether the opin- ion he has formed would readily j'ield to the evidence ought to be ex- cluded. Dejarnette v. Com. (Sup. Ct. App. Va. 1881), 11 Reporter, 6.53. Compare Stout v. People, 4 Park. Cr. R. 71, 111. « People v. Stout, 4 Park. Cr. R. 71 ; People v. Johnson, 2 Wheeler Cr. Cas. 361,369; Lowenberg v. People, 5 Park. Cr. R. 414,423; Eason v. State, 6 Baxter (Tenn.), 466, 477; State v. Potter, 18 Conn. 166; State V. Wilson, 38 Conn. 126; O'Connor v. State, 9 Fla. 215; Montague V. State, 17 Fla. 662; Bradford v. State, 15 Ind. 347; State v. Benton, 2 Dev. & B. 196; Morgan v. State, 31 Ind. 193; Clem v. State, 33 Ind. 418; Cluck V. State. 40 Ind. 263; Soranton v. Stewart, 52 Ind. 68; Fahuestock v. State, 23 Ind. 231; Meyer v. State, 19 Ark. 156; State v. Spaulding, 24 Kan. 1 ; People v. Reynolds, 16 Cal. 128; Shoelller v. State, 3 Wis. 823; People v. Mallon, 3 Lans. 224; Lithgow v. Com. 2 Va. Cas. 297; Holt v. People, 13 Mich. 224; King v. State, 5 How. (Miss.) 730; State v. Flower, Walker (Miss.), 318; State v. Raymond, 11 Nev. 98; People v. King, 27 Cal. 507; People v. Williams, 17 Cal. 142; State v. Morea, 2 Ala. 275; Hudgins v. State, 2 Ga. 133; State v. Cockman, 2 Winst. (N. C.) 95; State v. Ellington, 7 Ired. L. 61; Waters v. State, 51 Md. 430; s. c, 8 Reporter, 560; Little v. Com., 25 Gratt. 921; United States V. McIIenry, 6 Blatch. 503; Brown v. Com., 2 Leigh, 769; McCune v. Com., 2 Rob. (Va.) 771 ; Irvine v. Lumbermen's Bank, 2 Watts & S. 190; Wright V. State, 4 Humph. 194; Cooper v. State, 16 Ohio St. 328; Frazier V. State, 23 Ohio St. 551 ; State v. Dove, 18 Ired. L. 469; Hart v. State, 57 Ind. 102; State v. Bone, 7 Jones L. 121; State v. Collins, 70 N. C. § 208.] BIAS, PREJUDICE, OR OPINION. 217 and floating rumors, of whose origin the juror has no in- formation, and of whose authenticity he has no just grounds of belief, — although they put on the form of a nar- rative, and circumstantial detail of the facts, — do not ordinarily produce such an impression on a juror's mind as to affect his impartiality. He may have formed an opinion upon the hypothesis that the rumors are true ; but such im- pression is usually removed when the facts of the case, as developed by the evidence, wholly contradict the rumors.^ (3.) This Rule to he guardedly apiMed. — The appli- cation of the foregoing rule must be closely watched. Not every opinion formed upon this unsubstantial basis can be readily discarded. Much depends upon the temperament of the individual juror. If the state of the juror's mind is such that he has fully determined the issue to be tried, he is as surely disqualified to sit in the case, when that con- clusion is reached from belief of the shallowest sort of rumors, as when formed from the most authentic source. Moreover, it has been observed by conservative judges that this rule is an innovation, and is therefore to be strictly confined within its proper limits. "The courts have gone to the verge of the law," said Nicholson, J., "in holding- that a juror who has formed and expressed an opinion on mere rumor may be an impartial juror. We recognize such to be the settled law, but we are not disposed to go further in that direction." ^ § 208. All Hypothetical Opinion. — We have hitherto seen that an opinion based upon rumor may or may not have a disqualifying effect, according to the fixedness of it. To 241; Sanchez v. People, 4 Park. Cr. R. 535; Union Gold M. Co. v. Rocky Monntain Xat. Bank, 2 Col. 565; State v. Johnson, Walker, 392; Sam V. State, 13 Smed. & M. 189; Lee v. State, 45 Miss. 114; State v- Bunger, 14 La. An. 461; State v. Lartigue, 29 La. An. 642; State v. Hinkle, 6 Iowa, 380; State v. Sater, 8 Iowa, 420; State v. Lawrence, 3 8 Iowa, 51; McGregg v. State, 4 Blackf. 101; Plummer v. People, 74 111. 361; Thompson v. State, 24 Ga. 297; People v. McCauley, 1 Cal. 379; Skinner v. State, 53 Miss. 399; State v. Hoyt, 47 Conn. 518. 3 Payne v. State, 3 Hnmph. 375. Post, § 208. *Seejs»os<, § 211. « Eason v. State, 6 Baxter (Tenn.), 466, 477. 218 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. determine whether the opinion formed or expressed is of a disqualifying character is frequently a matter calling tor the ajjplication of very nice discrimination. It is often said that an hypothetical opinion will not disqualify a juror. Thus, in a civil case, a juror was challenged, because he had said that the defendant was wrong and the plaintiff was right ; but upon examination it appeared that he had said that he had no personal knowledge of the matter in dis- pute, but that, if the reports of the neighbors were correct, the defendant was wrong, and the plaintiff was right. This was held to be an hypothetical opinion, and, as such, not to affect the juror's competency.^ In the view of the Virginia court, when an opinion is founded upon com- mon rumor, the presumption is that it is merely hyiDothet- ical, and it will be so considered in the absence of evidence to the contrary.^ But unless care be exercised by the trial judge, persons who have formed absolute and settled opinions upon the issue to be tried will find their way into the jury-box, upon the misconception that such opinions are hypothetical merely. Few have any personal knowledge of what is heard and read by them from day to day. In one sense, therefore, it may be said that all opinions based upon hear- say are hypothetical. They are certainly contingent upon the truth of what has been heard. People, however, fre- quently form violent prejudices from hearsay alone. When called as a juror, one entertaining such prejudices does not render himself competent by the simple statement, *'If what I have heard is true, I have formed an opinion ; but if not true, I have formed none." This statement is by no i Dnrell v. ISIosher, 8 .Johns. 445. See also Com. v. Hughes, b Rand. G55; People v. Johnson, 2 Wheeler Cr. Cas. 361, 309; People v. Fuller, 2 Park. Cr. R. 16; Mann v. Glover, 14 N. J. I.. 195; State v. Spencer, 21 N. J. L. 197; Burk v. State, 27 Ind. 430; State v. Williams, 3 Stew. (Ala.) 454; Osiander v. Com., 3 Leigh, 780; State v. Flower, Walker (Miss.), 318; People v. Murphy, 45 Cal. 137; Jackson v. Com., 23 Gratt. 919; Moran v. Com., 9 Leigh, 651 ; Loeffener v. State, 10 Ohio St. 598; State v. Ostrander, 18 Iowa, 435; State v. Hoyt, 47 Conn. 518. 2 Jackson v. Com.. 23 Gratt. 919. 928; Wright v. Com., 32 Gratt. 941, 943. § 209.] BIAS, PREJUDICE, OK OlMNION. 219 means conclusive of a juror's competency. It docs not necessarily show that the opinion formed is hypothetical, in the sense that a hypothetical opinion will not disqualify. On the contrary, the expression may have been designedly used to cover the rankest prejudices,^ which further probing may develop. He should be asked whether in fact he be- lieves what he has heard to be true ; whether that belief is of such a character as would prevent its being removed by contrary evidence ; and, in doubtful cases, inquiry might be instituted as to the grounds of his belief. § 209. Iinpressiim — Meaning of this Term. — When one speaks of an " imj)ression " upon his mind, he usually means something which does not amount to a lixed or set- tled opinion.^ Jurors, however, upon examination on the voir dire,, are apt to use this term as synonymous with " opinion. " If, therefore, an analysis of their " impres- sions " shows that they are in the nature of settled opinions, they must be treated as such, and the juror excluded. Thus, the New York Court of Appeals, reviewing the evi- dence upon the trial of the competency of certain jurors, who testified to their " impressions" as to the guilt of the prisoner, said: " There had been an effect produced upon their minds which remained, and which was so firmly lodged there that it needed a new-comi>ig force to dislodge it. They had received it into their minds as true that the prisoner was guilty, without certain knowledge of it, but upon proofs which they held satisfactory. And it matters not what the state of mind thus produced is christened, whether an opinion or an impression. There was existing such a de- 1 Trimble v. State, 2 G. Greene. 40J ; Armistead v. Com , 11 Leigh, 657: People v. Johnston, 46 Cal. 78; Gardner v. People, 4 111. 83; Koth- pchild V. State, 7 Tex. App. 519; Moses v. State, 10 Humph. 456; Neely V. People, 13 111. 685; Brown v. State, 70Ind. 577; State v. Ricks, 32 La. An. 1098. But see Epes" Case, 5 Gratt. 676; Smilli v. Com., 6 Gratt. 696; Smith v. Com., 7 Gratt. 593. 2 People V. Honeyman. 3 Denio, 121 ; People v. Symonds, 22 Cal. 348; Gold Mining Co. v. Nat. Bank, 96 U. S. 640; ]Sloe v. State, 4 How. (Miss.) 330; White v. State. 52 Miss. 216; State v. Ward, 14 La. An. 673; State V. Coleman. 27 La. An. 691 ; Slate v. Hugel, 27 La. An. 375; State . Medlicott. 9 Kan. 257. 220 (JKOIINDS OF CHALLENGE FOU CAUSE. [ CH . XI. cisioii of miiid :is to his iriiill, as that further proofs niu.st he produt'cd, hcfore that decision would he chaniijed. So that we are justilied in treating the conclusions of these jurors as to the guilt of the plaintiff in error as equivalent to what the hooks call an oj)inion, when treating of this suhject." ^ Conversely, a juror may state upon his examination that he has formed an " opinion " as to the guilt or innocence of the party upon trial, when in reality he has received only a slight impression, which cannot properly have any dis- qualifying effect. Thus, a man is slain, and the defendant, having been accused of the crime, attcm})ts to escape, but is apprehended. A juror having heard these simple facts ex- presses himself to the effect that the accused is guilty of the offense charged. Havin": heard no other facts in the case, it is obvious that a positive opinion may not have been formed. A simple impression only niaj' have been received, notwithstanding the juror may dignify his conclusion as an " opinion." •^ This point was noticed by Chief Justice Shaw in the cel- ebrated trial of Professor Webster for the murder of Dr. Parkman. " The opinion or judgment," said he, "must be something more than a vague impression, formed from casual observation with others, or from reading imperfect, abbreviated newspaper reports. It must be such an opinion upon the merits of the question as would be likely to bias or pervert a candid judgment upon a full hearing of the evi- dence. If one has formed what in some sense might be called an opinion, but which yet fell far short of exciting any bias or prejudice, he might conscientiously discharge his duty as a juror." ^ An "indefinite" oi)inion does not disqualify.* Strictly 1 GreiMitield v. The People, 74 N. Y. 277, 283. 2 Payne v. The Stute, 3 Humph. 375; State v. Wilson, 38 Conn. 12G, 138; Norfleet v. The State, 4 Sneed, 340, 343; Palmer v. The Peoi)le, 4 Neb. 68, 75 ; Cora. v. Lenox, 3 Brewst. 249 ; United States v. Keynolds, 1 UUh, 319. 3 Com. V. Webster, 5 Cush. 295, 297. See also State v. Pike (Sup. Ct. N. 11.), 11 Am. L. Reg. 233, and particularly the opinion of Lomax,,J., in Clore's Case, 8 Gratt. GOG, G17. * State V. Iloyt. 47 Conn. 518. § 210.] BIAS, PREJUDICE, OR OPINION. 221 speaking, there is no such thing as an indelinite opinion. Such a state of mind may be more exactly characterized as an impression upon the mind as to the existence or non- existence of facts. § 210. Particular Expressions of Opinion not affecting the Juror's Conipetency. — A juror's remarlis upon the issue to be tried, made after being summoned, although of a grossly improper character and indicative of tlie strongest bias in favor of or against either of the parties, may be ex- plained by him as having been made in a spirit of levity, or for the purpose of disqualifying himself for service in the case. Under such circumstances the competency of the juror remains unaffected.^ A person called as a juror in a trial for a felony, having been challenged peremptorily, quitted the court-house, say- ing, "It is well I was rejected, for if I were on the jury I would send her the other side of Boston." Before the im- panelling was completed the panel of jurors summoned was exhausted, and, to complete the twelve, the counsel for the defendant, in ignorance of the remark, consented to this person being put upon the jury. After conviction, upon a motion for a new trial, it was held that this expression was no indication of hostility, prejudice, or a fixed opinion, but due to embarrassment, confusion and mortification conse- quent upon the peremptory challenge.^ In another case, a juror was shown to have said of one accused of murder, "Damn him, he ought to be hung!" This fact was unknown to the prisoner until after he had been found guilty of murder in the second degree. A new trial demanded upon this ground was refused. It was held that the remark in question did not indicate a deliberate 1 John V. State, 16 Ga. 200; Moughon v. State, 59 Ga. 308; Cora. v. Flauagan, 7 Watts & S. 415, 421; Lovett v. State, 60 Ga. 257; Simms v. State, 8 Tex. App. 230. It was so held iu the case of one of the jurors upon the trial of Aaron Burr, who admitted as follows: "I met an in- timate friend, to whom I observed that I had come to town with a hope of being placed ou this jury, and if I were, I would hang Colonel Burr at once without further inquiry." Burr's Trial, p. 423. 2 Com. V. Ilailstock, 2 Gratt. 564. 222 GROUNDS OF CHALLENGE FOIl CAUSE. [CH. XI. opinion of the prisoner's guilt, but it was :i h;isty exclama- tion which any unprejudiced man on hearing of a murder might make. Moreover, it Nvas considered that the verdict supported this construction, because the juror did not de- cide that the prisoner should be hung.^ The contrary, however, was decided by the Tennessee court. "^ A conviction of murder was reversed where it ap- peared that, before the trial, one of the jurors had used this identical expression. The court considered the remark to be not a mere loose expression founded upon rumor, but rather a statement in the strongest terms of opinion, con- viction and prejudice. Affidavits of other jurors, made to the effect that the obnoxious juror was favorable to the prisoner, were regarded as not pertinent to the issue, which the court stated to be whether the juror was competent, not what his conduct was after he was taken on the jury. § 211. Nature of Disqualifying- Opinion. — We have hitherto considered that character of opinion which the law does not now regard as affecting the juror's competency. Necessarily we have, at the same time, contrasted it with that which is regarded as having a disqualifying effect. It is proper to consider the latter distinctly. The character of opinion which will form a subject of challenge for prin- cipal cause has been variously stated. Thus, it must be " fixed and settled ;" ^ " fixed and absolute ;" •* " fixed and determined ;" ^ " fixed and positive ;" ^ "decided ;" ^ " sub- stantial," ^ or deliberately formed.^ Of course all of these 1 Smith V. Cora., 2 Va. Cas. 6. See also Kennedy v. Com., 2 Va. Cas. 510. 2 Braketield v. State, 1 Sueed, 215. 3 Schoeffler v. State, 3 Wis. 823; People v. King, 27 Cal. 507. * People V. Bodine, 1 Den. 308; State v. Howard, 17 N. H. 192. 5 Staup V. Com., 74 Pa. St. 458. 8 Rafe V. State, 20 Ga. 60. ^ Osiander v. Com., 3 I-^eigh, 780; Armistead v. Com., 11 Leigh, 657 Lithgow V. Com., 2 Va. Cas. 297. ** Sprouce v. Com., 2 Va. Cas. 375; Jackson v. Com., 23 Gratt. 919 Thompson v. Updegraff, 3 W. Va. 629; Brown v. Com., 2 Leigh, 769. 9 suite V. George, 8 Rob. (La.) 535; State v. Brown, .4 La. An. 505 Wright V. state, 18 Ga. 383. § 211.] BIAS, PREJUDICE, OR OPINION. 223 terms are intended to convey one and the same idea. Smith, J., speaking of the disqualifying opinion, said: " This, it is well settled in numerous cases, must be a fixed, absolute, positive, definite, settled, decided, unconditional opinion. The rule is uniformly laid down by the use of one of these words, or words of equivalent force. A con- ditional, contingent, hypothetical, indeterminate, floating, indefinite, uncertain opinion Avill not do, nor an im- pression." ^ It is only when doubt is entertained as to the fixedness of the opinion that the source of it will throw light upon its disqualifying character.^ When it is proved or admitted that the mind has formed an opinion of this positive char- acter, the juror may properly be excluded. In such a case the consideration of the source of the opinion is quite un- profitable and unnecessary.^ That source may be of the highest authenticity, or it may be the shallowest kind of rumor. If the former, what the mind has once taken in and digested will probably l)e reproduced upon the trial, and bring conviction with redoubled force. If the latter, the juror shows himself to be a person of such marvellous credulity that the event of his adjudication upon the rights 1 People V. Stout, 4 Park. Cr. K. 71, 117. See also State v. Kingsbury, 58 Me. 238. Judges frequently use the term " opinion " as synonymous with "fixed opinion." See Reynolds v. State, 1 Ga. 222, with which decision compare Hudgins v. State, 2 Ga. 173, 180; Maddox v. State, 32 Ga. 581. 2 Worraeley's Case, 10 Gratt. 658, 687. »Boon V. State, 1 Ga. 631; Logan v. State, 50 Miss. 2G9, 275; Lyco- ming Fire Ins. Co. V. Ward, 90 111. 545; Leach v. People, 53 111. 311; Smith V. Eames, 4 111. 76; Carson v. State, 50 Ala. 134; Hall v. State, 51 Ala. 9; State v, Davis, 14 Nev. 439, 450; Payne v. State, 3 Humph, 375; Rice v. State, 1 Yerg. 432; McGowan v. State, 9 Yerg-. 184; Cole- man V. Hagerman^ MS., cited in 6 Cow. 564; People v. Mather, 4 Wend. 229, 244; Greenfield v. People, 74 N. Y. 277; Norfleet v. State, 4 Sneed, 340; Sam v. State, 31 Miss. 480; Goodwin v. Blachley, 4 Ind 438; Meyer V. State, 19 Ark. 156; Fonts v. State, 7 Ohio St. 471 ; Armistead v. Com., 11 Leigh, 657; Staup v. Com., 74 Pa. St. 458; People v. Mallon, 3 Lans. 224; Lithgow v. Com., 2 Va. Cas. 297; Sprouce v. Com., 2 Va. Cas. 375; Conway v. Clinton, 1 Utah, 215; Wright v. Com., 32 Gratt. 941 ; Jackson V. Com., 23 Gratt. 919; Gardner v. People, 4 111. 84; Neely's Case, 13 m. 685. But see Clore's Case, 8 Gratt. 607. 224 GROUNDS OF CHALLENGE FOR CAUSE. [CII. XI, of litigants must be in no degree founded upon rational speculation, and, in general, the sport of chance.^ § 212. All Uiiqualilied Opinioii. — A statute of Califor- nia declares that the opinion which will disqualify must be an " unqualified opinion or belief," " formed or expressed." This rule simplifies the matter very little, as the question at once arises in every case, upon its own facts, " What is an unqualified opinion? " Upon this point Baldwin, J., said : " If, for example, the juror has read or heard a statement of the facts of a case, tliis does not, of itself, under this section disqualify him, for it does not follow that he has either formed or expressed an ' unqualified opinion.' He may not have formed any opinion at all, certainly not an unqualified one. lie may have received an impression ; but this impression is not enough to disqualify him. A mere suspicion or inclination of the mind towards a conclusion is not enough ; the state of the mind must be more decided. He must have reached a conclusion like that upon which he 1 Trial of Aaron Burr, p. 370; Moses v. S.tate, 10 Humph. 456; s. c, 11 Humph. 232; McGowan v. State, 9 Yerg. 184; Payne v. State, 3 Humph. 375; Balbo v. People, SO N. Y. 484, 492, 493, per Andrews, J. ; State V. McClear, 11 Nev. 39, 67; Logan v. State, 50 Miss. 269, 275; State V. Brette, 6 La. An. 652; Gray v. People, 26 111. 344; Armistead y. Com., 11 Leigh, 657; Maddox v. State, 32 Ga. 581; Neely v. People, 13 111. 685. It is believed that the foiegoing is a fair statement of the result of the authorities. Cases may be found, however, Avhich can hardly be reconciled with it. Thus, on the trial of certain negroes for having killed their master, a juror stated that he had heard that these negroes had done the deed; that he believed it then, did at the time of the trial, and "could not do otherwise, as he had the' evidence of the country;" that from such fact he had formed an opinion which had created a bias upon his mind which yet remained. This juror was held to be compe- tent, because the opinion, belief, bias, etc., arose from rumor. The court seemed to consider it a matter of slight consequence as to the character of the opinion formed, so long as it was not based upon au- thentic information. Alfred v. State, 2 Swan (Tenn.), .581. See also Major V. State, 4 Sneed, 597; People v. Hayes, Edm. Sel, Cas. 582; Car- son v. State, 50 Ala. 134; Curley v. Com., 84 Pa, St, 151, In the view of these cases, "belief" is not synonymous with a "fixed opinion," But see Neely v. People, 13 111, 685; Bales v. State, 63 Ala. 30, 36. In the California Penal Code " belief" is used as synonymous with "unquali- fied opinion." Cal. Penal Code, § 1074, subsec, 8. •§ 213.] BJAS, PREJUDICE, OR OPINION. 225 would be willing to act in ordinary matters." ^ Under this .statute no distinction can be drawn between the expression of an unqualified opinion, and the unqualified expression of an opinion. If the form of expression is unqualified, this is sufficient to render the opinion obnoxious to the statute, although it might be shown upon inquiry that the opinion really entertained was qualified in its character.'^ It has also been held under this statute that it matters not to which party the opinion is favorable or unfavorable. A juror cannot be interrogated upon this point. It is enough that the opinion has been formed and expressed. Therefore such a juror having been put upon the jury against the ob- jection of the defendant, it was not necessary, in order to procure a reversal of a judgment for the plaintiff, to show that the juror was prejudiced in favor of the plaintiff.^ § 213. Opinion derived from an Authentic Source. — If an opinion formed or expressed be derived from a reliable source, this is, in general, a good ground of objection to a juror.* Of this character are opinions formed from hearing the evidence upon a former trial of the same case,^ or from conversing with witnesses.^ Likewise, an opinion formed 1 People V. Reynolds, 16 Cal. 128, 133. 2 People V. Cottle, 6 Cal. 227; People v. Edwards, 41 Cal. 640; Peo- ple v. Brotherton, 43 Cal. 530; s. c, 1 Green's Cr. L. 739; People v. ■Gelir, 8 Cal. 359; Ruff v. Rader, 2 Mont. 211. The juror's statement that the opinion is " unqualified " receives weighty consideration. State V. Gillick, 10 Iowa, 98. 3 People V. Williams, 6 Cal. 206; State v. Shelledy, 8 Iowa, 477. * Troxdale v. State, 9 Humph. 411. 5 Ex parte Vermilyea, 6 Cow. 555; People v. Vermilyea, 7 Cow. 121 Grissom v. State, 4 Tex. App. 374; Jackson v. Com., 23 Gratt. 919 Apperson v. Logwood, 12 Heisk. 262; Lloyd v. Nourse, 2 Rawle 49 Garthwaite v. Tatum, 21 Ark. 336; Irvine v. Kean, 14 Serg. & R. 292 State V. McClear, 11 Nev. 39, 67; McGuffie v. State, 17 Ga. 497; State v. Webster, 13 N. H. 491; Studley v. Hall, 22 Me. 198; Sam v. State, 13 Smed. & M. 189. « People V. Johnston, 46 Cal. 78; Logan v. State, 50 Miss. 275; State V. George, 8 Rob. (La.) 535, 537; Goodwin v. Blachley, 4 Ind. 438; Bishop V. State, 9 Ga. 121. But see State v. Guidry, 28 La. An. 630. The mere circumstance that a juror has listened to the testimony, or has conversed with witnesses in a case, is not a cause of challenge, if he ha* (15) 220 GROUNDS OF CHALLENGE FOR CAUSE. [cil. XI. Oil the infoniiution of one who heard the witnesses testify, or speak of the subject, may be equally a ground of objec- tion, if the juror had confidence in the statement as made. An opinion so formed is not based on common rumor. ^ In a civil suit, a juror who, upon a statement of facts submit- ted by one of the parties, has expressed an opinion as to the iiabilit}' of the other, may be regarded as having derived the information upon which his opinion is based from one who, of all persons, may be supposed to be the best acquainted with the facts.^ § 214. Opinion based upon Reports of Testimony of Witnesses. — There is no doubt that mere newspaper re- ports of the facts of a case, civil or criminal, gathered by the industry of reporters from every conceivable source,. cannot be regarded as so "authentic" that an opinion based thereon, not positive in its character, will have a dis- qualifying effect.^ But how is it in regard to a newspaper report of the testimony of witnesses, say in a criminal case,. developed upon a preliminary examination of the accused, formed no opinion based upon sucli testimony or conversation. Page v. Com., 27 Gratt. 954; Thomson v. People, 24 111. 60; Parchman v. State, 2 Tex. App. 228; Shields v. State, 8 Tex. App. 427; Harper v. Kean, 11 Serg. & R. 280; Pay v. State, 2 Kan. 405; Lycoming Ins. Co. v. Ward,. 90 111.545; State v. Ayer, 23 N. H. 301; Com. v. Reid, S Phila. 385; United States v. Duff (U. S. Cir. Ct. S. D. New York, Jan. 1881, Bene- dict, D. J.), 6 Fed. Rep. 45. In one case the juror stated upon the voir dire that he had formed no decided opinion ; that he had heard a part of the evidence of one witness, and had formed " an impression;" that if the balance of the testimony " should run in that way," that impression would be confirmed ; that, as far as the evidence went, he had a "de- cided " opinion, if the rest did not run against it; that he had no preju- dice; had expressed no opinion, and was prepared to decide the case according to the evidence which might be given, uninfluenced by the portion which he had heard. He was held to be a competent juror. Moran's Case, 9 Leigh, 651. See also McCune v. Com., 2 Rob. (Va.) 771 ; Monroe v. State, 23 Tex. 10. 1 Nelms v. State, 13 Smed. & M. 500,504; Quesenberry v. State, 3 Stew & Port. 308; Sam v. State, 13 Smed. & M. 189; Ned v. State, 7 Porter, 187. But see Jackson v. Com., 23 Gratt. 919. 2 Rogers v. Rogers, 14 Wend. 131; Young v. Marine Ins. Co., 1 Cranch C. C. 452. » Ante, § 207, sub-sec. 2. § 215.] BIAS, PREJUDICE, OR OPINION. 227 a coroner's inquest, or a previous trial? Here again, there is a conflict of authority. Thus, the juror stated that he had formed an opinion as to the guilt of the accused from reading in a newspaper the evidence upon a former trial ; that it would take some evidence to the contrary to remove this opinion ; that it would not, however, bias or influence his judgment. This was held to have disclosed sufficient to disqualify the juror. ^ On the other hand, the Texas Court of Appeals in a case of recent date held that a juror was not disqualified who stated that he had read a newspaper version of the evidence adduced on the pris- oner's application for bail, from which he had formed an opinion in the case ; that he had forgotten the evidence, but remembered his opinion ; that he did not think that this opinion would influence his verdict ; that his final decision would be controlled by the evidence ; but if the evidence should be the same as he had read, it would require other evidence to change his opinion.^ § 215. Opinions which may he removed hy Evidence. — Strenuous efforts have been made to establish some test other than the direct interrogatory, " Have you a fixed opinion?" &c., which may show the condition of the juror's mind. Some courts think they have found this in the question, "Is your opinion of such a character that it will require evidence to remove it? " It has been consid- ered that if the state of the juror's mind is that he regards the accused as guilty, and would so render a verdict unless evidence appeared to the contrary; in other words, if he 1 Staup V. Com., 74 Pa. St. 458. Compare with this case Myers v.. Com., 79 Pa. St. 308. See also State v. Clark, 42 Vt. 629; Greenfield v. People, 74 N. Y. 277 (compare Balbo v. People, 19 Hun. 424; s. c, 80 N. Y. 484); Carroll v. State, 5 Neb. 31; Smith v. State, 5 Neb. 181; Gaetig v. State, 66 Ind. 94. In Ohio, a juror is rendered incompetent by statute who forms an opinion from reading reports of the testimony of witnesses as to the facts of the case. Laws 1872, p. 11. This in- cludes newspaper reports. Frazier v. State, 23 Ohio St. 551. 2 Grissom v. State, 4 Tex. App. 374. See also Smith v. Com., 6 Gratt. 697; Smith v. Com., 7 Gratt. 593; State v. Brown, 71 Mo. 454; Keyn- olds V. United States, 98 U. S. 145; Ortwein v. Com., 76 Pa. St. 414. 228 GROUNDS or challenge for cause. [cH. XI. has an impression of the defendant's guilt which it will re- quire evidence to remove, — such a bias of mind is incom- patible with the presumption of innocence which the law in- terposes for the benefit of accused persons.^ This princi- ple has been carried to lengths which can hardly be justi- fied. Thus, upon one occasion the juror stated upon the cross-examination that he had no fixed opinion, but quali- fied this statement by saying, **none which could not be removed by evidence." It was held that he ought to have been excluded.' Other decisions show that the test here noticed is not infal- lible. Referring to the language of Chief Justice Marshall in a previous section,^ it will be seen that he considered that impressions w-hich would yield to the testimonj'^ did not af- fect the juror's competency. From this it is evident that the juror might without impeachment admit the existence of an impression or an opinion (a synonymous term for "im- pression," as frequently used by jurors) which it would require evidence to remove. As pithily stated in a late case, " The fact that it would take evidence to remove an opinion would appear to be only the natural adjunct of every opinion formed upon rumor." * 1 United States v. Wilson, Baldwin, 85; People v. Mather, 4 Wend. 229; Eason v. The State, 6 Baxter (Tenn.), 466, 476; Com. v. Kiiapp, 9 Pick. 496; Cotton v. State, 31 Miss. 504; White v. Moses, 11 Cal. 68; Fahnestock v. State, 23 Ind. 231; Armistead v. Coin., 11 Leigh, 657; People V. Mallon, 3 Lans. 224; Stephens v. People, 38 Mich. 739; Peo- ple V. Cottle, 6 Cal. 227; People v. Gehr, 8 Cal. 359; Conway v. Clinton, 1 Utah, 215; Rothschild v. State, 7 Tex. App. 519; United States v. Hanway, 2 Wall. Jr. 139 ; Ruff v. Rader, 2 Mont. 211 ; Moses v. State, 10 Humph. 456; Sam v. State, 13Smed. & M. 189; Alfred v. State, 37 Mies. 296; State v. Bunger, 11 La. An. 607; Collins v. People, 48 111. 145; Gray v. People, 26 111. 344. 2 Cancemi v. People, 16 N. Y. 501. •"» ^n«e, § 207, subsec. 2. * Per Lewis, P. J., in State v. Barton, 8 Mo. App. 15, 17; s. c, 71 Mo. 288. See also State v. Core, 70 Mo. 491 ; State v. Greenwade, 72 Mo. 298; State v. Davis, 29 Mo. 397; State v. Carson, 50 Ala. 134; Reynolds V. United States, 98 U. S. 145; Curley v. Com., 84 Pa. St. 151 (the juror Lorah): Ortwein v. Com., 76 Pa. St. 414; Estes v. Richardson, 6 iVev. 128; People V. King, 27 Cal. 507; Wilson v. State, 94 111. 299; Ogle v. State, 33 Miss. 383; Thomas v. State, 36 Tex. 316; O 'Mara v. Com., 7i $ 216.] BIAS, PREJUDICE, OR OPINION. 22& § 216. Opinions based upon Personal Knowledge. — The old rule as laid down by Serjeant Hawkins was, that if a juryman declared his opinion beforehand that the party was guilty, that he would be hanged, or the like, it was a good cause of challenge.^ But this was stated with a marked qualification, that if it should appear that the juror made such declaration from his knowledge of the cause, and not out of any ill-will to the party, it was no cause of chal- lenge.^ This was cited with approval as late as 1821, by Lord Tenterden, in RexY. Edmunds^ and still later in this country.* However true this may have been at an early day, when jurors w^ere summoned rather in the capacity of witnesses than as impartial judges of the facts in dispute, it certainly has never been a generally recognized rule in this country. The question is not, according to the spirit of our law, whether the juror feels any resentment or preju- dice without cause against either party, but whether from any cause the juror has a bias of mind that may disqualify him from deciding with strict impartiality.^ Pa. St. 424; Myers v. Com., 79 Pa. St. 308; State v. Lawrence, 38 Iowa,. 51; State v. Medlicott, 9 Kan. 257; Guetig v. State, 6G Ind. 94; People V. Brown, 48 Cal. 253; People v. Welch, 49 Cal. 174. 1 2 Hawk. P. C, ch. 43, § 28; Cook's Case, 13 How. St. Tr. 333; Bar- bot's Case, 18 How. St. Tr. 1233; Layer's Case, 16 How. St. Tr. 137;. O'Coigly's Case, 26 How. St. Tr. 1227; Home Tooke's Case, 25 How. St. Tr. 17. 2 2 Hawk. P. C, ch. 43, § 28. See also Brooke's Abr., Challenge, pi. 90,^ citing 21 Hen. VIL 29; Bac. Abr., Juries, E. 5. » 4 Barn. & Aid. 471, 490. See also Brooke's Abr., Challenge, 55, and Fitzherbert's Abr., Challenge, 22, citing the charge of Babington to the triors in the Year Book, 7 Hen. VL fol. 25; Trials per Pais (1725), 189. * State V. Spencer, 21 N. J. L. 196, 198; State v. Fox, 25 N. J. L. 566; Pettis V. Warren, Kirby, 426. See also State v. Howard, 17 N. H. 171, 192. * Trial of Aaron Burr, vol. I, p. 414, opinion of Marshall, C. J. ; Blake T. Millspangh, 1 Johns. 316; Durell v. Mosher, 8 Johns, 445; Ex parte Vermllyea, 6 Cow. 555; People v. Mather, 4 Wend. 229, 241 ; People v. Van Alstyne, MS., cited in 6 Cow. 565; People v. Verniilyea, 7 Cow. 108; Solander v. People, 2 Col. 48, 59; Boon v. Georgia, 1 Ga. 618. 622; State v. Williams, 3 Stew. 454; Waters v. State, 51 Md. 430;. Hudgins v. State, 2 Ga. 173. 230 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. If :i juror is supposed to have any information or knowl- edge respecting the facts of a case which may become ma- terial to the decision of such facts by the jury, the proper practice is to put the juror upon the stand to testif}' as a witness.^ By this means both parties have the advantage of examining him as to the sources of his knowledge, and its effect upon the deliberations of the jurors can be directed b}^ the court. The oath of a juror obviously forbids that any private information should be for the first time dis- closed in the jury-room, after the case has closed, and the jury have retired to consider their verdict.^ In some States the fact that one summoned as a juror has also been sub- poenaed as a witness in the case constitutes a good cause of challenge.^ And where this is the law, the juror does not render himself competent by disclaiming all knowledge of the case ; * nor is the error of putting such persons upon the jury cured Iw omitting to call them as witnesses.* It is no cause of challenge to a juror that he was examined as a wit- ness on a former trial of the same cause before arbitrators ; ' nor in a criminal case, that on a former trial of the indict- ment, the juror had been called as a witness for the State, to testify against the general character of the prisoner.' § 217. Opinion upon Particular Facts involved in the Issue. — To disqualify a juror by reason of his prejudgment of the case to be tried, it is not necessary that he should have formed such judgment upon a consideration of aU 1 Rex V. Perkins, Holt, 403; Hauser v. Com., 5 Am. L. Reg. (N. S.) 668. 2 Dunbar v. Parks, 2 Tyler, 217; Green v. Hill, 4 Tex, 465; United a es V. Fo urteen Packages, Gilp. 236; Fellows's Case, 5 Me. 833; Eon- dea V. New Orleans, etc. Co., 15 La. 160. 8 Com. V. Jolliffe, 7 Watts, 585; Atkins v. State, 60 Ala. 45; Comman- der V. State, 60 Ala. 1; State v. Underwood. 2 Overton (Teiin.), 92; Hook V. Page, 1 Overton (Tenn.) 250. But see Fellows's Case, 5 Me. 333; andy v. Call. 30 Me. 9; Bell v. State, 44 Ala. 393; Rondeau v. New- Orleans Co., 15 La. 160. * "West V. State, 8 Tex. App. 119. ' Atkins V. State, 60 Ala. 45. 6 Harper v. Kean, 11 Serg. & E. 280. ^ Fellows's Case, 5 Me. 333. § 217.] BIAS, PREJUDICE, OR OPINION. 231 the circumstances involved in the issue. It is a sufficient cause of disqualification that his obnoxious opinion attaches to any inaterial fact involved.^ The nature of an opinion upon a portion of a criminal <5ase which will disqualify, is well stated in a late decision of the Supreme Court of Mississippi : " This opinion may exist as to a subject so involved in the question of guilt or innocence that it cannot well be separated from it ; or at all ■events it may be on a subject about which the juror's mind is to act in reaching a conclusion, and so intimately asso- ciated with the question of guilt or innocence that, in the ordinary experience of mankind, if the fact be as believed to exist by the juror, it will generally determine the main question of guilt or innocence."^ Or, as stated by Catron, J, : " If the juror is already able to respond to the question, if put to him, so as to satisfy his own con- science, ' Is the prisoner guilty or is he innocent?' then he is incompetent ; but if, from not being convinced of the ex- istence or non-existence of certain facts, he is unable to de- termine the question, then he is competent." ^ Upon the trial of an Indian for the murder of a family of settlers, it was held not to be a cause of challenge that the juror believed the single fact that Indians had mur- dered the family, having no opinion as to the guilt of the accused.* Nor in a capital case does a juror necessarily have an opinion upon the guilt or innocence of the accused, 1 Stewart v. State, 13 Ark. 720; Davis v. Walker, 60 111. 452. 2 Per George, C. J., in Brown v. State, 57 Miss. 424, 431; 8. c, 10 Cent. L. J. 37G. Tiiis was an indictment for perjury against one who had testified to a false alihi upon the trial of another for arson. The ac- cused had given testimony upon the trial of the latter utterly incon- sistent with his guilt. The juror had no douht of the guilt of the party charged with the arson, and was therefore held incompetent to sit upon this trial for perjury. See further upon this point the opinion of Chief Justice Marshall in the trial of Aaron Burr, Vol. I, p. 417. s Baxter v. People, 8 111. 368, 377. See also State v. Bryan, 40 Iowa, 379. * Waukonchawneekkaw v. United States, Morris, 332. See, in con- nection with this case, Cargen v. People, 39 Mich. 549; Stewart v. Peo- ple, 23 Mich. 63. 232 GROUNDS OF CHALLENGE FOR CAUSE. [CH, XI. who believes that a person has been killed, and, in addition to that fact, that the person on trial for the crime did the killing. Non constat but that the act was done in self- defense, or was accidental.^ But cases may, and frequently do, arise where the person convicted of the fact of having done the killing will be convicted of a felonious homicide. These cases are gen- erally those where the connection of the accused with the crime is established by circumstantial evidence, or where the defense is an alibi. Cases where the homicide has been committed by a poison, where it has -been preceded by an act of burglary, accompanied by robbery, or the like, may well follow under this rule. Here the guilt of the prisoner follows, when once the fact of his having done the killing is fixed upon him. An opinion in such a case, that he is the person who committed the act, is tantamount to an opinion that he is guilty of the crime charged in the indict- ment. But in a case where the subsequent evidence shows that there was no dispute but that the prisoner was the per- son who did the killing, this rule would not apply, and it would be a mockery of justice to grant a new trial on the ground that a juror was held competent who had stated on his voir dire that he held such an opinion. This question, then, must in every case be tested by the evidence disclosed in the subsequent record. The judge will, however, gene- rally be enabled to foresee or conjecture what the evidence will be, and in such a case he will best exercise a sound discretion by rejecting one who holds such an opinion. But even this rule will not apply in all cases ; for the facts of the guilt of the person who did the killing may be matters of such public notoriety and universal belief that no intelli- gent men can be found to act as jurors who have not an opinion upon the subject. The guilt of a principal is an essential element in the guilt of an accessory ; but the guilt of the principal being 1 Lowenburg v. People, 27 N. Y. 336; s. c, 5 Park. Cr. R. 414;. O'Brien v. People, 36 N. Y. 276; Bales v. State, 63 Ala. 30; State v^ Thompson, 9 Iowa, 188. Contra, State v. Brown, 15 Kan. 400. § 217.] BIAS, PREJUDICE, OR OPINION. 233 conceded, it does not necessarily follow that a person charged as an accessory to the crime of the principal is guilty also. Hence the formation and expression of an opinion as to the guilt of the principal has been considered as not affecting a juror's competency to try an accessory.^ But this was lately denied by the Texas Court of Appeals. This court held that, on the trial of an accomplice, who, under the code of Texas, is the same as an accessory before the fact at common law, the judge erred in refusing to per- mit the defendant to question the jurors touching their opinion as to the guilt or innocence of the principal.^ In a criminal case, it has been held to be no ground of challenge that the juror has conclusively made up his mind as to the measure of punishment in case of a conviction, of the person upon trial. ^ In this connection, too, it must be remembered, as before stated, that courts will not ordi- narily sanction the examination of a juror in this form.* In a civil suit, when a juror has a positive opinion as to a matter connected with the controversy, which may be of material importance in the final determination of the case, a party challenging on this account must show this to be one of the main questions involved.'' In an action upon a policy of life insurance, which con- tained a provision that if the insured should " die by sui- cide " the policy should be void, the defendant pleaded that the insured committed suicide by drowning himself ; to which the plnintiff replied that the insured was in- sane at the time he died, and that the death was not his voluntary and intelligent act. Such of the jurors as con" 1 Lloyd V. State, 45 Ga. 57. * Arnold v. Sfate, 9 Tex. App. 435; s. c.,11 Reporter, 175. 8 State V. Ward, 14 La. Au. 673; State v. Bill, 16 La. An. 114, over- ruling State V. George, 8 Rob. (La.) 535. *A7Ue, § 201. « Weill V. Lucerne M. Co., 11 Nev. 200; Elbin v. Wilson, 33 Md. 135; Dew V. McDivitt, 31 Oliio St. 139; s. c.,17 Am. L.Reg. 621; Wischover V. German Mutual Fire Ins. Co., 71 111. 65; Hughes v. Cairo, 92 111. 339: King V. Dale, 2 111. 513; Royston v. Royston, 21 Ga. 161; State v. Mar- tin, 28 Mo. 530. 234 GROUNDS OF CHALLENGE FOR CAUSE. [CH. II. sidcrcd the fact of suicide to be conclusive proof of in- sanity were successfully cliallenged for cause. ^ But those who would not consider the fact of suicide as conclusive evidence of insanity in all cases, but only in some, or who Avould require other and additional evidence to establish the fact of insanity, arc not subject to challenge in such a case.'"* § 218. Opinions which embody Conclusions of Law. — The formation of an opinion which consists in nothing more than a conclusion of law upon facts which have previously been presented to the juror's mind is obviously no disqual- ification. "On the contrary," said Lomax, J., of the General Court of Virginia, " the court thinks that a knowl- edge of the law, instead of a disqualification, would be a recommendation of the fitness of the juror. And although a juror may have taken up some misconception of the law of the case, the instruction of the court can be resorted to for correcting his error and affording him a standard by which the law may be ascertained ; whereas, in regard to facts, there is no other standard but the opinions of the juror himself." 3 A good illustration is found in the trial of Callender for the publication of a seditious libel. A juror who had an unequivocal opinion that the book came within the sedition law, but had no opinion as to its author- ship, was held to be competent.* And, as stated by Chief Justice Marshall, upon the trial of Aaron Burr, " If, for example, a juror had said that levying an army for the pur- pose of subverting the government of the United States bj force, and arraying that army in a warlike manner, nraounted to treason, no person could suppose him on that 'Boileau v. Life Ins. Co., 9 Phila. 218; Hiatt v. Mutual Life Ins. Co., 2 Dill. 672, note. 2 Hagadorn v. Connecticut Mutual Ins. Co., 22 Hun, 249. 3 Heath v. Com., 1 Rob. (Va.) 735, 742; Pettis v. Warren, Kirby, 426; Com. V. Abbott, 13 Met. 120; Hughes v. Cairo, 92 111. 339; Thrall v. Lincoln, 28 Vt. 356. But contra^ see United States v. Hanway, 2 Wall. Jr. 1.39; Blake v. Millspaugh, 1 Johns. 316. * Callenuer'8 Case, Wharton, St. Tr. 697. § 219.] BIAS, PREJUDICE, OR OPINION. 235 account unfit to serve on the jury. The opinion would be one in which all must concur." ^ § 219. Disqualifyiuj? Effect of, when indicative of Bias. — Such an opinion, however, may be erroneous, and of that fixed and unalterable character that the juror will be plainly disqualified.^ Thus, in an action against a sheriff for trespass, where the defendant justified under a distress warrant for rent in arrear, issued by the landlord, a juror was properly rejected who belonged to an anti-rent asso- ciation, w^ho had presided at a meeting of such association, and had expressed the opinion that the landlord had no title to rent, although the laws might enable him to collect it, and that he himself would pay no more rent until the question of title was settled.^ But the belief that the law under which an action is brought " is a good one," is not even proper evidence for the consideration of the triors upon a challenge to the favor.* Jurors may be examined as to their prejudices against the enforcement of a law under which an indictment has been framed.'^ Thus, where a defendant is on trial for the crime of polygamy, a juror who belongs to the Mormon Church, and believes that polygamy is a direct command from God, and consequently above the laws of man, should be excluded from sitting in the case.^ On the trial of an indictment for a riot at a meeting for the consideration of a public measure, the prosecution challenged two jurors on the ground that they were inhabitants of the town affected by the measure in question, and had taken an active part in opposing the law. Coleridge, J., at nisi prius thought that a person who had taken an active part on either side with respect to a measure which had caused so much ex- citement could not be regarded as an indifferent juror.^ 1 Burr's Trial, Vol. I, p. 418. 2 Corn. V. Anstiu, 7 Gray, 51 ; State v. Davie, 14 Nev. 439, 450; Com. V. Buzzell, 16 Pick. 153. 'Lord V. Brown, 5 Den. 345. * McNall V. MoClure, 1 Lans. 32. « Pierce v. State, 13 N. H. 536. « Miles v. United States, 103 U. S. 304; s. c, 2 Utah, 19. ^neg. V. Swain, 2 Lewin C. C. IIG; s. c, 2 Mood. & Eob. 112. 236 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. § 220. A Disqualifying Opinion cannot be laid aside. — When it is conceded or i)rovod tli:it the juror holds such an opinion as disqualifies him from sitting in the case, the in- quiry as to the juror's competency is ended, and the juror must be rejected."^ The rule settled by all the authorities is that no inquiry can be tolerated whether the firmness of the man may not enable him to Lnve a true verdict upon his oath, notwithstanding an existing opinion of a disqualify- ing character. As observed by Chief Justice Marshall » upon the trial of Aaron Burr, " lie may declare that notwithstanding these prejudices he is determined to listen to the evidence and be gov(?rned by it ; but the law will not trust him. * * * j^g yyill listen with more favor to that testimony which confirms, than to that which would change his opinion. It is not to be expected that he will weigh evidence or argument as fau'ly as a man whose judgment is not made up in the case." ^ In an early Tennessee case the bill of exceptions showed that the jurors, after admitting the existence of disqualify- ing opmions, were, against the objection of the prisoner, asked the question, " Do you think, notwithstanding your opinion, you are in a condition to try this cause impar- tially?" Peck, J., o})served upon this record: "What is 2 Com. V. Lesher, 17 Serg. & R. ir,5, 156; United States v. Wilson^ Bald. C. C, 84; Rothschild v. State, 7 Tex. App. 519; People v. John- ston, 46 Cal. 78. 3 Burr's Trial, vol. I, p. 416. See also Fonts v. State, 7 Ohio St. 471 ; Trimble v. State, 2 G. Greene, 404; Staup v. Com., 74 Pa. St. 4.')8; Peo])le V. Gehr, 8 Cal. 3.59; Baker v. Harris, 1 Winst. (N. C.) 277; Conway v. Clinton, 1 Utah, 215; Cotton v. State. 32 Tex. 614; Black v. State, 42 Tex. 377; Goodwin v. Blachley, 4 Ind. 438; Irvine v. Kean, 14 Serg. & R. 292; Sam v. State, 13 Smed. & M. 189, 194; Alfred v. State, 37 Miss. 296; Logan v. State, 50 Miss. 275; State v. Bunger, 11 La. An. 607; Eason v. State, 6 Baxter (Tenn.), 466, 476; People v. Weil, 40 Cal. 268; Stephens v. People, 38 Mich. 739. It is held to be a gross abuse of dis- cretion for the trial judge, upon the examination of a juror, to confine the counsel to the single Inquiry whether the juror can or cannot try the case, and render a verdict under the law as declared by the court and upon the evidence adduced upon the trial, without regard to any pre- viously formed opinions. People v. Woods, 29 Cal. 635. But see Com. V. Morrow, 9 Phila. 583. § 221.] BIAS, PREJUDICE, OR OPINION. 237 the condition of a juror when such a question is propounded? He will feel it as an appeal made to his pride and magna- nimity. He will naturally imagine he can. Nay, he will suppose he has already divested himself of his preposses- sions, and he will answer in the affirmative. But who that has taken the slightest view of human nature can help see- ing that, immediately on hearing a repetition of the same evidence which first raised his prepossessions, they will re- turn upon him ; or, placing himself upon his resolution, he will err on the other side, and reject the evidence which, but for the appeal to his pride, would have had its due weight."^ § 221. A Change of Opinion. — Can a juror, after having formed a positive opinion upon the facts to be tried, restore his competency by an avowal upon the voir dire that he no longer entertains such an opinion? It is believed that the old authorities furnish no information upon this point. Under the rule of the common law, as expressed in the pre- vious section, the Texas Court of Appeals concludes that, in the investigation of the juror's competency, "the inquiry 1 Rice V. The State, 1 Yerg. 432, 434. The penetrating mind of Aaron Burr, when on trial for treason against the United States, appreciated the force of this last proposition, as will be seen from the following ex- tract from the report of his trial : " Mr. Bott (a juror) : • I have gone as far as to declare that Col. Burr ought to be hanged.' Mr. Burr: ' Do you think that such declarations would now influence your judgment? Would not the evidence alter your opinion?' Mr. Bott: ' Human nat- ure is very fi*ail. I know that the evidence ought, but it might or might not influence me. I have expressed myself in this manner, perhaps, within a fortnight; and I do not consider myself a proper juryman.' Mr. Burr:' * * ♦ 1 will take Mr. Bott under the belief that he will do me justice.' " 1 Burr's Trial, 426. In State v. Allen, 4G Conn. 531, u juror, having been found to be incompetent by reason of his having expressed an opinion that the defendant was guilty, as charged in the indictment, was excluded. Afterwards, the counsel for the defendant consented to waive the ground of challenge, and asked that he be placed upon the jury. This the court discreetly refused to do, and the Supreme Court held that the offer came too late, Beardsley, J., saying : " He (the juror) would regard himself as well as the accused as on trial, and his verdict would be quite as likely to be shaped by personal considerations and a desire to vindicate himself, as by the evidence and the law in the case." Ibid.^ p. 549. 238 GROUNDS or challenge for cause. [CH. XI. is addressed exclusively to the present condition of the juror's mind," ^ and hence that "it is wholly immaterial what conclusion may have found a lodgment in his mind a mouth or a year before trial, l)ut the sole question for de- termination l)y the judge, who is constituted the trior under our law, is, ' Has the juror a present o})inion or conclusion in his mind that would iutluence his action in finding a ver- dict?' If it does not clearly appear that he has not, he should be rejected ; otherwise, he ought to be adjudged competent. The hiw recoguizes what is mauifcst in our daily experience, to wit, that few minds are inflexible, and that time and information often work serious modifications in our preconceived notions, and hence it limits the inquiiy as stated. A juror who had formed an opinion, but had discarded it before trial, is equally competent in law with one who had never formed any opiuion w^hatsoever." ^ But after an avowal of a positive opinion the juror ought not readily to be permitted to gainsay it at the time of the trial. The Supreme Court of Tennessee held that the bare statement of the juror that, on a former occasion, he had expressed a positive opinion as to the defendant's guilt, but that he now had no opinion, was not enough. "The juror's statement at the trial," said McKinney, J., "that he had no opinion, standing as it does in this record, wholly unexplained, is inconsistent and absurd, if not in- credible. True, his mind may have been disabused of the first impression by subsequent occurrences, in which case his competency might have been restored ; but this ought to have been satisfactorily explained."^ § 222. The Disqualification arising from a Precon- ceived Opinion removed by Statute. — From the foregoing sections it will be seen that the application of the rule, dis- qualifying jurors because of opinions expressed or formed, is frequently a matter of ] great nicety. ^Moreover, the 1 Rothschild v. State, 7 Tex. App. 544: Grissom v. State, 8 Tex. App. 386, 396. 2 Grissom v. State, supra. » Norfleet ▼. State, 4 Sneed, 340, 346. § 222.] BIAS, PREJUDICE, OR OPINION. 239 present cheap, and therefore universal, means of dissem- inating information in regard to crimes of a startling char- acter so fill the reading public with a knowledge of the facts, that to form an opinion in regard to the guilt of accused persons is the almost involuntary operation of intelligent minds. Courts have been frequently driven to the illiterate and hopelessly ignorant portions of the community as min- isters of justice. Again and again the public have been confronted with the striking paradox, that, the more heinous the crime, the less likely the criminal is to be tried by an intelligent jury, and therefore the greater the probability that he will escape punishment.^ 1 See People v. Bodine, Edm. Sel. Cas. 36; s. c, 1 Den, 281. In this case the prisoner was indicted in Kichmond County, New York, for the murder of her brother's wife and his cliild ; for ai-sou of his inliabited dwelling-house; for burglary; and for receiving stolen goods. The heinousness of the various crimes (which were all one transaction) at- tracted universal attention at the time, as well as the varions attempts to procure a trial. The prisoner was tried on one of the indictments for murder, in the countj^ of Kichmond, and the jury, not agreeing, were discharged. Another attempt was made to try her upon the same in- dictment in that county; but this failed, because of the impracticability of procuring a jury. Tlie indictments were then all removed into the Supreme (Jourt, and by that court sent down to the New York circuit to be tried. Being arraigned on the indictment for murder, she was con- Ticted; but the judgment was reversed for errors of the circuit judge in disallowing certain questions to be put to the jurors upon challenges to the favor, with reference to their impressions as to the guilt or innocence of the accused. The Supreme Court, in reversing this judgment, de- clared a rule affording a very wide range of examination as to impres- sions of guilt, etc. The case had bj^ this time achieved a widespread notoriety in the New York circuit. Upon the second trial an extraor- dinary spectacle ensued. Three weeks were consumed In an effort to obtain a jury, and over six thousand jurors were summoned; about four thousand were tried on challenges, and all set aside except ten. Then the counsel for the accused moved the court to suspend the trial and dis- chai-ge the jury as far as procured, and grant them the necessary cer- tificate to lay before the Supreme Court, in order to procure a change of venue. The district attorney did not object, and the court granted tlie motion. The venue was afterwards changed to the county of Orange, where the prisoner was tried and acquitted of the charge of murder. A nolle prosequi was then entered on each of the other indictments, and she was set at liberty. 240 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. This state of affairs is too odious to be of lengthy dura- tion. A revulsion against the prevailing rule has, in some States, found positive expression. In 1872 it was provided by a statute of New York that " the ])revious formation or expression of an opinion or impression, in reference to the circumstances upon which any criminal action at law is based, or in reference to the guilt or innocence of the pris- oner, or a present oj^inion or impression in reference thereto, shall not be a suJQScient ground of challenge for principal cause to any person who is otherwise legally qual- ified to serve as a juror upon the trial of such action ; pro- vided the person proposed as a juror, who may have formed or expressed, or has such opinion or impression as afore- said, shall declare on oath that he verily believes that he can render an impartial verdict, according to the evidence submitted to the jury on such trial, and that such pre- viously formed opinion or impression will not bias or influ- ence his verdict ; and provided the court shall be satisfied that the person so proposed as a juror does not entertain such a present opinion as would influence his verdict as a juror." ^ § 223. Constitutionality of the Tfew York Statute of 1872. — The constitutionality of this statute was unsuccess- fully assailed in the first case where it was brought to the attention of the courts.' The ground upon which it was » Laws N. Y. 1872, ch. 475, p. 1133. The foregoing, it will be noticed, has reference only to the challenge for principal cause on this account. The challenge to the favor remains unaffected by the act. A weak form of this statute was enacted the year following in Michigan (Laws Mich. 1873, Act. 117, p. 162.) It provides that the previous formation or ex- pression of an opinion, not being positive in its character, or not being based upon personal knowledge of the facts in the case, shall not be a sufficient ground of challenge for principal cause, etc.; concluding with the same proviso as in the New York statute. It is difficult to imagme for what reason the Michigan statute was passed. It made no change in the existing law, and has been interpreted as simply declaratory of a previouslj' well-settled rule, Stephens v. People, 38 Mich. 739; Ulrich v. People, 39 Mich. 245. See also Palmer v. People, 4 Neb. 68, 75, con- struing a similar statute of Nebraska. » Stokes V. People, 53 N. Y. 164. § 224,] BIAS, PREJUDICE, OR OPINION. 241 attacked was that it impaired the common hiw and constitu- tional right of an accused person to trial by an impartial jury. The Court of Appeals held that it did not. Gkover, J., clearly pointed out that the impartiality of the individ- ual juror was carefully hedged about by several circum- stances : 1st. The juror's sworn statement that he could lay aside the opinion formed, and render a true verdict according to the evidence ; 2d, the judgment of the court as to the juror's ability to do this;^ 3d, the challenge to the favor, after all. '< While the constitution," said he, *' secures the right of trial by an impartial jury, the mode of procuring and impanelling such jury is regulated by law, either common or statutory, principally the latter ; and it is within the power of the legislature to make, from time to time, such changes in the law as it may deem expedient, taking care to preserve the right of trial by an impartial jury."^ § 224. Construction of this Statute. — In construing the New York statute, the object of the law has (except in a single instance) been kept clearly in view. The statute was designed to be a distinct and radical departure from the rule which has grown up in this country, that a juror who has formed a fixed and settled opinion of the guilt or inno- cence of a prisoner is subject to a challenge for cause, no matter how or upon what the opinion is founded, and re- gardless, too, of the juror's statement, upon oath, that he could decide the case fairly and impartially upon the 1 A statute is unconstitutional wliieli provides tliat a juror shall be ■competent in a criminal case, notwithstandino^ the formation or expres- sion of an opinion as to the ,o-uilt or innocence of tlie accused, who can say upon oatli that upon the law and testimony he can give the accused a fair and impartial trial, the juror's statement being conclusive of his competency. Eason v. State, G Baxter (Tenn.), 466. The mind of the court must be satisfied that the challenged juror is free from bias and prejudice, and not merely that of the juror himself. Morton v. State, 1 Kan. 468; Cooper v. State, 16 Ohio, St. 328, 332; People v. Woods, 29 Cal. 135. But see Thomas v. State, 36 Tex. 315. 2 53 N. Y. 173 To the same effect see Jones v. People, 2 Colo. 351 ; Cooper v. State, 16 Ohio St. 328. (16) 242 GROUNDS OF CHALLENGE FOR CAUSE. [CH. XI. evidence, without bias or prejudice from tlic opinion |)rc- viously formed.' The statute was tirst construed in Thomas v. The People.^ The juror objected to in this case had formed an opinion in reference to the guilt of the accused, whicli opinion would require evidence to remove it. This, it will be seen, was one of the most familiar tests of disqualification under the previous law.^ But as the juror was able to state that he could decide the case upon the evidence, rendering an im- partial verdict, unbiassed by such opinion, the challenge was held to have been correctly overruled. In another case the juror was held to be qualified, although he testified that he had formed and expressed an opinion upon the guilt of the accused, from reading an account of a former trial ; that he would commence the trial with an impression on his mind resulting from that opinion, which might influ- ence his verdict contrary to his intention or expectation, although he thought he could decide the case impartially upon the evidence.*. On the trial of the negro Chastine Cox for the murder of Mrs. Hull, which lately attracted so much attention, a juror was called who testified upon the voii^ dire that he had read of the case in the newspapers, and had formed a decided opinion as to the guilt of the accused, which it would require evidence to remove, and that, if sworn as a juror, he would enter the box with this opinion still existing ; that he gen- erally believed what he read in the newspapers, if it sounded reasonable, until contradicted ; that, if accepted as a juror, he did not think he would permit wdiat he had read to affect his judgment ; that he verily believed he could decide the 1 Balbo V. People, SON. Y. 484, 492. ■^ 67 N. Y. 218. » Ante, § 215. < Phelps V. People, 6 Ilun, 401 ; .s-. c, 72 N. Y. 334. Under a statute of Nebraska, similar to that of New York, a juror was held to have been properly excluded who, after disclaiming that he had formed an opinion, said he thought he could n^nder a fair and impartial verdict, but added, " I might possibly lean a little the other way." Curry v. State, 4 Neb. 545. § 224.] BIAS, PREJUDICE, OR OPINION. 243 case according to the evidence produced in court, and upon that alone ; that his opinion was dependent upon the truth of what he had read ; that he did not know whether the ac- count was true or not ; that there was nothing to keep the opinion in his mind wlien the trial had begun and evidence had been introduced ; that, from the statements in the news- papers he believed, in a general way, that the prisoner was guilty. Upon a challenge to the favor this juror was held to be competent.^ The liberal construction of this statute received a check in Greenfield v. The People.'^ In this case, the Court of Appeals, reversing the decision of the Supreme Court,^ held that one who has formed an opinion or impression from the reading of the report, partial or complete, of the criminatory testimony against a prisoner on a former trial, however strong his belief and purpose that he will decide the case on the evidence to be adduced before him as a juror, and will give an impartial verdict thereon, cannot be readily received as a juror, indifferent towards the prisoner and wholly uncommitted.^ In a later case, however, where the court considered a challenge under this statute,* Greenfield v. People^ was unsatisfactorily distinguished, and it is safe to say that its authority is in some degree qualified. This was an indict- ment for murder. A juror testified that, at the time of the homicide, he had read an account of it m the newspapers, which account, he thought, was tlie testimony taken before the coroner. From this he thought his present opinion in 1 Coxv. People, 19 Hun, 430; s. c, affirmed, 80 N. Y, 500. See also Muuke V. People, 17 Hun, 410; Balbo v. People, 19 Hun, 424; s. c, af- tirmed,80 N. Y. 484; Pender v. People, 18 Hun, 560. 2 74 X. Y. 227. 3 13 Hun, 242. •• See in connection with this case Carroll v. State, 5 Xeb. 32; Smith V. State, 5 Neb. 181 ; Rice v. State, 1 Yerg. 432 ; MaGuffie v. State, 17 Ga. 497; Rollins v. Ames, 2 N. H. 349; Clore's Case, 8 Gratt. 606, 619; Ste- phens V. People, 38 Mich. 739. 5 Balbo V, People, 19 Hun, 424; s. c, 80 N. Y. 484. « 74 X. Y. 227. ^44 GROUNDS or CHALLENGE FOR CAUSE. [CH. XI. regard to tlic guilt of the accused was formed. That opin- ion he stated, in answer to a leading question, to be " posi- tive, clearly marked," and still retained. To the question whether it would require "strong" evidence to remove that opinion, he answered that it would. In another i)art of his testimony, however, he said that he would believe a newspaper contradiction of what he had read as readily as he did the original account ; that he made little distinction between an impression and an opinion, and did not know that he had anything more than an impression in the mat- ter : that while he might have this opinion in his mind, he did not believe it would bias or influence him upon the con- sideration of evidence in the case, to which he would give full weight and effect. The juror was held to be compe- tent.^ ' 111 the Supreme Court it was admitted that several statements of the juror, if detached and considered by themselves, would bring the case within Greenfield V. People, s?iscretion and Final. — The decision of the triors as to the compe- tency of a juror is according to their " discretion and con- science," ^ and is conclusive.^ Thei'ofore, although it is true that upon a challenge for principal cause, certain impressions, hypothetical opinions, etc., entertained by the juror are not sufficient in law to exclude him, 3'et, upon a challenge to the favor, the triors may properly infer a bias in the mind of the juror from such circumstances, and it is 1 People V. Devvick, 2 Parker Cr. 11. 230. See also Solander v. People, 2 Colo. 48, 58. 2 Freeman v. People, 4 Denio, &, 35; People v. Iloneynian. 3 Denio, 121 ; Smith v. Floyd, 18 Barb. 522. 3 Costigan v. Cuyler, 21 X. Y. 134. * Sehora v. Williams, 6 Jones, L. 575; People v. Cotta, 49 Cal. 16G. 5 Co. Litt. 156. a. « People V. Dewick, 2 Parker Cr. R. 230; State v. Benton, 2 Dev. & B. 19G; State v. Ellington, 7 Ired. L. 61; State v. Dove, 10 Ired. L. 469; Er § 239.] COURT AS A SUBSTITUTE FOR TRIORS. 251 error for the court to instruct them in terms showing their effect as a principal cause of challenge.^ § 238. The Court as a Substitute for Triors. — If neither party asks for triors to settle the issue of fact, but, on the contrary, their evidence is submitted to the judge, they can not afterwards object to his competency to decide the issue. ^ In such cases the determination of the court upon the question of fact thus submitted can not be ex- cepted to and is final. It stands in that respect upon the same footing as if it had been made l)y triors, and cannot be reviewed upon error. ^ In the opinion of some courts, it follows that w'hen, by statute, the court is substituted for the triors, its finding is also conclusive.* § 239. Disagreement of Triors. — When triors disagree, the juror is still liable to be challenged. Although a juror is prima facie to be regarded as competent, and although in a case of disagreement the party interposing the chal- lenge has not fully sustained it, it will l)e seen that he has not altogether failed. Under such circumstances, it would be improper to accept or reject the juror. In such a case, there must be another trial, and the court, in the absence of a statute providing for such a contingency, may direct the challenge to be determined by some mode approxi- parte Vermilyea, 6 Cow. 559; Freeman v. People, 4 Den. 33; Schoeflfler V. State, 3 Wis. 82S. 1 Freeman v. People, 4 Den. 9, 35; People v. Honeyman, 3 Den. 121 ; Smith V. Floyd, IS Barb. 522. See also People v. McMahon, 2 Parker Cr. E. 663; People v. Stout, 4 Park. Cr. R. 109; Ex, parte Vermilyea. 6 Cow. 555. 557. - Ex parte Vermilyea, 6 Cow. 555; People v. Mather, 4 Wend. 229. 240; People v. Eathbun,21 Wend. 509; O^Brien v. People, 36 N. Y. 276; Stout V. People, 4 Parker Cr. R. 132; People .v. Doe, 1 Mich. 451; Wirehach v. First Nat. Bank, 12 Reporter, 571. 3 Stout V. People, 4 Parker Cr. R. 132; Sanchez v. The People, 22 X. Y. 147; People v. Bodine. 1 Denio, 281, 309; State v. Wincroft, 76 N. C. 38; Dew v. MeDivitt, 17 Am. L. Reg. 623; s. c, 31 Ohio St. 139; Morrison v. Lovejoy, Minn. 319; People v. Tweed, 11 Hun, 195; United States v. McHenry, 6 Blatch. .503; Union Gold M. Co. v. Rocky Mountain Nat. Bank, 2 Colo. 565; Stewart v. State, 13 Ark. 720; Milan V. State, 24 Ark. 346; Costly v. State, 19 Ga. 614. * Post, § 250. 252 TRIAL OF CHALLENGES. [CH. XII. mating to that ordinarily adopted. 'JMuis, the tirst and sec- oiid jurors having failed to decide the challenge, the third and fourth jurors, or two unexceptionable l)ystanders, may be selected for this purpose.^ P>ut in the view of other courts, where the triors cannot agree, the challenge is not made out, and the juror must be sworn. - § 240. Burden of Proof. — One called as a juror is pre- sumed to be qualified and impartial until the contrary is shown. The burden of proving the challenge clearly rests upon the party making it.^ In the language of a distin- guished judge, " he docs not relieve himself of that burden until he has made out 'a prima facie case, or, in criminal cases, such a case, at the least, as leaves the juror's impar- tiality in reasonable doubt. It is not sufficient for him to l)rove facts, from which vague inferences of bias or favor can be drawn, and then demand that his adversary shall be concluded, unless he rebuts those inferences by counter- vailing testimony." •* § 241. Exainiiiation of the Juror upon the Voir Dire. — It is a general rule that the juror challenged may be sworn as a witness to state or explain any facts which do not im- peach his character or motives.^ The rule was laid do.ui in an early Ohio case, that the party challenging a juror, "on suspicion of bias or partiality," might examine the juror or call witnesses, but he could not do both.'' This 1 People v.Dewick, 2 Piirker Cr. R. 230. See also People v. Bodine Edm. Sel. Cas. 38, 39. 2 United States v. Watkins, 3 Cranch C. C. 443,579; Com. v. Fitz- patrick, 3 Clark (Penn.), 520. 3 Reynolds v. United States, 98 U. S. 145, 157; Holt v. People, 13 Mich. 224. * Holtv. People, 13 Mich. 224. 228, per Cooley, J. 8 1 Chitty Cr. L. 550; O^den v. Parks, IG Johns. 180; Fenwick v. Parker, 3 Code Rep. 254; People v. Fuller, 2 Parker Cr. R. IG. In one case the court refused to allow a challenged juror to be sworn upon the voir dire, for the purpose of allowing him to state to the triors what was the fact as to a declaration of bias alleged to have been made by him. Joice v. Alexander, 1 Cranch C. C. 528. But this decision was hastily made at nisi priua, and is probably incorrect. 6 State V. Ankrim, Tappan, 80. § 241.] EXAMINATION UPON THE VOIR DIRE. 253 practice seems never to have become general, and the con- trary is now quite uniformly declared by statute. The juror's incompetency may be proved, both by his own ex- amination upon the voir' cUi^e, and by testimony of wit- nesses. In Connecticut, it has never l>een the practice to examine the juror upon oath as to grounds of challenge. Jurors arc nevertheless questioned, and their statements taken, without the sanction of an oath, to determine their competency. No good reason would seem to exist why a juror should not be sworn upon the voir dire, and examined within reasonable limits as to his competency. The absurdity of subjecting a person to an examination where his answers can not be compelled, and, when voluntarily given, maybe falsely made with impunity in a matter of the gravest concern, is becom- ing apparent to the courts of that State. Therefore, within a very recent period, on motion of the accused, in a few capital trials, it has been permitted to examine the juror under oath. This practice will probably soon become gen- eral. In a late case, the Supreme Court of that State say : " We think the matter may safely be left to the discretion of the court. It would doubtless be granted upon request in all cases of very grave importance." ^ The juror, upon this examination, like any other witness in a judicial investigation, makes his answers subject to an indictment for perjury.'^ He is not concluded by his testi- mony as once given. Having discovered an error, the court may permit a correction upon a re-examination.^ After a challenge has been made to a juror, there can be no reason for examining him on the voir dire, if he admits all that is alleged in the challenge.* So, whenever a good cause of challenge is interposed by one party and admitted by the other, there is nothing to try, and the juror must stand aside. ^ The court may conduct the examination of the 1 State V. Hoyt, 47 Conn. 518. 2 State V. Howard, 63 Ind. 502. ^ Hendrick v. Com., 5 Leigh, 708. * Morrison v. Lovejoy, 6 Minn. 319. ^ State V. Lautenschlager, 22 Minn. 514. 254 TRIAL OF CHALLENGES. [CH. XII. juror upon the voir dire for its own information.^ An ex- ception taken to the refusal of the court to permit a certain question to be put to a juror upon the voir dire, may be waived by counsel omitting again to insist upon the excep- tion when the court propounds a substitute. - § 242. A Challenge precedes £xaiiiiiiation. — A party has no right to examine the juror by way of iishing for some ground of exception.^ A challenge must be first made, some specific ground assigned, and that cause denied on the other side, before evidence can be heard ; for, until that is done, there is no issue for the decision of the triors or the court.* But this rule was denied and strongly condemned in an early California case. The court stated that it was usual everywhere to ask the juror whether he has formed or expressed an opinion as to the guilt or innocence of the ac- cused ; that before being compelled to challenge, the latter should be allowed to ascertain whether there was any fact from which the presumption of bias or prejudice could arise, and to do this it was right to permit the foregoing questions to be asked, which fact having been ascertained, the challenge would properly follow\ ^ 1 State V. Ludwig, 70 Mo. 412. But where the judge takes up the ex- amination of a juror after it has been concluded by one party, he cannot deprive such party of the privilege of re-examination of such juror, on the theory that the challenge has been submitted to the court for de- cision, although the other party refrain from putting any questions whatever. Stephens v. The People, 38 Mich. 739. 2 LoetHer v. Keokuk Packet Co.. 7 Mo. App. 185. 3 Reg. V. Dowling, 3 Cox C. C.509; Bales v. State, 63 Ala. 30, 38. * 1 Chitty C. L. 546; State v. ('reasman, 10 Ired. L. 395, per Ruffin, C. J.; United States v. Johnson, 1 Cranch C. C. 371; Matilda v. Mason, 2 Cranch C. C. 343; Lord v. Brown, 5 Den. 345; Trullinger v. Webb, 3 Ind. 198; Powers v. Presgroves, 38 Miss. 227; Reg. v. Stewart, 1 Cox C. C. 174; Com. v. Thrasher, 11 Gray, 55; State v. Flower, Walker (Miss.) 319; King v. State, 5 How. (Miss) 730; State v. Zellers, 7 N. J. L. 220; and note by the reporter, Ibid. 223. In some States a motion or re- quest of a party that the juror be put to answer is understood to be in itself a challenge. Howell v. Howell, 59 Ga. 145; Temple v. Sumner, Smith (N. H.) 226, 232. 5 People V. Backus. 5 Cal. 275, 277. § 243.] PROVINCE OF COURT UPON EXAMINATION. 255 Whatever may be said for or against the rule, there can be no doubt that the trial judge may, in his discretion, per- sonally examine a juror otherwise than upon oath, and if he finds reasonable grounds for challenge, he may excuse the juror, although no challenge has been made.^ Or he may, in his discretion, allow either party to interrogate a juror without first interposing a challenge ; and this, so far as we know, is the general practice of the courts. - The parties may also consent that the examination of the juror in support of the challenge shall not be under oath. And if a party stands by and permits an examina- tion to be so conducted, his consent will be implied.^ § 243. Province of Court upon Examination. — The right of examination of the juror is not to be exercised without restraint, either as to time or mode. The court must be vested with considerable discretion in determining the character of the questions to be proposed and the limits of the examination. The questions must be pertinent, and from their nature calculated to show that the person of- fered is not suflicicntly free from bias to sit as an impartial juror.* But, within reasonable limits, each party has a right to put pertinent questions to show, not only that thei-e exist proper grounds for a challenge for cause, but to elicit facts to enable him to decide whether or not he will make a peremptory challenge.^ The duties of the trial judge upon the examination of jurors are so well set out by Winkler, J., of the Texas Court of Appeals, in a late case,^ that we deem it proper to present his remarks at length : " We think," said he, " it may be safely said that the judge should either himself 1 United States v. Cornell, 2 Mason, 91. ' State V. Lautenschlager, 22 Minn. 514; Carnal v. People, 1 Park Cr. R. 272, 282. 3 Lord V. Brown, 5 Den. 345, 348; Carnal v. People, 1 Park. Cr. R. 272, 282; TruUiuger v. Webb, 3 Ind. 198. But see State v. Flower, Walker (Miss.) 318; King v. State, 5 How. (Miss.) 730. * State V. Coleman, 8 So. Car. 237; Reg. v. Lacey, 3 Cox C. C. 517. « Watson V. Whitney, 23 Cal. 375; State v. (iodfrey, Brayt. (Vt.) 170. « Stagner v. State, 9 Tex. App. 440. 250 THIAL OF CHALLENGES. [CIl. XII. conduct the cxtiiiHiialioii, or at least so far conduct it as to continc it to the point under investigation, and not permit it to take so wide a range as to entrap tlie unwary juror into letting fall sonic expression not seriously and understand- iugly made, and from which it may afterwards be argued that he was not an imi)artial juror in the case. The juror should be treated with the utmost fairness in the examina- tion, and not be subjected to the rigid cross-questioning sometimes indulged in in cross-examining a witness who is testifying in a case. The attitude of the juror and that of a witness are entirely dissimilar, and they should be treated en- tirely differently. Whilst it may become necessary to deal with seeming harshness wnth a refractory witness, it can never be necessary to so deal with a juror, who is called upon to decide impartially betw^een the State and the de- fendant in matters involving the liberty, it may be the life, of a citizen, unless, indeed, he should manifest an unwil- lingness to disclose what his real feelings or opinions arc ; and this the judge should guard with great particularity. One who is too refractory or silly to answer a respectful question in a respectful manner is generally unfit for the performance of this important part of the administration of the law." ^ § 244. Jurors to be exainiiied singly. — This was the practice at common law% and certainly ought to prevail under the statutes, unless something therein authorizes the contrary practice."^ As stated by the Supreme Court of Georgia in a late case,^ "Jurors are to be driven upon the prisoner in single file, and not in platoons. He is not to be confused by looking upon a multitude of faces at once, but is allowed to scan each countenance separately. He is not to be thrown into alarm by too strong an exhibition of force. He takes his jurors one by one and wrestles Avith them single handed." * i/WcZ. p. 451. 2 1 Chit. Cr. L. 547 ; Arch. Cr. PI. & Pr. 162. 8 Williams v. State, 60 Ga. 367. * Ibid., p. 372. See also Driskell v. Parish (U. S. Cir. Ct. Dist. Oliio, 1847), 10 Law Reporter, 395. § 245.] QUESTIONS TENDING TO DEGRADE THE JUROR. 257 § 245. Questions tending to degrade the Juror. — (1.) The General Hide. — A juror cannot be asked any questions tending to his disgrace, for the purpose of showing him to be an unfit person to sit as a juror. As stated by the court in an old case, "You shall not ask a witness or juryman whether he hath been whipped for larceny, or convict of felony ; or whether he was ever committed to Bridewell for a pilferer, or to Newgate for clipping and coining ; or whether he is a villain or outlawed, because that would make a man discover that of himself which tends to shame, crime, infamy or misdemean(n'." ^ (2.) Questions as to Expression of Opinion that the Ac- cused is Guilty. — Upon the same principle, it was earl}^ held that, because it showed gross misbehavior, a juror could not be asked whether he had expressed a belief that the accused was guilty, would be hanged, or the like. Thus, upon the trial of Peter Cook for treason, during the reign of William III., the prisoner put the question to one of the jurors : " Sir, have you ever said any such thing, that you ' Anon., 1 Salk. 153. See also Farmers' Bank v. Smith, 19 Johns. 115; Hudson v. State, 1 Blackf. 317. It has been held that a juror cannot be asked whether he has subscribed money towards carrying on the prose- cution in a criminal case. Reg. v. Fitzpatrick, Craw. & Dix (Irish), 513. If the juror chooses to answer questions tending to his disgrace, it is only a waiver of his privilege of refusal, and gives the prisoner no cause to complain. Sprouce v. Com., 2 Va. Cas. 375. For the purpose of showing a juror to be disqualified under § 820 (since repealed, ante^ § 49) of the Revised Statutes of the United States, he could not be asked whether or not he had aided or abetted the late rebellion against the United States. Upon this point Mr. Justice Miller said in a recent case : '•The question asked him, if answered in the affirmative, would have admitted his guilt of the crime of treason. Whether pardoned by a general amnesty, or not pardoned, we think the crime was one which he could not be required to disclose in this manner." Burt V. Panjaud, 99 U. S. 180. See in this connection United States v, Reynolds, 1 Utah, 31*^ The juror might refuse to take the test oatii prescribed by § 821 of ibe "Hevised Statutes, designed to purge the panel of such jurors as voluntarily engaged in the late rebellion. Atwood v. Weems, 99 U. S. 183. It could not be tendered to the panel at the in- stance of one of the parties to a civil suit. If tendered at all, it was by the district attorney, or his representative. Ibid. See also upon this point, United States v. Blodgett, 35 Ga. 336. (17) 258 TRIAL OF CHALLENGES. [CII. XII. believe me i^uilty?" The court refused to allow the ques- tion to be put, the Lord Chief Justice observing: " I take it to be at least a scandalous misbehaviour, and deservedly ill spoken of, for any man to prejudge, especially in such a heinous matter. I think it is a very shameful discovery of a man's weakness and rashness, if not malice, to judge before he hears the cause, and before the party that is ac- cused could be tried. But it seems, by what the prisoner s:iys, that he would ask all the jurors, whether they have not said that he wns guilt}^ or that they would find him guilty, or that he should be hanged, or the like ; which (presuming him innocent) is to ask, whether they have not defamed and slandered him in the highest degree ; and to force them to discover that they have a mortal hatred to liim, and come with a malicious resolution to convict him ; which, admitting they are not punishable by our law, yet are things so detestably wicked and so scandalous, as are not tit to be required to be disclosed by and against them- selves." ^ Lord Tenterden cited this decision with approval in the leading case of Rex v. Edmunds ; •^ but, in this connection, he shows why an expression of opinion as to the guilt of an accused person was held in such detestation at common law. " The ancient authorities show," said he, " that expressions used by a juryman are not a cause of challenge, unless they are to be referred to something of personal ill-will towards the party challenging." ^ And then he added : " To be sure, it is a very dishonorable thing for a man to express ill-will towards a person accused of a crime, in regard to the mat- ter of his accusation." The law, as declared in these cases, is reiterated in two Irish nisi prius cases,^ and in a few cases in this country.* 'ISHow. St. Tr. 334. 1=4 Barn. & Aid., 471, 492. 3 See also 2 Hawk. P. C, ch. 43, § 28. * Rex V. Kirwan, cited in Finlaj^'s Irish Dig., p. 347; Reg. v. Hughes, 2 Craw. & Dix. Irish Cir., 396. estate v. Baldwin, 1 Const. Rep. (S. C.) 289, 293; State v. Sims, 2 Bailey (S. C), 29; State v. Spencer, 21 N. J. L. 197; State v. Fox, 2.5 N. J. L 566. § 245.] QUESTIONS TENDING TO DEGRADE THE JUROR. 259 But this rule properly has no application to this country ; because with us it is the law that not only expressions of opinion showing ill-will, but any and all expressions of decided opinion, made without any motive whatever, are causes of challenge.^ To express a candid judgment, after hearing a revelation of the facts in a civil or criminal case, is neither "dishonorable," "disgraceful," nor in the least degree "disreputable," although some judges have so stated the fact.^ From what we have seen, it is apparent that this was not what the common law coademned ; therefore, an expres- sion of belief, without the ingredient of personal ill-will, deserves no reprobation whatever, never disgraces a juror, and hence he may be interrogated upon this point. '^ This view of the law early prevailed in well considered cases. Thus, in the second trial of Fries for treason against the United States, Mr. Justice Chase permitted the ques- tion to be asked : ' ' Have you ever formed or delivered an opinion as to the guilt or innocence of the prisoner, or that he ought to be punished?" No opposition seems to have been made to the question.* There was no suggestion that the character of the question was such that an affirmative answer would disgrace the juror. Nor do we find any sim- ilar suggestion in the subsequent trial of Callender, indicted for the publication of a seditious libel, where the same learned judge permitted the question to be put: "Have you ever formed and delivered an opinion upon the charges contained in the indictment ? " ^ And since the trial of Aaron Burr, where Chief Justice Marshall allowed this question to be put repeatedly, the right to examine a juror upon this point seems to have been seldom doubted, and is now the settled practice. In England, even, we find in one modern case the juror questioned by the counsel for the de- fendant, without opposition, as to whether he had ever ex- pressed an opinion upon the guilt of the accused.® 1 Ante^ § 211 et seq. 2Colcock, C. J., in State v. Baldwin, 1 Const. Rep. (S. C) 289, 293. ' People V. Vermilyea, 7 Cow. 108, 125. * Whart. St. Tr. 610, 614. « Whart. St. Tr. 688, 696. 6 See Reg. v. Lacey, 3 Cox C. C. 517. 260 TRIAL OF CHALLENGES. [CH. XII. (3.) Qiies(io7is as to ExpreHsiouH of Opinion on the Merits in Civil Cases. — The common hiw pcniiitted lim- ited inquiries of persons as to expressions of opinion in civil cases ; for, according to that law, the juror might have ex- pressed a disqualifying opinion upon a i)erfectly proper oc- casion, for example, as an arbitrator between the parties.^ And this was the reason assigned by ISavage, C. J., on one occasion, implying that a candid expression of private opinion was not i)ropcr under all circumstances, although disqualifying the person for subsequent service as a juror in the case.- However, the practice is now thoroughly settled in civil suits, to ask the jurors upon their oath whether they have not formed or expressed any opinion in the case.^ (4.) Questions as to Conscientious /Scruples. — In a pe- tition for freedom, the court refused to allow a juror to be examined on oath as to his religious opinions, — whether he were a Methodist, and whether the Methodists had re- ligious scruples affecting their opinions as to the legality of slavery.^ The grounds of this decision were not stated, nor are they clear. The reasoning employed by the court in another case, and upon another subject of challenge, would seem to be equally applicable to both. The juror was asked whether he could, in his conscience, find any man guilty of an offense which would subject him to the punishment of death. "The question asked the juror in this case," said Stevens, J., " has nothing to do Avith the guilt or innocence of the prisoner, nor is it respecting any improper act or conduct of the juror, nor could it tend to either his disgrace or dishonor. It was a general question 1 Anon., 1 Salk. WA. * Pringlev. Huse, 1 Cow. 432. Spear v. Spencer, 1 G. Greene, 535. See also Dew v. McDivitt, 31 Ohio St. 139; s. c, 17 Am. L. Reg. 621; Williams y. Godfrey, 1 Heisk. 299. * Reason V. Bridges, 1 Cranch C. C. 477. § 245.] QUESTIONS TENDING TO DEGRADE THE JUROR. 261 upon an abstract principle, and therefore, under the cir- cumstances of the case, might be properly asked." ^ (5.) Questions as to Political, Religious or Race Preju- dice — Know-Nothings — Catholics — Negroes — Chinamen. — In a case in which certain foreigners were indicted for an assault with intent to kill, a juror, suspected of being a mem- ber of the Know-Nothing organization, was asked, " Have you, at any time, taken an oath, or other obligation of such a character that it has caused a prejudice in your mind against foreigners?" This, and other questions of similar import, were not allowed to be put, but erroneously, as it was held on appeal. The only point discussed, however, was as to the pertinency of the question as showing the unfit- ness of the juror. Upon this point the court very properly held, that one who had taken oaths, or was under obliga- tions which influenced his mind and feelings in such a manner as to deny to a foreigner an impartial trial, was grossly unfit to sit as a juror, and such facts should be known. ^ But upon the trial of certain persons for engaging in a riot between Roman Catholics and native Americans, it was held that a juror could not refuse to answer the fol- lowing questions, on the ground that it would disgrace him : " Have you any bias or prejudice against Roman Catho lies?" "Do you belong to the Order of United Ameri cans ? " ^ On the other hand, it was held by a court of the highest authority, that, upon the trial of certain persons for par ticipating in the destruction of a convent by mob violence (many of the witnesses being Roman Catholics), a juror could not be asked whether he entertained the opinion that a Roman Catholic was not to be believed upon oath ; 1 Jones V. State, 2 Blackf. -475,478. See also Driskell v. Parish, 10 Law Reporter, 395. 2 People V. Reyes, 5 Cal. 347. In one case it was lield not improper to allow the prosecuting officer to inquire of one presented as a juror in a case of counterfeiting, whether lie had taken an oath to acquit all per- sons of counterfeiting; but that the juror might properly decline to an- swer. Fletcher v. State, 6 Humph. 249. 3 People V. Christie, 2 Abb. Pr. 256; s. c. 2 Park. Cr. R. 579. 262 TRIAL OF CHALLENGES. [CH. XII. nor, whether the destruction of the building, under the cir- cumstances, constituted a crime ; nor, whether such an of- fense ought to be punished by hiw, or in the measure pre- scribed by hiw for other offenses of the same kind.^ Upon the trial of a white man for the murder of a negro, the trial judge, against the objection of the ac- cused, allowed the State's attorney to ask the jurors "if they could, upon the same evidence, return the same verdict against a white man for killing a negro as for killing another white man." This was held to be a proper ({uestion for the purpose of enabling the court to sat- isfy itself that the jurors were free from disqualifying bias or prejudice.^ In California, upon the trial of a Chi- naman for a criminal offense, the following questions may be asked of a juror: "Other things being equal, would you take the word of a Chinaman as soon as 3^ou would that of a white man?" "If the defendant, a Chinaman, should be sworn as a witness in his own behalf, w'ould you give his testimony the same credit that you would give to the story told by a white person under the same circum- stances?" ^ 1 Com. V. Buzzell, IG Pick. 153. * Lester v. State, 2 Tex. App. 432. It was argued by the counsel in iiis brief before the appellate court that " appellant is a white man and a democrat; the deceased was a negro, and, of course, a republican. On account of the test to the jury, no juror was permitted to try the case until he had, in effect, taken an oath that he regarded a negro as highly as he did a white man. By this means, jurors of the political belief of appellant were excluded, although thoroughly and legally competent to try the case; and appellant was tried by his political enemies, with the question of race fairly raised and at issue." This argument was thoroughly answered by White, J. '' We cannot," said he, " express too forcibly our condemnation of such arguments and appeals to political passions and I)rejudices. The very fact that they are made i>roves the necessity of guarding against them in the execution of the law. * * * u there be, as the argument indicates, in the country, men who feel and believe, morally, sociall}', politically, or religiously, that it is not murder for a white man to take the life of a negro with malice aforethought, then wo unhesitatingly say such men are not fit jurors, in contemplation of law, to try a white man for such a crime." Ibid., p. 442. See also State v. McAfee, 64 X. C. 339. 3 People V. Gar Soy (Sup. Ct. Cal., Dec. 1880), 23 Alb. L. J. 418. See in this connection, ante, § 19G. § 246.] FORM OF QUESTION. 268 (6.) Questions as to Prejudice against an Unlawful Business. — Upon the trial of one charged with being en- gaged in an illegal calling, a juror cannot be asked upon the voir dire, whether he would give less credit to the testi- mony of one proved to be engaged in such calling, than to that of other persons. " The occupation of a person," said Benedict, J,, " may always be shown as bearing upon his credibility. A person is not shown to be incompetent to sit as a juror upon the trial of a thief by showing that he would sive less credit to a thief than to one engaged in an honest calling." ^ § 246. Form of Question. — The court should regulate the form of the questions. Those framed hypothetically should be rejected."^ Nor should they be unnecessarily pro- lix. Thus, upon a trial for murder, the question "have you formed and expressed the opinion that the prisoner is guilty," refers to every grade of unlawful homicide,^ and obviates the necessity of specially interrogating the juror as to whether he has formed or expressed the opinion that the prisoner is " guilty of either murder or manslaughter." * And as stated by Chief Justice Marshall upon one occasion,* the question put in the case of Callender, who was indicted for the publication of a seditious libel : "^ '' Have you made up and delivered the opinion that the prisoner is guilty or innocent of the charo-e laid in the indictment?" means in 1 United Stotes v. Ddff (U. S. Cir. Ct., S. D. New York, January. 1881), 6 Fed. Eep. -15, 48. See in this connection, ante, §§ 193, 195. 2 State V. Arnold, 12 Iowa, 479; State v. Davis, 14 Nev. 439; State v. Leicht, 17 Iowa, 28; State v. Ward, 14 La. An. 673; State v. Bennett, 14 La. An. 651; State v. Bell, 15 La. An. 114. But see Chicago, etc. R. Co. V. Adler, 56 111. 344; Chicago, etc. R. Co. v. Buttolf, 66 111. 347; Galena, etc. R. Co. v. Haslam, 73 111. 494; Richmond v. Roberts, 98 111. 472. In these cases it was held that the representative of the railroad company had a right to ask jurors this question : "If, upon hearing the testimony, they should fliid it evenly balanced, which way they would be inclined to decide the case?" 3 State V. Benton, 2 Dev. & B. 196. * State V. Matthews, SO N. C. 417. 5 Trial of Aaron Burr, Vol. I., p. 418. «See Whart. St. Tr.,p. 688. ^64 TRIAL OF CHALLENGES. [CH. XII. substance, " Have you made up and delivered the opinion that the prisoner has been uuilty of publishin^ij a false, wicked and malicious libel, which subjects him to punish- ment under the act of Congress on which he is indicted ? ' ' § 247. Range of Examination. — (1.) For Statutory Causes of VJiallenge. — Where a statute prescribes certain questions to be asked of jurors as a test of their compe- tency, it has been held that the counsel cannot, after these (questions have been put and answered, demand as a right, that other questions shall be put for this purpose. "The whole matter relative to the examination of jurors, beyond the provisions of the statute, is one that must be left to the sound judgment and judicial discretion of the presiding judge. This applies not only to the propounding of further questions to the jurors, but also to the manner of putting them." ' This rule was subsequently stated with a marked qualification by Merrick, J., of the same court: "Our courts," said he, "have always considered that it was not only a right, but a duty, to go bej'^ond the questions pre- scribed by the statute, whenever a proper occasion for the •exercise of the power should occur. In such an exigency the proposed juror may be subjected to a further examina- tion, and upon other and different topics ; or his fitness and impartiality may be ascertained upon a consideration of such evidence as may be adduced respecting it. But this power will not be exercised unless some good and sufficient reason is assigned for its exercise." ^ Where a statute provides that, if a juror shall answer in 1 Com. V. Get", G Ciisli. 174, 177, per Dewey, J. 'Com. V. Thrasher. 11 Gray, 55, 56; Pierce v. State, 13 N. H. 536; -Tones v. iState, 2 Bhickf. 475, 478. Contra, Williams v. State, 3 Ga. 453, where Lumpkin. .J., deliverini^ the opinion of the court, held it to be improper to ask any other questions of a juror than those autliorizcd by statute, witli a view to ascertaiuiiii^ whether he is objectionable for favor. See also. King v. State, 21 Ga. 220; Pines v. State, 21 Ga. 227; Monday v. State. 32 Ga. 672; Bisliop v. State. 1) Ga. 121 ; Dumas v. State, ()3 Ga. 600. Compare State v. Wilson, 7 Iowa, 407. The statutory form of questions ma}^ be varied, in order to make their import clear to the uror. Mitchell v. State, 22 Ga. 211 ; Henry v. State, 33 Ga. 441 ; Carte V. State, 56 Ga. 463. ^ 247.] RANGE OF EXAMINATION. 265 the affirmative, that there is established in his mind such a conclusion as to the guilt or innocence of the defendant, as will influence him in his action in finding a verdict, " Ae shall he discharged,'' — this injunction is imperative. Hav- ing so answered, no further examination is permissible to contradict or explain the previous assertion,^ In a late case, decided by the Texas Court of Appeals,* an indictment for horse-stealing, the jurors were asked upon the voir dire whether they had any bias or prejudice against the injured parties. The court seemed to regard the statutory causes of challenge as exclusive of all others, ^md therefore held that inquiries, directed to other causes of favor towards the injured party, must be irrelevant. It is settled, however, by a considerable number of decided cases in this State, that the causes of challenge enumerated in the statutes are not exclusive of all others.'^ The inquiry proposed in this case would seem to have been proper.^ (2.) Upon a CliaUenge to tlie Favor. — Upon a challenge to the favor considerable latitude must be allowed in the form of questions to test the indifference of the juror. Upon such challenges the triors find a conclusion of fact, and therefore no certain rules can be laid down, as in the case of principal challenges, in which the court declares a conclusion of law. Thus, the juror may be asked whether he ever thought the accused was guilt}^ of the crime in ques- tion, and the challenging party is not restricted to the form ^'had you an ojnnion,'' instead of "have you ever thought?" ■' And so, upon such a challenge, a juror may be asked whether what he has read or heard has made any impression on his mind as to the guilt or innocence of the Accused. " But the court was careful to add in the case 1 Staguer v. State, 9 Tex. App. 440. 2 Jones V. State, 8 Tex. App. 648. sLyles V. State, 41 172; Lester v. State, 2 Tex App. 433; Williams V. State, 44 Tex. 34; Caldwell v. State. 41 Tex. 86; Etlieiidge v. State, ■8 Tex App. 133. * Hanks v. State, 21 Tex. 526. * People V. Bodine, Edm. Sel. Cas. 36. 77; s. c, 1 Den. 281. ^ People V. Bodine, supra. Although the juror answers in the aftirnia- 266 TRIAL OF CHALLENGES. [CH. XII. cited, that " it must, of course, be understood that no opin- ion is intended to be expressed or even intimated, as to the sufficiency of any of the various grounds of challenge to the favor, which have been mentioned. That is for the triors alone to pass upon." ^ It is competent to prove that the juror challenged and the opposite party are upon terms of great intimacy ; that they are members of the same society, partners in business, or the like. "Indeed," said Beardsley, .1., "any and every fact or circumstance, from which bias, partiality, or prejudice may justly be inferred (although very weak in degree) is admissible on this issue ; and the inquiry should by no means ])e restricted to the isolated question of a fixed and absolute opinion as to the guilt or innocence of the prisoner."^ The inquiry is not limited to the state of the juror's mind before coming into court. If anything has occurred in court, which tends to his disqualification, this maybe shown. ^ § 248. Irrelevant Questions. — Jurors cannot be interro- gated as to whether they believe in a future state of re- wards and punishments ; * nor, whether they have formed or expressed an opinion as to the credibility of a witness, whose testimony is to be relied upon in su])port of the in- dictment, who testified in another case before them, where his credibility was impeached.'* Where the issue to be tried, under an indictment for murder, is on the special plea of a former acquittal, the juror cannot be asked tive, the triors are not obliged to reject liim, if they are satisfied that, notwithstanding such impressions, he can impartially hear the evidence and decide the case in accordance therewith. " Tlie influence and effect of what is proved, and how far it may have affected the mind of the juror, the good sense of tlie triors must determine." People v. Honeyman, 3 Den. 121, 124. 1 See also Freeman v. People, 4 Denio, 0, 35 ; People v. Honeyman, 3 Denio, 121 ; Smith v. Floyd, 18 Barb. 522. 2 People V. Bodine, Edm. Sel. Cas. 36, 78. ' Thompson v. People, 3 Park. Cr. 11. 4G7. State V. Hamilton, 27 La. An. 450. * Com. V. Porter, 4 Gray, 423. ^ 250.] REMEDY FOR DISALLOWANCE OF CHALLENGE. 267 whether he has formed or expressed an opinion as to the jruilt or innocence of the accused as charo;cd in the indict- ment.^ § 249. Trial of Challenges for "Implied Bias" and "Actual Bias." — Under the statutory system of chal- lenges pointed out in a previous chapter,^ where the facts are denied, the trial of both forms of challenge is, in most jurisdictions, relegated to the court.^ In some jurisdic- tions, the determination of facts under a challenge for " actual bias " is assigned to triors.* However, where, by consent of the parties, the court is substituted for the triors in the determination of facts upon a challenge for actual bias, its decision will be final.* § 250. Remedy for Disallowance of Challenge. — The disallowance of a statutory or principal cause of challenge is a ground, not for a new trial, but for Avhat is strictly and technically a venire de novo. "The party complaining thereof," said Lord Tenterden, " applies to the court, not for the exercise of the sound and legal discretion of the judges, but for the benefit of an imperative rule of law ; and the improper granting, or the improper refusing of a chal- lenge, is alike the foundation for a writ of error." ^ But, upon a challenge to the favor, if the court improperly re- J Josephine v. State, 39 Miss. 613. 2 Ante, § 173. 3 New York Code Criin. Proc. (Laws 1881, ch. 442), § 37G; Ark. Dig. Stat. 1874, § 1910; Bullitt's Ky. Cr. Code, p. 41, § 209. See also, Comp. L. Ariz. 1877, ch. 11, § 319. ■• Comp. L. Nev. 1873, § 1968; 2 Stat, at Large, Minn. 1873, p. 105.5, §234; Gen. Laws Orcg. 1872 (Civil Code), § 168; Cal. Penal Code, § 1078. See also Sess. Laws, Utah, 1878, § 246. The California statute has been amended since the date of the edition which we have at hand, and the challenge for actual bias is now determined by the court. See Proffatt on Jury Trial, § 167, note. « State V. Minis, 26 Minn. 183. « Rex V. Edmunds, 4 Barn. & Aid. 471, 473; Vicars v. Langham, Hob. 235; Knyaston v. Shrewsbury, Andrews, 85, 89; Hesketh v. Braddock, 3 Burr. 1847; Reg. v. Gray, 6 Irish C. L. 259, 267; Button v. Hun, Cro. Eliz. 849; Ex parte Vermilyea, 6 Cow. 555; People v. Vermilyea, 7 Cow. 108; Mannv. Glover, 14 N. J. L. 205; State v. Shaw, 3 Ired. L.532; State V. Davis, 80 N. C. 412, 414. 2fi8 TRIAL OF CHALLENGES. [CH. XII, fuses to appoint triors to pass upon a challenge proper for their consideration, the error may be corrected by a bill of exceptions.' If triors are appointed, and the court misdi- rects them in point of law, the alleged misdirection should be entered ujx)!! the record ;^ and so, if the court refuses to allow competent evidence to bo given to the triors,* or ad- mits that which is incompetent.'^ § 251. How affected by Statutes. — Where a statute provides simply that an exception may be taken to the de- cision of the trial court in disallowing a challenge, no ex- ception lies to the action of the court in allowing a chal- lenge. The reason is that when a competent jury, composed of the requisite iiuml)er of persons, has been impanelled and sworn in the case, the purpose of the law has been accom- ])lished. Neither party can be said to have a vested inter- est in any juror ; therefore, although, in impanelling a jury, one competent person has been rejected, yet, if another equally competent has been substituted in his stead, no in- jury has been done.'^ By the criminal code of Kentucky all challenges are tried b}^ the court, and its decision in no case is subject to exception.'^ In the view of some courts, where the trial of all challenges is conferred upon the court, unless the statute expressly so provides, the decision of the court upon a chal- lenge to the favor cannot be reviewed.^ But the authorities are not uniform upon this point. On the contrary it is ' People V. Kiitlibuu, 21 Wend. 509; People v. Bodiue. 1 Den. 281, 308; Baker v. Harris, 1 Winst. N. C. 277. - State V. Benton, 2 Dev. & B. 19G, 222; People v. Bodine. supra. '' Mechanics' etc. Bank v. Smith, 19 .Johns. 115. ^ Sanchez v. People, 22 N. Y. 147, 151. ■• People V. Murphy. 45 Cal. 137, overrnling People v. Stewart, 7 Cal. 140. See also State v. Larkin, 11 Nev. 314; People v. Brotherton, 43 Cal. 530; People v. Colson, 49 Cal. G79; People v. Atherton, 51 Cal. 495. •■'Bullitt's Ky. Cr. Code, § 212; Terrell v. Com., ]3 Bush, 246; Ruth- People V. Stout, 4 Parker Cr. R. 71, 124, opinion by E. Darwin Smith, J. See also Thomas v. People, 67 N. Y. 218, 222, per Earl, J. ; The State v. Tom, 8 Oregon, 177; Jordan v. State, 22 Ga. 545; Brad- ford V. State, 15 Ind. 347; March v. Portsmouth etc. R. Co., 19 N. H. 372; People v. Henderson, 28 Cal. 466; Campbell v. Com., 84 Pa. St. 187; May V. Elam, 27 Iowa, 365; Davenport Gas Co. v. Davenport, 13 Iowa, 229; Coryell v. Stone, 62 Ind. 307. « Reynolds v. United States, 98 U. S. 145. ^ Ibid., p. 156. See also Trenor v. Central Paeiftc R. Co. 50 Cal. 222; Swiss V. Stockstill, 30 Ohio St. 418; Dew v. McDivitt, 31 Ohio St. 139; .s. c, 17 Am. L. Reg. 623. Strongly to the contrary is the case of Montague V. Com., 10 Gratt. 767. The juror had formed and expressed an opinion as to the innocence of the accused. He was a neighbor, and on intimate terms with tiie prisoner's family. He was unwilling to trust himself as a juror under the circumstances, but thought he could give the accused a fair trial upon the evidence. Tlie trial judge set this juror aside, which action the Court of Appeals held to be error, and the judgment was re- versed. ■* Ripley v. Coolidge, Minor, 11 ; Rash v. State, 61 Ala. 89; Fillion v State, 5 Neb. 351; State v. Bullock, 63 N. C. 570; State v. Ellington, 7 Ired. L. 61 ; People v. Bodine, 1 Den. 281, 308; Baker v. Harris, 1 Wiast. X. C. 277. § 253.] RECORD MUST SHOW WHAT. 271 in'oveiTuling the challenges, it must appear that they were taken for sufficient cause. As no cause is distinctly assigned, by no fair intendment can we assume that any others were understood to be assigned, or were in fact as ^gned, than such as the record shows was known to the court who overruled the challenges. We do collect from the record, that the per- sons challenged had formed and expressed an opinion on the matter there to be tried — the guilt or innocence of the prisoner C but we cannot collect whether that opinion affirmed his guilt or innocence, for the record furnishes no information that any inquiry was made into the character of that opinion as favorable to the State or to the pris- oner.' \^ As a matter of course, the decision of the trial court will not be reviewed, unless the testimony, upon which it was made, is embraced within the bill of exceptions.^ 1 State V. Benton, 2 Dev. & Bat. 196, 217. -State V. Tom, 8 Oreg. 177; Haj'den v. Long, 8 Oieg. 244; State v. Kigg, 10 Nev. 284. 272 IMPANELLING THE JURY. [CH. XIII. CHAPTER XIII. OF IMPANELLING THE JURY. SECTION. 257. Impanelled — Meaning of this Term. 258. Duty of Court to supervise tlie Impanelling. 259. Excusing Jurors. (1.) In the Discretion of the Court. (2.) Some sufficient Reasons — Mental and Bodily Defects. (3.) Ignorance, Conscientious Scruples, Hostility to the General Government. 260. This Power to be exercised with Caution. 261. Remedy for Excusing an Unreasonable Number before Impan- elling. 262. Jurors prima facie Competent. 263. Who may challenge. 264. Counsel to assist in Challenging. 265. Time for Challenging. 266. Order of Challenges. (1.) Challenges to the Array, for Principal Cause and to the Favor. (2.) Peremptory Challenges. 267. Statutory Forms of Impanelling to be observed. 268. How in the Absence of such Provisions. 269. Illustrations. (1.) Each Juror separately impanelled. (2.) Objections to this Practice. (3.) Impanelling by Fours. (4.) Order of Challenging between Parties. (5.) Continued — Challenging alternately. (6.) No Right of Peremptory Challenge after Acceptance. (7.) A contrary View. (8.) So in respect to Challenges for Cause. 270. A Liberal Discretion allowed the Court. 271. No vested Right to a particular Juror. 272. As seen in the Case of Jurors absent when called. 273. And Jurors set aside after they have been accepted and sworn, 274. A Juror's Right to serve. ^ 258.] COURT TO SUPERVISP] IMPANELLING. 273 27r). Waiver of Causes of Clialleno^e. (1 .) Of the Challeiifi^e to the Array, by Challenging the Polls. (2.) Of a Cause known at the Time of the Impanelling. (;{.) Illustrations. 27G. Waiver of Exception for Disallowance of Good Cause of Challenge to a Juror. (1.) By Omission to challenge the Juror peremptorily. (2.) A contrary View. (3.) By Challenging peremptorily. (4.) Unless Peremptory Challenges are subsequently ex- hausted. ■277. Withdrawal of Challenge. 278. Exception for Irregularity in Impanelling. 279. Impanelling in Territorial Courts. 280. Right of Challenge to the Polls of a Special Jury. vj 257. Impanelled — Meaning of this Term. — Refer- ring; to an earlier chapter, it will be seen that this term originally had a much narrower meaning than that now gen- erally attributed to it. It appears from the definition of Lord CoKE,^ that the term was applied to the body of the jurors when the sheriff brought them into court with their names entered upon a piece of parchment. Adhering to this definition, it is clear that this designation can refer to no process of drawing, selecting, or swearing a particular jury, after the body of jurors for the term appear.^ But, curiously enough, the general understanding of this term under our practice is, that it covers all the steps of ascer- taining who shall be the twelve men to sit as jurors for the trial of a particular case.^ A jury may be said to be impan- elled when they are ready to be sworn,'* and in this sense the term is used in the caption of this chapter. § 258. Duty of C(nirt to supervise the Impanelling. — The rule is well settled that it is the duty of the court to superintend the selection of the jury, in order that it may be composed of fit persons. Large discretion must be con- ^ See ante. p. 107, note. * Porter v. People, 7 How. Pr. 441. 3 1 Bish. Cr. Proc, sec. 931; Rich v. State, 1 Tex. App. 206, 209. * State V. Potter, 18 Conn. 166, 175; Grissom v. State. 4 Tex. App. 374, 388; Rich v. State, supra. (18) 274 IMPANELLINC; TIIK .TUKV. [CH. XIII. tided to tlic ti-ial court in the i)erf()riiianee of this duty ; nor will the action of the court in this behalf he made the sub- ject of review, unless some violation of law is involved, or the exercise of a gross and injurious discretion is shown.' It is not uncommon that this duty is expressly enjoined by statute. Although 't is made the " imperative duty" of the court, before administering to the juror the oath, to as- certain that such juror possesses the qualifications re<]uired by law, it is not necessary that the court should i)ly the jurors individually with iuijuiries in this behalf, it is sufficient that the judge is satisfied of their fitness from his [)orsonal knowledge of the jurors, their answers to other questions, their reputation for integrity and intelligence ; and his judg- ment in respect of such qualifications will not be reviewed.^ § 259. Excusing Jurors.^ — ( 1 ). In the Discretion of the Court. — It follows from the general statement of the powers of the court over the process of imi)anelling, as found in the previous section, that the exercise of this power is a matter of discretion. The circumstances under which this power is ordinarily exercised will be presently noticed. Nevertheless, it by no means follows that, because certain causes have been declared to be sufficient to jus- tify the trial court in excusing a juror, the sufficiency of excuses in general must be considered as a matter of law. On the contrary, it may be regarded as a generally recog- nized rule, that the discharge of a juror under these circum- stances is a matter addressed to the sound discretien of the court, which will not be reviewed, in the absence of evidence 1 Head V. State, 44 Miss. 731, 7.50. See also Gilliam v. Brown, 43 Miss. 041 ; McCartj- v. State, 2G Miss. 302; Marsh v. State, 30 Miss. 627; State V. Marshall, 8 Ala. 302; Smith v. State, 55 Ala. 1, 10; McAllister v. State 17 Ala. 434; Johnson v. State, 58 Ga. 491; Thomas v. State, 27 Ga. 287; Powers V. Presgroves, 38 Miss. 227; Grady v. Early, 18 Cal, 108; Garri- son v. Portland, 2 Oreg. 123; State v. Sheiledy, 8 Iowa, 477; Chase v. State, 46 Miss. 083; State v. Ostrander, 18 Iowa, 435; Pierce v. State, 13 N. H.536; Hubotterv. State, 32 Tex. 479. 2 James v. State, 53 Ala. 380. ' See the corresponding subject of the right to stand jurors aside. Ante, § 158. § 259.] EXCUSING JURORS. 275 showing prejudice to the comphiiiiing party from the abuse of such discrotioii.^ As iucideutcil to the power of directing jurors who are un- challenged to withdraw, because in the judgment of the court they are not qualified to discharge the duties required from jurors, the court has authority, either by an examina- tion of the jurymen, or of any other witnesses, to ascertain matters of fact, so as to enable it to exercise this power dis- creetly.^ The court may, ex mero motu, examine jurors for grounds of partiality, and direct them to stand aside, al- though unchallenged by either party ,^ and not subject to challenge.'' By some courts it has been considered that the jurors thus directed to stand aside are not rejected ; if the remainder of the panel is gone through and a jury not pro- cured, resort must be had to those jurors directed to stand aside; they must then be tried upon challenges, and for- 1 Ray V, the State, 4 Tex. App. 450; Com. v. Livenuore, 4 Gray, 18; Atlas Mining Co. v. John&ton, 23 Mich. 37; Ware v. Ware, 8 Me. 42; Hurley v. State, 29 Ark. 17,22; State v. Ward, 39 Vt. 225; Maner v. State, 8 Tex. App. 361 ; O'Brien v. Vulcan Iron Works, 7 Mo. App. 257; Watson V. State, 63 Ind. 548; State v. Dickson, 6 Kan. 209; Dodge v. People, 4 Neb. 220; Anderson v. Wasatch, etc. R. Co., 2 Utah, 518. But contra, see Montague v. Com., 10 Gratt. 767; Boles v. State, 13 Smed. & M. 398 ; Parsons v. State, 22 Ala. 50. The action of the court in excusing jurors will be regarded as projier, although no cause appears of record. State V. Whitman, 14 Rich. L. 113; State v. Breaux, 32 La. An. 222. It was so held where it appeared from the record that the juror was ex- cused " to relieve him from embarrassment." John v. State, 16 Fla. 554. But see Montague v. Com., 10 Gratt. 767. A sheriff has no power to ex- cuse jurors. But an appellate court will not infer that a sheriff who has excused a portion of the panel did so from improper motives, nor that such action i)rejudiced any party. Ayers v. Metcalfe, 39 III. 307. 2 State V. Benton, 2 Dev. & B. 196, 221; White v. State, 52 Miss. 217; Pierce v. State, 13 N. H. 536. 3 Atlas Mining Co. v. Johnston, 23 Mich. 36; Lore v. State, 4 Ala. 173; Pierce v. State, 13 N. H. 536 ; State v. Jones, 80 N. C. 415 ; White v. State, 52 Miss. 216; Stagner v. State, 9 Tex. App. 440, 455; Lewis v. State, 9 Smed. & M. 115; Marsh v. State, 30 Miss. 627. Contra, Van Blaricura v. State, 16 111. 364; Deun v. Pissant, 1 N. J. L. 220. * Hartford Bank v. Hart, 3 Day, 491; Goodrich v. Burdick, 26 Mich. 39; State v. Lewis, 28 La. An. 84; State v. Williams, 30 Me. 484; Watson, v. State, 63 Ind. 548; Stout v. Hyatt, 13 Kan. 232; Atchison, etc. R. Co V. Franklin, 23 Kan. 75. 27H IMPANELLING THE JURY. [CH. XIII. mally adniitlod or rojcctod, before t;ile-;incn can be sum- moned.' The forbeaiance of the court to set aside, of its own mo- tion, a juror apiinst whom a cause of challenge exists, to the knowledge of the court and the parties, cannot be as- signed for error by either of the latter. In such a case, if a party would ol)ject to the juror he is l)ound to challenge him. A failui-c to do so will be construed as a waiver of the juror's incomi)etcncy."^ The power of the court to ex- cuse a juror for satisfactory reasons is not impaired by a statutory provision to the effect that "the twelve first per- sons who shall appear, as their names are drawn and called, and shall be approved as indifferent between the parties, shall be sworn, and shall be the jury to try the cause." ' A struck juror may be excused for a sufficient reason.* Hut where jurors are summoned upon a special venire, it is held that no juror can be excused until his name is regularly called in court.'' (2.) Some sufficient Reasons — Mental and Bodily Defects. — A frequent and proper exercise of this discretion is found in the practice of excusing persons manifestly inca- pal)le, by reason of physical or mental infirmities, to dis- charge the duties of a juror. ^ It has been so held in the case of those deaf,^ or intoxicated.* AVhen, by reason of his personal illness, a juror is unable to withstand the fa- tigue of the trial, the action of the trial court in excusing him does not present a proper subject for revision by an ap- » Boardman v. Wood, .'? Vt. 570. .577; Unit(;d States v. Watkins, 3 Crancb C. C, 578; State v. Howard. 17 X. H. 171, 180. See in this con- nection, ante^ § 158. 2 State V. Benton, 2 Dev. & B. 196; Murphy v. State, 37 Ahi. 142; Bel- lows V. Weeks, 41 Vt. 590; Young v. State, 23 Ohio St. 577; Skinner v. State, 53 Miss. 399; State v. Christian. 30 La. An. 367. 3 Atlas M. Co. V. Johnston, 23 Mich. 37. 4 Stewart v. State, 1 Ohio St. 66. 5 Foster v. State, 8 Tex. App. 248; Robles v. State, 5 Tex. App. 346. « Mansell v. Reg., 8 El. & Bl. .54, 80. ' Atlas Mining Co. v. .Johnston, 23 Mich. 36; Jesse v. State, 20 Ga. 156. •* Bullard v. Spoor, 2 Cow. 430; Pierce v. State, 13 X. H. 536, 555; Nolen V. State, 2 Head, 520. § 259.] EXCUSING JURORS. 2V7 pellate court.' Sickness in the family of the juror is also a suflficient reason for dispensing with his attendance. Rea- sons of policy, as Avell as compassion for the juror under such circumstances, dictate this course. The juror may be fairly presumed to be in such a state of mind that he cannot discharge the duties which would devolve upon him, with that degree of patience, calmness and deliberation, which the trial of causes demands.'^ (3.) Ignorance, Conscientious Sci'uples, Hostility to the General Government. — In addition to the grounds just no- ticed, the court may stand the juror aside when ignorant of the English language ;^ in a capital case, when having a fixed opinion against capital punishment.* In any case, it seems clear that one entertaining a present and unrelenting hos- tility to the government of the United States, may be deemed to be an unlit person to participate in the adminis- tration of justice.^ 1 Jewell V. Com., 22 Pa. St. 94; Ray v. State, 4 Tex. App. 450; Hub- bard V. Gale, 105 Mass. 511. 2 Parsons v. State, 22 Ala. 50, 53. It has, however, bees held that the juror should be excused only in those oases of such a serious character as demand his personal attention, and that the decision of the court upon this point may be reviewed. Boles v. State, 13 Smed. & M. 398; Parsons V. State, supra. ' Atlas Mining Co. v. Johnston, 23 Mich. 36; State v. Kosseau, 28 La. An. 579; People v. Arceo, 32 Cal. 40; State v. Marshall, 8 Ala. 302; State V. Guidry, 28 La. An. 630. In Campbell v. State, 4S Ga. 353, it was held that the court had no right to purge the panel of jurors, returned for ser- vice during the term, of such jurors as could neither write the English language nor read the Constitution of the United States, and of the State of Georgia. It was held that a challenge to the array after such purging ought to have been sustained. Whether this decision can be supported, is doubtful. It is certainly true that the grounds upon whicli these jurors were excused do not constitute a cause of challenge. White v. State, 52 Miss. 216, 224; American Ins. Co. v. Mahoue, 56 Miss. 180; Citizens' Bank V. Strauss, 26 La. An. 736; State v. Lewis, 28 La. An. 84; Com. v. Win- nemore, 1 Brewst. 356; s. c, 2 Brewst. 378. But it has been held that al- though a challenge is allowed upon this ground, a new trial will not be granted, unless it appears that the defendant has suffered inconsequence of such ruling. Citizens' Bank v. Strauss, supra. * United States v. Cornell, 2 Mason, 91 ; Waller v. State, 40 Ala. 325; Russell V. State, 53 Miss. 367; White v. State, 52 Miss. 216; Fortenbeiry V. State, 55 Miss. 403. » Klinger v. State, 13 Wall. 257. 27.S IMPANELLING THE JURY. [CH. XIII. § 2()(). Til is I^oAvor to b<' exorcised with Caution. — There can he no doubt that there is need of caution by the trial judge in the exercise of this discretion in excusing jurors. The reason is found in the fact that, where any con- siderable number of the regular panel is excused, the trial of the case frequently falls into the hands of a jury less qualified to do justice in the premises.' This point is ad- verted to by Dillon, J. : " Talesmen," said he, " are too apt to consist of those who haunt the court room for the express purpose of being called b}^ a comphiisant or im- portuned sheriff to till up the skeleton panel. Their aver- age intelligence is less than that of the regular jury. Than the regular juror, the talesman is more apt to have his favorite among the attorneys, and is more accessible to in- fluences of an improper character. The evil in some of the States is so great that it has been found necessary to aim a statute at ' professional jurors.' " ^ § 261. Remedy for Excusing an Unreasonable Number before Impanelling. — If the court, by a general order, dis- charge jurors for no other reason than that they desire to be excused, thereby reducing the panel below the number required for the trial of a cause, this has been held to be a good ground of challenge to the array;* but the right to make this challenge may be waived by objecting to such action of the court in another form ; as where, under such circumstances a cause coming on for trial, the plaintiff's counsel moved to postpone the case, which motion being overruled, a tahi< was ordered against his ()l)jection, and the case proceeded to trial. It was hold that the decision of the court upon the motion to p()stj)C)ne was final, and not to ' For this rosison tlie c-ouit or oilier triors of a ciiaiienge should be quick to detect attempts of juiors to disqualify theuiselves from service by expressions of opinion in a particular casein order that they may escape the burden of jury duty. People v. Iloneyman, 3 Denio, 121. An opinion, however positively expressed, does not affect a juror's com- petenc)'. when made with this purpose in view. Ante, § 210. 2 State V. Oslrander. IS [owa. 4:'.5. 440, citing Bissell v. Ryan, 23 111. .^06. 3 Smith V. Chnton. 20 N. .f. L. ?,:>d<. § 262.] JURORS PRIMA FACIE COMPETENT. 279 be reviewed by writ of error. The jury having been sworn without a challenge to the array, became a legal jury, •although the [)revious decision was erroneous.^ § 2t)2. Jurors Prima Facie Competent. — Prima facie y jurors are competent, and must be so regarded by an appel- late court \i\yon a review of the proceedings of the court below, unless, by a fair construction of the evidence there given, it can be seen that an error was committed in over- ruling the challenge.^ But this view has not universally prevailed. On the contrary, it has been said that, in crim- inal cases, the testimony in regard to the competency of a juror " should be construed with liberality to the defendant, in the humane spirit which pervades our criminal laws and the rules of their administration. '¥ And so, where the evidence might have been interpreted as showing that the opinion, which a juror entertained as to the guilt of a per- son on trial, was only an hypothetical impression, not affecting his indifference as a juror, but, on the other hand, another interpretation was possible, namely, that the juror had a fixed opinion as to the guilt of the prisoner, which could only be removed by evidence on the trial in behalf of the accused, — the court held that the latter construction should have been adopted, and, therefore, reversed the judgment of the court below holding him to be a competent juror.* 'Smith V. Clayton, 29 N. J. L. 358; Gropp v. People, 67 111. 184; Eineiick v. Sloau, 18 Iowa, 140; Suttle v. Batie, 1 Iowa, 141. A chal- lenge to the array may be waived after it has been taken, by the chal- lenging party consoiifing to the removal of the objectionable persons from the panel. Whitley v. State, ;{8 Ga. 50. ■i Stout V. People, 4 Parker Cr. R. 71, 108; United States v. Watkins, 3 Cranch C. C. 570 ; Reynolds v. United States. 98 U. S. 145, 157 ; Bradford v. State, 15 Ind. 348; Clore\s Case, 8 Gratt. 606, 616; Byrd v. State, 1 How. (,Miss.) 163.175; Chase v. People, 40 111. 352, 357; Holt v. People, 13 Mich. 224, 228; Com. v. Fitzpatrick, 3 Clark (Penn.), 520; Jeffries, v. Com., 12 Allen, 145. 3 Cancemi v. People, 16 N. Y. 501. ■• Cancemi v. People, 16 N. Y. 501. When, upon the examination of a juror, it is doubtful whether he is impartial or not. the safer course is to reject him; Black v. State, 42 Tex. 377. 280 IMPANELLING THE JUUY. [CH. XIII. $ 2(.)3. Who may clialloiijj^e. — Tliis .subject was consid- ered at length in an old ease.^ It was admitted by the coun- sel upon both sides that, a peer being a party, either party might challenge the array where no knight was returned, — the peer, because the challenge was accorded to him proyter dignitatem; but particularly the commoner might complain, for the j)eculiar reason that " ordinary j)cople are apt to be oyerawed and iutiuenced where a peer is a party." '^ The point especially discussed in this case was, whether the defendant might challenge the array, because the sheriff of the county who returned the juiy was one of the aldermen of the defendant. It was urged for the plaintiff that a chal- lenge jorop^er affectum could only be made by the party to whom the sheriff or jury was not related, it being quite iirational that a person should challenge either of them for bias in favor of himself. This question seems to have vexed the judges sorely. It had never been raised before. The judge of the assize adjoui'iied the matter propter diffi- cultatem. The Court of King's Bench, after a lengthy ar- gument, took time to advise. Finally, the solicitor of the plaintiff, for the sake of expediting the trial of the cause, moved to (juash the array, which was done, and the point was therefore undetermined.^ However, it is now generally agreed that a party is en- titled to waive a cause of challenge which he might allege against a juror, and thereby suffer the juror to sit in the case.^ Thus, the accused can derive no advantage from a statute providing that, in all trials for ca})ital or peniten- tiary punishments, it is a good ground of challenge for cause hy the State, that the juror has a fixed opinion against cap- ital or penitentiary punishments. The State may, at its election, challenge the juror for the cause mentioned.*^ In a criminal case the prisoner was not permitted to challenge ^ Knyaston v. Shrewsbury, Andrews, 85. ' Anon., Anderson, 272 ; Allewiiy v. Rowdeu, 2 Show. 423. "Ibid., p. 104. * People V. Mather, 4 Wend. 229, 246. » Murphy v. State, 37 Ala. 142. § 264.] COUNSEL TO ASSIST IN CHALLENGING, 281 a juror, simply because he was his first cousin. The court adverted to the reason for the disqualification of kinsmen, as assigned by Lord Coke, namely: "The law presumeth that one kinsman doth favor another before a stranger ; " ' therefore, although this relationship would have been a good cause of challenge to the juror by the prosecution, it could not avail the prisoner.^ Where the sheriff was re- lated to both parties in the same degree, it was held that either might challenge the array upon this account.^ A juror, aware that he is disqualified to sit in a case for which he is called, may be discharged upon his own motion, or, as it is said, challenge himself.'* § 264. Counsel to assist in Challenging. — Although, in the early criminal cases, the accused was denied the benefit of counsel for the purposes of his defense, this defect was later so remedied as to give to the accused the full benefit of this assistance. From the first, in this country, the con- stitution of the general government and those of the re- spective States have guaranteed to persons accused of crime every facility for making a full defense. It, therefore, seems strange to find that the accused has ever been denied the benefit of his counsel's advice in the matter of chal- lenges. Yet so it was in one case in Louisiana. But the Supreme Court of that State did not countenance that de- nial. " The moment," said Preston, J., "at which, per- haps, it is most seasonable and necessary that a person accused of a crime should have dd and counsel, is that when he is about to be put upon his trial for the offense, and to select the jury for his trial." ^ If a party have more than one 1 Co. Litt. 157. a. * State V. Ketchey, 70 N. C. 621. 3 Audley v. Suttrel, Cro. Eliz. 23. < United States v. Cornell, 2 Mason, 91, 104; Auzan's Case, 2 Mart. (La.) 125. Contra^ Denn v. Pissant, 1 N.J. L. 220; Lingau v. Marbury,^ 1 Crant'h C. C. 365. * State V. Cummings, 5 I^a. An. 330, 332. The court will not permit counsel to argue before the triors the question of the competency of a juror upon a challenge to the favor. Joicev. Alexander, 1 Crunch C. C. 528. 282 IMPANELLING THE JURY. [CH. XIII. counsel, it seems, ho is not concluded \)y the acceptance of a juror by one of them, if the acceptance be at once with- drawn, and both counsel join in a peremptory challenge. *' Under such circumstances," saidBucKNEU, J., to " bind a party by the hasty declaration of acceptance by one of the counsel, without consultation, as it would seem from the record, would be adopting a rule by far too rigid, even viewinof it as a matter within the discretion of the court." ^ § 265. Time for Challenging. — There can be no chal- lenge either to the array or to the polls until a full jury appears ; '^ therefore, at common law, for the purpose of ascertaining whether a full panel were present, as well as for aiding the accused in taking his challenges, the court, upon the request of the accused, would order the whole panel to be called over once in the prisoner's hearing.^ The common law was explicit in requiring the challenge to be made before the juror was sworn. ^ This is the prac- ' Clarke v. Goode, G J. J. Marsli. 037, G38. - 1 Cliitty Cr. L. 544; Forsyth, Trial by Jury, 177; Joy on Cliallenges, 217; Vicars v. Langhani, Hob. 235; Keg. v. Lacey, 3 Cox C. C. 517; Taylor v. Western racifie. 45 Cal. 323; People v. Scoggins, 37 Cal. 679; St. Louis, ere. R. Co. v. Wheelis, 72 111. 538; Cooley v. State, 38 Tex. 636, 638; Lamb v. State, 36 Wis, 424. Where the statute provided that there should be summoned and returned in every criminal cause a mim- ber of qualified jurors equal to the number of peremptory challenges, and twelve in addition; and that uo partj' should be required to make peremptory challenges, before a panel of such number of competent jurors was obtained (Wagn. Mo. Stat. 1102, § 7), it was held that the State could not. bj' a waiver of her peremptory challenges, compel the prisoner to make his challenges from a panel diminished by the number of challenges f-o waived.. State v. Wati-rs, 62 Mo. 196; s. c, 1 Mo. App. 7. 3 Townly's Case, Foster C. L. 7 ; Layer's Case, 16 How. St. Tr. 132. * Wharton's Case, Yelverton, 24; Vicars v. Langham, Hob. 235; Blewett v. Bainard. 1 Stra. 70; Tyndal's Case, Cro. Car. 291. How- ever, the juror might be withdrawn by consent of the adverse party. Gates' Case, 10 How. St. Tr. 1082. A juror may be challenged for a cause happening since he wassworn. Co. Litt. 158. a.; Vicars v. Lang- liam, Hob. 235; United States v. Watkins, 3 Cranch C. C. 441. Not so the panel; for, as stated by Ilobart, '• no ill affection of the sheriff, aris- ing since the jury sworn, can make the jury suspected, that was im- panelled before." Vicars v. Langham, Hob. 235. ^ 265.] TIME FOR CHALLENGING. 283 tice in England :it the present time,' and such is the rule in the sevend States."^ If theiirst step has been made towards swearing the jurors, the officer of the court cannot be in- terrupted for the purpose of making a challenge. "The rule," said Tindal, C. J., " is that challenges must be made as the jurors come to the book, and before they are sworn. The moment the oath is begun, it is too late, and the oath is begun by the juror taking the book, having been directed by the officer of the court to do so."^ Likewise, if a juror, who is to affirm, has been called to his feet, it is too late to challenge him.* ' Reg. V. Sullivan, 1 Fer. & Dav. 96; s. c. 8 Ad. & El. 831; Reg. v. Wardle. Car. & M. 647; Rex v. Despard, 2 Man. & Ry. 406, 409; Reg. v. Key. 3 Car. & K. 371 ; s. c, 15 Jur. 1065. The discretion of the court to allow an objection to a juror after he has been sworn, which is gene- rally recognized in this country (post, § 273), seems to have been con- ceded In one case. Reg. v. Flint. 3 Cox C. C. 66. 2 United States v. Watkins. 3 Cniuch C. C. 443 ; Epps v. State. 19 Ga. 102 ; State V. Williams, 2 Hill. 381 ; Ward v. State, 1 Humph. 254; McFadden v. Com., 23 Pa. St. 12. 17; Queen v. Hepburn, 7 Cranch, 290; State v. Ander- son, 4 A ev. 265 ; Rash v. State. 61 Ala. 89 ; State v. Morea, 2 Ala. 275 ; State V. Patrick. 3 Jones L. 443; Nugent v. Trepagnier. 2 Martin. 205; Com. V. Gee, 6 Cush. 174. Statutes are found in many of the States author- izing the court, for reasons satisfactory to itself, to hear any objection to a juror even after he has been sworn, before tlie jury is complete. Stat, at Large, Minn. I.s73, p. 1055. § 229; Gen. Laws Greg. 1872, Civ. Code, § 188; Comp. L. Nev. 1873. § 1958; Ark. Dig. Stat. 1874. § 1S05; Miller's R. C. Iowa, 1880. § 2709; Biillitfs Cr. Code Ky., p. 41, § 202; Cal. Penal Code, § 1008. See People v. Rodriguez. 10 Cal 50. Or before evidence is introduced to the jury. Comp. L. Kan. 1879, § 4698; Code Ga. 1873, ■§ 4681 ; R. S. Mo. 1879, § 1898. See also G. S. Mass., ch. 132, § 31 ; R. S. Me. 1871. ch. 82. § 77; Laws N. Y. 1881, ch. 442, § 371; Code Va. 1873, p. 1062. § 20; R»n . Stat. W. Va. 1870. ch. 109, § 24; Gen. Stat. R. I. 1872, p. 434, § 33. 'Reg. V. Frost. 9 Car. (!v: P. 129. 137. See also Brandretli's Case, 32 How. St. Tr. 755. 777; Morris" Case. 4 How. St. Tr. 1255: State v. Davis, 80 N. C. 412; Com. v. Marrow, 3 Brewst. 402. This differs from the Irish practice. By that practice it has been generally held that the oath is not commenced until after the clerk of the Crown has said: "Juror, look upon the prisonei-; prisoner. look upon the jiu-or."" Reg. v. Hughes, 2 Craw. & Dix. Cir. 396. * Com. V. Marrow*. 3 Brewst. 402; s-. r.. kiiJ> nam. Com. v. Marra, 8 Phila. 440. In Drake v. State, 51 Ala. 30, the juror had been accepted, and, as he rose from his seat in the box to be sworn, the defendant chal- lenged him peremptorily. It was held tliat the challenge was not taken 284 IMPANELLING THE JURY. [CH. XIII. § 266. Order of Cballeiijfes. — (1.) Challenges to the Array, for Principal Cause, and to the Favor. — It is a familiar rule tliat, if a parly has more than one cause of challciigo, he must take them all at once.' The proper in- terpretation of this rule seems to be that a party must prefer all of his challenges, of the same nature and triable by the same forum, at once.^ The challenge to the array or to the i)anel always precedes a challenge to the polls. These challenges are taken separately. When the latter is made, the former is regarded as waived.^ There would seem to be the same reason th;it a challenge for i)riiicipal cause should precede a challenge to the favor, and such was the practice for a considerable length of time in New York before the matter Avas finally so determined ;* which was in the case of Carnal v. People,^ where the court conclusively show that this practice is perfectly consistent with a correct interpretation of the rule. " Different questions," said King, J., "arise under the two challenges; if principal cause is shown, the juror must be set aside, and if allowed to serve, it would be error which would appear upon the record, and, even before the introduction of bills of excep- tions in criminal cases, would have furnished grounds for reversing the judgment ; but the challenge to the favor is to be determined by the conscience and discretion of the triors alone, and from their finding there is no appeal."^' too late. The point, however, that the swearing had begun was not raised. 1 Co. Litt. 158. a.; Bac. Abr. Juries E. 11; Trials per Pais (172")), p. 149; 1 Chitty Or. L. 545. » Mann v. Glover, 14 I^. J. L. 195, 202; Carnal v. People, 1 Park. Cr. R. 272. sCooley v. State, 38 Tex. 63G, G38; People v. Roberts. 6 Cal. 214; People v. McKay, 18 Johns. 218; Gropp v. People, 67 111. 154; St. Louis, etc. R. Co. v. Casner, 72 111. 384; Mueller v. Rebhan, 94 111. 142; United States v. Loughery, 13 Blatch. 267; State v. Bryan, 40 Iowa, 379; State v. Davis, 41 Iowa, 311; State v. Davis, 14 Nev. 439, 448. A chal- lenge to the polls can not be taken upon grounds which would have supported a challenge to the array. Co. Litt. 157. b. ■• People V. Freeman, 4 Den. 9; People v. Uoneyinan, 3 Den. 121 ; Peo- ple V. Mather, 4 Wend. 229. « 1 Park. Cr. R. 272. « Ibid., 277. See upon this point. Stout v. People, 4 Park. Cr. R. 71; Cancenii v. People. 16 N. Y. r)01. § 266.] ORDER OF CHALLENGES. 285 The testimony upon the challenge to the favor (cannot he considered hy an appellate court upon the question whether the challenire for principal cause was properly decided, for the obvious reason that the latter challenge has to be de- cided upon the evidence taken l)y the court u[)on that chal- lenge only.^ But, where, as is now the uniform practice, the court is the trior of the challenge for principal cause, and also of the challenge for favor, and the latter imme- diately succeeds the other, there would seem to be no reason why, on the determination of the latter challenge, it should not consider all that has been said by tlie person proposed as a juror, on his examination on both challenges ; nor why an appellate court, with power to review the holding on the latter challenge, should not have the power iilso to consider all that the proposed juror had stated on examination on either challenge.^ (2.) Peremptory ChaUenges. — A party is not ordinarily compelled to make his peremptory challenges before taking his challenges for cause. The mere circumstance that a juror has been challenged for cause may excite a feeling of resentment in the mind of the juror against the chal- lenging party. The examination of the juror in such a •case may have developed sufficient to satisfy the chal- lenging party that he is not impartial, although the triors •of the challenge may have found otherwise. It is, there- fore, a matter of last importance that the challenging party should have peremptory challenges in reserve for the pur- pose of excluding such persons from the jury. That per- emptory challenges may be thus held in reserve, is the ■opinion of the best authorities,^ and is shown by decided cases. ^ The court, in Hooker v. State,^ after rehearsing ' Cancemi v. People, 16 N. Y. 501, 505. 2 Greenfield v. People, 74 IST. Y. 277. 3 4 Bl. Com. 353; 1 Chit. Cr.L. 545; Co. Litt. 158. a. * Reg. V. Hughes, 2 Craw. & Dix Irish Cir. 396; Whelan v. Reg., 28 Up. Can. Q. B. 2; Hooker v. State, 4 Ohio, 348; State v. Fuller, 39 Vt. 74; Barher v. State. 13 Fla. 675; .s. c, 1 Green Cr. L. Rep. 723; Cooley V. State, 38 Tex. 638 ; United States v. Butler, 1 Hughes, 457.] * 4 Ohio, 348, 350. 286 impan?:lling tiik .ilkv. [cii. xiii. the reasons assiirncd l>y Blackstonk ' for the existence of the ehalleiiire, expressly stated that " the hiw has wisely provided that the right of the peremptory challenge ought to be held open for the latest possible period, to wit, u]) to the actual swearing of the jury." "^ This is easily shown to have been the practice in the State Trials,^ notwithstanding the })osilive statement of the Attorney-General to the contrary in one of the latest of these.* " r Mi)prehend," said he, " the I'ight of peremptory challenge must be exercised first. * * * j p^^- j^ ^^y your lordships that that whi(;h I state most positively has never been questioned ; and, on reading the State Trials, you will find that that which appears to have been always the practice is also founded on the principle that the absolute peremptory challenges must be made first, to leave those remaining upon the panel, about whose ca])acity to serve (when I say capacity to serve, 1 mean in consequence of any objection) questions may arise, to be made out by evidence on the part either of the prisoner or of the crown." The practice contended for in the remarks just noticed is, however, not without the sanction of princi[)le and later authority. We have hitherto seen that the right of per- emptory challenge is a right only to reject, and can never be so exercised as to confer a right to select.* Acting upon this principle, it has been held })roper for the trial court to compel both jiarties in a capital case to make at the same time, once and for all, the number of peremptory challenges ^ 4 Bl. Com. 303. * But the right of challen});e luaj' be .so regulated by au act of the h-g- islature that, after jurors liave been challenged and others drawn in their stead, neither party can challenge the jurors so drawn except for cause. State v. Kleinbaek, 2 Speers, L. 418 ; Durant v. Ashinore, 2 Rich. L. 184; State v. Cardoza, 11 So. Car. 195; State v. Smalls, 11 So. Car. 262. 3 SeeParkyn's Case, 13 How. St. Tr. 75; Cook's Case, 13 How. St. Tr. 313; Layer's Case, 16 How. St. Tr. 137; Barbot's Case, 18 How. St. Tr. 1233: O'Coigly's Case, 26 How. St. Tr. 1227; Jackson's Case, 25 How. St. Tr. 804; Rex v. Stone, 6 Term Rep. 527. * Brandreth's Case, 32 How. St. Tr. 773. (Tried in 1817.) ^ United States v. Marchant, 4 Mason, 160. Ante, § 159. § 267.] STATUTORY FORMS TO BE OBSERVED. 287 allowed Lo each by law, each being ignorant of the chal- lenges made by the other. ^ This is in conformity with the rule as established by judicial decisions in Massachusetts, that the right of peremptory challenge, if exercised at all, must be exercised in the first instance, before the juror is interrogated as to his bias or opinions.^ § 267. Statutory Forms of Impanelliug to be ob- served. — The statutes of many or the States provide for the selection of each jury by lot from the whole number summoned. The names of the jurors returned are written upon slips of paper, which, after being folded, are placed in a box. When each cause is called, the twelve whose names are first drawn from the box, if present, and not challenged or excused, are sworn. ^ The statutory form of impanelling must be followed,* although a slight and immaterial de- parture will be tolerated.^ Under a statute providing that,- if any person whose name shall be drawn shall not appear, etc., then such further number shall be drawn as shall ])e necessary to complete the panel, a juror, not answering to his name when drawn, mtiy he refused a place upon the panel, although he appears and answers before the drawing is completed.^ And if, in compliance with the statute, the 1 State V. Hays, 23 Mo. 287. The rule in this State is now altered by statute. The prosecution is required to announce its challenges before the defendant can be compelled to make his. State v. Steeley, (55 Mo. 218; State v. Degonia, 69 Mo. 485, construing Wag. Stat. p. 800, § 21, and ibid., p. 1103, § 16. Calling over the names of those remaining unchal- lenged has been held to give the accused sufficient information as to whom the prosecution has challenged. Phillips v. State. 6 Tex. App. 44. 2 Com. V. Rogers, 7 Met. 500; Com. v. Webster, 5 Cush. 295, (overrul- ing upon this point Com. v. Knapp, 9 Pick. 496) ; Com. v. McElhaney, 111 Mass. 439. However, it is now provided by statute in Massachusetts that '> the right to challenge peremptorily any person called or returned to serve as a juror, may be exercised after it has been determined that the person so called or returned stands indifferent." Laws Mass. 1873, c. 317, § 1. 8 A prisoner standing mute is nevertheless entitled to his challenges and to a jury impanelled in due form. Link v. State, 3 Heisk. 252. < Brazier v. State, 44 Ala. 387. « People V. Rogers, 13 Abb. Pr. (N. S.) 370. « People V. Vermilyea, 7 Cow. 369. 288 IMI'ANKLLINd TlIK .lUUY. [CH. XIII. name of such juror i.s returned to tlu; box, neitlier party can demand that he sliall take his phicc upon the jury.' § 2(iS. How in the Absence of sucli Provisions. — Where the statutes are silent as to the mode of impanelling the jury, after tiie jurors are returned into court, all subse- quent [)roceedings in relation to the formation of a jury iire left to the discretion of the court.'' In such a case, although the general practice may have been to arrange the jurors who are present into two juries., to try the causes alternately in their order, this is sim[)ly a rule prescribed as one convenient for the transaction of the business of the court. The judge may, therefore, in a particular case, dis- [)ense with it, or discard it entirely at his pleasure. Neither party can demand as a right that his case shall be tried by the jury before whom it would come in regular course. The court may, in its discretion, when the case comes on for trial, break up and rearrange the panels.^ It is no ob- jection that the names of the jurors were not called in the order in which they stood upon the venire, where the statute requires the whole array to be organized into two juries and supernumeraries, and the constant practice is to impanel the jurors for the trial of a case, in the order in which they were drawn upon such juries.'* Unless a statute requires the selection of jurors by lot for the trial of a particular case, a party cannot demand that the impanelling shall be fortuitous.'' A fortiori, if, under such circumstances, the clerk chooses to adopt a fortuitous method of selection, a party cannot object that a more fortuitous method might have been adopted.^ § 269. Illustrations. — (1.) Each Juror separoAely im- panelled. — This was the practice at common law. The ' People V. Larned, 7 N. Y. 445. 2 Walker v. Kennison, 34 N. H. 257. » Watson V. Walker, 33 N. H. 131, 144; Ware v. Ware, 8 Me. 42; Diirant v. Ashmore, 2 Rich. L. 184. < State V. Sims, 2 Bailey (S. C.) 29; State v. Crank, 2 Bailey (S. C.) fiO; Kleinback v. State, 2 Speers, L. 418; State v. Brown, 3 Strob. L. 508. 6 Territory v. Doty, 1 Pinney, 396; State v. Green, 20 Iowa, 424. ^ Benaway v. Conyne, 3 Chand. 214. § 269.] ILLUSTRATIONS. 289 juror was presented to the prisoner, or his counsel, that they might have a view of his person ; then the officer of the court looked first to the counsel for the prisoner, to know whether they wished to challenge him ; he then turned to the counsel for the Crown, to know whether they challenged him ; and if neither of them made any objection, the oath was administered.' This was held to be the proper practice under a statute of Texas providing that, " In forming the jury, the names of the persons summoned shall be called in the order they stand upon the list, and, if present, shall be tried as to their qualifications, and, unless challenged, shall be impanelled."^ "By this we understand," said Roberts, C. J., " that they are to be challenged, citlier for cause or peremptorily, severally, as each one is determined by the court to be a qualified juror ; which is to be contin- ued, one by one, until the jury is fully formed, to the num- ber of twelve."^ The same practice prevails in other States." (2.) Objections to this Practice. — This method of im- panelling certainly has the merit of simplicity, and it is not clear that the plan involves injustice to either party. However, objections against it have had weight with some courts. We find this practice disapproved by the Supreme Court of Wisconsin.^ The principal objection was that the defendant was hampered in the 1 Brandreth's Case, 32 How. St. Tr. 755, 771 ; Layer's Case, 16 How. St. Tr. 135. ^:dJ 2 Tex. Code Cr. Proc. § 556; Pasch. Dig., § 3024. 3 Horbach v. State, 43 Tex. 242, 260, overruling Cooley v. State, 38 Tex. 633, 639. Tlie case of Horbach v. State, supra, is regarded as settling the practice in Texas. Mitchell v. State, 43 Tex. 512; Wasson V. State, 3 Tex. App. 474; Taylor v. State, 3 Tex. App. 169, 199; Baker V. State, 3 Tex. App. 525; Hardin v. State, 4 Tex. App. 355; Drake v. State, 5 Tex. App. 649; Ray v. State, 4 Tex. App. 450; Garza v. State,. 3 Tex. App. 286. See in this connection Speiden v. State, 3 Tex. App. 156; West v. State, 7 Tex. App. 150; State v. Ivey, 41 Tex. 35; Griffin v. Stadler, 3S Tex. 695. < Smith V. Brown, 8 Kan. 608; State v. Roderigas, 7 Ner. 328;. Schnfflin v. State, 20 Ohio St. 233; State v. Brown, 12 Minn. 538. « Lamb v. State, 36 Wis. 424. (19) 290 IMPANELLING THE JURY. [CH. IIII. exercise of his right of challenging the jurors peremp- torily. "The mode adopted," said Ryan, C. J., gave no op[)ortunity for comparison and choice between jurors, and little opportunity for observance of each juror, ap})arently essential to the exercise of a right so visionary and fanci- ful." ^ The proper practice was stated to be as follows: *' The clerk calls jurors in the case, until twelve are in the 1)()X. The parties, if they so choose, question any of the jurors so called, and challenge for principal cause or ff)r favor. If such challenges are allowed, the clerk at once calls another juror in place of each so challenged, so that twelve are always in the box unchallenged. Challenges for [)rincipal cause or for favor having been exhausted or waived, leaving twelve in the box unchallenged, the parties, if they so choose, exercise the right of peremptory chal- lenge, the place of each so challenged being at once filled, so that no challenge is made without the full number sub- ject to challenge being in the box. No juror is sworn in the cause until the right of challenge is exhausted or the jury is accepted." - (3). ImpaneUinrj by Fours. — A statute pj'ovided that, upon the impanelling of a jury in a civil action, it should be the duty of the court, upon the request of either party to the suit, to order twelve jurors into the l)ox before either party should be required to pass upon the jurors, who weic to be passed_[upon and accepted in panels of four, com- mencing with the plaintiff. This was held to require that the full number of twelve should be always in the box. Any diminution caused by challenges should be at once re- filled. The process of impanelling was stated to be as follows: "When one is challenged, either for cause oi* [)cremptorily, before proceeding further, another must be called into the box ; and then, from those in the box, an- other must be added to the panel of four being passed on. When the panel of four is accepted by both parties, 1 This overlooks the well settled principle that the right in question is VI right to reject, and not a right to seleit. Antp^ § 150. 2 36 Wis. 427. § 269.] ILLUSTRATIONS. 291 they become a part of the jury, and a panel of four more is called up, and the same proces is repeated." ^ Although the practice has been to call a certain number of jurors at a time, for the purpose of putting them upon the parties, the court may call a greater or less number, and require the parties to pass upon them.'' (4.) Order of Challenging between Parties. — In the n])sence of a statute regulating the order of challenging, this matter seems to be relegated to the discretion of the €ourt, which will not be review^ed,^ at least in the absence of evidence that the court abused its discretion to the in- jury of the party complaining.* Thus, in making up the jury for the trial of a criminal case, twelve jurors being in the box, the district attorney challenged a juror peremp- torily, and then the defendant one. When the panel was refilled, the defendant's counsel insisted that the State should exercise a second peremptory challenge, if any more w^as to be made. The defendant, however, was re- quired to challenge a second time before the State again exercised the right, and the court ruled that, upon a failure to do so, the defendant would waive the privilege as to one juror. This was held to have been a proper exercise of discretion.^ 1 Sterling Bridge Co. v. Pearl, 80 111. 251, 254. 2 Walker v. Collier, 37 111. 362; Sellers v. State, 52 Ala. 368. 3 Com. V. Piper, 120 Mass. 185; Tatura v. Preston, 53 Miss. 654; State V. Pike, 49 X. H. 406; Ossipe Man. Co. v. Canney, 54 N. H. 295; St. An- thony Falls W. P. Co. V. Eastman, 20 Minn. 277; Turpin v. State (Sup. Ct. Md., Oct. 1880), 2 Crim. L. Mag. 532. < State V. Ivey, 41 Tex. 38; Dixon v. State, 2 Tex. App. 530; Ray v. State, 4 Tex. App. 450; State v. Cummings, 5 La. An. 330; State v. Florez, 5 La. An. 429; State v. Shelledy, 8 Iowa, 480; State v. Pierce, 8 Iowa, 231; State v. Boatwright, 10 Rich. L. 407; Schufflin v. State, 20 Ohio St. 233; State v. Dumphey, 4 Minn. 438; Driskell v. Parish, 10 Law Reporter, 395; Jones v. State, 2 Blackf. 475, 478; Williams v. State, 3 Ga. 453, 4.59; Beauchamp v. State, 6 Blackf. 299. However, it has been considered that a departure from a well established practice might afford good cause for granting a new trial. State v. Florez, 5 La. An. 429. 5 State V. Pierce, 8 Iowa, 231. See also Dixon v. State, 2 Tex. App. 529 ; State v. Ivey, 41 Tex. 35. 292 IMl^ANELLING THE JURY. [CH. XIII. It is no abuse of discretion for the trial judge to compel either party, upon the full panel of twelve being jjresented to him, to strike off then, once and for all, every juror to whom he has objection, granting him only the opportunity of objecting to new jurors introduced to supply the places of those challenged off hy himself or his adversary.^ On the other hand, it is within the discretion of the court to allow members of the panel to be challenged off by a party after he has once passed them.-^ (5.) Continued — CJiallenging alternately. — The parties may be required by the court to take their peremptory challenees one at a time alternate! v. ^ In such a case a failure to challenge in turn has been regarded as a waiver of a challenge at such time, and the challenge not taken was deducted from the number allowed by law.* How- ever, the court cannot, by any rule as to the order of challenging, deprive a party of his right to make the num- ber of peremptory challenges guaranteed to him by law. Thus, it is erroneous for the court, having arranged the order of challenging so that the State should challenge one, to be followed b}^ a challenge of two by the defendant, to make the defendant's right of challenge contingent upon the State challenging in the first instance.* Where the par- ties challenge jurors alternately, the w^aiver of the first challenge is not to be construed as a waiver of subsequent challenges.^ Under a statute requiring that " the State shall first ex- haust its peremptory challenges or waive the same, and the 1 Tatum V. Preston. 53 Miss. 654; Hotz v. Hotz, 2 Ash. (Penu.) 245. 2 Fountain v. West, 23 Iowa, 10; Com. v. Piper, 120 Mass. 185; Ilubotter v. State, 32 Tex. 479; Williams v. State, 3 Ga. 453, 459. 3 Driskell v. Parish, 10 Law Keporter, 395. ^Patton V. Ash, 7 Serg. & R. 116; Com. v. Frazier, 2 Brewst. 490; Wenrick v. Hall, 11 Serg. & R. 153; Fountain v. West, 23 Iowa, 9. But see Schumacker v. State, 5 Wis. 324; Hartzell v. Com., 40 Pa. St. 462; Kleinback v. State, 2 Speers, 418; Koch v. State, 52 Ohio St. 352; State V. Pritchard, 15 Nev. 74. 5 Smith V. State, 4 G. Greene, 189. See also State v. Pritchard, 15 Nev. 74. 6 Kennedy v. Dale, 4 Watts & S. 176; Fountain v. West, 23 Iowa, 9. 269.] ILLUSTRATIONS. 293 -defendant afterwards," ^ the court cannot arrange an alter- nate order of challenging. It is the challenges (not a challenge) that are to be exhausted. And these are to be Jii'st exhausted. It is only after the State has thus ex- hausted or waived its right, that the defendant can be called upon or permitted to exercise his privilege of chal- lenging.'^ On the other hand, where the statute prescribed that " all challenges to an individual juror shall be taken first by the defendant, and then by the State, and each party shall exhaust all his challenges before the other begins,"^ it was held erroneous to compel the defendant to exhaust all of his challenges to each and all of the per- sons upon the panel before the State began. The proper proceeding was stated to be, for the defendant to exhaust all of his challenges to a single juror, who was then turned over to the State, if remaining upon the panel. The State having exhausted its challenges upon this juror, the defend- ant began again upon another, and the parties went on in this manner until a jury was procured.* (6.) JSTo Bight of Peremptory/ Challenge after Accept- ance. — A question frequently arises in practice in this coun- try, which grows out of the fact that the ordinary mode of impanelling the jury with us differs in an essential particular from that which has always prevailed in England. Under the latter practice, as we have seen,^ each juror is examined separately, and presented to the parties for their acceptance or rejection. If accepted, he is at once sworn, after which formality it is clear no challenges can be made by either party to this juror. Hence the general rule, that challenges may be made at any time up to the sv/earing of the jury.^ With us, the practice of swearing the jury is generally deferred until a full panel has been 1 Rev. Iowa, 1860, § 4780. - State V. Bowers, 17 Iowa, 46. ^G. S.Minn., ch. 106. § 32. * State V. Smith, 20 Minn. 376. ■> Ante, § 269, subsec. 1. « Ante, § 265. 294 IMPANELLING THE JUUY. [CH. XIII. l)rocured. The jurors, as lliey aro accepted, arc directed to their places in the box. It frequently happens that consid- erable time is consumed in tlie process of impanelling, during which a party is likely to discover some cause of challenge to exist against a juror who has been accepted but remains unsworn ; or, uj^on further inspection of the juror, as he sits in the box, he may desire to chaUenge him peremptorily, having grounds for suspecting him of par- tiality for his adversary. The question now arises, can this be done after the juror has been accepted? Is not such acceptance a positive bar to all further objection to the juror, as a matter of right? A leading case upon this point is The >State v. Potter} A tialesman was called, examined and found to be subject to no cause of challenge ; the counsel for the defendant were directed to make their peremptor}^ challenge at this time, if at all. They declined to exercise this right as the panel was not full, and the juror took his place in the box. When the panel was full, and before the jury were sworn, the counsel for the prisoner claimed the right to challenge this juror peremptorily. The judge, considering this right to have l)cen waived, refused to aUow the challenge, and this ruling Avas sustained by the Supreme Court. Wil- LIA3IS, C. J., said upon this point: " When one has been examined and opportunity to challenge given, he is directed to take his seat as a juror, just as in England, after he has been sworn : and the dela}' in swearing him, is not to give any privilege to the prisoner, which he could not claim else- w^here, but to prevent multiplying oaths, and to save the delay incident to the administration of the oath twelve times, instead of once. The prisoner now claims, as mat- ter of right to himself, a privilege which he could have no pretence to claim after the person challenged had been de- clared a juroi' by the English practice; — and if the prin- ciple claimed here, by the prisoner, is correct, that he must lie allowed this privilege to the last moment before the trial 1 18 Conn. 160. § 269.] ILLUSTRATIONS. 295 commences, the practice is wrong then, which deprives him of this privilege, by swearing each juror before he has had full opportunity to make his challenge. The effect of the practice in both cases is the same. In the one case, his opportunity is closed when the juror is sworn ; in the other case, when he is directed to take his seat." ^ Other courts also take this view.'^ The rule here adopted was in some degree qualified by the Supreme Court of Iowa in an early case.^ Here a jury were impanelled but not sworn, and allowed to separate for the night. In the morning, the plaintiff peremptorily chal- lenged one of the jurors, which challenge was disallowed. This was held to be such an error as called for the reversal of the judgment. The court conceded that, after a party has once accepted a jury, and there is no separation of the jury or intermission of the court between the acceptance and the swearing of the jury, the party then objccting^ should advance some substantial reason for failing to avail himself of his peremptory challenges at the proper time ; "but," said Kinney, J., "if the jur}^ become separated after they are impanelled and accepted, and thrown into positions where they are liable to become impressed with the feelings and sentiments of desio-nino; men, we think counsel have a right to an unrestrained exercise of their 1 Ibid., p. 176. 2 Horbach v. State, 43 Tex. 242 (overruling on this point Cooley v. State, 38 Tex. G36; Hubotter v. State, 32 Tex. 479); Com. v. Marrow, 3 Brewst. 402, 412; Sparks v. State, 59 Ala. 82; State v. Cameron, 2 Chand. (Wis.) 172; Com. v. Rogers, 7 Mete. 500; State v. Hays, 23 Mo. 287; McMillan v. State, 7 Tex. App. 142; Smith v. Brown,, 8 Kan. 609; State v. Anderson, 4 Nev. 265; State v. Roderigas, 7 Nev.. 328; State v. Schufflin, 20 Ohio St. 233; Mitchell v. State, 43 Tex. 512; Wasson v. State, 3 Tex. App. 474; Taylor v. State, 3 Tex. App. 169; Baker v. State, 3 Tex. App. 525; Drake v. State, 5 Tex. App. 04!). Under this rule, however, there can be no doubt that the court may. in its discretion, for good cause shown, remove a juror permanently, or cause him to stand aside, after he has been accepted. State v. Pottei', 18 Conn. 166 ; Horbach v. State, 43 Tex. 242 ; Mitchell v. State, 43 Tex. 512 ; McMillan v. State, 7 Tex. App. 142; Baker v. State, 3 Tex. App. 525; Sparks v. State, 59 Ala. 82; Drake v. State, Tex. App. 649. 3 Spencer v. DeFrance, 3 G. Greene, 216. 296 IMPANELLING THE JURY. [CH. XIII. ohiillenge, up to the very moment that the jury are required to take the oath." ^ (7.) A contrary View. — Other authorities lay down the contrary rule, that the right of peremptory challenge, notwithstanding the difference in the practice of impanel- ling before noticed, should be kept open for the latest pos- sible period, namely, u}) to the actual swearing of the jury,' and that no circumstances can bring this right within the discretion and control of the court, so long as it is confined to the number of peremptory challenges allowed by law.' By these authorities, therefore, the right of a party to retract his acceptance of a juror at any time before he is sworn, and challenge him peremptorily, is conceded.* Under one provision of a statute, requiring the challenge in criminal cases to be taken " when the juror appears, and before he is sworn," and another, requiring the clerk of the court to draw twelve names from the box when the case is called, it was held that the trial court erred in requiring the defendant to pass upon each separate juror as his name was drawn, who, if not challenged for cause or perempto- rily, was ordered to be sworn as a trial juror before another name was drawn. The court stated the proper practice to be to draw twelve names from the box ; to permit the defend- ant to examine each separately, and exhaust his challenges for cause, before challenging any one peremptorily.^ ^ Ibid., p. 218. See poi^t, § 332, subsec. 1. 2 Hooker v. State, 4 Ohio 348, 350: Bemichamp v. State, 6 Blackf. 2!J9, 30S; Munly v. State, 7 Blackf. 593; JLorris v. State, 7 Blackf. 607; Wyatt V. Noble, 8 Blackf. 507; People v. Reynolds, 16 Cal. 128; People V. Ah You, 47 Cal. 121; Edelen v. Gough, 8 Gill, 87; Williams v. State, 3 Ga. 453, 459; Drake v. State, 51 Ala. 30, and Bell v. State, cited ibid., p. 31; Kleinback v. State, 2 Speers, 418. 3 Schumacker v. State, 5 Wis. 324. * Hendrick v. Com., 5 Leigh, 707; Jackson v. Pittsford, 8 Blackf. 194; Hunter v. Parsons, 22 Mich. 96; Jhons v. People, 25 Mich. 500; O'Con- nor V. State, 9 Fla. 215; State v. Pritchard, 15 Nev. 74; s. c, 10 Re- porter, 273; Jones v. Vanzaudt, 2 McLean, 611; People v. Kohle, 4 Cal. 199; People v. Jenks, 24 Cal. 11 ; People v. McCarty, 48 Cal. 557; Lindsley v. People, 6 Park. Cr. R. 233; Drake v. State, 51 Ala. 30. 5 People V. Scoggius, 37 Cal. 676; People v. Russell, 46 Cal. 121. See also Com. v. Hartzell, 40 Pa. St. 462; Lee v. Peter, 6 Gill & J. 447. § 270.] LIBERAL DISCRETION ALLOWED THE COURT. 297 (8.) So in respect of Challenges for Cause. — The fore- jroing relates to the exercise of the right of peremptory challenge. As to challenges for cause, it is also held that a party may, for a proper reason, retract his acceptance of a juror, and challenge in this form.^ In a late case, de- cided by the Supreme Court of Michigan, Marston, J., said: "It is the aim and policy of the law to have a fair and impartial jury, and to this end it would be the clear duty of the court, up to the last minute, to permit counsel to further examine the jurors." "^ But, as has been ob- served, thii? power to challenge for cause at any time before the oath is tendered, might be abused. If the objection to a juror be kept back at the regular tmie for an improper reason, or from motives of mere caprice, it would be just for the court to declare the right to be wholly waived, and the discretionary i)ower to do so ought not to be denied.^ § 270. A liberal Discretion allowed the Court. — It is a settled rule of practice that some prejudice to the appellant, resulting from the rulings of the trial court in organizing the jury, or at least some infringement of statutory pro- visions relating thereto, must be shown, before an appellate court will review the proceedings of the court below.* It is within the discretion of the court to direct the names of twelve of the regular panel in attendance to be omitted in impanelling a jury for a given case ; for example, where such jurors are in the jury-room,^ or have recently rendered a verdict in another case.'"' But where jurors have been sum- ' McFadden v. Coin., 23 Pa. St. 12, 17; Smith v. State, 55 Ala. 1 (overruling Stalls v. State, 28 Ala. 2.'j) ; Sparks v. State, 59 Ala. 82; State V. Adair. 6G X. C. 298: State v. Perkins, 66 N". C. 126; State v. Davis, 80 N. C. 412. 2Scripps V. Keilly, 38 Mich. 10. 3 McFadden v. Com., 22 Pa. St. 12, 17, per Black, C. J. See also the other authorities cited xupra. * Ray V. State, 4 Tex. App. 450; Gardeuhlre v. State, 6 Tex. App. 147; Dixon V. State, 2 Tex. App. 530; Harkins v. State, 6 Tex. App. 452; Walker v. Kennison, 34 X. H. 257; W^ilson v. State, 31 Ala. 371; Funk- houser v. Pogne, 13 Ark. 295. •^ State v. Pitts, 58 Mo. 550; Kimbrough v. State, 62 Ala. 248. « Alexander v. Oshkosh, 33 Wi.«. 277. 298 IMPANELLING THE JURY. [CII. Xlll. moned upon a spcciul venire for the trial of a capital ca.se, the court ought not to take a portion of them for the trial of another case.' A trial justice has no right, of his own motion, without any exception being taken by either party, to quash the panel of jurors, and issue a new venire.^ § 27]. Xo vested Rij^lit to a i»artiem to be to compel his attendance, or dismiss the jury and ini[)anel another to try the cause.' § 273. And Jurors set aside after they have been ao- <^epted and sworn. — The court is not bound to suffer the case to proceed, after the jury have been impanelled, when informed of a fact going to the disqualification of a juror, from which it is probal)le that the verdict may be set aside.* The obnoxious juror may be excluded,'^ and that, too, Tex. App. 380, :>!)S, citing State v. Raymond, 11 Xev. 98. See also AVoodard v. State, 9 Tex. App. 412. ^ People V. Areco, 32 Cal. 40; State v. Arthur, 2 Dev. 217; John v. State, 16 Fla. 554; Hiues v. State, 8 Humph. 597. 2 United States v. Byrne (U. S. Cir. Ct., S. D. N. Y., May, 1881), 7 Fed . Jtep. 455; Waller v. State, 40 Ala. 325; Bill v. State, 29 Ala. 34; Stew- nrt V. State, 13 Ark. 721, 737; Hall v. State, 51 Ala. 9; People v. Larned. 7 N. Y. 415; People v. Vermilyea, 7 Cow. 369,382; Johnson v. State, 47 Ala. 9; State v. Lovenstcin, 9 La. An. 313; Foster's Case, 13 Abb. Pr. (X. S.) 372, n.; Boles v. State, 24Miss. 445; State v. Breaux, 32 La. An. 222; State v. Belcher, 13. So. Car. 4.59. But see .Fohnson v. State, 47 Ala. 9; State v. Ross, 30 La. An. 1154. 3 Penncll v. Percival, 13 Pa. St. 197. 4 Mitchell V. State,'43 Tex. 512, 516; Wormeley"s Case, 10 Gratt. C58: Muirhead v. Evans, 6 Excli. 447. In this last case, it was discovered, (luring the examination of the first witness, that there were thirteen jurors in the box. It was impossible to ascertain which juror was last sworn. Twelve of this jury were afterwards re-sworn, and the trial of the case proceeded. Tliis practice was held to be correct. See upon this point Davis v. State, 9 Tex. App. 634; Bullard v. State, 38 Tex. 504. * State V.Reeves, 11 La. An. 685; Robinson v. State, 33 Ark. ISO; State V. Vestal, 82 N. C. 563; State v. Vann, 82 N. C. 631; Xolen v. § 273.] NO VESTED RIGHT TO A PARTICULAR JUROR. 301 although he has been sworn, if no evidence has been intro- duced. Perhaps the earliest instance of the kind is found in Clayton's Reports,^ Avhere it is recorded that " a juror was put by after he was sworn, because of kin to the plain- tiff." ^ The views here stated, although occasionally con- troverted,^ are sustained by an abundance of authorities.'* However, it is held that the sufficiency of the reasons for this exclusion will be examined on appeal, and, unless sup- ported, the judgment will be reversed.^ The court may also discharge a juror from the box, after he has been sworn, where it appears that the juror is physically unable to sit through the trial. ^ This does not entitle a prisoner to his discharo;e. He should be offered his challeno;es over aa^ain to the eleven, and another juror procured to fill the vacancy." State, 2 Head, 520; Hines v. State, 8 Humph. 597; State v. Cummiiigs, 72 N. C. 469; Pannell v. State, 29 Ga. 681; Isaac v. State, 2 Head, 458; Lewis V. State, 3 Head, 127. The court may, in its discretion, give the prosecutioQ in a criminal case the privilege to re-examine a juror after liis acceptance by the State's attorney, but before his acceptance by the defendant. The allowance of a challenge for cause shown upon the re- examination constitutes no error. Belt v. People, 97 111. 461. 1 Published in 1651. 2 Spoford's Case, ibid., 78. 3 See State v. Williams, 3 Stew. (Ala.) 454; Ward v. State, 1 Humph. 253; Smith v. State, 55 Ala. 1, 7; State v, Morea, 2 Ala. 275; Gearhart V. Jordan, 11 Pa. St. 325; State v. Stephens, 11 So. Car. 319; United States V. Randall, 2 Cranch C. C.412. •* People V. Damon, 13 Wend. 351; Lewis v. State, 9 Smed. & M. 115; McGuire v. State, 37 Miss. 369: Tooel v. Com., 11 Leigh, 714; Spong v. Lesher, 1 Yeates,326; Smith v. State, 55 Miss. 513; State v. Adair, 66 N. C. 298; Com. v. Twombly, 10 Pick. 480, note; State v. Davis, 80 N. C. 412; Hayues v. Crutchfield, 7 Ala. 189.; Edwards v. Farrar, 2 La. An. 307; Tweed's Case, 13 Abb. Pr. (N. S.) 371, note; People v. Wilson, 3 Park. Cr. E. 199; United States v. Morris, 1 Curt. C. C. 23; Gilliam v. Brown, 43 Miss. 641 ; Williams v. State, 32 Miss. 389; Cornelius v. State, 12 Ark. 782; Evans v. State, 6 Tex. App. 513; Stone v. People, 3 111. 326; Jefferson v. State, 52 Miss. 767; Jackson v. State, 51 Ga. 402; Dilworth V. Com., 12 Graft. 689, 705; Watkins v. State, 60 Ga. 601. 5 Black V. State, 9 Tex. App. 328. 6 Fletcher v. State, 6 Humph. 249; Silsby v. Foote, 14 How. 218; s. c, 1 Blatch. 444. ? Rex v. Edwards, Russ. & Ry. 223; s. c, 4 Taunt. 309; 3 Camp. 207. Such is the common law ; but this has in some instances been changed by statute. See Garner v. State, 5 Yerg. 160; State v. Curtis, 5 Humph. 601; Snowden v. State, 7 Baxter (Tenn.), 482. '^02 I>rPANELLING THE JURY. [CH. XIII. The withdiawul of a juror, after the trial has begun, in fact operates as a discliarge of the jury ; but the prisoner is not entitled to complain of this, if the eleven are at once put ui)on him again for acceptance or rejection.' § 274. A Juror's Kijtht to Servo. — The notion has pre- vailed, not only that a party has a right to demand the ser- vices of a particular juror, if not ol)no\'ious to challenge, but also that the juror himself has a right to insist that he shall serve. Upon the latter point it has been said : " Every tax-paying citizen of South Carolina is liable to l)e drawn as a juryman ; and when it falls to his lot, he has a right to serve, which no one can deprive him of, unless it can be shown that he labors under some legal disability which disqualifies him, or unless he can be challenged for ,some good and sufficient cause by parties in court. * * * This privilege is of little value ordinarily, but there may be occasions and junctures in the republic, when a citizen would sooner perish than yield his privilege. A juryman * * * can at no time be arbitrarily discharged against his consent." - It is not perceived how that which is ordi- narily regarded merely as the duty of a citizen, can be con- verted into an inalienable rio-ht. The f oreo;oino: declaration, if accepted as law, would rob the court of the exercise of that wise discretion in the formation of a jury, which is one of the greatest safeguards in the administration of justice. And it may be olxserved that, whenever the occasion arises that a particular juryman " w^ould sooner perish than yield liis privilege" of sitting upon a jury, he obviously enter- tains that lively interest in the event of the suit which is generally conceded to be a cause of disqualification.^ § 275. AVaiver of Causes of Challenge. — (1.) Of the Challenge to the Array, by challenging the Polls. — Al- 1 Rex V. Scalbert, 2 Leach, 706. Upon the discharge of a jury, after being charged witli the case, see the notes on this case, and to Rex v. FMwards, 3 Camp. 207; Rex v. Kinloclc, 1 Wils. 157; s. c, Fost. Cr. L. 10; Wedderburn's Case, Fost. Cr. L. 23; Rex v. Delany, Jebb C. C. 10(1; Rex v. Barrett. .Febb C. C. 103. 2 Greer v. Xorvill, 3 Hill (S. C), 262, 263. •^ See in this connection, ante, § 27, et seq. §275.] WAIVER .OF CAUSES OF CHALIE^GE. 3f3 though it is true that a challenge to the polls is a waiver of nil causes of challenge to the array,' nevertheless, the challenge to the array, once taken, is not waived by the party subsequently challenging jurors peremptorilj^ and for cause, in the effort to secure a fair trial under the circum- stances.^ (2.) Of a Cause knoivn at the Time of the Impanelling. — No rule is better settled than that, if a party to the cause have knowledge of any circumstances tending to disqualify particular jurors from serving therein, he cannot hold back these facts until after verdict, and then produce them in support of a motion for a new trial .^ "If," said Chief Justice Shaw, " a part}' knows of any prejudice entertained by a juror, and makes no exception when the jury is im- 1 Co. Litt. 158. a.; Watkins v. Weaver, 10 Johns. 107: Tallman v. Wooclworth, 2 Johns. 385. After a failure to make such a challenge at the proper time, any objection to the legality of subsequent proceedings must be addressed to the discretion of the court, which will not be exer- cised to the relief of the party complaining, in the absence of evidence showing some positive injury to have been suffered. Barton v. Quinn, Batty (Irish Rep.), 552. 2 Clinton v. Englebrecht, 13 Wall. 434. An exception, formally taken to the decision of the court in disallowing a cliallenge. is not waived by •A negative answer to tlie inquiry of the court, at the conclusion of the impanelling, as to whether tlie parties have any objection to the jurors as they stand. Hathaway v. Helmer, 25 Barb. 29. ^ Lady Herbert v. Shaw, 11 IMod. 118; Falmouth v. Roberts, 9Mee. & W. 469; Carew v. Howard, 1 Root, 323; Lisle v. State, 6 Mo. 426; Bell V. Howard, 4 Litt. 117 ; Craig v. Elliott, 4 Bibb, 272 ; Jordan v. Meredith, 1 Binn. 27; McCorkle y. Binns, 5 Binn. 340; Bellows v. Gallup, Kirby, 166; Williams v. Poppleton, 3 Oreg. 139; Tomer v. Densmore, 8 Neb. 384; Selleck v. Sugar Hollow Tp. Co., 13 Conn. 453; Bailey v. Trum- bull, 31 Conn. 581; Brown v. State, 52 Ala. 345; People v. Stonecifer, 6 Cal. 405; People v. Sandford, 43 Cal. 29; Eakman v. Sheaffer, 48 Pa. St. 176; Parmele v. Guthery, 2 Root, 185; Woodruff v. Richardson, 20 Conn. 238; Lane v. Scoville, 16 Kan. 402; State v. Shay, 30 La. An. 114; Hussey v. Allen, 59 Me. 269; Dolloff v. Stimpson, 33 Me. 546; ."^tate V. Anderson, 4 Nev. 265; Lowe v. McCorkle, 8 West. L. J. 64; United States v. Smith, 1 Sawyer, 277; Bronson v. People, 32 Mich. 34; State V. Benton, 2 Dev. & Bat. 19G; State v. Groome, 10 la. 308. If any objection exists to the competency of a trior, it should be made at the time of his appointment, when, if overruled, an exception may be re- served. It cannot for the first time be made upon a motion for a new trial. People v. Voll. 43 Cal' 166. 304 IMPANELLING THE JURY. [CH. XIII. panelled, however good his cause of challenge then is, it must be deemed to be waived. Otherwise, knowing of a secret taint to which the verdict may be exi)osed, he takes his chance for a favorable verdict, reserving a power to im- peach it, should it happen to be against him, — a proceeding inconsistent with the plain principles of fair dealing, and with that frankness which ought to characterize the whole course of judicial proceedings." ^ From the foregoing, the general rule follows that an ob- jection to the competency of a juror, made after verdict, must be proved to have been unknown to the party object- ing, and that by proper inquiry it could not have been known before the juror was sworn. -^ The knowledge of the attorney in such a case is the knowledge of his client.* Hence, the affidavit in support of the motion for a new trial should unequivocally allege that the moving party and his attornevs were in such i<>:norance of the matter affecting the 1 Fox V. Hazelton, 10 Pick. 275, 278; Halloek v. Franklin, 2 Mete. 558. This rule is applicable also to objections affecting the impartiality of referees. Ibid. See also Ipswich v. Essex, 10 Pick. 519; Merrill v. Berkshire, 11 Pick. 269. 2 Seal V. State, 13 Snied. & M. 286; Itoseborough v. State, 43 Tex. 070; Brill v. State, 1 Tex. App. 572; Manion v. Flynn, 39 Conn. 330; Bradshaw v. Uubbard, 6 111. 390; Jameson v. Androscoggin R. Co., 52 Me. 412; Tilton v. Kimball, 52 Me. 500; Goodwin v. Cloudman, 43 Me. 577; Powell v. Haley, 28 Tex. 52; Falmouth v. Roberts, 9 Mee. & W. 469; s. c, 1 Dowl. (N. S.) 633; Stewart v. Ewbank, 3 Iowa, 191. Knowl- edge that a juror is a man of intemperate liabits does not include knowledge of the fact that he is subject to delirium tremens. Hogshead V. State, 6 Humph. 59. 3 Russell V. Quinn. 114 Mass. 103; Kent v. Charlostown, 2 Gray, 281; Orrok v. Com. Ins. Co., 21 Pick. 456, 471 ; Parks v. State, 4 Ohio St. 234; Eastman v. Wight, 4 Ohio St. 156, 160; State v. Tuller, 34 Conn. 294; Falmouth v. Roberts, 9 Mee. & W.469; Clough v. State, 7 Neb. 324; An- derson V. State, 14 Ga. 709; Parker v. State, 55 Miss. 414; Jameson v. Androscoggin R. Co., 52 Me. 412; Goodwin v. Cloudman, 43 Me. 577; State V. Bowden, 71 Me. 89; Powell v. Haley, 28 Tex. 52; Pryme v. 'Iltchmarsh, 10 Mee. & W. 605; Trueblood v. State, 1 Tex. App. 650; Scott V. Moore, 41 Vt. 205. In one case, the knowledge of the attorney^ clerk seems to have been imputed to the client. Falmouth v. Roberts. 9 Mee. & W. 469; s. c, 1 Dowl. (N. S.) 633. § 275.] WAIVER OF CAUSES OF CHALLENGE 305 juror's competency, that the objection could not be season- ably made.^ (3, ) Illustrations. — Perplexing situations sometimes arise m the process of impanelling, at which time counsel are apt to sit by in silence, leaving the court to extricate itself from the dilemma, with the hope of deriving some fortuitous advau- tage from the circumstance. But, in general, this will not be permitted. Thus, upon the trial of an indictment for murder, a juror stated that he had expressed an opinion as to the guilt of the prisoner, whereupon the court asked the counsel for the prisoner " what steps they proposed to take." The reply was made that " they had nothing to say." It was held on appeal that the defendant had no right to com- plain of the disposition of the juror as made by the court. "Even in a criminal case of this magnitude," said McKin- NEY, J., "such apparent trifling with the court cannot be sanctioned : it is incompatible with a fair and proper prac- tice in the administration of justice. An objection of this nature must be made when the opportunity is fairly pre- sented ; and if then tacitly waived, it cannot afterwards be insisted on as a ground of error in this court." ^ Again, upon the trial of a criminal charge, after the jury had been impanelled and sworn, and the case opened by both sides, a juror arose and stated that he was one of 1 Achey v. State, 64 Ind. 56 ; Booby v. State, 4 Yerg. Ill ; State v. Tal- ler, 34 Conn. 280; Clough v. State, 7 Neb. 324; Morrison v. McKinnon, 12 Fla. 552. A new trial_^will not be granted upon the sole affidavit of a stranger to the case, who deposes to a positive expression of opinion against the defendant by one of tlie jurors, previous to the trial; and further, that he did not inform tlie attorneys of the defendant of this fact until the trial was concluded. Non constat., but that the defendant and his attorneys were also aware of the juror's prejudice. Achey v. State, 64 lud. 56. 2 Xortleet v. State, 4 Sneed, 340, 343. See also Com. v. Gross, 1 Ashmead, 281,286; State v. Coleman, 8 So. Car. 237; Com. v. Marrow, 3 Brewst. 402; Gardiner v. People, 6 Park. Cr. K. 155; Malone v. State, 8 Ga. 408; Ham v. Lasher, 24 Up. Can.^Q. B. 533, note; Widder v. Buffalo, etc. R. Co., 24 Up. Can. Q. B. 534;" People v. Doe, 1 Mich. 451; Living- ston V. Heerman, 9 Martin, 656. Compare Cochran v. State, 62 Ga. 731. (20) 301) IMPANELLING THE JUKY. [CH. XIII. the o^niiul jurors l)v whom the iiulietnient li;id been found. Pertinent inquiries had been made of the juror previous to the swearing , touching this cause of disqualification, to which he had failed to respond, his silence misleading all parties. The attorneys on both sides refused to act in the matter, Avhcreupon the court cut the gordian knot by demanding of the defendant's counsel whether they objected to proceed- ing with the jur}'. Upon an affirmative answer, this jury was discharged, and another impanelled, to which course the defendant's counsel objected. It was held upon these facts, that the defendant had no right to complain, because his own objection was not overruled. The discharge of the jury Avas the necessary result of his objection being sus- tained ; it was, therefore, not without his consent, and con- stituted no bar to a further prosecution.^ In the case just noticed it is apparent that the counsel for the defendant desired to take their chances for an acquittal before the jury, at the same time reserving an objection to it as illegally constituted. A party will never be permitted to occup\' positions so pointedly inconsistent. The converse of this case is illustrated by a late decision in New York."-^ A challenge to the arra}^ was interposed by the prisoner's counsel, but disallowed, and the impanelling of the jury proceeded. After several jurors had been selected, the court announced that, upon further reflection, it would allow the counsel to renew the challenge, and would set aside all the jurors who had been procured up to this time. The prisoner's counsel insisted that it was too late to rem- edy an error, if any had been committed ; and, in answer to a question, whether he objected to accepting the offer of the court, and insisted upon going on with the trial, he 1 Stewart v. State. 15 Ohio St. 155. See also State v. Allen, 4G Conn. .=i31; .s-. c, 10 Reporter. 107; Keg. v. Coulter, 13 Up. Can. (C. P.) 299. The result would have been otherwise, if the prisoner had made no ob- jection to proceeding with the jury as constituted. In such a case the court cannot, without the consent of the prisoner, and of its own will, withdraw a juror. Such action operates as a discharge of the jurj^ and an acquittal. O'Brian v. Com., 9 Bush, 333. 2 Cox v. People. 19 Ilun, 430; s. c, 80 X. Y. 500. § 27(3.] WAIVER OF DISALLOWANCE OF CHALLENGE. 307 replied that he did. The trial, therefore, proceeded before a jury composed in part of jurors of the obnoxious panel. It was held that, assuming the facts alleged to constitute in law a good ground of challenge to the array, yet the pris- oner by declining to avail himself of the offer of the court to re-open the question, and by insisting that the trial should proceed, had precluded himself from insisting upon the exception to the ruling of the court, and must be re- «:arded as having abandoned the challenge. § 276, Waiver of Exception fox* Disallowance of Good Cause of Challenge to a Jiu-or. — (1.) By Omission to challenge the Juror peremptorily. — Some courts hold that a party cannot complain that an incompetent person was placed upon the jury, unless, during the process of impan- elling, the party aggrieved exhausted his peremptory chal- lenges. According to this view, it is not enough that the juror was unsuccessfully challenged for cause. The party is bound to exhaust his peremptory challenges in order to cure any possible errors of the court in passing upon his challenges for cause ; and, unless it appear that he did so, the correct- ness of such rulings will not be examined by an appellate court. Conceding the judgment of the trial court to have been erroneous, it is held under these circumstances to be an error without prejudice.^ (2.) A contrary View. — But, in the opinion of other courts, no obligation rests upon a party to make use of his peremptory challenges, for the purpose of excluding a juror unsuccessfully challenged for cause. He has a right to except to the decision of the court upon such challenge, which, if erroneous, must be corrected by awarding the party a new trial. ^ The right of peremptory challenge has 1 State V. Elliott, 45 Iowa, 486; State v. Davis, 41 Iowa, 311; Barnes V. Newton, 46 Iowa, 567; St. Louis, etc. R. Co. v. Lux, 63 111. 523; Tut- tle V. State, 6 Tex. App. 556; Sharp v. State, 6 Tex. App. 650; McKin- ney v. State, 8 Tex. App. 626; Tooney v. State, 8 Tex. App. 452; Krebs V. State, 8 Tex. App. 1; Palmer v. People, 4 Neb. 68; State v. Gill, 14 So. Car. 410; Preswood v. State, 3 Heisk. 468. 2 People V. Bodine, Edni. Sel. Cas. 36, 78; .s. c, 1 Den. 281; Freeman 308 IMPANELLING THE JURY. [CII. XIII. been said to be armor, wliidi the party may wear or put aside at his pleasure' (3.) B)/ Challenging pere7nptorily . — But courts gener- ally are agreed that, if the party does make use of his per- emptory challenge, and thereby excludes a person chal- lenged for cause, he has no right to complain of the decision of the trial judge upon such challenge, because na injury can be shown, since the obnoxious juror did not par- ticipate in the verdict.^ For the same reason, if the juror is peremptorily challenged by the adverse party, or excused by the court, the other party has no ground of comi)Iaint for a disallowance of his challenge for cause.'^ (4.) Unless Peremptory Challenges are subsequently ex- hausted. — However, it must be stated in connection with the foregoing, that a case of possible prejudice to the chal- lenging party is presented where, after removing the obnoxious juror by a peremptory challenge, the number of such challenges guaranteed by law is exhausted before the impanelling of the jury is complete. It is clear that there can be no prejudice unless the right of peremptory chal- lenge was thus exhausted.^ Will the law presume prejudice V. People, 4 Den. 9, 31; Brown v. State, .57 Miss. 424; s.c, 10 Cent. L. J., 376; People v. Stewart, 7 Cal. 140; Sampson v. Sehaffer, 3 Cal. 107. 1 People V. Bodiue, Edni. Sel. Cas. 79, per Beardsley. J. 2 Schoeffler v. State, 3 Wis. 823. 836; Burt v. Panjaud, 99 U. S. 180; s. c, 18 Am. L. Reg. 660; Freeman v. People, 4 Denio, 9; Stewart v. State, 13 Ark. 720; Benton v. State, 30 Ark. 328; Friery v. People, 2 Abb. App. Dec. 215; s. c, 2 Keyes, 424; 54 Barb. 319; Ferriday v. Selser, 4 How. (Miss.) 506; People v. Knickerbocker, 1 Park. Cr. R. 302; Whelan v. Eeg., 28 Up. Can. Q. B. 2, 108; State v. Raymond, 11 Nev. 98; State v. Davis. 41 Iowa, 311; Morton v. State, 1 Kan. 468; Wiley v. Keokuk, 6 Kan. 95; People v. Stonecifer, 6 Cal. 405; Robinson v. Ran- dall, 82 111. 522; Wilson v. People, 94 111. 299; Carter v. State, 8 Tex. App. 372; Conway v. Clinton, 1 Utah, 215; Krebs v. State, 8 Tex. App. 1; Brown v. State, 57 Miss. 424; State v. Cockman, 2 Winst. N. C. 95; Mimms v. State, 16 Ohio St. 221 ; Erwin v. State, 29 Ohio St. 186; State V. Hamilton, 27 La. An. 400; Bejarano v. State, 6 Tex. App. 265, Contra, Lithgow v. Com., 2 Va. Cas. 297; Sprouce v. (;!om., 2 Va. Cas. 375; Dowdy v. Com., 9 Gratt. 727; Birdsong v. State, 47 Ala. 68; Iver- son V. State, 52 Ala. 170, 174; Brown v. State, 70 Ind. 576. 3 Griffin v. State, 18 Ohio St. 438; Amick v. Young, 69 111. 542. < McGowan v. State, 9 Yerg. 184; Burrell v. State, 18 Tex. 713; John- § 276.] WAIVER OF DISALLOWANCE OF CHALLENGE. 309 from the simple fact that the peremptory challenges were exhausted? Some courts answer this question in the affirmative ;^ but, in the opinion of others, something more must be shown, namel}^ that after the peremptory chal- lenges were exhausted, some objectionable person took his place upon the jury, who would otherwise have been ex- cluded by a peremptory challenge.^ The latter seems to be the better view. Concedins; the challen«:e for cause to have been improperly overruled, it is evident that, only under such circumstances as just stated, can the loss of the per- emptory challenge, necessary to cure the erroneous decision of the court, be said to have worked an injury to the chal- lenging party. son V. State, 27 Tex. 764; Bowman v. State, 41 Tex. 417; Lester v. State, 2 Tex. App. 432, 443; Carroll v, St:ite, :? Humph. 315; Robinson V. Eandall, 82 111. .521; People v. Gaunt, 23 Oal. 156; People v. Gate- wood, 20 Cal. 146; Wiley v. Keokuk, 6 Kan. 94; Morton v. State, I Kan. 468; People v. MeGungill, 41 Cal. 429; Stout v. Hyatt, 13 Kan. 232; State v. McQuaige, 5 So. Car. 429; Tuttle v. State, 6 Tex. App. 556; Ogle V. State, 33 Miss. 383; Brown v. State, 57 Miss. 424; Mimms v. State, 16 Ohio St. 221; Erwin v. State, 29 Ohio St. 186; State v. Bun- ker, 14 La. An. 461 ; State v. Caulfield, 23 La. An. 148; State v. Lartigue, 29 La. An. 642, 646; State v. Hoyt, 47 Conn. 518. 1 People V. Weil, 40 Cal. 268; Trenor v. Central Pacific K. Co., 50 Cal. 222, 226; Hubbard v. Ptutledge, 57 Miss. 7; State v. Brown, 15 Kan. 400. 2 Fleeson v. Savage, S. M. Co., 3 Nev. 157, 163: State v. Raymond, II Nev. 98; Rothschild v. State, 7 Tex. App. 519; Grissom v. State, 8 Tex. App. 386; Hollis v. State, 8 Tex. App. 620; Cock v. State, 8 Tex. App. 659; Tooney v. State, 8 Tex. App. 452; Cotton v. State, 32 Tex. 614; Myers v. State, 7 Tex. App. 641; Holt v. State, 9 Tex. App. 571; Meaux v. Whitehall, 8 Bradw. 173. In Whelan v. Heg., 28 Up. Can. Q. B. 2, the Canadian courts, certain judges dis- senting, held that even under the circumstances stated in the text, a prejudice to the challenging party would not be presumed. In con- sidering this case, it is to be remembered that the prisoner was a member of the Fenian organization so obnoxious to the Canadian people; that the crime for which he was tried was the assassination of the Hon. Thomas D'Arcy ]\IcGee, a member of the Canadian Parliament; and that he had been fairly convicted upon the evidence, as he himself admitted at the close of the trial. (See 28 Up. Can. (Q. B.) p. 141). It is not, therefore, surprising that the majority in both the appellate courts were inciiicd to fi.,d from the record tliat the prisoner had suffered in no re- spect from the error of the court in disallowing a legal cause of chal- ens:e. 310 IMPANKLLING THE JL JIV. [CH. XIII. § 277. AVitlidrawal of Challoiiso. — A peiemptory chal- lenge once taken i.s counted against the [)arty. lie cannot capriciously -withdraw it. Thus, we read in an old case : "A juror was challenged by the plaintiff, and immediately the defendant challenged him also, and before the court had ordered him to be withdrawn, the plaintiff would have relin- quished his challenge." This privilege the court did not concede, although some opinion to the contrary was mani- fested by certain clerks of the court. ^ This matter seems to be to a certain extent within the discretion of the court. ■^ When the panel had been gone over without procuring a jury, the prisoner was allowed to retract one of his challenges, in order that the person chal- lenged might be available to complete the jury.'^ It is clear that the prisoner, having challenged a juror peremptorily, cannot subsequently withdraAv such challenge, and insist that he shall sit upon the jury, or substitute a challenge for cause, the grounds of which came to his knowledge after the peremptory challenge had been taken .^ When a juror has been challenged for favor, and the juror excluded, the chal- lenging part}'^ cannot afterwards be heard to say that the juror ought not to be discharged : nor can he insist upon examining him on oath, to make it appear that he is really indifferent, and therefore a competent juror.'' In general, it has been observed that this permission to withdraw a chal- lenge should be very cautiously granted ; otherwise the right of challenge might be converted from a right to reject into a right to select, which it was never intended to be." It ought not to be permitted where its exercise will operate I 2 Dyer, 198. b. (51). * Morrison v. Txjvejoy, Minn. 311). 3 United States v. Porter, 2 Dall. 345. See also Garrison v. Poitland, 2 Oreg. 123. A challenge to the array, after allowance, may be waived by the challenging party, and by such waiver he will be bound, aliiiough upon trial for a capital crime. Pierson v. People, 79 N. Y. 424. 4 State V. Price, 10 Rich. L. 351; State v. Coleman, S So. Car. 237; Rex v. Parry, 7 Car. & P. 838; Furman v. Applegate, 23 N. J. L. 28. 5 State v. Creasman, 10 Ired. L. 395. 6 Ante, § 150. § 280.] CHALLENGE TO THE POLLS OF SPECIAL JURY. 311 as a fraud upon the otlier party, who has exhausted his i)er- emptory challenges.^ § 278. Exception for Irregularity in Impanelling. — If a party would take advantage of an irregularity in the im- panelling of the jury, he must make his objection at the time the error is made. Such objections will not be heard for the first time on a motion for a new trial, or in an ap- pellate court.^ § 279. Impanelling in Territorial Courts. — We have previously seen that the district courts of the Territories have and exercise the same jurisdiction in all cases arising under the constitution and laws of the United States, as is vested in the Circuit and District Courts of the United States, and that juries for the trial of such cases must be brought into court under the laws of the Territory where the trial takes place .^ The process of impanelling such jurors for the trial of a particular case arising under the Federal statutes must also be in accordance with the laws of the Territory.^ § 280. Kiglit of Challenge to the Polls of a Special Jury. — It seems to be uncertain whether at common law a challenge for cause could be made to any of a special jury which had been struck for the trial. We have hitherto seen that the right of peremptory challenge had no exist- ence, for the simple reason that a struck jury was not granted in cases to which this right was an incident.' The statute of G Geo. IV., c. 50, for consolidating and amend- ing the laws relating to jurors and juries, declared wliat had previously l)een the common law, in respect to the want of qualifications required by law, that this should be a cause of challenge, but provided that " nothing herein contained shall extend in any wise to any sj)ccial juror." ^ ^ Com. V. Tvvitchell, 1 Brewst. 551. 2 Bircliaicl v. Booth, 4 Wis. G7; State v. Gill. U 8o. Cai-. 410; People V. Coffmau, 24 Cal. 230; Bulliner v. People, 95 111. ;5;)5; post, § 29G. But see Fowler v. State, 8 Baxt. 573. 3 Ante, § 53. * Miles V. United States, 103 U. S. 304. See also Eeynolds v. United States, 98 U. S. 145. ^ Ante, § 161. « Sec. 27. See Rex v. De^pard, 2 Man. A Ky. 4()G. 410; *•. c, suh num. 312 IMPANELLING THE JURY, [CH. XIII. If, before the Enjilisli Consolidated Jury Act was passed, the right of challenge to special jurors existed, it would seem that something more specific than the language in sec- tion 27 of that act would he necessary to take it away. A more rational supposition is that, in the opinion of the leg- islature, the right did not exist, and the language used in the i)roviso was to guard against the extension of the right loo O to special jurors.^ In some States, challenges ma}^ be made to individual jurors of the panel arrayed for the striking, before this formality begins.^ Thus, the Supreme Court of Georgia ^ say in a late case : " The defendant had the right to a panel of twenty-four from which to strike — all twenty-four im- partial men." ^ Accordingly, it was held in this case that a denial of the right to challenge four incompetent jurors before the striking, by reason of which the defendant was forced to exhaust the same number of strikes upon such persons, was a fatal irregularity, for which the judgment must be reversed.* It is not clear that Eex V. Sutton, S Burn. & Cress. 417. In this case objection was made after verdict that one of the jurors was an alien. Lord Tenterden, C. J., observed: '-If he liad been a petit juryman, I thinli the only mode of enforcing" the objection would have been by challenge to the poll before he was sworn; but, being' a special jurynuvn, I think the onlj' opportu- nity was at the time when the juiy was struck; for the provisions of the act with respect to challenges are expressly declared not to apply to anj- special juror. The obvious reason for that is, that the parties have, what they have not in the case of a petit jurj% a previous opportunity of objecting or challenging when tlie jury is struck." 2 Man. & Ey. 410. In Keg. v. Sullivan, 8 Ad. & El. 831, 833, also decided since the statute in question, Lord Dennian, C. J., seems not to have doubted the power of the court, in its discretion, to exclude a special juror from the panel be- fore trial, for a cause which would have been good ground for a chal- lenge in the case of a common juror. Sec in this connection. Stewart v. State. 1 Ohio St. G6. ' But see Barrett v. Long. 8 Irish L. 331 ; s. <■.. 7 Irish L. 439; O'Con- nell V. Mansfield, '.) Irish L. 179. * Ante, § 14, subsec. 2. 3 Melson v. Dickson. 63 Ga. 682. To test their competency, the jurors may be examined upon the voir dire before the strikiiig begins. Howell V. Howell, 59 Ga. 1 1.5. * Melson v. Dickson, supra. § 280.] CHALLENGE TO THE POLLS OF SPECIAL JURY. 313 such a conclusion is correct. All the obnoxious jurors were removed by the process of striking. Ron constat, but that the case was tried by a perfectly impartial jury. The better view would seem to be that the act of striking the challengeable jurors from the panel amounted to a com- plete waiver of all objections previously made. In this respect the rule would be the same as where a challenge for cause is erroneously disallowed, and the juror is subse- quently removed by a peremptory challenge.' 2 Ante, § 276, subsec. 3. •>14 SWEARING THE JURY. [CH XIV CHAPTER XIV. OF SWEARING THE JURY. SECTION. 286. Time foi- Swearing. 287. Sweariug tiie Jury :it Coniiiion Law. 288. Jurors must be sworn according to Law. 289. Form of Oatli. 290. Swearing for the Term. 291. Swearing singly or in a Body. 292. Re-swearing the Jurj'. § 28H. Time for Sweai'ing'. — A jury, in a civil case, can- not properly be sworn until a plea has been tiled and issue joined,^ nor before the suit is called;'-' nor, in a criminal case, before the accused has pleaded to the indictment, and if the whole or a portion of the jury have l)eeii so sworn, the prisoner may ask to have them re-sworn after his plea has been entered. A refusal of this request would probably be a ground for reversal, should judgment be rendered against the defendant. But he cannot go to trial without objecting to this irregularity, and, after an adverse verdict, raise the objection for the first time. He is then presumed to have waived the ground of objection previously existing.^ § 2(S7. Sweariiij; the Jury at Coinnum Law. — The proper time and method of swearing the jury at common 1 Everhart v. Hickman, 4 Bibb, 341; Clagget v. Force, 1 Dana, -129; Shain v. Markhaa>, 4 J. .J. Marsh. 580; Hopkins v. Preston, 2 A. K. Marsh. (54; Miles v. Rose, Hemp. C. C. 37; Baltiu)ore, etc. R. Co. v. Christie, 5 \V. Va. 325; Brown v. Warner, 2 J. .J. Marsh. 39. 2 Marshall v. Krugg, 2 A. K. Marsh. 30. ' Vezain v. People. 40 111. 397. § 287.] AT COMMON LAW. ''■>l^> law, singularly enough, seems to be left in some doubt upon an examination of authority. The practice is thus stated in Chitty on Criminal Law : ^ "The challenges being thus completed, and a full jury of unexceptional)le persons, by some of the means we have examined, being ready, the clerk of the arraigns on the circuit proceeds to administer to each of them the following oath." ^ Else- where we read from the same author that, "The usual course is for the clerk of the arraigns, or clerk of the peace * * * to call the name of the iirst juror, and then, if he be not objected to, the prisoner so signifies ; and then that juror is sivoni, and then the next is called, and he is accepted or challenged."^ These passages render it un- certain whether the swearino- was deferred until twelve were procured, or whether the oath was administered to each juror as found competent. An examination of the proceed- ings in the State Trials shows the latter practice to have been generally observed.^ Mr. Joy in his authoritative treatise^ says : "A juror is then called, and, the prisoner stating that he does not except to him, the clerk of the arraigns says, ' hold the book to C. D., the juror,' Then the officer says, 'look upon the prisoner, you shall well and truly try,'" etc. That such was the practice appears also from several passages in the Trials per Pais.*^ And this is sustained by the familiar rule that a juror might be challenged, after he was sworn, only for cause arising since he was sworn ,^ plainly indicat- ing a lapse of time between the swearing and proceeding to 1 1 Chit. Or. L. 551. 2 The kiiio;iiage of Hale's Pleas of the Crown appears to be to the same effect. 2 Hale P. C. 293. 3 1 Chitty Cr. L. p. 547. * Count Conigsmai k's Case, 9 How. St. Tr. 12 ; Cook's Case, 13 How. St. Tr. 318; Layer's Case, 16 How. St. Tr. 135, and especially the re- marks of Mr. .Justice Abbott in Brauclreth's Case, 32 How. St. Tr. 094. 771. » Joy on Confessions and Challenges, p. 220. 6 Ed. of 1725, pp. 113, 150, 152. 7 Co. Inst. 158. a.; Vicars v. J.angham, Hob. 235; Trials per Pais (Ed. of 1725), 150. 31(1 SWEARING THE JURY. [CH XIV. trial, during which the juror might render liiinself oIjhox- ious to challenge. That such was the i)ractice appears to be the view also of American courts. In the leading case of iState V. Potter,^ Chief Justice Williams observed upon the English practice: "There, each juror is sworn, as soon as he has been examined and opportunity given for challenges. By our practice, the jurors are none of them sworn until all have been examined, and opportunity offered for challenge." '^ And Chief Justice Eyan, delivering the opinion of the ^uj)reme Court of Wisconsin, said: "That was undoubtedly the English practice at the common law."' § 288. Jiiroi's must be sworn according to Law. — A favorite ground of objection to the regularity of proceed- ings in criminal cases is, that the jury were not sworn ac- cording to law. When a form of oath is prescribed by statute, that and none other can be administered. Nor, in a criminal proceeding, will it suffice that the oath prescribed by statute for jurors in civil cases was administered. Such an oath generally differs in terms from that prescribed for jurors in criminal cases, and is, in other respects, inappro- priate in a criminal trial. ^ But, after verdict, it is too late for a party to object for the first time to the form of oath administered. The same rule is here observed as in the case of irregularities in the impanelling. A party must object at the time the irregularity is committed. He is not permitted to take the chances of a favorable verdict and make his ob- ' 18 Conn. 16G. 2 ihid., p. 176. 3 Lamb v. State, 36 Wis. 424, 428. * State V. Rollins, 22 ?s. II. 528; Sutton v. State, 41 Tex 513; Bray v. State. 41 Tex. 560. Where two oatlis are prescribed by statute, one to be adniinistered to jurors on the trial of ''any civil action or proceed- ing, "" the other in criminal trials, the former oath must be used in a bastardy proceeding. " The use of the latter is confined exclusively to the trial of cases wholly and essentially criminal in their nature and character. The former is applicable, not only to the trial of civil ac- tions, properly so called, but to all such other actions and special pro- ceedings as, strictly speaking, are neither civil nor criminal actions, and hence cannot properly be classified under either head."' State v. Worthingham. 23 Minn. 528. 537. See also State v. Pate, Busb. 244. § 289.] FORM OF OATH. 317 jection subsequently.^ Therefore, although the oath ad- ministered does not conform to the statutory form, if the record states that the jury were duly sworn, a party will not be permitted to contradict it.^ § 289. Form of Oath. — At common law the form of oath in criminal cases was: "You shall well and truly try, and true deliverance make between our sovereign lord, the King, and the prisoners at the bar, whom you shall have in charge, and a true verdict give, according to the evidence: so help you God." ^ This form does not preclude the jury from determining the law as well as the fact, and what- ever may be the function of the jury in the determination of the former, an accused person can not demand that the jury shall be sworn a true verdict to render according to the law and the evidence.* Such a form is not sanctioned by any authoritative precedents.'^ In civil cases, the form at common law was " well and truly to try the issue be- tween the parties, and a true verdict to give according to the evidence."^ In a case of default, the proper practice is to swear the jury " to assess the plaintiff's damages," and not to " try the issues," but this irregularity is not a 1 Ante., § 275, subsec. 2. 'Candler v. Haramond, 23 Ga, 493; Cornelius v. Boucher, 1 111. 12; Applegate v. Boyles, 10 Ind. 435; Looper v. Bell, 1 Head, 373. In any case, if a party would object to the form of the oath as actually ad- ministered, he must incorporate it into his bill of exceptions, in order that a court of error may see whether the form used was proper or not. Bartlett v. State, 25 Ohio St. 669, 672; Preston v. State, 8 Tex. App. 30; Dyson v. State, 26 Miss. 362; Barfield v. Impson, 1 Sm. & M. 326; Cato V. State, 9 Fla. 163 ; Wellborn v. Spears, 32 Miss. 139. See post, § 299. 3 1 Chitty's Cr. L. 551 ; 2 Hale P. C. 293 ; 4 Bl. Comm. 355. * O'Connor v. State, 9 Fla. 215; State v. Jones, 5 Ala. 666. Contra^ Patterson v. State, 7 Ark. 59 ; Sandford v. State, 11 Ark. 328 ; Bell v. State, 10 Ark. 536; Bivens v. State, 11 Ark. 455. » See Trials per Pais (^1725), pp. 192, 193. ^3B1. Comm. 365. It is sufficient if the jury are sworn "well and truly to try, and the truth to speak upon the issues joined." Biirk v. Clark, 8 Fla. 9. Where a jury is sworn to try " the issue " in a case pre- senting several issues, the word " issue " will be taken collectively, all the issues being considered as one. Hatcher v. Fowler, 1 Bibb, 337; Bate V. Lewis, 1 J. J. Marsh. 316; Pointer v. Thompson, 7 Humph. 532. But see Adams v. State, 11 Ark. 466. '318 SWEARING THE JURY. [CH. XIV. sufficient ground for :i reversal of the judgment-' But conversely, it hns been held that swearing the jury to in- rjuire of damages, when the general issue is pleaded, and not to try the issue, is an error for which the judgment will be reversed.' The practice of swearing the jury as well to try the issue in fact, as to inquire of the damages on an issue in law previously found for the plaintiff, obtains only where the decision of the issue in law for the plaintiff en- titles him to damages, without regard to the trial of the issue in fact.^ In suits upon penal bonds, where breaches have been assigned, swearing the jury to inquire into the truth of the breaches, is equivalent to swearing them to try the issues ; ■* and so, swearing them to try the issues joined, is equivalent to swearing them to inquire into the truth of the breaches, although the strictly correct practice would be to swear them to inquire into the truth of the breaches, and assess the damages as to the party in default, as well as to try the issues and assess the damages as to the defend- ants who pleaded to the action.^ § 21)0, Swearing- for the Term. — In the absence of a statute requiring jurors to be sworn as their names are drawn and called to try the cause, it has been held not irregular to swear all the jurors in due form at the opening of the court to try the several issues upon which they may serve as ju- rors.^ And although a proper construction of the statute, regulating the drawing and impanelling of the jury, may require that the jurors shall be sworn after they have been drawn, called and approved by the parties, this is a matter of form onlv, and no advantao;e can be taken of the irregu- larity that they were sworn only at the opening of the court, 1 Colorado Springs v. Hewitt, 3 Colo. 275; Denny v. Hutcheson. 1 Bibb, 576; Roberts v. Swesirengen, Hard. (Ky.) 121. 2 Williams v. Xorris, 2 Litt. 157; Townsend v. Jeffries, 17 Ala. 276: Adams v. State, 6 Ark. 407, 505. But see Caldwell v. Irvine, 4 J. J. Marsh. 108. 3Swann v. Rary, 3 Blackf. 298, 300; A^aden v. Ellis, 18 Ark. 355. < McCoy V. State, 22 Ark. 308. 5 State V. Gibson, 21 Ark. 140. 6 People V. Albany. G Wend. .548. § 292.] RE-SWEARING THE JURY. -319 unless objection be made when the jury is impanelled, at which time it would be proper for a party to insist that they be sworn to try the particular case.^ Although this is a common practice, at least in civil eases, very positive objections exist to this mode of proced- ure in criminal, if not in other cases. As observed by Caton, C. J. : " With some jurors, and in some cases, too much solemnity cannot be observed in the conduct of the trial. The solemnity of calling the juror before the pris- oner, in the presence of the court, and his there taking the solemn oath prescribed by the law to well and truly try, and true deliverance make of that prisoner, not only gives the prisoner a comfortable assurance that he is to have a fair and impartial trial, but has a salutary tendency to prepare the mind of the juror for the solemn duty he is assuming. We think the jury should be sworn in each case." ~ § 291. Swearing singly or in a Body. — Unless a differ- ent rule is prescribed by statute, jurors may be sworn as they are accepted, or the administration of the oath may be delayed until the panel is completed.'' But since, in either i-ase, the parties must exercise their right of peremptory challenge before the jurors are sworn, it has been consid- ered to be the better practice in criminal cases to have the panel full before any of the jurors are sworn in the case, so as to give to the parties the fullest benefit of peremptory challenges.* There is no rule of practice, unless prescribed by statute, requiring four jurors to be called at a time to be sworn. A less or greater numlier may be called at any one time, and the parties may be required to pass upon them.^ § 292. Re-swearing the Jury. — When, upon the trial of two persons jointly indicted, a separate trial is demanded by one of the defendants according to the statute, after the - Hardenbnrgh v. Crary, 15 How. Pr. 307. 1 Barney v. People, 22 111. 160. 3 People V. Keynolds, 16 Cal. 128; O'Connor v. State, 9 Fla. 215, 226. * State V. Anderson, 4 Xev. 265; O'Connor v. State, 9 Fla. 215; ante, § 269, subsec. 7. 5 Walker v. Collier, 37 111. 362. 320 SWEARING THE JURY. [CH. XIV. jury and a witness have been sworn, both the jury and the witness must be sworn again. ^ It seems that the usual oath taken by jurors includes any issue between the parties sub- mitted to them on the trial of the cause. Therefore, when the issue is changed by an amendment of the plead- ings during the progress of the trial, it will not be error if the jury are not re-sworn, at all events not unless the party complaining made a re(|uest to this effect, which was not granted.'^ But this is denied by the Supreme Court of In- diana,^ which nevertheless holds that, where the amendment does not change the issues, the jury need not be re-sworn.* ' Babcock v. People, 15 Hun, .347. 2 Williams v. Miller, 10 Iowa, 344 (overruling Cole v. Swan, 4 G. Greene, 32) ; Arnold v. Arnold, 20 Iowa, 273; Ilinkle v. Davenport, 38 Iowa, 355. 3 Kerschbaugher v. Slusser, 12 Ind. 453; Hoot v. Spade, 20 Ind. 326. * Knowles v. Rexroth, 67 Ind. 59. CH. XV.] OBJECTIONS AFTER VERDICT. 321 CHAPTER XV OF OBJECTIONS AFTER VERDICT. SECTION. 294. Proceedings presumed to be Correct. 295. Irregularities in Selection, Drawing and Summoning. 296. Irregularities in Impanelling. 297. Record need not contain tiie Names of .Jurors. 298. Record must show the Fact of Swearing. 299. Recital of Oath in Record. 300. Misnomer of Jurors — English Cases. 301. Continued — American Authorities. 302. Incompetency of Jurors. 303. Continued — Waiver of. 304. Juror's Affidavit in Support of Competency. 305. New Trials not readily granted. § 294. Proceedings presumed to be Correct. — Error must be affirmatively shown in the process of procuring a jury, A presumption of correctness attaches to the pro- ceedings until they are shown to be erroneous.^ Therefore, unless the contrary appear, it will be presumed that the jurors who tried the case were possessed of the qualifica- tions required by law.' i Mansell v. Reg., 8 El. & Bl. 54; s. c, Dears. & B. 375; Strong v. Kean, 13 Irish L. 93; De Bardelaben v. State, 50 Ala. 179; State v. Monk, 3 Ala. 415, 417; Ciiesapeake, etc. R. Co. v. Patton, 9 W. Va. 648; Campbell v. Strong, Hemp. C. C. 265; Dutton v. Tracy, 4 Conn. 93, 94; Clark V. Collins, 15 N. J. L. 473; State v. Marshall, 36 Mo. 400; Pots- damer v. State, 17 Fla. 895; Com. v. Stephen, 4 Leigh, 679; Burfey v. State, 3 Tex. App. 519; Pauska v. Daus, 31 Tex. 72; State v. Jones, 61 Mo. 232; Montgomery v. State, 3 Kan. 263; Green v. State, 17 Fla. 669, 679; Haudline v. State, 6 Tex. App. 347. ^ Mansell v. Reg., supra; Chesapeake, etc. R. Co. v. Patton, 9 W. Va. 048; Shoemaker v. State, 12 Ohio, 43; Isham v. State, 1 Sueed, 111; (21) 322 015JECTI0NS AFTKU VERDICT. [Cll. XV. § 205. Irrejnilaritios in Selection, DraAviiijj: and Sum- moninfj:. — A proi)or season is granted for interposing objec- tions to the legality of the seleetion, drawingand summoning of the jurors. If material errors ean be detected in either of tlicse steps in the process of procuring the jury, an objection will be heard in the form of a challenge to the array. And it would seem to be a matter of doubtful j)r()i)riety to entertain objections of this character after the trial has begun, although there is no doubt that the court mav do so in its discretion.^ But the rule is very well settled that, after a verdict, these informalities will not be permitted to affect the result, although they did not sooner come to the knowledge of the party complaining, unless positive injury can be shown to have accrued therefrom. '^ Turner v. State, 9 Humph. 119; McClure v. State, 1 Yorg. 215, per Catron, J.; Keenan v. State, 8 Wis. 132; State v. Koderigas, 7 Nev. 328. The bill of exceptions must contain a statement of the facts upon which the challenge disallowed is based; otherwise il cannot be considered by an appellate court. State v. Shaw, 5 La. An. 342 ; State v. Brnington, 22 La. An. 9; Kipley v. Coolidge, Minor (Ala.) 11 This statement must be in itself sufficient to support a challenge. State v. Millain, 3 Nev. 409. iDovey v. llobson, 2 Marsh. 154; s. c, G Taunt. 4G0; State v. Stephens, 11 So. Car. 319; Steele v. Malony, 1 Minn. 347. 2 A statute of Louisiana requires all objections to the manner of draw- ing juries', or to any defect or irregularity that can be pleaded against any array or venire, to be urged on the first day of the term ; otherwise such objections are considered as waived. State v. Thomas, 32 I^a. An. 349; State v. Given, 32 La. An. 782; State v. Harris, 30 La. An. 90. A statute of South Carolina provides that "no irregularity in any writ of venire facias, or in the drawings, summoning, returning or impanelling of jurors, shall be sufficient to set aside the verdict, unless the party making the objection was injured by the irregularity, or unless the objection was made before the returning of the verdict." See State v. Coleman, 8 So. Car. 237. Similar statutes are found in other States. See ] Bright. Purd. Penn. Dig., p. 838, § 82; Code Va. 1873, p. 1062, § 21 ; Kev. Stat. W. Va. 1879, ch. 109, § 25; R.S. Wis. 1878, § 2881 ; Bush Dig. Fla., ch. 104, § 26; G. S. Mass. 1860, ch. 132, § 32; R. S. Me. 1871, ch. 82, § 78. That the name of the same juror appeared twice upon the venire, without any collusion or improper design, is no ground of error. McCarty v. State, 26 Miss. 302. Nor is it that the name of one of the jurors, who sat upon the trial of the case, was not upon the venire re- turned by the sheriff, where it appears that he had been summoned at the commencement of the term, his name entered on the minutes and § 296.] IRREGULARITIES IN IMPANELLING. 323 The reason for the rule clearly appears from the remarks of Chief Justice Shaw iu a case of this kind: "This results from strong considerations of policy and expediency, ren- dering it an imperative rule of practice. In the trial of every civil action, in a large county, the jurors are usually drawn from various towns. If any irregularity, found in Belecting jurors in any of these towns, not affecting the capacity or fitness of the jurors returned, would enable a losing party to set aside a verdict otherwise free from any exception on the merits, it would be a dangerous temptation to such part}^ to send through the various towns for the means of getting rid of an honest verdict upon technical objections." ^ § 296. Irregularities in Impanelling. — Where an ir- regularity in the impanelling is obvious at the time of the trial, an objection must be then made. It is too late to raise the objection on a motion for a new trial. ^ Thus,. drawn from the box like those of the other jurors. Thrall v. Smilej^, &' Cal. 529. 1 Page V. Dauvers, 7 Mete. 326, 327. See also Eeecl v. State, 1 Tex. App. 1 ; Mikell v. State, 62 Ga. 368. The same rule was applied in the following cases where objection was made, after verdict, to the legality of the drawing. Eay v. State, 4 Tex. App. 450; Amherst v. Hadley, 1 Pick. 38; State v. Hascall, 6 N. H. 352; Bodge v. Foss, 39 N. H. 406; Pittsfield V. Barnstead, 40 N. H. 477; Wilcox v. School Dist., 26 N. H. 303; Gormley V. Laramore, 40 Ga. 253; Wentworth v. Farmiugton, 51 N. H. 128, 135; Hasselineyer v. State, 1 Tex. App. 690; State v. Williams, 2 Hill (S. C.) 381; State v. Douglass, 63 N. C. 500; Anderson V. State, 5 Ark. 445; W^alker v. Boston, etc. K. Co., 3 Cush. 1, 19; State V. Beasley, 32 La. An. 1102; New York v. Mason, 4 E. D. Smith, 142 State V. Underwood, 6 Ired. L. 96; State v. Courtney, 28 La. An. 794 State V. Eigg, 10 Ncv. 284; Com. v. Sallager, 3 Clark (Penn.) 127 People V. Cummings, 3 Park. C. E. 343. And so with respect to objec- tions affecting the validity of the summons. Bennett v. Matthews, 40 How. Pr. 428; Vidal v. Thompson, 11 Mart. 23; Kennedy v. Com., 14 Bush, 340: Daniel v. Frost, 62 Ga. 697; Stone v. People, 3 111.326; State V. Boon, 80 N. C. 461; Bronson v. People, 32 Mich. 34; Fowler v. Mid- dlesex, 6 Albn, 92; Solander v. People, 2 Colo. 48; New York v. Mason, 4 E. D. Smith, 142; Dayharsh v. Enos, 5 N. Y. 531; Green v. State, 17 Fla. 669; Brunskill v. Giles, 9 Bing. 13; Eector v. Hudson, 20 Tex. 234; Jameson v. Androscoggin E. Co., 52 Me. 412. 2 Com. v. Stowell, 9 Mete. 572; Bristow's Case, 15 Gratt. 634; Harden- burgh V. Crary, 15 How. Pr. 307; State v. Slack, 1 Bailey (S. C.) 330; 324 OBJECTIONS AFTER VERDICT. [CIl. XV. it is !i familiar rule that talesmen can sit only in the case for which they arc summoned ; but the fact that talesmen who were summoned to complete the panel in one case were sworn for the term and permitted to sit in other •cases, constitutes no valid objection to their competency lifter verdict.^ A waiver of the method prescribed by law for the impanelling of a jury is not a waiver of the right of trial by jurv, and therefore will be binding, under a statu- tory provision to the effect that, in a criminal case, a de- fendant may waive any right, except trial by jury, when ho has pleaded guilty.- The rule is quite generally established that a mere technical irregularity in the process of impan- ■clling, discovered after verdict, will afford no ground for a new trial, where it is not shown that some substantial in- jury accrued to the party complaining.^ § 297. Record need not contain the Names of the Jurors. — Where it is neither required by statute nor by rule of court, that the entry of judgment shall contain the names of the jurors who sat upon the trial, there would seem to be no reason for setting out their names in extenso upon the (Jlough V. Stnte, 7 Neb. 320; Gurdeubire v. State, 6 Tex. App. 147, 151 ; Munroe v. Brigham, 19 Pick. 368; Boyd v. State, 17 Ga. 194; State v. Ward. 2 Ilawks, 443; State v. Belcher, 13 So. Car. 451); Ray v. State, 4 Tex. App. 4.50; State v. Boon, 80 N. C. 461; s. c, 82 N. C. 637; Day- barsh v. Enos, 5 N. Y. 531; State v. Turner, 25 La. An. 573; Parsons V. Harper, 16 Gratt. 64. Where the judge, during the process of impan- elling the jury, permits those who have been selected to go at liberty and mingle with the crowd, during a delay in the proceedings resulting from the summoning of talesmen, it is the duty of a party, having objec- tions to such action of the court, to make them known at the time, or at l(;ast before the selection of jurors from tlie talesmen begins. Such ob- jections will not avail, if held back until after the jury are sworn, .lames v. State, .53 Ala. 380; Bobbins v. State, 49 Ala. 394. But see Giissom V. State, 4 Tex. App. 374. Allowing the jurors impanelled, but not sworn, to separate for the night is not an irregularity in civil cases. Miller v. Wilson, 24 Pa. St. 114; Spencer v. DeP'rance, 3 G. Oreene, 216; post^ § 315. 1 Rowland v. Gifford, 1 Pick. 43, note. * Grant v. State, 3 Tex. App. 1. 3 People v. Ransom. 7 Wend. 417; Cole v. Perry, 6 Cow. .584; Grant V. State, 3 Tex. App. 1 ; State v. Brown, 12 Minn. 538. § 297.] NAMES OF JURORS IN RECORD. 325 record.^ There is no uniformity of practice upon this point. As recently stated, " In some courts, especially in felony cases, they are set out in full ; in others, the name of the foreman is given, reciting the fact that eleven others sat with him ; and in others, the judgment simply recites that a jury of twelve good and lawful men were impanelled and sworn . " ^ But suppose the names of the jurors are set out, must the record contain the names of all the jurors who sat in the case? In a civil case it was held not to be a fatal de- fect that the record named only eleven jurors ;^ especially, Avhere it elsewhere appeared from the record that the jury was composed of twelve men.* " After verdict under such circumstances," said the court, "it is a fair inference that there were in truth twelve men on the jury, but that, by a mistake of the clerk in entering the names of the jurors,, the name of one was omitted. The parties made no objec- tion to the jury, and received it as a good and lawful one,, after verdict and judgment ; and no objection appearing to have been made at the time, it will not be noticed in this court." ^ A distinction, however, is taken in cases of felony. Under the same circumstances, as just noticed, the pre- sumption that the jury was composed of twelve men, al- though plainly arising from the record, was not j)ermitted to control.^ • Clark V. Davis, 7 Tex. 556; Shoemaker v. State, 12 Ohio, 4;5; Com. V. Stephen, 4 Leigh. 679; Potsdamer v. State, 17 Fla. 895. 2 Morton v. State, 3 Tex App. 510. 514. 3 Morlin v. Stockbridge, 14 Tex. 165; Foote v. Lawrence, 1 Stew. 48?.. If it appears from the record that a '"jury" passed upon the issue, it will be construed to mean a jury of twelve men duly tpialified, unles;* the record itself shows the contrary. Redus v. Wofford, 4 Sm. & M. 579; Chase v. State, 46 Miss. 683, 697. But see Rex v. St. Michael, 2 \V. Bl. 718. ■• Foster v. Van Norman, 1 Tex. 637. ^ Foster v. Van Norman, snpra. sDoebler v. Com., 3 Serg. & R. 237; Rich v. State, 1 Tex. App. 206; Iluel)ner, v. State. 3 Tex. App. 458. 326 OBJECTIONS AFTEK VERDICT. [CH. XV. § 298. lleooiMl must .sliow the Fact of Swearing. — Courts <^eiK'r:illy are agreed that it must ap[)ear froiu the record that the jury whieh tried the ease were sworn. ^ So material a fact cannot be supplied by operation of the maxim, omnia prcesumuntur rite esse acta. But if, as a matter of fact, it can be shown that the jury were sworn, the record of the lower court may be so amended as to show this fact.'* A distinction has been taken in civil cases in those juris- dictions where the jurors arc not sworn as called in each case, but, on the contrary, the entire panel is sworn at the beginning of the term once and for all. Under such a practice, as a matter of fact, the jury arc not sworn in each case, and therefore the recital that they were so sworn is no part of the history of the proceedings, and has been re- garded as superfluous.* Unless the contrary appears from the record, it will be conclusively presumed that the oath » Nels V. State, 2 Tex. 280; Cannon v. State, 5 Tex. App. 34; Kennon V. State, 7 Tex. App. 326; State v. Gate?, 9 La. An. 94; State v. Doug- lass, 28 La. An. 425; Stale v. King. 28 La. An. 425; State v. Phillips, 28 La. An. 387; Eotsford v. Yates, 25 Ark. 282; Lacey v. State, 58 Ala. 385; Baird v. State, 38 Tex. 599; State v. Calvert, 32 La. An. 224; State V. Reid, 28 La. An. 387. It is doubtless true that it seldom happens, as a matter of fact, that a jury is not sworn, although the i-ecord omits to state the swearing. An attempt was lately made in a Louisiana case to break in upon the well established rule that the record must show the fact of swearing. Although unsuccessful, the result was a divided court. Ludeling, C J., one of the dissenting judges, held that, upon the principle that courts generally will not listen to objections to the quali- fications of jurors unless taken at the proper time, before trial, a pris- oner should be presumed to have waived such an informality if it actu- ally occurred. But, said he: "It is morally certain that the jury is sworn in all cases. This results from the manner in which the jurors are selected and sworn in courts, and I cannot perceive how it is possi- ble to fail to swear a jury in anj^ case." State v. Reid, 28 La. An. 387, 388. See also Hardenburgh v. Crary, 15 How. Pr. 307, where a verdict rendered by a jury, one of the twelve being unsworn, was upheld. Be- fore a new trial will be granted in such a case, it must be demonstrated to the satisfaction of the court, that the party complaining and liis at- torneys were ignorant of the fact, until after verdict, that the juror was unsworn. Scott v. Moore, 41 Vt. 205. 2 State v. Gates. 9 La. An. 94. 3 Clark V. Davis, 7 Tex. 556; Drake v. Brander, 8 Tex. 351 ; Pierce v. Tate, 27 Miss. 283; Furuiss v. Meredith, 43 Miss. 302; Ilewett v. Cobb, 40 Miss. 61. But see Buck v. Mallorv, 24 Miss. 1"0. § 298.] RECORD MUST SHOW THE SWEARING. 327 required by the statute was admiuistered.^ But where the jury are uot so sworn for the term, it ought to appear that they were sworn in each case.- It is sufficient, if by a fair construction of the record, it appears that the jury were sworn, althougli the fact is not expressly stated.' Thus, a statement that "the persons whose names follow were duly impanelled and sworn to try this case," although immediately followed by eight names only, has been held to include the other four, although other -entries intervene between the two sets of names.'* But where the record is so carelessly drawn that it expressly appears that only four of the jurors were sworn, there being no statement as to the other eight than that they were se- lected, the court will not presume, in favor of the regularity of the proceedings in the court below, that the jurors were all sworn.* The bare statement in the record that " the court impan- ■elled the following jury," does not necessarily imply that the jury were sworn. Strictly speaking, the impanelling is antecedent to, and in no manner connected with the swear- ing.^ The judgment in such a case will, therefore, be reversed.^ It has been thought that, upon a trial by a jury, a portion of whom affirmed according to statute, in place of taking the customary oath, the record ought to show that those af- i Pierce v. Tate, mpra ; Waddell v. Magee, 53 Miss. 687. In this case, Campbell, J., delivering the opinion of the court, said: " It has been sev- eral times decided in this State that the record must show that the jury were sworn to try the issue; but these decisions will uot be followed by this court, as they are not supported by reason." Ibid., p. 6SS. See also ■Goyne v. Howell, Minor (Ala.), 62; Perdue v. Burnett, Minor (Ala.), 138. The overruled cases, referred to in the foregoing remarks, are probably these: AVolfe v. Martin, 1 How. (Miss.) 30; Beall v. Campbell 1 How. (Miss.) 21; Irwin v. Jones, 1 How. (Miss.) 497. 2 Kitter v. People, 25 111. 42. s Crist v. State, 21 Ala. 137. ■» State V. Christian, 30 La. An. 367. 5 Bass V. State, 6 Baxter (Tenn.), 579, 586. 6 State V. Potter, 18 Conn. 166, 175. ^ Rich V, State, 1 Tex. App. 206. 328 OBJECTIONS AFTER VEKDICT. [CH. X^ . firming were conscientiously scrupulous of taUinji" an oatli,' but whether this is correct, is at least doubtful.^ A statute of Enjxland renders it unnecessary to specially state in the record what jurors were permitted to affirm."' § 299. Recital of Oath in Record. — The rule seems to be uniformly recognized in criminal cases that, if the record purports to recite the oath administered to the jury, and an essential part of the oatii prescril)ed by statute is omitted, or if it otherwise differs materially in form from the latter,, a judgment of conviction will be reversed.^ If, however, 1 State V. Putnam, 1 N. J. I.. 260; State v. Shavp, cited by Kinse\ . C. J., iu State v. Kockafellow, 6 X. J. L. 332, 341. See also State v. Fox. 9N. J. L. 244; State v. Harris, 7 N. J. L. 361. 2 Clark V. Collins, 15 N. J. L. 473. 36 & 7 Vict., C.85, §2. < Lewis V. State, 51 Ala. 1; Davis v. State, 54 Ala. 88; Perkins v. State, 60 Ala. 7 ; Smith v. State, 53 Ala. 486 ; Commander v. State, 60 Ala.. 1; Johnson v. State, 47 Ala. 9; Johnson v. State 47 Ala. 62; Biigg v. State, 47 ^ila. 50: Smith v. State, 1 Tex. App. 408; Miles v. State, 1 Tex. App. 510; Smith v. State. 1 Tex. App. 516; Bawcom v. State, 41 Tex. 189; Martin v. State, 40 Tex. 19; Holt v. Mells, 4 Smed. & M. 110; Warren v. State. 1 G. Greene, 106; Harriman v. State, 2 G. Greene, 271 : Dixon V. State, 4 G. Greene, 381; Bivens v. State, 11 Ark. 455: Bur- row V. State, 12 Ark. 65; Arthur v. State, 3 Tex. 403; Patterson v. State ^ 7 Ark. .59. A substantial compliance with the statutory form is sufficient. De Bardeliiben v. State, hO Ala. 179; Bhiir v. State, 52 Ala. 343; State v. Pile, 5 Ahi. 74; Crist v. State, 21 Ala. 137; Wareham v. State, 25 Ohio St. 601; Sharp v. Harrison, 10 Heisk. 573; Hendrick v. Cannon, 5 Tex. 248,251; Montgomery v. Tillotson, 1 How. (Miss.) 215; Harriman v. State, 2 G. Greene, 271 ; Wrocklege v. State, 1 Iowa, 167; State v. Os- trander, 18 Iowa, 435; Thompson v. Blackwell, 17 B. Mon. 624; Tide- water Canal Co. v. Archer, 9 Gill & J. 480; McGuire v. State, 37 Ala. 161; Edwards v. State, 49 Ala. 334; Walker v. State, 49 Ala. 369; Hen- drix V. State, 50 Ala, 148; Washington v. State, 60 Ala. 10; Allen v. State, 60 Ala. 19. The statutory form of oath was : '• You solemnly swear that in the case of the State of — against , the defend- ant, you will a true verdict render according to the law and evidence; so help you God." A recital that the jury were '• sworn to well and truh' try the issue joined between the State and said defendant,'' differs- materially from this form, and requires that the judgment be reversed. Edmondson v. State, 41 Tex. 496; Leer v. State, 2 Tex. App. 495; Ev- erett v. State, 4 Tex. App. 159; Collins v. State, 5 Tex. App. 39; Smith V. State, 10 Ark. 536; Sandford v. State, 11 Ark. 328. It may be ques- tioned, however, whether such a recital ought to be regarded as an at- tempt to set out the oath actually administered. See McNeil v. State-^ § 299,] RFXITAL OF OATH IN RECORD. 32^' the record does not purport to set out the oath, but states that " the jury were duly sworn," or " sworn according to iaw," or simply " sworn," the presumption attaches that the jury were properly sworn. ^ Such being the law, it is (juite obvious that the better practice in making up the record is to attempt no recital of the oath, but to state sim- ply that the jury were dul}^ sworn. "^ 47 Ala. 498; Smith v. State, 4 Neb. 277; Bartlett v. State, 28 Ohio St. 669, 672; Anderson v. State, 42 Tex. 389; Dyson v. State, 26 Miss. 362. 366, 380; Windham v. Williams, 27 Miss. 313; New Orleans, etc.R. Co. V. Hemphill. 35 Miss. 17; State v. Ostrander, IS Iowa. 437. 452; Russell V. State, 10 Tex. 288; McCuller v. State. 49 Ala. 39. The Alabama re- ports are especially rich in reversals of judgments of conviction, because of misrecitals of the oath in the record. Tliese failures of justice might generally have been avoided, by considering the language set forth in the record as not attempting to give the oath actually administered totidem verbis. And this may be fairly done ; for, as has been obi^erved, it almost never happens that the swearing is incorrectly performed by the clerk misreciting the terms of the oath to the jury. Mitchell v. State, 58 Ala. 417, 419. Ordmarily, no record is made of the swearing of the jury until after verdict, and this entrj'^ is intended only as a record of the fact of the jury having been sworn. Therefore, in late cases, this court has held the recital in the record sufflcient, although a portion of the oath prescribed by statute, viz: "a true verdict to render according to the evidence," w^as omitted. Mitchell v. State, supra; Pickens v. State. 58 Ala. 364; Atkins v. State, 60 Ala 45, oveiTuling Johnson v. State. 47 Ala. 9, 62; Smith v. State, 47 Ala. 540; Murphy v. State, 54 Ala. 178;Smith v. State 53 Ala. 486. See also Boose v. State, 10 Ohio St. .577, * See cases cited supra; also the record of an indictment and conviction for murder, in the appendix to 4 Bl. Comm. State v. Pile, 5 Ala. 72; Crist V. State, 21 Ala. 137 ; McGuire v. State, 37 Ala. 61 ; De Bardelaben \\. State, 50 Ala. 179; Moore v. State, 52 Ala. 424; Bush v. State, 52 Ala. 13; McNeil v. State, 47 Ala. 498; Gardner v. State, 48 Ala. 263; Pots- damer v. State, 17 Fla. 895; New Orleans, etc. R. Co. v. Hemphill, 35 Miss. 17, 23; Judah v. McNamee, 3 Blackf. 269; Johnson v. State, 1 Tex. App. 519; Arthur v. State, 3 Tex. 403, 405; Edmondson v. State, 41 Tex. 496; Leer v. State, 2 Tex. App. 495; Collins v. State, 5 Tex. App. 39; Douglass V. Cent. Land Co., 12 W. Va. 502; Dillingham v. Skein, Hemp. C. C. 181; Anderson v. State, 42 Tex. 389; Harris v. State, 2 Tex. App. 102 ; Smith V. State, 4 Tex. App. 626; Stinson v. State, 5 Tex. App. 31 ; Dyson v. State, 26 Miss. 362; Windham v. Williams, 27 Miss. 313; Edwards v. State, 47 Miss. 581; Russell v. State, 10 Tex. 288; Greenwood v. State, 17 Ark. 332; Anderson v. State, 34 Ark. 257; Palmore v. State, 29 Ark. 248: Mann v. Clifton, 3 Blackf. 304; State v. Schoenwald. 31 Mo. 147; McRae V. Tillman, 6 Ala. 486; State v. Peterson, 21 Ark, 140. But see Harper V. State, 25 Ark. 83. ^ Dyson v. State, 26 Miss. 362. vJoO OBJECTIONS AFTER VERDICT. [CII. XV. § 300. MisiionuT of Jurors — The English Cases. — Although a cauf^e of challenge must be stated before the jury arc sworn, yet objections to jurors, for the reason that their names are incorrectly spelled in the panel, or that they have answered to and have been sworn under names totally different fi'om their own, arc not in the nature of chal- lenges. Such ol)jections, therefore, may be urged at any time during the trial, or after verdict. But if known to exist, they must be made before verdict, otherwise they will bo regarded as waived.^ The circumstance that a juror in- correctly named in the panel has served in a given case, does not, like the improper disallowance of a challenge, en- title the aggrieved party to a venire de novo as a matter of right. The objection, if taken after verdict, is in the form of a motion for a new trial addressed to the discretion of the court. A just verdict will not be set aside for this <;ause, where no variance appears upon the record, and where no imputation can be put upon the jury.* The English cases display so much difference of opinion upon this sub- ject, that a careful examination of the leading authorities is necessary. In an earl}'^ case, one Richard Shepherd, not of the panel, was sworn upon the jury, answering to the name of Richard Geater, a person returned on the panel. Lord Chief Justice VViLLES said of this case: "We were of opinion likewise that this could be no cause of challenge. It could not be a challenge to the array, for there was no objection to the array ; nor to the [)oll, for there was no objection to Richard Geater, the person returned. But this was an extrinsic objec- tion, not appearing on the face of the poll, [record ?] A chal- lenge to a juryman supposes him capable of serving on the jury if the objection be answered ; but Richard Shepherd was no juryman at all.""' Therefore, the court made abso- lute a rule to set aside the verdict. ' Falmouth v. Roberts, 9 Mee. & W. 4G9; s. r., 1 Dowi. (N". S.) 633. 2 Wray v. Thorn, Willes, 488, 495. » Norman v. Beamont, Willes, 484, 487. See also Parker v. Thoroton, § 300.] MISNOMER OF JURORS. 331 There is an abundance of cases in the old reports upon this subject, and the decisions there indicate little uniform- ity of rule. They are all collated by Lord Chief Justice WiLLES in his judgment in Wray v. Thorn. ^ Many of these cases arose from a variance between the spelling" of the same name upon the venire facias and the distringas,"^ and verdicts rendered under such circumstances were held void. To prevent this failure of justice, a statute of jeo- fails was passed, providing that, after verdict, the judg- ment should not be stayed or reversed " by reason that any of the jury which tried the said issue is misnamed, either in the surname or addition, in any of the said writs, so as upon examination it be proved to be the same man that was meant to be returned." ^ This statute, it will be seen, did not affect christian names, and Willes, C. J., observes: "As to christian names, the cases are various both before and after this stat- ute."* In Wray v. Thorn, he refused to set aside a ver- dict because a juror, whose christian name was Harry, was returned upon the venire and distringas as Henry, by which designation also he appeared upon the panel and the postea. " I think it would be very unjust," said he, " to grant a new trial in the present case, since there is no objection to the verdict itself, since the objection does not appear upon the record, and since it appears by the affidavit, which 1 Stra. G40; s. c, 2 Ld. Kaym. 1410; Fines v. Norton, Cro, Car. 278; Blackamore's Case, 8 Cuke Eep. 324. 1 Willes, 488. ' We have before shown that the return upon the venire facias was for the purpose of enabling tlie parties to scrutinize the panel, the jurors being actually summoned upon a subsequent process, the distringas. (Ante, § 66, subsf^cs. ;} and 4). Thus it is apparent that the sheriff, in connivance with one of the litigant parties, might place upon the dis- tringas names differing more or less from those upon the return to the venire facias, indicating totally different persons from those named in the first process. Hence the particularity insisted upon in these early cases, that tiiere should be no variance between the names upon each process. 3 21Jac. I., c. 13. ■• Wray. v. Thorn, Willes, 48S, 4!)2. 332 OBJECTIONS AFTER VERDICT. [Clf. X\. makes out the objection, that the juryinaii who wa-s sworii on the jury and tried the cause was the person who was summoned and returned and intended to be a juror in the cause, which is the very reason relied on in the statute 21 rfac. I., c. 13, and in all the cases where amendments have been ordered." ' In ijcneral, il may be ol)served that a vari- ance l)etween christian Hamc> is not so im])ortant as between surnames. - In a later case it appeared that, upon the ti'iai of a cap- ital felonjs one Robert Curry, who had been summoned upon the crown side to attend as a juryman, had answered to the name of Joseph Curry in the sheriff's panel, and was sworn by that name. Mr. Baron Eyre, before whom the case was tried, conceived this to amount to nothing more than a misnomer in the })anel of the jurymen inten- ded to be returned, and held that there was no mistrial. In this position he was sustained by the full court. "^ A strong position was taken in Jlill v. Yates.* \\\ this case the son of one of the jurymen returned upon the panel answered to his father's name when called, and served upon the jury. Lord ELLExnoROL(iii reserved the motion made to set aside the verdict for the consideration of the Court of King's Bench, and afterwards announced that the judges were all of opinion, that it was a matter within their discretion to grant or refuse a new trial on such a ground : that if no injustice had been done, which was not pretended in this instance, they would not interfere in this mode, but leave the party to get rid of the verdict as he might. Ho further continued that, if they were to listen to such an ob- jection, they might set aside half the verdicts given at every assize, where the same thing might happen from ac- cident and inadvertence, and possibly sometimes fronx design, especially in criminal cases."' ' Willes, 488, 494. 2 lb. 490. ' Case of a Juryman, 12 East, 231. note. * 12 East, 229. •'' In tliis case the authority of Noinian v. Beamont, Willes, 484 {antPf p. 330), was urged witlioiit success. ^ 300.] MISNOMER OF JURORS. 333 It was aftervviirds decided by Lord Chief Justice Giubs in the Common Pleas, that, if a person not summoned to sei've upon a jury answers to the name of a person who is summoned and serves in his phice, — objection being taken before verdict, the court, in the exercise of its discretion, will award a venire de novo. He distinguished this case from that of Hill v. Yates,^ in that the objection in the SQ OBJECTIONS AFTER VEKDICT. [CH. XV. iiiouiid for (|u:isliing the lenire or stopping the trial.' As to this objection when tiikcn after verdict. Diirin 121' Mass. 93. 3 Williams v. State, 37 Miss. 407; Munroe v. Brigham, 19 Pick. 30«; Davis V. People, 19 111. 74; Seacord v. Burling, 1 How. Pr. 175; Cohron V. State. 20 Ga. 753. * Quinebaug Bank v. Leavans, 20 Conn. 87; Eggleston v. Smiley, 17 Johns. 133; Hayes v. Thompson, 15 Abb. Pr. (X. S.) 220; McLellau V. Crofton, 6 Me. 307; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Orme v. Pratt, 4 Cranch C. C. 124; Smith v. Earle, 118 Mass. 531; Baker v. State, 4 Tex. App. 223; AVickersham v. People, 2 111. 128. 5 Williams v. Great AV. R. Co., 3 Hurl. & N. 869; s. c, 28 L. J. (Exch.) 2; (compare Bailey v. Macaulay, 13 Q. B. 815); Glover v. Wooisey, Dudley (Ga.) 85; Josey v. Wilmington, etc. R. Co., 12 Rich. L. 134; Boland v. Greenville, etc. R. Co., 12 Rich. L. 368; Magness v. Stewart, 2 Coldw. 309; Pearson v. AVightman, 1 Mills Const. Rep. 336; Billis v. State, 2 McCord, 12. But see Talmadge v. Northrop, 1 Root, 454. 6 Taylor v. Greely, 3 Me. 204; Briggs v. Byrd, 12 Ired. L. 377; Byars V. Mt. Vernon, 77 111. 467; Kennedy v. Com., 14 Bush, 340; Romaiue v. State, 7 Ind. 63: Keener v. State, 18 Ga. 194; Alexander v. Dunn, 5 Ind. 122; Fitzpatrick v. Harris, 16 B. Mon. 561; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Simpson v. Pitman, 13 Ohio, 365; Com. v. Flanagan, 7 Watts & S. 415; Collier v. State, 20 Ark. 36; Meyer v. State, 19 Ark. 156; Daniel v. Guy, 23 Ark. 50; State v. Howard, 17 N. U. 171, o40 OBJECTIONS AFTKH VKRDICT. [CH. XV. joct to challenge.^ Vital objections exist against the contention that the want of knowledge of the existence of a cause of challenge fur- nishes an exception to the requirement of the law that all challenges shall be made before the juror is sworn. As pointed out by Catuon, J., in a criminal case, it would be dangerous to admit such an exception : "Of this want of knowledge," said he, " what evidence has the court? The affidavit of a convicted felon — proof always to be had when deemed necessary." ' The temptation to commit or suborn perjury would in general be too strong to be re- sisted, if a defeated suitor or a convicted person might thus annul the verdict of a jury. Nor could our jurisprudence tolerate the unseemly spectacle which must inevitably ensue, that of putting the jury on trial a second time as to their qualifications in every case, as a matter of course. The rule generally accepted is, that a new trial will be ■oranted only when the court, in the exercise of a sound dis- cretion, deems it proper under the circumstances.^ The IDS; state V. Shelledj'. S Iowa. 477; State v. Strauder, 11 W. Va. 745; Brill V. State. 1 Tex. App. 572: Clough v. State. 7 Neb. 324; State v. Fiinck. 17 Iowa, 365; McKiuney v. Simpson, 51 Iowa, 662; McDonald V. Beall. 55 Ga. 288; Stewart v. Ewbank, 3 Iowa, 101; Gregory v. Wells. Smith (N. H.) 239. n; Porter v. Greenough. Smith (N. H.) 238, n; Caldwell v. Caldwell. Smith (N. H.) 239. 1 State V. Davis, 80 N. C. 412; Amherst v. Iladley. 1 Pick. 38; Wilder T. State, 25 Ohio St. 555; Hogan v. State, 36 Wis. 226; Meeks v. Stato. 57 Ga. 329; Walker v. Green. 3 Me. 215; Rowland v. Gifford. 1 Pick. 43. note; Fellows" Case. 5 Me. 383; Cook v. Castner. 9 Ctish. 266; Blood- •worth V. Statr, 6 Baxt. (Tenn.) 614; Shobe v. Bell, 1 Rand. 39; Har- ■dcnburgh v. Crary, 15 How. Pr. 307, 309; State v. Harris, 30 La. An. 90; Inited States v. Baker. 3 Bened. 68. 2 McClure v. State, 1 Yerg. 206, 219. See also Gillespie v. State, 8 Yerg. 507; Calhoun v. State, 4 Hnmph. 477; Meyer v. State, 19 Ark. 156. 'Woodward v. Dean. 113 Mass. 297. 298. See also Kiiiniuutt v. Stock- ^vell, 8 Cush. 73; Davis v. Allen. 11 Pick. 466; Eggleston v. Smiley, 17 Johns. 133; Meyer v. State. 19 Ark. 156; State v. McDonald, 8 Oreg. 113; Seymour v. Deyo, 5 Cotw 289; State v. Davis. 80 N. C. 412, 414: State V. Boon, 80 N. C. 461 ; Clongh v. State, 7 Neb. 351 ; Shea v. Law- rence, 1 Allen, 167; State v. Madoil. 12 Fla. 151; State v. Howard. 17 :N'. H. 171 ; Cain v. Cain. 1 B. Mon. 213: Temple v. Snmner. Smith (N. § 302.] INCOMPETENCY OF JUKORS. 341 granting of new trials, it lias been said, does not depend upon the whim or caprice of the judge, but upon well-estab- lished and fundamental principles of law.^ There are facts in every case to guide this judicial discretion. In the class of cases under discussion, the inquiry should be whether the party alleging the objection against the juror has exer- cised reasonable diligence in ascertaining the qualifications of the jurors who passed ui)on his case.- \Yas the juror in- H.) 226; State v. Pike, 20 X. H. 344. On amotion in arrest of judgment or for a new trial, it i.s plain that a party cannot be heard to allege par- tiality on the part of certain jurors, which, if existing at all, was in fa- vor of the party complaining. Carew v. Howard, 1 Root, 323. In au early criminal case in Massachusetts, the court granted a new trial where it appeared after verdict that two of the trial jurors had beeu members of the grand jury which found the indictment. Com. v. Hus- sey, 13 Mass. 221. See also Hawkins v. Andrews, 39 Ga. 118. But iu other cases this reason has been held to be insufficient. State v. Turner, G La. An. 309; Beck v. State, 20 Ohio St. 228; Franklin v. State, 2 Tex. App. 8; State v. McDonald, 9 W. Va. 456. It has been considered that a new trial should be awarded, where one of the jurors previous to the trial had made a trifling wager upon the result. Essex v. McPherson, 64111. 349. But see McCausland v. McCausland, 1 Yeates, 372; Booby v. State, 4 Yerg. 111. It is evident that an objection made to a juror during the course of the trial is entitled to greater consideration than if postponed until after verdict. Dilworth v. Com., 12 Gratt. 689; Henry V. Cuvillier, 3 Mart. (N. S.) 524. >■ Com. V. Flanagan, 7 Watts & S. 415, 423. - Roseborough v. State, 43 Tex. 570; Quinebaug Bank v. Leavens, 2U Conn. 87; Brown v. Lacrosse Gas Co., 21 Wis. 51; Steele v. Malony, 1 Minn. 341 ; Mt. Desert v. Cranberry Isles, 46 Me. 411 ; Patterson v. State, 70 Ind. 341; Vennum v. Harwood, 6 111. 659; Swarues v. Sitton, 58 111, 155 ; Walker v. Green, 3 Me. 215 ; Glover v. Woolsey, Dudley (Ga.) 85; Fitzpatrick v. Harris, 16 B. Mon. 561; Franklin v. State, 2 Tex. App. 8; McDonald v. Beall, 55 Ga. 288; Koenig v. Bauer, 1 Brewst. 304. In one case the court awarded a new trial, where a juror appeared to have beeu strongly biased against the defendant, because the facts of the case did not show •• gross " negligence on the part of the de- fendant in not ascertaining this cause of objection to the juror before trial. Hanks v. State, 21 Tex. 526. In Lafayette, etc. R. Co. v. New Al- bany, etc. R. Co., 13 Ind. 90, the motion for a new trial was founded upon the incapacity of a juror to understand the English language. This the court granted, the juror's ignorance being unknown to the party against whom the verdict was rendered, until after the trial. "The party," said Perkins, J., '• might well presume that the officer had called a juror competent in this particular." But see Yauez v. State, 6 Tex. 342 OBJECTIONS AFTER VERDICT. [CH. X\ . tcrrogatod upon the voh- dire us to the cause of challenge now alleged? If not, this is uniformly regarded as a lack of diligence, or, in the language of some courts, as a waiver of the cause of challenged But the most important consid- App. 42i»; State v. Harris. ;^0 La. An. DO; Uiiitod States v. Baker. 3 Boned. 68. Aiitf. § 177. ' .TeffrioP v. Randall. 14 Mass. 205; State v. Patrick, 3 Jones L. 443; Tweedy V. Brijrgs. 31 Tex. 74; State v. Qnarrel, 2 Bay l.")0; Gilbert v. Kider. Kirby. ISO. 184; Taylor v. Greely. 3 Me. 204; Turner v. Uahn, 1 Colo. 43; Chase v. People. 40 111. 3.52; Estep v. Watrous, 45 Ind. 140; Alexander V. Dmin, 5 Ind. 122; Croy v. State, 32 Ind. 384; Kingen v. State, 4fi Ind. 132; Gillooley v. State, 58 Ind. 182; State v. McLean, 21 La. An. 546; State v. Parks, 21 La. An. 251 ; State v. Kennedy, 8 Rob. (La.) 590; Simpson v. Pitman, 13 Ohio, 365; Watts v. Ruth, 30 Ohio St. 32; Beck v. State. 20 Ohio St. 228; Wilder v. State, 25 Ohio St. 555; Kcnrick v. Repp.i/d. 23 Ohio St. 333; Bj'ars v. Mt. Vernon, 77 111. 467; Keener v. State, 18 Ga. 194; Collier v. State. 20 Ark. 36; Daniel v. Guy, 23 Ark. 50; State v. Sholledy, 8 Iowa. 477; Buie v. State, 1 Tex. App. 4.53; Yanez v. State, 6 Tex. App. 429; Clough v. State, 7 Neb. 324; State V. Funek, 17 Iowa, 365; McKinney v. Simpson, 51 Iowa, 662; Stewart v. Ewbank, 3 Iowa. 191. Whether the juror Avas thus examined upon the voir dire, is a mattei- to be shown by the record. The affidavit of the party moving for the new trial is not sufficient to establish this fact. Stewart v. Ewbank. 3 Iowa, 191; State v. Shelledy, 8 Iowa, 447; Shaw V. State. 27 Tex. 750. If the juror answers untruthfully, for the jjurpose of avoiding a challenge, it is generally i)roper for the oonrt to grant a new trial, upon the discover}' of the deception after verdict. Seller.s v. People. 4 111. 412; Howerton v. State, Meigs, 202; Venuum y. ITarwood. 6 111. 659; Essex v. McPherson, 64111. 349; Jefferies v. Randall, 14 Mass. 205; Cody v. State, 3 How. (Miss.) 27; Troxdale v. State, 9 Humph. 411; Sam v. State, 31 Miss, 480; Busick. v. State, 19 Ohio, 198; Rice V. State, 16 Ind. 298: State v. Kennedy. 8 Rob. (La.) 590; Smith V. Ward, 2 Root, 302; Lane v. Scoville. 16 Kan. 402; State v. Shelledy, 8 Iowa. 477; Lamphier v. State, 70 Ind. 317; Watts v. Ruth, 30 Ohio St. 32; Bales v. State. 63 Ala, 30; Cannon v. State, 57 Miss. 147; McGuffie v. State, 17 Ga. 497: Childress v. Ford. lOSmed. it M. 25. Mr. Justice Crompton was of opinion that, even if a prisoner had been purposely misled as to a cause of challenge, this would not vitiate the verdict in point of law, " though it would be matter for the consid- eration of a court in a civil case, in exercising their discretion as to granting a new trial under all the circumstances of the case, or for the advisers of the Crown in the exercise of the prerogative of mercy." Reg. v. Mellor. Dears. & Bell C. C. 468. .509; s. c, 4 Jur. (N. S.) 214; 7 Cox C. C. 4.54; 27 L. J. (M. C.) 121. See also Temple v. Sumner. Smith (X. H.) 226; Schmidt v. Rose. 6 Mo. App. 587. .588; State v. McDonald, 9 W. Va. 4.56; Brennan v. State. 33 Tex. 266; Frank v. State. 39 Miss. 705. But if. at the time of the examination, one of the parties or iiis § 303.] INCOMPETENCY OF JURORS. 343 oration is whether an unjust verdict has resulted from the presence of the obnoxious jurors upon the panel ; if not, it would l)e idle to grant a new trial, which would properly be productive only of the same result.^ § 303. Contiiuied — AV'aiver of. — We have previously seen that, if any rule in respect of the impanelling of jurors is definitely settled, it is that a party, Avho is aware of any circumstance affecting the competency of a juror, is bound to make his objection by way of challenge before that juror is sworn ; otherwise he will be held to have waived it.- coimsel is aware that the juror has testified falsely, and makes no objection to the juror until after verdict, this circumstance cannot be relied upon as ground for a new trial. Parker v. State, 55 Miss. 414. Jurors are not required to know or to surmise that something more is in- tended than is fairlj' expressed by the terms of the questions put to them. Missouri, etc. R. Co. v. Munkers, 11 Kan. 223; Moore v. Cass, 10 Kan. 2S8;United States v. Smith, 1 Sawyer, 277, 282; Swarnes v. Sitton, 58 111. 155. It seems to make no difference whether the answers of the juror are made to questions by the court, or by the party subsequently alleging their falsity. Hudspeth v. Herston, 64 Ind. 133; Wiggin v. Plumer, 31 N. H. 251. It has been held that, if it appear after verdict that a juror testified falsely upon the roirdire, he dees not restore his competency by making an affidavit that he was really impartial in the case, and that he unwittingly testified to the contrary of the facts. Territory v. Kennedy, 3 Mont. 520; United States v. ITpham, 2 Mont. 170; Hudspeth v. Herston, 64 Ind. 133. But the soundness of this view may be doubted. iRex V. Hunt, 4 Barn. & Aid. 430,432 : Williams v. Great Western R. Co., 3 Hurl. & N. 869, 870; s.c, 28 L. J. (Exch.) 2; Trueblood v. State, 1 Tex. App. 650; O'Mealy v. State. 1 Tex. App. ISO; WHtner v. Hamlin 12 Fla. 21 ; Fiuiey v. Hayden, 3 A. K. Marsh. 330; Bennett v. Matthews, 40 How. Pr. 428 ; Zickefoose v. Kuykendall, 12 W. Va. 23 ; State v. Madoil, 12 Fla. 151; Hail v. Albro, 2 Disney, 147; Eomaine v. State, 7 Ind. 63; Eggleston v. Smiley. 17 Johns. 133; Cain v. Ingham, 7 Cow. 478; Hayes v. Thompson, 15 Abb. Pr. (N. S.) 220; State v. Turner, 6 La. An. 309; McLellan v. Crofton, 6 Me. 307; Tidewater Canal Co. v. Archer, 9 Gill & J. 479; Com. v. Flanagan, 7 Watts & S. 415; State v. Howard, 17 N. H. 171, 198; State v. Strauder, 11 W. Va. 745; Brill v. State, 1 Tex. App. 572; Orme v. Pratt, 4 Cranch C. C. 124: Magness v. State, 2 Coldw. 309 ; Hardenburgh v. Crary, 15 How. Pr. 307, 309 ; Bristow"s Case, 15 Graft. 648; Com. v. Jones, 1 Leigh, 598; Curran's Case, 7 Graft. 619; Greenup V. Stoker, 8 111. 202; Seymour v. Deyo, 5 Cow. 289; Heath v. Com., 1 Rob. (Va.) 735; Wickersham v. People. 2 111. 129; Presbury v. Com., 9 Dana, 203. 2 Ante,^ 275, sub-sec. 2. 344 OBJECTIONS AFTER VERDICT, [CH, XV ^ There is, however, some difficulty, mid not a little appar- ent in stice, in saying that a party is prcHuniod to ivaive every possible objection to a juror which ho omits to make at the time of the impanelling. How can a party waive that which he knows not of?^ Nor can it be reasonably ex- pected that each juror should be probed upon the voir dire for every possible cause of objection. Nevertheless, it is essential to the administration of justice that a party should not have the same rights, after verdict, to object to the competency of a juror, that he has upon the impanelling. The theory of waiver therefore should be abandoned. It can be invoked to no good purpose, and is productive only of confusion and seeming injustice. It should be stated as a rule of law that, after a juror is sworn, a party cannot object to him as a matter of right, because every reasonable facility has been previously offered for making objections."^ The theory of waiver, just noticed, has led the Supreme Court of Michigan into an anomalous position. In civil cases they hold that a party waives objections to jurors not taken upon the inn)anelling, whethei" he was aware of such objections or not ; not so in criminal proceedings, which being in invitum, such objections cannot be a sul)ject of waiver.^ " The doctrme," said Christiancy, J., " rests upon assent ; in other words, when reduced to its final analysis, upon con- tract." ■* This would plainly seem to be a reductio ad absur- dum, and a conclusive reason for rejecting the theory alto- gether, instead of restricting its application to civil cases. " Waiver or acquiescence," said the Master of the Rolls, in Vyvyanw. Vyvyan^' "like election, presupposes that the 1 Bristow's Case, 15 Gratt. 648. 2 iSTote the language of Lord Tenteideu in Rex v. Sutton, 8 Barn. & Cress. 417, 419. ' Compare Johr v. People, 26 Mich. 427. and Ilill v. People, 16 Mich. 351. In each of these cases, it was discovered, after verdict, that one of the jurors was an alien. The incapacity of the juror was held to have been '• waived " in the former case, and not in the latter. See also Smith V. School Dist., 40 Mich. 143. * Hill V. People, 16 Mich. 351, 357. ' 30 Beav. 65, 74. § 303.] INCOMPETENCY OF JURORS. 345- persoa to be bound is fully cognizant of his rights, and that, being so, he neglects to enforce them, or chooses one bene- fit instead of another, either, but not both which he might claim." The Supreme Court of Wisconsni, on the other hand,, considers the theory of waiver to be applicable to all crim- inal cases not capital.^ "It is true," said Paine, J., "that, in favor of life, the prisoner in capital cases is^ held not to waive anything. But the reason of the rule does not exist in other cases, and has never been applied by the courts."^ Concerning this distinction it may be re- marked that in capital cases, above all others, perjury is to be feared from the introduction of affidavits impeaching the competency of jurors. Life is at stake, and the temptation of friends of the accused to commit perjury, or to enlarge upon facts, is always present, and often irresistible. Affi- davits imputing to a juror before trial such expressions as,. " he ought to be hung ; " "he's bound to swing ; " "he'll go the penitentiary," etc., are commonly made and uni- formly met by a counter-affidavits of jurors denying the use of such language. It is impossible to avoid the conclu- sion that justice is frequently thwarted by the court giving too ready credence to such statements.^ 1 State V. Vogel, 22 Wis. 471 ; Sehuiiiacker v. State, 5 Wis. 324. * State V. Vogel, siipra. The Illinois court took this view in two early cases. See Nomaque v. People, 1 111. 109; Guykowski v. People, 2 111. 476. But it was later abandoned. See People v. Scates, 4 111. 351, 353; Chase v. People, 40 111. 352. » See, for exaiaple. State v. Hopkins, 1 Bay, 372. After the discharge of the jurors, one Hopkins, convicted of pas.sing counterfeit money, was brought into court upon tlie last day of the term for sentence. An in- dicted horse thief (!) now made an affidavit that the foreman of the jury, which found the defendant guilty, had declared to him in conversa- tion respecting the prisoner, that " he had come from home to hang every damned counterfeiting rascal, and that he was determined to hang Hopkins at all events." The judge, without any examination of the juror impeached, seems to have winked at the character of the affiant; considered that it raised a doubt, at least, as to the juror's impartiality; that he ought to lean on the merciful side and give the prisoner another chance for a fair trial. In a note we read that the prisoner was again ried and acquitted. Courts freq uently much abuse the maxim, mtius •34(5 OBJECTIONS AFTER VERDICT. [CII. XV. Where, after verdict in ii capital case, a juryman is found wanting in a purely legal qualification, provided the same does not go to impeach his integrity or natural capacity, there would seem to be no reason for setting aside the ver- dict, which does not exist in every other case, civil or crim- inal ; and hence courts generally do not regard capital cases as an exception to the rule.^ § 304. Juror's Aflitlavit in Support of liis Competency. — Where a motion for a new trial is grounded upon affida- vits impeaching the impartiality of any member of the jury by whom the case was tried, it is due to that juror and to the interests of justice, that he be confronted with the ■charge and his affidavit be taken, denying the charge, if ho <'an.^ Unless there is plain evidence of injustice done to the party complaining, the verdict should be allowed to .stand. ^ ■ext in mitiori sensu errara. It properly applies only in a doubtful case. The language of Mr. Justice Crowder on one occasion is vcy apt in this connection : " As to anj' supposed tenderness and humanity to the prisoner, in giving way to such an objection," said he, " I have no right to be tender and liunuuie at tlie expense of the law.** Reg. v. Mellor. Dears. & Bell C. C. 4G8, 517. 1 Ex parte Phillips. 10 Exch. 731, 732; Amherst v. Iladley, 1 Pick. 38, 40; Wassum v. Feeney, 121 Mass. 93; Davis v. People. 19 111. 74; Chase v. The People, 40 111. 352; Gillooley v. State, 58 Ind. 182; Kingen v. State, 46 Ind. 132; Costly v. State, 19 Ga. G14; Davison v. People, 90 111. 221. 2 Anderson v. State. 14 Ga. 709; Taylor v. Greely, 3 Me. 204; State v. Kingsljury. 58 Me. 238; Nash v. State, 2 Tex. App. 362.; Davison v. People, 90 111. 221; Columbus v. Gnetchius, 7 Ga. 139; Be Bowman, 7 Mo. App. 508; State v. McDonald, 9 W. Va. 45G, 466; Tenney v. Evans, 13 N. II. 462; Woodward v. Eeavitt. 107 Mass. 453; Kay v. State. 15 Ga. 223; Moncrief v. State, 59 Ga. 470; Brinkley v. State. 58 Ga. 296; State v. Dumphey, 4 Minn. 439; State v. Ayer, 23 N. H. 301. Contra, Vance v. Ilaslett, 4 Bibb, 191. Ramadge v. Ryan, 9 Bing. 333; Davison v. People, 90 111. 221 ; State V. Hayden, 51 Vt. 296; Mitchum v. State, 11 Ga. 615; Anderson v. State, 14 Ga. 709; Ray v. State, 15 Ga. 223; Mercer v. State, 17 Ga. 146; Cur- lau's Case. 7 Gratt. 619; Ash v. State, 56 Ga. 583; Moughon v. State, 59 Ga. 308; Lovett v. State, 60 Ga. 257; Morrison v. McKinnon. 12 Fla. 552; lie Bowman, 7 Mo. App. 508; Schmidt v. Rose, 6 Mo. App. 587, 5S8; Meyer v. State, 19 Ark. 156; Lawrence v. Collier, 1 Cal. 37; Peo- e V. PI ' ..mer, 9 Cal. 298; State v. Shay. 30 La. An. 114; AVallace v. § 305.] NEW TRIALS NOT READILY GRANTED. 347 Where the evidence as to tlie supposed disqualification of ji juror is conflicting, the decision of the court below refus- ing a new trial will not be disturbed on appeal.^ Although the juror is not brought in to contradict an affidavit impeach- ing his competency, if his testimony upon the imir dire covers the charges made in the affidavit, it is still a -case of oath against oath ; therefore the court will be slow to impute perjur}' to the juror, or gross inattention as to the effect of his testimony.^ § 305. New Trials not readily 8:i*anted. — From the foregoing sections it is obvious that motions for new trial ought to be received with great caution, as tending very much to the introduction of perjury.^ Moreover, reasons of convenience urge this course ; otherwise, as soon as a ver- dict were rendered, the trial of the jurors would begin,* In criminal cases it has been said that justice to accused per- sons demands that uniformly the request should be denied. The reason for this paradoxical statement appears from the language of Lord Tenterden on one occasion. "We. ought," said he, " to be very careful in giving way to such an application ; for if we must grant a new trial at the in- stance of a defendant after conviction, we must also do it $d the instance of a prosecutor when there has been an ac- Columbia, 48 Me. 436; Stewart v. State, 58 Ga. 577; Simnis v. State, 8 Tex. App. 2.30; Thrall v. Lincoln. 28 Vt. 356; Parkinson v. Parker, 48 Iowa. 667; Nadenbousch v. Sharer. 4 ^\ . Va. 203; O'Shields v. State, 55 Ga. 6!)6; Mitchell v. State, 22 Ga. 211; Brinkley v. State, 58 Ga. 296; State v. Diimphey, 4 Minn. 438; Stewart v. Ewbank. 3 Iowa, 191 ; State V. Pike. 20 N". H. 344; State v. Ayer. 23 N. H. 301; Dole v. Erskine, 37 N. II. 317; Dum.as v. State, 63 Ga. 600. 'Miami Valley Furnitnre Co. v. Wesler, 47 Ind. 05; Clfm v. Stat^. 33 Ind. 418; Harding v. Whitney, 40 Ind. 379; Holloway v. State, 53 Ind. 554; Romaine v. State. 7 Ind. 63; State v. Bancroft. 22 Kan. 170; Epps T. State, 19 Ga. 102, 122; Costly v. State, 19 Ga. 614. 2 Nash V. State, 2 Tex. App. 362; State v. McDonald, 9 W. Va. 456; Hudgins v. State, 61 Ga. 182; Com. v. Hughes, 11 Phila. 430. But see Reddle v. State, 3 Heisk. 401; Henrie v. State, 41 Tex. 573; Fitzgerald V. People, 1 Colo. 56. 3 Per Tilghman, C. J., in Moore v. Philadelphia Bank, 5 Serg. & R. 41 , 42. * Per Rogers. J., in Com. v. Flanagan. 7 Watts & S. 415. 422. 348,' OBJECTIONS AFTER VERDICT. [ciI. XV, (juittal.^ But tliiti observation would not hold good in the United States, whore the State can have no new trial in any case. iRex V. Sutton, 8 Barn. & Ores?. 417, 419; Wheliui v. Reg., 28 Up. Can. Q. B. 2, 63, 177, 17S; Reg. v. Mellor, Dears. & Bell C. C. 468, 517, per Willes, J. ; Ibid., p. 523, per Byles, J. TITLE II. OF THE CUSTODY AND CONDUCT OF TRIAL JURIES. CHAPTER XVI. OF THE CUSTODY AND SEPARATION OF .JURIES. :*:eCT10N. 310. Custody of .Jurors under the old Law. 811. Distinction between Power to permit Jury to separate and Power to adjourn. 312. Distinction between Power to permit Jury to separate and Power to discliarge them. i313. Separation not always Ground for New Trial. 314. Custody of the Jury in Civil Cases. 315. Separation in Civil Cases not Ground for a New Tilal. 316. Unless there are other Circumstances of Abuse. 317. Nor in Cases of Misdemeanor. 318. Nor in some States in Cases of Felony. (1.) In Connecticut. (2.) In Illinois. (3.) In Indiana. (4.) In Iowa. (5.) In Minnesota. (6.) In Missouri. (7.) In New York. (8.) In Ohio. (9.) In Texas. (10.) In Wisconsin. 31!). The true Rule otherwise in Capital Felonies. (1.) General Views — Constitutional Obligations. (2.) Rule in Mississippi. 320. Rule'does not extend to Absolute Coutin':'ment and Isolation. 321. May^separate in Charge of Swor Officer. '.ibO CUSTODY AND SEPARATION OF JURIES. [CH. \VI. 32-2. But not in Charge of an Unsworn Otfii-er. 323. What OHioer sworn to attend them — Sheriff, Constable or Coroner. 324. Otheer Incompetent by Reason of special Circumstances. 325. Personal Custody of a .Juror by the Judge — ilis Personal Authority over the Jury during Recess. 326. Form of the Oath of the Ollicer. 327. What the Record should show. 328. Separation creates a Presumption against Verdict. 329. Distinction between Separation with, and without Permission of the Court. 330. Where the Separating Juror is attended by the proper Officer. 331. Distinction in tliis regard between Capital and Xon-Ca])iUil Felonies. 332. Distinctions with reference to the Stage of the Trial at whicii a Separation will yitiate. (1.) Separation before the Jury is charged with the Prisoner. (2.) Separation before the Jury has retired to deliberate. 333. Returning Sealed Verdicts in Civil Cases. 334. Returning Sealed Verdicts in Ca.ses of Felony. 335. Dangers of this Practice — Feigned or Altered Verdicts. 336. Amending Sealed Verdicts. 337. "What if a Juror dissents from a Sealed Verdict. 338. Delivery and Reception of Verdicts. 339. Consent of the Unsuccessful Party or Prisoner. 340. Instances where a New Trial was Refused. (1.) In Capital Cases. (2.) In Cases of Felony not Capital. 341. Instances where a Xew Trial was granted. (1.) In Capital Cases. (2.) In Cases of Felouj' not Capital. § 310. Custody of Jurors under the old Law. — By th(^ ancient common law jurors were kept together as pris- oners of the court, until they had agreed upon their verdict.^ The trials of causes lasted but a single day, and the power of the court to adjourn from day to day, to give juror.s opportunity for rest and refreshment, was doubted or denied. But in later times, when justice came to be admin- istered in a less summary manner, so that it was found necessary in some cases to protract the trial for several days, the old rule yielded to necessity, and the jurors were per- ' When a jury are charged, they are, as it were, prisoners until they are discharged." Banister, J., in Bishop of N. v. Earl of Kent, Trin. T., 14 Hen. VII., c. 29. §311.] POWER TO ADJOURN. 351 tnitted to retire from the bar of the court for needed rest and refreshment, under such rules as the court saw tit to make to prevent them from being tampered with.^ They were not allowed, in cases of treason or felony, to separate, pending the recesses of the court for these purposes, to go to their homes, or to mingle with the general public ; i)ut, according to a precedent set by Lord Kenyon, they were placed in charge of officers who Acre sworn " well and truly to keep the jury, and neither to speak to them themselves, nor to suffer any other person to speak to them, touching any matter relating to this trial." ^ This rule of practice was transplanted into this country, and the form of the oath thus prescribed has in some States been enacted by statute.^ § 311. Distinction between Power to permit Jury to separate and Power to adjourn. — But while there is, in many cases, an absolute necessity of adjourning for refresh- ment and repose, it is seldom that a necessity arises for permitting the jury to disperse, — so seldom indeed, that no great inconvenience to public justice would arise if the dis- persion of the jury, even under necessity, were held sufficient to work a mistrial. There is, therefore, no propriety what- ever, in blending together the two questions of the power to adjourn and the power to permit the jury to separate, as some of the courts have done. We believe the power of the judge to adjourn the proceedings from day to day is now universally conceded ; his power to permit the jury to separate, is not. 1 On the trials of Hardy, HorneTooke, and Thelwall,for high treason, which took place in the Old Bailey in 1794, this question was much dis- cussed; and the conclusion of the judges was, that they had power to adjourn the tiial from day to day, so as to give all concerned in it opportunity for repose and refreshment. The exercise of this power was put on the ground of necessity, and the case was regarded as one where the old law must be relaxed out of the necessity of the case. See, for instance, Hardy's Case, 24 Howell's State Trials, 414. ■'' The King v. Stone, 6 Term Eep. 527. * See, for instance, the oath prescribed by the statute of Missouri in trials for felony. 1 Rev. Stats. Mo. 1879, § 1910. v5r)2 CUSTODY AND SEPAKATION OF .Il'UlES. [CH. XVI. § 312. Distinction l)ot>veon Power to permit Jury to Soi>arato and l*oAv<'r to discharge them. — The subject is further C()nii)lie:iled in .some eases bv confusing it with the feb. 357; State v. Harris, 12 Nev. 414. > See ivfra, § 328. 2 Stancell v. Kenan, 33 Ga. 56. § 315.] IN CIVIL CASES. 355 not only exercised a sound discretion in regard to the disposi- tion of the jury pending their deliberations, but it has even been held that a statute,^ reciuiring them to be confined under the care of an officer until they shall have agreed upon their verdict, or until they shall have been discharged l)y the court, is directory merely, in its application to civil cases. ^ ■ § 315. Sepai'ation in Civil Cases not Ground for new Trial. — It follows, almost as a necessary conclusion, that the fact that the jury in a civil case have separated without leave of the court, after the cause has been committed to them, and before they have agreed upon their verdict, is not, as mere matter of law, ground for a new trial ; nor will a new trial be <>;ranted in such a case unless the facts touching the separation are such as to raise reasonable sus- picions of abuse.* If such a rule will hold as to a general dispersion of the jury, it will follow, for stronger reasons, that the temporary absence of a single juror from the jury room, or from his fellows, through a mistake of duty, will not afford ground for disturbing the verdict, unless there is proof of other misconduct on his part, or of improper attempts to influence his vote as a juror ; though it may be a contempt of court which will subject him to punishment.^ i Comp. Stats. Vt. 222, § 23. 2 Downer v. Baxter, 30 Vt. 467, 474. 3 Smith V. Thompson, 1 Cow. 221 ; Brandiu v. Grannis, 1 Conn. 40-', note; Downer v. Baxter, 30 Vt. 467; Evans v. Foss, 49 X. H. 490; An- thony V. Smith, 4 Bosw. 503; Pulaski v. Ward, 2 Rich. L. 119; Morrow V. Comrs., 21 Kan. 484, 516; Eich v. Taylor, 20 Minn. 378; Wright v. Burchfield, 3 Ohio, 54; Armleder v. Lieberman, 33 Ohio St. 77. ■'Milo V. Gardiner, 41 Me. 549; Perldns v. Ermel, 2 Kan. 325; Burrill V. Phillips, 1 Gall. 360; Alexander v. Dunn, 5 Ind. 122, 125; Graves v. Monet, 7 Smed. &. M. 45; Oram v. Bishop, 12 N. J. L. 153. la an early case in Mississippi, it was held that a separation of the jury, after re- ceiving the charge of the court, and before rendering their verdict, would, as matter of law, even in a civil case, avoid their verdict; and that this would be so, although a sworn constable may have attended the separating juror, if the separation took place without leave of the court. Offit v. Vick, Walker 99. So, in a civil case in Virginia, the jury, after retiring from the bar, and before they had rendered their verdict, left the jury-room, and dispersed through the court-yard, during 356 CUSTODY AND SEPARATION OF JURORS. [CH. XVI. When, therefore, in the trial of a civil case, a juror left his seat for a short time durinijthc trial, without the knowledare •of the court or of the pai'ties, but no testimony was given d urine; his absence, and he held communications with no one on the subject of the case, it was held that, though such •conduct was a contempt of court, yet it would not avoid the verdict.^ So where, on a motion for a new trial in a civil ■case, there was an affidavit that one of the jurors was at home at work, and that he accounted for his absence from the jur}^ by sa^nng that the matter in controversy between the parties was being investigated by a committee of the jury, this was held entitled to no consideration, and a new trial was refused.^ § 310. Unless there are other Circumstances of Abuse. — But this rule does not apply to cases where the separation was attended b}' other circumstances of misconduct.^ Thus, in a civil case, the jury, after they had retired to consider of their verdict, forcibly left the room against the will of the ■constable. One of them actually absconded and retired to his own house, and two others were found in the public road, and could not be gotten to return until they were actually seized and taken back by the constable. The court, ■while admitting that small irregularities in a jury, such as taking a drink of liquor, unless it be by the procurement or at the instance of the prevailing party, is not sufficient to set aside a verdict, said : " Conduct like this is too gross to be tolerated. It is such a deviation from duty, decency and order, as to impeach the motives, as well as the verdict, of any jury; and, therefore, let the judgment be reversed."* So, where the jury in a civil case, about eleven o'clock at night, a temporary recess of the coui-t. Thej^ afterwards rendered a verdict for tlie defendant. It was held that this verdict must, for this reason, be set aside. Howie v. Dnnn, 1 Leigh, 4.55. We apprehend that these cases are not law. They are certainly out of line with nearly all the cases on the subject. 1 Ex parte Hill, 3 Cow. 3.55. 2 Edrington v. Kiger. 4 Tex. 89. 3 Sec Davis v. State. 35 Ind. 496. * Shepherd v. Baylor, 5 N. J. L. 827. § 318.] IN CASES OF MISDEMEANOR. 357 induced the officer who had them in charge to permit them to go home, by pretending to deliver to him a sealed verdict, but returned in the morning and made up and delivered their verdict and returned it into court, a new trial was granted.^ § 317. Xor in Cases of Misdemeanor. — Whether the jury should or should not be permitted to separate before verdict, in cases of misdemeanor, is a matter of discretion with the judge.'^ The fact that the jury separate pending adjournments of the court, is no ground for a new trial, in the absence of circumstances which raise a suspicion of im- proper communications with them. ^ The true rule in such cases is, that it is left to the discretion of the judge to say whether the jury are to be permitted to separate or not. If, in his judgment, a separation is likely to be detrimental to the ends of justice, he will not permit it to take place ; * and, of course, a separation under such circumstances, contrary to the orders of the court, would be in this country, ground for a new trial. It is, also, competent for the judge to per- mit the jury to seal up their verdict, and then separate and return their verdict in court on its re-assembling.'^ § 318. Xorin some States in Cases of Felony. — In some of the States this rule has been extended to prosecutions for felony, and the judges have exercised the discretionary power of discharging the jury upon the adjournments of the court from day to day,*^ even in capital cases ; ^ or, in such a case, of allowing a single juror to leave the box for a time while the trial is in progress, the proceedings being, of course, suspended to await his return.^ And, correspond- 1 Short V. West, 30 Ind. 367. 2 Rex V. Woolf, 1 Chit. R. 401; Goode v. State, 2 Tex. App. 5-20; Caunou v. State, 3 Tex. 32. 3 Rex V. Kimiear, 2 Barn. & Aid. 402. * Ibid., per Best, J. * Com. V. Heller, 5 Phila., 123, Quarter Sessions of Schuylkill Co., Pa., opinion hy Parry, P. J. In this decision, tliongh not made by the court of last resort, the subject was very well considered. 6 Berry v. State, 10 Ga. 511. ' State V. Anderson, 2 Bailey, 5G5; Bilansky v. State, 3 Minn. 427. ** State V. McElmurray, 3 Strobh. 33. o')8 CUSTODY AND SEPAKATION OF JUROKS. [CII. XVI. ini; (o this, we Hiul th;il some oourls Imve so far relaxed the rule of the coiiniion law as to hold that a separation of the jury in cases of felony, even where there is no necessity foi" it, is no ground for a new trial, in the absence of circum- stances which excite suspicion of abuse.* In Pennsylvania, in the trial of offenses not capital, it has not been the prac- tice to " confine the jury during the hearing of the evidence, and direct them to avoid all conversation with any person about the case." ^ (1.) In Connech'cKf. — An early statute of Connecticut recited that, " when the court have committed au}'^ cause to the consideration of the jury, the jury shall be confined under the custody of an officer, appointed b}' the court, until they are agreed on a verdict." The oath prescribed by statute for jurors was as follows: "To keep secret theii own and their fellows' counsel, and to speak noth- ing to any one, nor suffer any to speak to them, of the business in hand, but among themselves ; and when agreed upon a verdict, that they will keep it secret, till they deliver it up in court." It was stated in an early case in that State that the guards provided by this oath were not rontained in the oath administered in England, nor in any of those States where jurors arc strictly confined. In view of this fact, and considering the settled practice of a hun- dred years, the court held that the statute should not be en- forced literally, and that the fact that the jur}^ separated, in a civil case, after the cause had been committed to them, I'emained ai)art over night, and in tlie morning met to agree upon their verdict, and delivered it in court when the court opened, was no ground for arresting the judgment. In <'oniing to this conclusion, Baldwin, J., said: " Ko evils that I perceive, result from the [)ractice in i)ursuanceof this construction, which would not follow the separation of jurors after they had agreed on, and l)efore they had delivered up their verdict. This the statute permits. I j)resume also that ' SteplK ns V. I'eoplo, 4 Park. Cr. R, 306, 497 (aniniied 19 N. Y. 549) ; People V. Doii£^lii?s, 4 Cow. 20; People v. Random, 7 Wend. 417. '^ :\rcCreaiy v. Com., 2!) Pa. St. :323, 327. "§ 318.] IN CASES OF FELONY. 359 with us, where courts are in the habit of returning juries to a «econd consideration, if the jury should agree upon a ver- dict, and then separate, and after reflection, should, on the next day, agree upon a different verdict, they might law- fully do so. If they may, the agreement is of no avail, and under a different practice, would soon be a mere pretence for separation. Nothing, then, short of a rigorous confine- meat, according to the rule of the common law, till the verdict is delivered uj), would attain the object sought. Many inconveniences would follow a literal execution of the statute as claimed. It would hazard many late judgments now considered at rest. It would make a very unpleasant innovation upon the habits of our jurors; and I am confi- dent that justice would not be promoted, truth more clearly discovered, or parties be better satisfied, b}^ hurrying on the jury to a hasty decision, and denying them respite or repose till they should agree. Cases are often committed to the jury at a late hour of the day, which require much reflection, investigation, and sometimes calculation. They will geuer- erally be ill-prepared for this immediately after the fatigues of a tedious trial, and may be unable to come to a result in seasonable hours ; yet such are the cases to which the rule will most frequently apply. In ordinary cases, the jury have no occasion to separate, and seldom do. This con- struction of the statute does not appear to me unreasonable. It is certainly conformable to the temper of the times, and the habits of our citizens. And I am not convinced that we are now bound to abandon it after it has been sanc- tioned by so long and quiet usage ; nor that the advantages would overbalance the inconveniences resulting from a -change." ^ ' Brandiii v. Grannis, 1 Conu. 402, note. This was a civil case, but tlie same rule was afterwards applied in a trial for murder : State v. Bab- cock, 1 Conn. 401. In State v. Williamson, 42 Conn. 261, an informa- tion for burglary, after a jurj' had been impanelled, the case was post- poned indeliniti'lv, and the court was afterwards adjourned for nearly three weeks. When the court next began its session it \\'as before a -different judge, wbo ordered the trial of this case to proceed before the same jury that had before been impanelled, against the objection of the 360 CUSTODY AND SEPARATION OF JURORS. [CIJ. XVI _ (2.) In Illinois. — In c;ii)it:il oases, in Illinois, the pris- oner is entitled to a new trial, if the jury separate durins; the trial, " unless such separation was the result of misap- prehension, accident, or mistake on the part of the jury, and under circumstances to show that such separation could by no possibility, have resulted to the prejudice of the prisoner." ^ A later case in the same court, however, takes the contrary view, that unless prejudice affirmatively appear, the fact that the jurors, during the trial, were per- mitted to minijle with bystanders, will not vitiate their ver- dict.^ It appeared from the record in a trial for forgery that the jury were permitted to disperse from time to time, the trial continuing through several da3's, but the record was silent as to whether the separation was with the consent of the prisoner. From this it was presumed that the separa- tion was with his consent.^ (3.) In Indiana there is a statute relating to State trials,, in the following language: "When jurors are permitted: to separate after being impanelled, and at each adjourn- ment, they must be admonished by the court that it is their duty not to converse among themselves, nor to suffer others to converse with them, on any subject connected with the trial, or to form or express any opinion thereon, until the case is fully submitted to them."'* This statute permits the separation of the jury during the trial, with the consent of the prisoner,* without their being in charge of a sworn dofendant. This was lield erroneous. Under the eirciimstances, tlie Supreme Court held that it could hardly be presumed that the judge or the jury supposed that this case was still held by them under considera- tion. " The mingling of a jury with the bystanders," said Foster, J., "and with the community generally, after a case has been commenced, is an evil always to be avoided when practicable, as such a course is al- most inevitably prejudicial to a fair and impartial trial."' 1 Russell V. People, 44 Til. 508; Jumpertz v. People, 21 III. 411; Mc- Kinney v. People, 7 III. 540, 553. 2 Adams v. People, 47 111. oSl. The same was declared in Reins v. People, 30 111. 256, 273. 3 Pate v. People, 8 111. 641. ■• 2 Rev. Stats. Ind. 1852, p. 376, sec. 112. 5 Evans v. State, 7 Ind. 271; McCorkle v. State, 14 Ind. 39, 41; Quinti V. State, 14 Ind. 589; Anderson v. State. 28 Ind. 22, 25. § 318.] IN CASES or FELONY. SC)1 officer. The case of Jones v. The State^^ which holds that it must appeiir of record that at the time of the adjourn- ments the jury were admonished in reference to their duties, according to the statute, and that they were kept in care of a sworn officer, is no longer regarded as authority.^ (4.) In Iowa it is within the discretion of the court, after the jury is sworn and before the cause is submitted to them, to permit them to separate, or to keep them in charge of a proper officer.^ It is not error, therefore, for the court to refuse, on the application of the defendant, to direct that the jury should be kept together during the trial, unless it is made apparent that the court in some manner exceeded the discretion vested in it, or exercised it to the prejudice of the defendant's rights.* On a trial for burning a store in the night time, after the case was submitted to the jury, and while they were on their way to their room, one of them separated from his fellows so far as to go to his hotel and obtain some tobacco, but arrived at the jury-room very nearly as soon as the rest of the jury,. and before their deliberations had begun. In the absence of a showing of prejudice this separation was held to be not such as to vitiate the verdict.^ (5.) In Minnesota. — An early case in Minnesota laid' down the doctrine that the jury should be allowed to sepa- rate during the ordinary adjournments of lengthy trials in capital cases, where no special reason exists for denying it, and that such separation is no ground for a new trial, unless it be made to appear that improper influence has been ex- erted upon the jury in consequence of their separation.'^ The same court held, in a later case, that it is not error to permit the jury to separate during a capital trial .^ But a still later case brought the attention of the court to the^ 1 2 Blackf. 475. 2 Evans v. State, 7 Ind. 271 ; Anderson v. State, 28 Ind. 22, 25. 3 Code 1851, sec. 3011. ■• State V. Gillick, 10 Iowa, 98. * State V. Wart, 51 Iowa, 587. 8 State V. Bilansky, 3 Minn. 427. 7 State V. Ryan, 13 Minn. 370. 362 CUSTODY AND SEPARATION OF JUROHS. [CH. XVI. ubuses to Avhich this might lead, and also to the terms of a statute impliedly forbidding it. The trial lasted three days. Duriiiir the ordinary intervals of adjournment the jury were allowed, by the court of its own motion, to go ai large, the prisoner's consent not being asked, and he making no remarks upon the subject. Aftei- the court delivered to them its charge, they were given a recess of live minutes, during which time they were allowed to leave the court room and go at large, the prisoner making- no objections or remarks. When they returned, the sheriff was sworn to take charge of them, and they retired to con- sider of their verdict. The statute provided that, after hearing the charge, the jury might either decide the case in court, or retire for deliberation; that if they did not agree without retiring, one or more officers should be sworn to take charge of them ; that they should be kept together in some private and convenient place, without food or drink except bread and water, unless otherwise ordered b}' the court, etc. It was held that any separation of the jury in criminal cases, after the case has been given to them, until their agreement or discharo-e, is contrarv to the mean- ing and intent of this statute ; and therefore a new trial ■was granted.' It is to be observed that this case does not conflict with the two preceding cases, because here the error for which the new trial was granted consisted in allowing tiie jury to separate after the court had delivered to them il> charge ; whereas the previous cases go no further than to hold that the judge may permit the jury to separate during adjournments, before the case has been finally com- mitted to them.- (G.) In MinHourl the law was formerly well settled that the separation of the jury in a criminal case will not inval- idate their verdict or furnish grounds for a new trial, if there is no reason to suspect that they have been tampered State V. Parraul. 10 .Minn. 178, 181. Infra § ;532. ^318.] IN CASES OF FELONY. 363 with, or have acted improperly.' The rule has been applied equally in all criminal cases, including capital felonies.^ It has been applied indifferently to cases where the separation took place before the jury retired to deliberate on their verdict, and to cases where it took place after they had re- tired.' It has been applied equally in cases where the sep- aration was in violation of the duty of the separating jurors, and in cases where it was with the sanction of the court,* and with the consent of the prisoner." But now, by ii recent statute," " the court may grant a new trial * * * when the jury has been separated without leave of the court, after retiring to deliberate upon their verdict, or has been guilty of any misconduct tending to prevent a fair and due consideration of the case." This, it is seen, does not touch the case of separations before the jury have retired to consider of their verdict. It therefore leaves the rules of the foregoing cases in force in most of their applications. (7.) In New York. — The judges of the Court of Ap- peals of New York have not been unanimous upon this question. In a case where it was presented and considered i)X. unusual length, six out of eight of them were of opin- ion that the court has power to permit the jury to separate during the progress of a capital trial, upon the application of the prisoner, or upon his consent tendered without solicitation, ])ending the adjournments of the court from day to day. Four of the judges were also of opinion that the court has power, in its discretion, independent of the consent of the parties, to permit the jury thus to separate. From both propositions two of the judges dissented, and i]}>on the last point two of them expressed no opinion. 1 State V. Bell, 70 Mo. e:53: State v. Braniioii, 45 Mo. .S29; State v. Ilaiiow, 21 Mo. 440; State v. Igo, 21 Mo. 4.')1); State v. Barton, 19 Mo. 227; State v. Mix, 15 Mo. 153; Whitney v. State, 8 Mo. 165. 2 State V. Brannon, supra; State v. Harlow, supra. ••5 Whitney v. State, 8 Mo. 105; State v. Tgo, 21 Mo. 4G0. * State V. Braunon, 45 Mo. 329. ^ Ibid. ; State v. Mix, 15 Mo. 153. <^ 1 Rev. Stats. 1879, sec. 1966. ^ Stephen? v. People, 19 N. Y. 549 (aflirniino- s. c, 4 Park'. Cr. R. 396, 495 364 CUSTODY AND SEPARATION OF JURORS. [CH.XVI. The coii'.'lusion of the court was aided by the fact that the only statute upon the subject in New York provided as fol- lows : "The proceodinirs prescribed bylaw in civil cases in respect to the iuipaMolling of juries, the keeping them together, and the manner of rendering their verdict, shall be had upon the trial of indictments," ^ and that theie was no statute in New York requii-ing the conHneinent and isola- tion of juries in civil cases. (8.) In Ohio the same rule obtains. Whether jurors shall he permitted to separate daring tlie progress of the trial is no longer an open question in that State ; it is set- tled that it is a matter committed to the sound discretion of the court. ^ " In both civil and criminal cases the couit may, in their discretion, during the progress of the trial, permit the jury to disperse for the purpose of obtaining food and rest, and may, in either case, direct them to bring in a sealed verdict; but in no case can the jury, after they have retired to consider of their verdict, be permitted to separate and disperse until they have agreed."^ The law, as thus settled, was disturbed by the enactment of the code of criminal procedure in 1869, providing that '* in the trial of felonies the jury shall not be permitted to separate 505). This case follows the cases of People v. Douglass, 4 Cow. 26, and' People V. Ransom, 7 Wend. 423, and in effect overrules the case of East- wood V. People, 3 Park. Cr. R. 25; though it is to be distinguished from all three of these cases on the ground that in them the question was as to the effect of an unauthorized separation. • 2 Rev. Stats. N. Y. (2d ed.) 848. The New York Code of Criminal Procedure of 1881 provides as follows: '' The jurors sworn to try i.n in- dictment may, at any time before the submission of the cause to the jury, in the discretion of the court, be permitted to separate, or be kept inchaigeof proper ollicers. Such ollicers must be sworn to keep the- jurors together until the next meeting of the court, to suffer no person to speak to or communicate with them, nor to do so themselves, on any sub- ject connected with tlie trial, and to return them into court at the next meeting thereof." Laws N. Y. 1881, Ch. 442, § 414. - Sargent v. State, 11 Ohio, 472; Davis v. State, 15 Ohio, 72, 83; State v. Dougherty, 1 West. L. J. 271 ; State v. Wallahan, Tappau 52 ; Engle* v. State, 13 Ohio, 400; Parker v. State, 18 Ohio St. 88. ^ Sargent v. State, supra, per Read, J. •§ 318.] IN CASES OF FELONY. 365 after being sworn, until discharged by the court." ^ This provision was held to be mandatory. A separation could not be allowed by the court, during the progress of the trial, even with the consent of the prisoner.- But this sec- tion of the code was soon amended,^ leaving the law in re- gard to a separation of the jurors during the progress of trials in cases of felony the same as before the passage of the code.^ (9.) In Texas. — The Texas code of criminal procedure provides that, " after a jury has been sworn and impanelled to try any case of felony, they shall not be permitted to sep- arate until they have returned a verdict, unless by permission of the court, with the consent of the district attorney and the defendant, and in charge of an officer,"^ Neverthe- less, it has been held in that State that the mere separation of a juror from his fellows during their deliberations, un- accompanied by an officer, is no ground for a new trial, there being no suspicion that he had conversed with any one not of the jury with regard to the case, or that he had been guilty of any misconduct whereby the defendant had ■not had a fair trial. ^ In this case and others where a like rule has been applied,' the separation which took place was that of one or more individual members of the jury from their fellows, and not a complete dispersion of the jury. Where a complete dispersion has happened, even with the ■consent of the prisoner's counsel, but not with the personal consent of the prisoner,^ the verdict has been set aside.* This has also been done in the case of a protracted separa- ' 66 Ohio Laws, 312, § 164. 2 Cantwell v. State, IS Ohio St. 477. 3 See 68 Ohio Laws, 5, § 164. * Weiss V. State, 22 Oliio St. 486. »Tex. Code Criin. Proc, art. 605; Pasch. Dig., Tex. Stats., art. 3070; Tex. Code Crim, Proc, 1879, § 687. This statute has no reference to misdemeanors. Goode v. State, 2 Tex. App. 520. « Wakefield v. State, 41 Tex. 556. ' State V. Nelson, 32 Tex. 71 ; Jenkins v. State, 41 Tex. 12S. *• Brown v. State, 38 Tex. 482. -" Early v. State, 1 Tex. App. 248, 273. 366 CUSTODY AND SEPARATION OF JURORS. [CH. XVI. tion of oiu; or more jurors from their fellows, where the officer in charge has not been in constant attendance on them.' When, therefore, duriniJ!; a protracted trial of a capital felon}', the hotel in which the jury were lodged, took fire and was consumed ; and the jurors, escaping from the burning building, were separated for an hour or more, some of them mingling with the crowd, and others resort- ing to their homes, it was held that there must be a new- trial, although each juror swore that during the separation no person had spoken to him, or in his presence, with refer- ence to the case on trial. ■^ This and later cases would seen» to have the effect of reversing the rule of the earlier cases» and making any separation of the jury in a case of felony, unexplained and without the consent of the defendant, a ground for a new trial under the statute.^ Nay, the court has gone so far as to censure the practice of receiving the affidavit of the separating juror to show that his separation from his fellows was for an innocent purpose, and that hc was not tampered with while absent, a thing which nearly all courts permit. The court say: '* The verdict of a jury impanelled for the trial of a felony ought never to havr to be explained by affidavit or otherwise ; the conduct of the jury should be such as that it could not be called in question. A separation of the jury, or of one member from the bal- ance, is prohibited by the law, and for this cause a new trial should ordinarily be granted."* Other late cases in that State indicate a disposition to adhere to the old rule, namely, that a separation of the jury will be no cause for a new trial, unless there is some reason to believe that wrong to the prisoner niight have resulted from it.* 1 Warren v. State, 9 Tex. App. 619, 631. 2 Early v. State, supra. 3 Soria v. State, 2 Tex. App. 297. * Soria v. State, supra. In this particular case, however, a new trlalf was not granted, for the reason that the separation complained of was that of a single juror for a necessary purpose, during which time he was in the view of the bailiff who had charge of the jury. « Cox V. State, 7 Tex. App. 1 ; Marnoch v. State, 7 Tex. App. 269. 272, where one or two jurors had separated from their fellow?, and a new § 319.] IN CASES OF FELONY. 367 It may, perhaps, be difficult to state confidently what the law of Texas under this head is. But in view of the cases last cited, we think it may be said with some assurance that in that State a complete dispersion of the jury in a case of felony, in which the jurors pass from under the eye of the bailiff havinof them in charsje, the defendant not havini^ consented thereto, will be ground for a new trial ; * that a temporary separation of one or more of the jurors from their felloAvs, unexplained^ does not create a presumption against the purity of the verdict which will entitle the pris- oner to a new trial ; but that it must affirmatively appear that there were circumstances attending the separation, such as might have affected the fairness of the trial ; ^ or, as said in Early v. State,^ " a separation of the jury before bring- ing in their verdict in a capital case, does not per se render their verdict void, but such verdict will be set aside or not, according to the circumstances." (10.) In Wisconsin \t \B settled that convictions in cap- ital cases cannot be sustained, where the jury has been per- mitted to separate during the trial, " unless it appears that the separation of the jurors was not followed by improper conduct on their part, nor by any circumstance calculated to exert an improper influence on the verdict." * § 319. The True Rule otherwise in Capital Felonies. — (1.) General Views — Constitutional Obligations. — Th(!rc can be no question, however, that the rule stated in the commencement of the preceding section, at least in its application to capital felonies, is a departure from the rule of the common law. The rule of that law was, we apprehend, substantially uniform in all cases of felony, trial was granted, but on anottier ground. See also Gilleland v. State, 44 Tex. 356. 1 Early v. State, 1 Tex. App. 248, 273. 2 Davis V. State, 3 Tex. App. 91, 101; (modifying Jones v. State, 13 Tex. 168, which was based upon Hines v. State, 8 Humph. 597). 3 1 Tex. App. 248. * State V. Dolling, 37 Wis. 396; Rowan v. State, 30 Wis. 129; Keenan V. State, 8 Wis. 132. See Crockett v. State, 52 Wis. 211; s. c, 12 Cunt. L. J. 479. 3(38 CUSTODY AND SEPARATION OF JUROIIS. [CH. XVI. for by tluit l:i\v nearly all felonies were capital. By that law, the jury were never permitted to separate after they had been charged with a case.^ "Whether such a separation anciently worked a discharge of the pris- oner is not clear.^ Probably it was ground for a new trial according to a precedent given by Lord Hale.^ In modern times it is merely ground for a new trial, even where unauthorized.* The provisions of our national and State constitutions which guarantee the right of trial by jury, are understood to be intended to preserve that right substantially as it existed at common law. It may be doubted, whether, where a jury impanelled to try a capital felony are permitted to disperse, to mingle with the community, and to imbibe their prejudices, before ren- dering their verdict, the prisoner has enjoyed the right of trial by jury within the meaning of these constitutional provisions. Certainly, in all such cases where the common law furnishes the rule of decision, a separation and disper- sion of the jury, after they have been sworn and charged with the prisoner, and before they have agreed upon their verdict, entitles the prisoner to a new trial .^ This rule must, however, be taken with the qualifications stated in the next two sections. ( 2. ) Rule in Mississippi. — In Mississippi the extreme posi- tion is taken, that the separation of a jury in a capital case ^conclusively vitiates the verdict, and entitles the prisoner to a new trial. The court repudiates the doctrine that a separation has no further effect than to render the wcy^'xqX prima facie vicious, and holds that where a separation is shown, it is im- material to inquire whether improper influences were exerted > C(H Litt. 227. b. -See Co. Litt. 227. b; note in 7 How. St .Tr. 497, where man/ prece- dents are collected. •" 2 Hale P. C. 295. ^Williams v. State, 45 Ala. 57; People v. Reagle, 60 Barb. 527, 544; People V. Kelly, 40 Cal. :}57. 2 Kee V. State. 28 Ark. 155, 1G6. ' Kennedy v. Coni. 2 Va. Cases, 510. * State V. Cucuiil, :U N. .T. L. 24!), 259. § 340.] INSTANCES WHERE NEW TRIAL WAS REFUSED. 397 A juror sepanited from an officer having him in charge, and went into his house. The juror, being examined on oath touching this separation, said that he saw no one there except a carpenter who was in his employ, and his wife, and that he spoke to neither of them touching the merits of the case. It was held that the suspicion which the separa- tion otherwise raised, was rebutted.^ During such a trial, a juror visited his home on three separate occasions, accom- panied by an officer. He was not out of the presence of the officer at either time, except on one occasion, when he went into a private room, and changed his linen. The juror himself stated on oath that he had no conversation with any one with regard to the trial. It was held that there was nothing in this conduct in any way censurable or irregular, a In a capital case, after the jury had been impanelled, and before the termination of the trial, one of the jurors was permitted by the officer in charge of the jury to go into his house for the purpose of procuring a change of his linen. For this purpose he went into a room up stairs, and was gone from three to five minutes, the officer in the meantime re- mainino; below. The officer believed that he could not with- out the officer's knowledge, have been conversed with improperly by anybody. The court said : " From the facts which appear as to the separation of this juror from his fel- Jows, there seems to be no proper ground of suspicion that anything improper occurred during his short absence from them, and from the officer. It was reasonable to allow him to change his linen, and to allow him time, and that degree of privacy necessary and proper for that purpose. He was absent no longer than was reasonably required. There was no suggestion that he saw there any one not a member of his own family. He must be presumed to have gone for the purpose for which he asked leave ; and he seems to have returned as soon as it was accomplished. We can see no ground to suspect that the prisoner could have been injured ' State V. Cucuel, 31 N. J. L. 'lid, 260. 2 Ibid. oUS CUSTODY AND SEPARATION OF JURORS. [CH. XVI. by the soj)ai;itioii, ami if not, it funii.shos no ground for a new trial." ' On the trial of an indictment for murder, the jury not agreeing on their verdict, the court at night adjourned till the next morning. The jury were committed to two sher- iffs to be inclosed in a room to be prepared for them. In conducting them from the court-house to their room, one juror se[)arated from his fellows, and from the officers hav- ing them in charge, a distance of about twenty-five yards, in order to give directions to a negro servant about his horse. He was immediately l)rought back to the others by one of the sheriffs, was absent not more than a minute, and spoke to no person but the negro servant. The jury returned into court the next morning with a verdict of murder in the first decree. It was held that there was no ground to set aside the verdict.^ A jury impanelled to try a prisoner on an indictment for murder, were allowed to separate during the progress of the trial. It did not appear that any of the jurors left the court-room, though some of them held conversation with spectators ; but it was shown that this had no reference to the cause on trial. A statute existed permitting the sepa- ration of the jurors, by consent of the court, in all criminal trials, at any time l^efore the final submission of the cause ; but it required that, in such a case, they should be ad- monished by the court that it was their duty not to con- verse with, or permit themselves to be addressed by any other person on the subject of the trial .^ The record did not show whether this admonition had been given or not. But it was held that there was no ground for a new trial. The court was bound to presume that the court below did its duty in this regard.'* On the morning on which a jury returned their verdict, about half of them were seen in the woods near the 1 State V. O'Brien, 7 E. I. 337, 341. * McCarter v. Com. 11 Leigh, 633. ' Gen. Stats. Neb. 1873, § 48-1. * Caw V. People, 3 Neb. 357; Walrath v. State, 8 Neb. 80. § 340.] INSTANCES WHERE NEW TRIAL WAS REFUSED. 31)9 town ill which the court Avas held, and the others were not in view. Where the affiants took their position, how- far from the phice where the jurors were, or what inter- vening ohjects there might have been, the affidavits did not state. Nor did they state that the officer who had charge of the jury was not with or near the jurors who were thus seen on the common ; nor that other persons were about the jurors, who miglit have approached them or s[)oken in their hearing in reference to the trial. The jury had been im- panelled on the 4th of Januar}^ and the trial had progressed from diiy to day till the 8th, when the cause was finally sub- mitted to them. This occurrence was, therefore, on the following morning. It was held that no ground for a new trial had been shown, the court saying: "It has not been the practice in this State to lock up juries in rooms, and keep them in close confinement from the time the cause is submitted to them until they render their verdict. Suitable rooms for such continuous and exclusive confinement could rarely be furnished in the places where our courts are holden. It is a very common practice for juries during the day time, to retire to the woods which are adjacent to most of our court-houses, for the purpose of making up their verdicts, whilst the officer in charge stations himself at a re- spectful distance from them, so as not to intrude upon their deliberations himself, but to guard them from the approach of others. And where the jury are confined to a room dur- ing the night, which is usually the case, they are not unfre- quently permitted by the officer to retire to the woods in the morning. It is more than probable that the jury in this case, after having been left in the room during the night, were allowed by the officer to retire to the woods on the morning of the 9th of January for a sufficient reason ; and perhaps, if the affiants had ascertained and stated all the facts, in their affidavits, the cause of some of the jurors being: out of sight would have been accounted for. If ver- diets were set aside upon such affidavits of separation as the one now before us, a verdict would rarely be permitted to 400 CUSTODY AND SEPARATION OF JURORS. [CH. XVI. .stand, where the accused is found guilty of a grave of- fence." 1 A juror left his fellows and the officer in charge of them standing in the street, and went into a saloon to get a ciirar. He w'as all the time in full view of the officer and his fellow jurors. In connection with the fact that the court could not say that the prisoner had not had a fair and impartial trial, this was held no ground for a new trial .^ During such a trial a female witness fainted during her examination, and some of the jurors lifted her up, carried her into an adjoining chamber of the judge, and laid her on a sofa. They were absent about a minute, and the deputy sheriff who attended upon the court accompanied them. During the whole time they were in the presence of the Avitness, she was insensible. This was held no ground for a new trial." (2.) In Cases of Felony not Capital. — On the trial of an indictment for assault with intent to murder, it appeared that a juror went out of the jury room into a barber's shop to get shaved, without the knowledge of the bailiif, while the jury were considering of their verdict. It was shown, however, that he conversed with no one, during his absence, on the subject of the trial, and that he returned to the jury-room as soon as the purpose for which he had absented himself was accomplished. This was held suffi- cient to rebut the presumption of any injury to the pris- oner.* On the trial of an indictment for perjury, after a part of the evidence had been delivered, the judge retired for a few moments. Two of the jurors also retired without leave, and without an officer, and returned again. A ver- dict of guilty having been returned, the prisoner's counsel moved to set it aside, on the ground that there had been a 1 Coker v. State, 20 Ark. 53, 61. 2 Jenkins v. State, 41 Tex. 128. 3 People V. Lee, 17 Cal. 76. * Westmoreland v. State, 45 Ga. 225. See also Berry v. State, 10 Ga. 511. f 341.] INSTANCES WHERE NEW TRIAL WAS GRANTED. 401 •separation of the jury. It was ruled that if it should ap- pear oil the affidavits of the jurors that they did not speak with any one during the separation, the verdict should not be set aside ; and the point was not further pressed.^ Under the late Texas Code of Criminal Procedure,^ which provided that " after a jury has been sworn and impanelled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by per- mission of the court, with the consent of the district attor- ney and the defendant, and in charge of an officer,"^ the following facts appeared in the trial of a slave for murder : The jury were present in the court room while the people were holding a political meeting : but it was not distinctly shown whether they mingled with the people, conversed and took part in the meeting, or whether they remained apart in a body as listeners and spectators ; but there was a circumstance from which the court inferred that they re- mained together. Two of the jurors, at different times, were also shown to have retired from the jury room to the court yard in obedience to calls of nature, accompanied by an officer, but conversed with no one. A ncvv trial was refused.* § 341. Instances where a NeAV Trial was granted. — (1- j In Capital Cases. — A juror who had been sworn in a cap- ital case, after being charged with the case, was allowed to separate from his fellows and go to a store a hundred yards away for his overcoat, passing through a crowd of persons 2'oing and returnino;. He made an affidavit that Jie did not speak to any one, and that no one spoke to him about the case. A new trial was granted, because he did not state that he had not heard any one speak at all about the case. Notwithstanding the affidavit, persons in the crowd might have been speaking to each other about the case.^ During 1 State V. Carstaphen, 2 Hayw. 238. 2 Art. 605, Pasc. Dig. Tex. Stats., § 3078. 3 To the same effect is section 687 in tlie code of 1879. * Jack V. State, 26 Tex. 1. 5 Daniel v. State, 56 Ga. 653. (26) 402 CUSTODY AND SEPARATION OF JURORS. [CII. XVI. such a trial which lasted for several days, some of the jurors fre({uently al»sented themselves from their fellow urors, at night, for tifteeu to twenty minutes at a time. This was held sufficient to vitiate the verdict, Avithout any mproper tampering with the jury being in fact showu.^ On such a trial one of the jurors separated himself from his fellows after the jury had retired to dcliherate on their verdict. He was gone hut a short time, and it was not shown that he had communication with any one while ab- sent. For this reason a new trial was irrjvnted. It was held that, in a case of felony, the fact of separation is suffi- cient without regard to length of time, and that, where there has been a separation, it is unnecessary to show a tampering Avith the juror, or even a conversation with him upon the subject of the trial .^ In such a case it appeared that some of the jurors had been permitted to dine at the table of a public hotel. "This," said the Supreme Court of Illinois, "cannot be sanctioned by this court, and should not be tolerated by any court." The judgment was reversed, three judges dissenting ; but it also appeared in this case that some of the jurors bad been absent from the others at their houses four or five times, and separated from the bailiff, he being left in another room.^ (2.) In Cases of Felony not Capital. — A jury was sworn to try a prisoner upon several indictments for grand larceny. After giving a verdict of not guilty on the first indictment, they, supposing that their duties were at an end, separated and went to a tavern, and then, returned into court, when, against the objection of his counsel, the pris- oner was tried on the other indictments and found guilty. It was held that this was irregular ; and the prisoner, on the recommendation of the court, was discharged.'* 1 McLain v. State, 10 Yerg. 241. ' Maher v. State, 3 Minn. 444. 3 Jumpertz v. People, 21 111. 37.5, 411. * People v. Meany, 4 Johns. 294. § 341.] INSTANCES WHERE NEW TRIAL WAS GRANTED. 403 Pending the trial of an indictment for a felony not capi- tal, and before the testimony was closed, five of the jury received permission to retire from the court room accom- panied by the sheriff. Another juror thereupon left the jury-box without the knowledge of the court, passed out of the court house through a crowd of persons, and remained absent a few minutes, after which he returned into court. During this absence, he was not in charge of the sheriff, nor seen by him, but he made oath that he had no commu- nication with any person whatever. The trial thereafter proceeded, and the prisoner was convicted. It was held that this separation of the juror from his fellows was suffi- cient ground for setting aside the verdict.^ On the trial of an indictment for manslaughter, during a recess of the court from Saturday till Monday, the jury were left in their room in charge of a bailiff. This officer, regardless of his duty, not only permitted them to sepa- rate, but permitted several persons to enter their room and have free communication with them. The defendant hav- ing been found guilty, a new trial was for this reason granted, the court saying: "The misconduct of the jury was very gross ; and upon the present motion the court will not stop to inquire into the motives of the jury, or the inten- tions of those who commingled with them, or whether a word passed between the jury and others in reference to the cause hi hand. The trial by jury must be preserved stainless and pure, and the precedent which a judgment on this verdict would furnish, would be most dangerous." ^ 1 Overbee v. Com., 1 Rob. (Va.) 756. 3 State V. Sherbourne, Dudley (Ga.) 28. 404 IMPROPER COMMUNICATIONS. [CH. XVII. CHAPTER XVII. or IMPROPER COMMUNICATIONS. SECTION. 348. The Mere Fact of a Comnuinicatioii not ground for a New Trial. (1.) Communication must have been prejudicial. (2.) Unexplained Conununications. (3.) Tampering by Successful Party. 349. Communications between Jurors and Tliird Persons. (1.) General Kule. (2.) In Cases of Felony. (3.) In Civil Cases. (4.) In Cases of Misdemeanor. 350. Reading Newspapers generally. 351. Eeading Newspaper Reports of the Trial. 352. Communications between .Jurors and Witnesses. 353. Hearing Testimony after Retiring. 354. Visiting the Locus in Quo. 355. Judge may not privately communicate with the Jury. (1.) Stringent Nature of the Rule. (2.) Reasons on which it rests. (3.) A contrary Rule in New Hampshire. (4.) Exception in South Carolina. 356. Otherwise when the Communication is open and public. 357. Instructing the Jurj^ in the Absence of Counsel. 358. Rule applicable to Sheriff's Jury. 359. What if both Parties consent. 300. The Right to a New Trial on this Ground. 3G1. Communications between the Jury and the Clerk. 362. Between the Jurors and the Officer having them in Charge. (1.) General liule. (2.) Illustrations — Verdict left to stand. (3.) Continued — Verdict set aside. (4.) Evidence of the Officer's Misconduct. (5.) Conflict of Decisions in New York. 363. Communications between the Jurors Themselves. CH. XVII.] IMPROPER COMMUNICATIONS. 405 364. Tampering with Juries. (1.) Embracery at Common Law. (2.) Difficulties of maintaining Civil Actions for. (3.) How punished under Statutes. (4.) Subjects Jurors to Punishmeat. (5.) Always Ground for a Xew Trial. (6.) Affidavits of Jurors admissible to show. (7.) Communications by Friends of the Prevailing Party. (8.) By his Counsel. (9.) By tlie Prosecuting Witness in a Criminal Case. (10.) By Officious Third Persons. (11.) Presumption from such Undisclosed Communica- tions. (12.) Kule where the Communication is disclosed. (13.) Party moving for a New Trial on this Ground must himself be Innocent. 365. Communications made by Jurors. (1.) General Rule. •_ . (2.) Communications by .Jurors to Parties. (3.) To Third Persons, (4.) Remarks of Jurors indicating Prejudice. § 348. The mere Fact of a Communication not Ground lor a New Trial. — Whether the fact that members of the jury have, pending the trial, or during their deliberations, held communications with persons not of the jury, will be ground for a new trial, is governed by the rule which has been stated in the preceding chapter with regard to separa- tions of the jury. There is a very close connection between the two subjects. A separation of a jury is only prejudicial where it leads to improper communications with its members. Improper communications are harmful, whether made to the whole jury when together, to a single juror when with his fellows, or to a single juror when separated from his fellows. Whether a communication, then, will afford ground for a new trial, must depend upon its harmful tendency ; and this is to be determined according to the cir- cumstances of each case, having reference to the nature of the communication, the person making it, the time when, the place where it was made, and other surroundings. The leading rules on this subject are : (1.) Communication must have been prejudicial. — The mere fact that such communications have been hold will not 406 IMPROPER COMMUNICATIONS. [CII. XVII. vitiate the verdict, unless they were of such Ji nature as manifestly to corrupt or prejudice the mind of the particu- lar juror, or otherwise to interfere with the deliberations of the jury.^ (2.) Unexplained Communication. — But, as an unex- plained separation of jurors from their fellows leads to an inference of tampering,'^ so the fact that jurors have held communications with the successful party to the suit, with his friends, counsel or agents, the nature of which is not disclosed, will lead to such au inference of tampering as will require the verdict to be set aside ;'^ for if the commu- nication were innocent, it would be susceptible of explana- tion. (3.) Tampering by Successful Party. — But where the successful party to the suit is shown to have attempted, by improper means, to influence the verdict in his favor, whether by corrupting or intimidating particular jurors, by arousing prejudice in their minds against the opposite party or his cause, or hy undue hospitalities or civilities, the verdict will be set aside, on grounds of [)ublic policy, as a punishment to the offender and as an exam})le to others, without reference to the merits of the controversy, and without considering whether the attempt was successful or not.'' 1 Barlow v. State. 2 Blackf. 114; State v. C'ucue], 31 X. J. L. 249, 262; March v. State, 44 Texas, 64, 82. 2 Ante., § 328. 3Com. V. Kobj', 12 Pick. 496, 520; Hamilton v. Pease, 38 Conn. 115; Martin v. Morelock, 32 111. 485. See Pope v. State, 36 Miss. 121; Ned v. State, 33 Miss. 364; Organ v. State, 26 Miss. 83; Hare V. State, 4 How. (Miss.) 187; McCaun v. State, 9 Smed. & M. 465, 469. 4 Cottle V. Cottle, 6 Me. 140; Walker v. Walker, 11 Ga. 206; Vaughn V. Dotson, 2 Swan, 348; Sexton v. Lelievrre, 4 Coldw. 11; Tucker v. South Kingstown, 5 R. I. 5.58, .561 ; Hicks v. Drury,5 Pick. 296; Mclntire V. Hussey, 57 Me. 493; Cilley v. Bartlett, 19 N. H. 312,324; State v. Hascall, 6 N. H. 352, 360; Mcllvaiiie v. Wilkins. 12 X. H. 474, 476; Per- kins V. Knight,*2 X. H. 474; Martin v. :Mor('lock, 32 111. 485; Knight v. Freeport, 13 Mass. 218; Heff-on v. GalUipe, 55 Me. 563, 569; Coster v. Merest, 3 Brod. & Bing. 272; Sheaff v. Gray, 2 Yeates, 273; Sloan v. Harrison, 1 X. .J. L. (Coxc) 123; Ritchie v. Holbrooke, 7 Sergt. & R. 458; Hawkins v. Xew Orleans Printing Co., 29 La. An. 134; Bradbury ^ 349.] BETWEEN JURORS AND THIRD PERSONS. 407 § 349. Coiumiinications between Jurors and Third Per- sons. — (1.) General Rule. — The courts generally agree that where the interference of strangers with the jury has not been promoted by the prevailing party, has not been attended with corruption, and it does not reasonably appear that substantial prejudice has resulted to the party com- plaining, the verdict will not be disturbed for this reason, whether the cause be civil or criminal, capital or other- wise.^ For stronger reasons, where the nature of the com- munication is explained by affidavits, which make it clear that it was of such a nature that no injury resulted from it, it will be no ground for a new trial. ^ Even where bystand- ers, not witnesses, obtruded themselves into the jury-room, during the deliberations of the jury, a new trial was refused, although one of the jurors changed his opinion, as to the amount of damages, after this intrusion took place, it not appearing that what was said by the intruders, was listened to by the jurors as evidence ; the court saying : *' We are not aware of any instance in which the idle and im- pertinent observations of persons not witnesses in the cause, and wholly unconnected' with the parties, and who have had access to the jurors without any fault in them, were held to vitiate the verdict." ^ For a juror to listen to the V. Cony, 62 Me. 223; Smith v. Willingham, 44 Ga. 200; McCarver v. Pippin, 12 Heisk. 657; Hamilton v. Pease, 38 Conn. 115; Eeynolds v. Champlain Trans. Co., 9 How. Pr. 7; Mench v. Bolbach, 4 Fhila. 68; Simpson v. Kent, 9 Pliila. 30. Bnt see Nesmith v. Clinton Fire Ins. Co., 8 Abb. Pr. 141. Post, § 364. 1 People V. Boggs, 20 Cal. 432; Epps v. State, 19 Ga. 102, 122; Cohron V. State, 20 Ga. 752, 759; Barbour v. Archer, 3 Bibb. 8; Hager v. Hager, 38 Barb. 92, 100; Martin v. People, 54 111. 225; MeKenzie v. State, 26 Ark. 334; Barlow v. State, 2 Blackf. 114; State v. Cuciiel, 31 N. J. L. 249, 262; March v. State, 44 Tex. 64, 82; State v. Fruge, 28 La. An. 657; Ellis V. Ponton, 32 Tex. 434, 439; Armleder v. Lieberman, 33 Ohio St. 77. 2 Westmoreland v. State, 45 Ga. 225, 281 ; Burtine v. State, 18 Ga. 534, 538; Caw v. People, 3 Neb. 357; Ned v. State, 33 Miss. 305; Luster v. iState, 11 Humph. 169; State v. Degonia, 69 Mo. 485, 490; Contra, Com. V. Wormley, 8 Gratt. 712. In Connecticut the inquiry is whether the successful party was benefited, or the unsuccessful party injured, by the -communication. Hamilton v. Pease, 38 Conn. 115; Bennett v. Howard, -3 Day, 219; Pettibone v. Phelps, 13 Conn. 445. 3 Barbour v. Archer, 3 Bibb, 8. See also Luster v. State, 11 Humph. 408 IMPROPER COMMUNICATIONS. [CH. XVII. remark of a wonian who kept an oyster saloon, to the effect that she had heard the testimony of one witness, did not think much of the accused, and if it could be left to a jury of women they would hang him ; ^ or to listen to a few passing remarks between members of the jury and strangers ; ^ or that some of the members of the jury spoke to persons outside of their room during a temporary ab- sence of the officer having them in charge ; or that, after they had agreed on their verdict, and had been brought into court, they were left some time by the officer in the court room while he went outside to watch for the judge ; ^ o that, while the officer having the jury in charge had gone out of their room for wood and water, a third person came into their room, and conversed with no one, but listened w^hile one of the jury played on a fiddle ;* — have been held not sufficient grounds for a new trial. But in a civil case where a juror " conversed freely about the case wath a per- son not of the jury," a new trial was granted.^ (2. ) In Cases of Felony. — The subject is governed by the 169; State v. Degouia, 69 Mo. 485, 490. Much less will it be a ground for a new trial that a bystander who had heard the evidence met one of the jurors, after the jury had agreed upon and sealed up their verdict,, and conferred with him, and expressed his opinion as to the merits of the case. Willing v. Swasey, 1 Browne (Pa.), 123. The Criminal Code of Texas contains the following provision: "New trials in cases of felony shall be granted for the following causes, and for no other; * * * 7. Wliere the jury, after having retired to deliberate upon a case, have re- ceived other testimony; or where a juror has conversed with any person in regard to the case." 1 Pasc. Dig., Tex. Stats. Art. 3137; Code Cr. Proc. 1879, Art. 777, subsec. 7. The Supreme Court of Texas holds that the conversation alluded to in this statute must be a conversation calcu- lated to impress the case under consideration upon the mind of the juror in a different aspect from that presented by the evidence in the court- room, or othei-wise of such a nature as is calculated to result in harm to the prisoner on trial. March v. State, 44 Tex. 64, 82. 1 State V. Cucuel, 31 N. J. L. 249, 262. 2 People V. Kelly, 46 Cal. 357. 3 People V. Boggs, 20 Cal. 435. ^' * Luster v. State, 11 Humph. 169. See also State v. Degonia, 69 Mo^ 85, 490. « Bennett v. Howard, 3 Day, 219. § 349.] BETWEEN JURORS AND THIRD PERSONS. 409" principles more fully stated elsewhere ; ^ from which it would appear that the fact of a communication, without more, creates, in the view of some courts, an unfavorable presumption which, unexplained, will overturn the verdict ;^ whereas, in the view of other courts, the mere fact of such a communication will not be ground for setting aside the verdict, unless it be made to appear probable that prejudice resulted from it,^ whilst in no court would a verdict be dis- turbed for this cause, where it should appear that the com- munication was innocent and without prejudice to the accused.* (3.) In Civil Cases. — In civil cases the courts gener- ally hold that, in order to set aside a verdict because im- proper communications have been had between members of the jury and third persons, the affidavits must do something more than raise suspicions that improper influences might have been brought to bear on the jury. A verdict which twelve men have rendered under the solemnity of their oaths, is certainly entitled to some consideration ; and it would not only be unjust to the party who has obtained it to set it aside for some irregularity which has happened without his fault, unless prejudice clearly appear ; ^ but it would be entirely opposed to the policy of the law, which favors the ending of litigation and the quieting of controversies. Illustrations of this might be multiplied ; but one will be selected, which is quite apt: It was shown that, while a jury were deliberating, the constable having them in charge talked with them other than to ask them if they had agreed on their verdict. This was no ground for a new trial, for it was also shown that his conversation with them did not relate to matters connected with the suit. After hearing the evidence, and before retiring to consider of their verdict, the jury separated temporarily. This was 1 See Ch. XVI.. 'passim. 2 Ante, § 328. » Ante, § 318. * Martin V. People, .54 111. 225; McKenzie v. State, 26 Ark. 334, 343. * Armleder v. Lieberman, 33 Ohio St. 77. 410 IMPROPER COMMUNICATIONS. [CH. XVII. no ground for a new trial ; for it was matter of evcry-day practice for jurors so to separate. The subject of the suit was talked of in the presence of some of the jurors by bystanders. This was no ground for wresting the verdict from the success- ful party ; for it did not appear that the conversation related to the merits of the controversy. The affidavits did not dis- close what was said. It might have been merely that it was 11 lengthy trial ; that it was an expensive litigation ; that it was about a certain tract of land ; that the land was valu- able, or the reverse. One of the jurors thowjld that a map of the land in controversy might have been exhibited. Sup- pose it was. To whom was it exhibited, by whom, in what way, and for what purpose? AVas it accompanied by any explanations, or was it merely held up and talked about, iu- audibly to the jurors, by the bystanders themselves? What map was it? One that had been given in evidence on the trial, in the hands of a surveyor or other witness? "All these aie questions," said Hogeboom, J., "not answered by the evidence. To set aside a verdict, without any further light upon these subjects than is presented by the affidavits, would seem to be trifling with the solemnity of a verdict rendered upon oath. If remarks were made tending to prejudice the cause or the parties, the nature of them could l)e stated ; and the very omission to state what they were ])y the persons, whether jurors or otherwise, who heard them, furnishes pregnant proof that they were wholly im- material and unprejudicial. While we should carefully guard the purity of verdicts in our courts of justice, and re- fuse to sustain them when tainted with any reasonable sus- picion of abuse, merel}^ idle or conjectural suggestions of l)rejudice or influence ought not to be listened to. From the very mode of administering justice in our courts, jurors are in almost every case necessarily more or less brought into contact with bystanders or strangers to the controversy, and we must be careful not to countenance merely fanciful or imaginary notions of prejudice to the parties resulting there- from." 1 ^ Hager v. Hager, 38 Barb. 92, 100, 102. § 350.] READING NEWSPAPERS GENERALLY. 411 (4.) In Cases of Misdemeanor the rule is no doubt the same as in civil cases. ^ § 350. Reading Newspapers generally. — Neither will the mere fact that jurors are permitted by the officers of the court, during the progress of a protracted trial, even for a capital offense, to read the newspapers, of itself furnish o^round for a new trial.'' Durino-a trial in the United States Circuit Court, of several prisoners indicted for the capital felony of robbery on the high seas, which trial lasted for fifteen days, considerable indulgence had been extended to the jury by the court, upon consent of counsel, in respect of refreshments, and communicating with their friends on business. While the trial was in progress, the officers in charge of the jury, through a mistake as to their duty, granted them the indulgence of reading the newspapers, the officers first inspecting them, and cutting out everything that in any manner related to the trial. As soon as the charge was given to the jury, they were not allowed to see any newspaper, until they had given their verdict in open rourt. This was held no ground for a new trial. Mr. Jus- tice Story, who presided at the trial, said : "So far, then, as reading the newspapers went, there is not the slightest reason to believe that it could, or did, in fact, in any man- ner, whatsoever, affect the verdict or influence the jury. The evidence, as far as it bears on the point, negatives any supposition of this sort. And, speaking for myself, I must say that, considering the protracted nature of the trial, and the necessary privations of the jury, and the importance of keeping them when out of court from too constant meditation upon the subject of the trial while it was yet imperfectly before them, I do not doubt that the indulgence had a ten- dency to tranquilize their minds, and to keep them in a state of calmness and freedom from anxiety highly favor- able and useful to the prisoners tliemselves. AVithout doul)t it was a great irregularity in the officers of the court, for which they may be punishable, to have granted this in- 1 Ante, § 317. 2 United. States v. Gibert, 2 Sumn. 19, 81, 82. 412 OirROPER COMMUNICATIONS. [CH. XVII, dulgence without the express sanction of the counsel, or of the court. I am not aware that any such sanction was given. But it is not every irroguhirity of officers which would justify a court in setting aside a verdict and granting a new trial, or treating the matter as a mistrial. The court must clearly see that it is an irregularity, which goes to the merits of the trial, or justly leads to the suspicion of an im- proper influence or effect on the conduct or acts of the jurors. We must take things as they are in our days. Juries cannot now, as in former ages, be kept in capital cases upon bread and water, and shut up in a sort of gloomy imprisonment, with nothing to occupy their thoughts. It would probably be most disastrous to the administration of justice, and especially to prisoners, to attempt, in these days, the enforcement of such rigid severities, so repugnant to all the usual habits of life. And, for one, I am not sat- isfied that the irregularity in the present case has been in the slightest manner prejudicial to the prisoners ; but, on the contrary, as far as the evidence leads me to any conclusion,. I should deem it favorable to the prisoners. The indul- gence ceased the moment when the charge was given, and the jury were then put upon their own solemn and exclu- sive deliberations on the case." ^ Even where, in a capital trial, before the whole jury was impanelled, some of the jurors, while in the jury- box in the presence of the court, and with the knowledge of the counsel for the accused, read a newspaper containing a diatribe against one of the counsel for the prisoner, and no exception was taken to this at the time, it was held no ground for a new trial .^ And where, on such a trial, during a recess of the court, the jury being in the court-room where there was an open window, one of the jurors, seeing a newspaper in the hands of a spectator outside, asked him for it, and the latter handed it to him, saying, " Certainly," " You are welcome," or something of the kind, but not speaking with reference to the case, and the juror glanced 1 United States v. Gibert, 2 Sumner, 19, 82. ^Iluuter V. State, 43 Ga. 484, 524. § 351.] READING NEWSPAPER REPORTS OF THE TRIAL. 413 over the eastern dispatches, and banded the paper back to the person from whom he had borrowed it, — as there was in this conduct, though imprudent, no possible injury to the defendant, it Avas held no ground for a new trial, ^ § 351. Reading- Newspaper Reports of the Trial. — The rule which excludes books, papers and documents, not in evidence, from the jury-room,^ seems to point to the propriety of carefully excluding from the minds of the jury newspaper reports of the trial, and making the reading of such reports a ground for a new trial. ^ In criminal cases, and especially in capital felonies, where members of the jury are permitted to read editorial com- ments unfavorable to the accused, a new trial ought always to be granted.* It has, however, been held by i State V. Anderson, 4 Nev. 266, 278. 2 Post, ch. XIX. 3 Thrall v. Smiley, 9 Cal. 529, 537; Farrar v. State, 2 Oh. St. 54, 57. ^Palmore v. State, 29 Ark. 248; Walker v. State, 37 Tex. 366, 389; Com. V. Landis, 12 Phila. 576. During the trial of William McKee, in 1876, indicted for conspiracy to defraud the Government, this ques- tion came up under peculiar circumstances. McKee was the principal owner of the St. Louis Globe-Democrat, an old citizen of St. Louis, and a Hepublican politician of influence. The St. Lotiis Bepuhlican was a Democratic newspaper, a rival in business of the Globe-Democrat., and judging from the tone of its editorials at that time, its proprietors were bitterly hostile to McKee. After the testimony in the case had all been heard by the jury, a " leader" appeared in the Bepnblican, evidently in- tended to be read by tlie jury, entitled, " What the jury will read." The article exhibited a decided bias against the defendant on trial. Two copies of the paper which contained it were purchased by members of the jury, but there was no proof that the article was read bj' any of them. The jury were under instructions which permitted them to read reports of the trial, but not editorial comments upon the case. It was held (Dillon and Treat, JJ.), that this was no ground for a new trial, Dil- lon, J., saying: " The third ground of the motion for a new trial is in respect to the newspaper article; and in the judgment of both of us, that was an improper article to be published when the jury was about to take the case under consideration, if it was intended it should be read by them. The courts before they were disabled by acts of Congress, treated all articles calculated to influence the result of a pending case, as contempts of their authority, and punished the writers of such arti- cles accordingly. Now, that article cannot be read without showing that there was a bias, at all events, against the defendant. That is un- d jn'.able, and if there was good reason to believe that that article had been 414 IMrROPER COIVOIUNICATIONS. [CH. XVII. niaiiv courts, even in ciq)ital cases, tliat the mere fact that members of the jury have been permitted to read such reports, is not ground for ti new trial, unless the reports themselves contain something of a tendency to influence read by the jury, and had inlhicneeil their verdict — if it was shown here conchi>ively that it had been read liy tlieiii — we might be obliged, though we would be otherwise satistied with the verdict, on legal prin- ciples, and following established precedents in this regard, to give the defendant a new trial. I make these remarks because it ought to be un- derstood that all attempts to influence the public mind, and particularly to influence jurors when they have a case, civil or criminal, before then), are improper; and, I think, when journalists — respectable journalists — understand this, they will act acc?ordingly. But it is to be remembered in tliis case that we said to the jurj', after having first prohibited the reading of papers: 'You may read papers containing a report of this trial, but you must not read any editorial comments or articles criticising the trial one wa}' oi- the other.' It is in evidence tliat this article was published, but there is the affidavit of no juror, or other person, that it was ever read. Mr. Stevens, the bailiff, testifies that two copies of the paper were bought by the jury, but no witness stated that this article was ever read by a juror. Xow, in view of the fact that we had cau- tioned the jury against reading such articles, and this article disclosed that it was an imi^roper one by the very heading of it, shall we suppose that the juiy disregarded their duty without anj' showing, or must we suppose that they did not? That is a matter that, if it were true, could have been shown by the aflidavit of jurors, but there is no such affida- vit; and on that ground we think that the motion for a new trial must fail, the same as the others." United States v. McKee, 3 Cent. L. J. 258, 259. This decision, it is believed, cannot be supported either by precedent or on principle. The able and humane judge wlio rendered it has been censured for mitigating the punishment of McKee to impris- onment in the county jail, instead of the penitentiary; his real fault was that he did not grant him a new trial. The case excited great interest. Reporters were present, representing the daily papers of the principal cities of the Union. A paper owned by the defendant hin)self was pub- lishing a verbatim report of the trial. Under these circumstances, per- mission given to the jury to read newspaper reports of the trial was an extraordinary indulgence, whether regard be hacl to the rigiits of the Government or to those of the prisoner. It was scarcely possible that such reports would not exhibit the bias of their authors, and that they would not be accompanied by editorial comments which it would be im- possible to keep from the jury. Under the peculiar constitution of the Federal Courts, no appeal or writ of error is allowed in a criminal case, and McKee had no oppoitunity to take the judgment of an appellate court upon this question, it can scarcely be doubted what the judgment of an appellate tribunal upon the question as there presented would have been. § 351,] READING NEWSPAPER REPORTS OF THE TRIAL. 415 the minds of the jurors reading them to the prejudice of the prisoner,^ and the affidavits of jurors will, it seems, he looked to for the purpose of showing that they Avere not so prejudiced.^ Much less will the mere fact that such matter gets accidentally into the jury-room in civil trials,^ especially if not read by any of the jurors, be ground for disturbing their verdict.'' Thus, during the trial of a capital case, a newspaper, containing what purported to be a report or abstracts of the evidence introduced at the trial, was seen b}^ two or three of the jurors, who read but a small portion of them. The newspaper contained no editorial com- ments on the evidence or the merits of the case. In tiie opinion of the court there was not the slightest ground to suspect that any juror had been misled by any of these re- ports. The juror who read most of them said they made no impression upon him. The paper which contained them was freely used and referred to l)y counsel, from time to time, before the court and jury. It was held that, although the officers were in fault in permitting the paper to go into the hands of the jury, yet there being no ground to suspect that the result of the trial was in the least degree influenced thereby, a new trial would not be granted.' So, where a person testified, merely upon information and belief, that slips of a newspaper and a law-book containing the evidence given on a former trial of the same case, were left m the room where the jury deliberated on their ver- dict, and that he was informed and believed that, while so deliberating, the jury read from said newspaper slips what purported to be the evidence on the former trial, and from said law-book the evidence on the former trial as published 1 United States v. Reid, 12 How. (U. S.) 361, 366; s. c, 3 Hughes, 509; State v. Cucuel, 31 N. J. L. 249, 263; People v. Gaffaey, 14 Abb. Pr. (N. S.) 36. 2 Uaited States v. Reid, supra ; State v. Cucuel, supra ; Chicago v. Derniody, 61 111. 431; United States v. McKee,3 Cent. L. J. 258, 259. 3 Thrall v. Smiley, 9 Cal. 529. < Chicago V. Dermody, supra. 5 State V. Cucuel, 31 N. J. L. 249, 263. See also Flanegau v. State, 64 Ga. 52. 41 n OIPROPER COINIMUNICATIONS. [CH. XVII. in the .same, — it was held that this was not suflScient to war- rant a new trial. ^ But where, in a capital case, the charge of the court was not in writing, but the jury during their deliberations, read and made use of a newspaper report of a material portion of the charge, it was held that the ver- dict must be set aside, although the trial judge recognized the report as correct.^ It has been held in a capital case that, where the prisoners' counsel observed a juror reading a newspa})er containing comments unfavorable to the pris- oners, and, after private^ calling the attention of the judge to it, concluded that it was best to have no public notice 1 People V. Williams, 24 Cal. 31, 38. After stating that an affidavit, based merely upon information and belief, which does not state from whom the information was derived, will not be sufficient ground to im- peach a verdict because of misconduct of the jury, Sawyer, J., said: '■ It does not appear by whom or how these slips and books were left in the court room. Admitting that they were left as alleged, non constat, that they were not left by the prisoner himself, or by some party on his behalf, for the very purpose of vitiating the verdict in case it should be against him. It is not pretended that thej' were introduced surrepti- tiously on the part of the people for tiie purpose of influencing the ver- dict, or that the district attorney or the judge was aware of their being left in the court room. Xor does it appear that the printed matter so left was not a perfectly correct transcript of the evidence, or that it in any particular differed from the evidence given before the jury on the trial. It does not appear, except by the affidavit of the prisoner, upon information and belief merely, unsupported by other evidence, that it even came to the knowledge of the jury that the obnoxious papers were in the room where the jury were deliberating. It is not to be presumed that the jurors violated their duty by hunting up and reading evidence not given to them in the progress of the trial in open court, under the sanction of the judge. The presumption is that they performed their duty in accordance with the oath which they had all taken before entering upon the trial of the case. To overthrow this presumption there must be some direct positive testimony tending to show misconduct on the part of the jurors in this particular. It is not enough that this objectionable matter was inadvertently left in the room, Avith other books and papers, where the jury might by chance have found it.. There must be some positive testimony, by some person wlio has knowledge of the fact which he states, showing that the jurors, or some one of them, read the testi- mony referred to, or, at least, that they found it, or that it in some way came to their notice. No such testimony is produced in this case, and the court, therefore, did not err in denying a new trial, or in refusing to arrest the judgment." 2 Farrar v. State, 2 Ohio St. 54, 57. Bartley, C. J., dissented. § 352.] BETWEEN JURORS AND WITNESSES. 417 taken of it, the irregularity was thereby ivaived and the prisoners coukl not insist upon it as a ground for a new trial. 1 § 352. Coranmnications between Jurors and Witnesses. — Whether the fact that a witness makes statements con- cerning the merits of the cause on trial, in the presence and hearing of a juror will be ground for a new trial, will of course depend upon the nature of the communication, whether it was calculated to prejudice the mind of the juror, against the losing party, and other circumstances. Re- marks made to jurors by witnesses will obviously be scanned more closely than those made by mere bystanders. ^ Where, after making such a statement in the presence of a juror the witness was recalled, and, being interrogated by the juror, made the same statement under oath, it was held that there was no ground for a new trial.^ And where the con- versation took place, without any evil intention, so near some of the jurors that they might have heard it, and the verdict was clearly right, the court refused to set it aside, though, had it been of doubtful propriety, they might have done so.* So, where, during the trial of a civil cause, a juror said to a witness for the successful party, that " they could throw the costs of the action upon the defendant, of course," to which the witness replied that "they could, of course," it was held that this conduct on the part of the juror, though reprehensible, did not indicate such a bias as disqualified him from sitting in the cause. It rather im- plied that he had not made up his mind, than that he had. It showed that he was willing to converse on the subject and to hear what others had to say, but it did not show that he was biased in his opinions, or corrupt in his motives.'^ Neither would the same court set aside a verdict, in a case 1 Bulliner v. People, 95 111. 394. See ante, §§ 303, 339. 2 Woolsey v. White, 7 Bradw. (111.) 277. ^ Thrift V. Kednian, 13 Iowa, 25. It should be added that the court said that the matter stated by the witness was quite as favorable to the unsuccessful as to the successful party. * Jones V. Vail. 30 N. J. L. 135. 5 Mcllvaine v. Wilkins, 12 N. H. 474. (27) 418 IMPROPER COMMUNICATIONS. [CH. XVII. of felony, l)ccause a witness liad used harsh hinguagc against tlie i)risoner in a bar-room, in the presence of a juror, it a})[)caring that he was not cmpk)ycd to influence the juror, and that he was not attempting to do so.^ Inad- vertent and l)oastful talk of a witness about some circum- stance not connected with the case, was held, even though accompanied by an expression of his o})inion as to the merits of the case, to be no ground for a new trial, where it was overheard, unknown to the witness, by a juror, and the juror swore that it had no influence on his mind.''^ 80, of an observation passed between a juror iuid a witness which rehited solely to the mechanical execution of a map which was used at the trial .^ But the rule which limits the attention of the jury to evi- dence which has been offered at the trial, exacts that a com- nmnication between a vvitness and a juror., as to what the witness testifled to at the trial, should afford ground for a new trial, at least, if there is reason to sui)pose that preju- dice to the losing party may have resulted from it. It was so held Avhere a juror, during an adjournment of court in a civil case, asked a witness if he had not testified to a certain fact, and the witness said that he had.* And a new trial lias been granted merely because a witness was guilty of the indiscretion of conversing about the cause with a juror Avho had not been sworn, but who Avas afterwards sworn and sat in the case.^ These cases, however, seem to go too 1 State V. Ayer, 23 N. H. 301, 320, the court saying: "It would be •extremely unsafe to establish it as a principle that upon such evidence us this a verdict might be set aside. In all communities every trial of interest calls forth more or less idle remark, ignoiant prejudice and bit- ter feeling, and cverj' man who lires in the world and is conijjetent to try a case is exposed to meet with such inlliclions. In general we ad- mit and lament tlieir existence, but pass them by as evils for which we have no remedy williout reforming tlie world. It is only when they assume a tangible shape and create such a bias in the minds of jurors as to unfit them for the duty of impartiallj' trying a case, that the court can interfere." ' Jackson v. Jackson, 32 Ga. 325, 335. « Tiernan v. Trewick, 2 Utah, 393. •♦ Vanmotcr v. Kitzniiller, 5 W. Va. 381. ^ Meneh v. Bolbach. 4 Phila. G8. ^ 355.] BETWEEN JURORS AND THE JUDGE. 419 far. It is not perceived why the successful party should have been deprived of his verdict, because a juror may have so far forgot his duty as to communicate with a wit- ness, if it appeared that the communication was of such a nature as not to prejudice the losing party, and if the ver- dict was otherwise fairly and legally obtained. But where, in an action for the conversion of two head of cattle, the jury were sent out to view the animals, and, contrary to tlie provisions of the statute, a number of witnesses went with them, and one of the witnesses made a remark, shown to be untrue in fact, but upon which the verdict was ob- viously based, a new trial was, with propriety, granted.^ § 353. Hearing- Testimony after retiring-. — It is settled, and upon grounds too obvious for discussion, that if a jury, after retiring to consider of their verdict, presume to call witnesses before them, or to hear other testimony, it will be ground for a new trial.- Where, therefore, after the jury retired, a witness, who had been examined on the trial, was sent for by them, admitted into their room, and re-exam- ined, without the knowledge or consent of the court or of the parties, a new trial was granted.^ § 354. Visiting the Locus in Quo. — For like reasons, if the jurors, or some of them, without the permission of the court or the con&ent of the losing party, visit the place or view the thing in controversy, the verdict will be set aside. It will be done for stronger reasons where the jurors are procured to commit this misconduct by the successful party." § 355. Judge may not privately communicate with the Jury. — ( 1. ) Stringent JSFatuve of this Rule. — Although the judge has power to recall the jury in order to give them in- structions whenever he considers it necessary to do so, yet he 1 Erwin v. Bulla, 29 Iiid. 95. 2 Hudson V. State, 9 Yerg. 408, 410; Booby v. State, 4 Yerg. Ill; Lut- trell V. Maysville, etc., R. Co., 18 B. Mon. 291; State v. Brazil, 2 Ga. Dec. 107; Smith v. Graves, 1 Brev. 16; Deacon v. Shreve, 22 N. J. L. 17(1. See also Offit v. Vick, Walk. (Miss.) 99. 3 Luttrell V. Maysville, etc. R. Co., sxipra. < Deacon v. Shreve, 22 N. J. L. 176. 420 IMriiOPER COMMUNICATIONS. [CH. XVII. van only do so in the presence of the parties or their coun- sel, and, in trials for felony, in the presence of the prisoner. On the one hand, he is at liberty to recall the jury and give them additional instructions until he has fully possessed their minds of the law of the case ; on the other, he is al)- solutely prohibited, as much as a private person is, from holding any private communication with them.^ He may not go into the jury room where they are deliberating,^ even for the purpose of giving them additional instructions,'' to withdraw erroneous instructions which he has given them,* to answer certain questions,^ to expound his charge to them,^ or even to inform them that, should they desire any further information on questions of law, they should ask him for it, although he hold no other communication with them.^ Nay, if he pass through their room and there do nothing more than suffer them to put certain questions to him without answering them,^ or decline to expound his in- structions to them," it Avill be ground for a new trial. It has been so held where the judge wrote a letter to the jury 1 Sargent v. Roberts, 1 Pick. 337; Hoberg v. State, 3 Minn. 262; Wa- tertown Bank v. Mix, 51 N. Y. 558;. Plunkett v. Appleton, 9 Jones & Sp. 159; s. c, 51 How. Pr. 4G9. See Davis v. Fisli, 1 G. Greene, 406; Read V. Cambridge, 124 Mass. 567; State v. Patterson, 45 Vt. 308. 2 Crabtree v. Hagenbaugh,23 Til. 349. 3 Fish V. Smith, 12 Ind. 563; Sargent v. Roberts, 1 Pick. 337; Moodj' V. Pomeroy, 4 Denio, 115; Taylor v. Betsford, 13 Johns. 487. "As a question of practice," say the Supreme Court of Illinois, -'we do not tliink it isproper for any juror to communicate to the court, in writing or verbally, in reference to any matter belonging to the case. If they desire to communicate with the court, they should send a request to the court through the oflfieer in attendance, that they may, in a body, be brought into court. Xor do we think it good practice for the court to permit an\^ one of the jurors, whilst they are deliberating, to leave the jury-room and come into court, and hold a conversation with the court, or that the court should make such a request of the foreman, or of any other mem- ber of the jury." Fisher v. People, 23 111. 283, 295. "Hall V. State, 8 Ind. 439, 444. •' Taylor v. Betsford, 13 Johns. 487. " Kirk v. State, 14 Ohio, 511. ' Hoberg v. State, supra. '■ Benson v. Clark, 1 Cowen, 258. ^ Crabtree v. Hagenbaugh, 23 111. 349. § 355.] BETWEEN' JURORS AND THE JUDGE. 421 after they had so retired ; ^ where, at their request, he sent a certain paper to them in the absence of counsel ; '^ where he sent to them a Avritten instruction by the bailiff, in an- swer to a request made by them in writing for additional instructions ; ^ where he sent a written repl}'^ to a note from the jury asking him hoAV a certain witness had testified ; * where the ofiicer presiding at a trial before a sheriff's jury gave an instruction to them in a matter of law, in the jury- room, after they had retired to deliberate on their verdict, in the absence of the parties and their counsel ; ^ where the jury sent a written inquiry to the judge as to whether a par- ticular witness had sworn to a certain fact, and the judge handed the note to the short-hand reporter who had taken the testimony, and he indorsed an answer upon it, which the judge returned to the jury, without notifying coun- sel.^ (2.) Reasons on whicli it vests. — It will be seen that some of these cases take the extreme ground that the fact that any communication whatever took place between the judge and the jurj^ otherwise than in open court, is ground for a new trial, although no harm in the particular case re- sulted from it. They proceed on the same ground which some of the courts take with reference to cases where com- munications are shown to have been made between jurors and other persons, that it is so dangerous and impolitic to allow such communications to be made, that they will be conclusively presumed to have influenced the jury improj)- erly. Sucli is the ground taken by the Supreme Judicial Court of Massachusetts in the leading case of Sargent v. lloherts^ where Parker, C. J., in giving the judgment of the •court, said : "As it is impossible, we think, to complain of the i State V. Patterson, 45 Vt. 308; Watertown Bank v. Mix, 51 N.Y.SSS; Pluukett V. Appleton, 9 Jones & Sp. 159; s. c, 51 How. Pr. 469. 2 Benson v. Clark, 1 Cowen, 258. '^ O'Connor v. Guthrie, 11 Iowa, 80. ■* Watertown Banl< v. Mix, 51 X. Y. 558. 5 Read v. Cambridge, 124 Mass. 567. « Watertown Bank v. Mix, 51 N. Y. 558. 7 1 Pick. 337, 341. 422 IMPROPER COMMUNICATIONS. [CII. XVII. substance of the coiniiiuiiic;ilion,thc only (lucstiou is, whether any communication at all is [)roi)er : and if it was not, the party against whom the verdict was, is entitled to a new trial. And we are all of opinion, after considering the question maturely, that no communication whatever ought to take place between the judge and the jury, after the cause has been committed to them by the charge of the judge, un- less in open court, and, where practicable, in presence of the counsel in the cause. The oath administered to the otiicer seems to indicate this as the proper course : ' He is to suffer no person to speak to them, nor to speak to them himself, unless to ask them whether they are agreed ; ' and he is not to suffer them to separate till they are agreed, unless by order of court. When the court is adjourned, the judge carries no power with him to his lodgings, and has no more authority over the jury than any other person, and any direction to them from him, either verbal or in writ- ing, is improper. It is not sufficient to say that this power is in hands highly responsible for the proper exercise of it ; the only sure way to prevent all jealousies and suspicions, is to consider the judge as having no control whatever over the case, except in open court in presence of the parties and their counsel. The public interest requires that litigating parties should have nothing to complain of or suspect in the administration of justice, and the convenience of jurors is of small consideration compared with this great object. If, by reason of the long intervals between the sessions of the court, jurors here are subjected to inconveniences which do not exist elsewhere, this must be remedied by holding two sessions a day instead of one. It is better that every- body should suffer inconvenience, than that a practice should be continued which is capable of abuse, or at least of being a ground of uneasiness and jealousy." (3.) A Contrary Rule in New Ham.psliire. — In New Hampshire, a different practice under this head from that obtaining in other jurisdictions, has grown up, and has come to be too well settled to l)e disturbed. There, it is said : * The court may communicate with the jury after its ad- § 355. J BETWEEN JUROES AND THE JUDGE. 423 journmeiit, upon their request, so far as to give them in- structions upon matters of law, although the counsel of the parties are not present. The communications are in the nature of new instructions, and should be in writing, and returned by the jury on their coming into court, with the papers in the case. If there be any error in the new in- structions, the parties have their remedy by exception, in the same manner as if they had been given in open court. By this course cases are often terminated that otherwise would not be, and injustice is done to no one." The rule laid down in Sargent v. Roberts,^ that no communication what- ever ought to take place between the judge and the jury after the cause has been committed to them, unless in open court, is not recognized in that State.^ But this practice in New Hampshire appears to be limited to cases where the jury merely desire additional instructions upon questions of law, "If the jury, after an adjournment, put a question respecting the facts of the case, to the court, it will be irreg- ular to state the evidence relating to it ; but if they desire instruction upon a mere question of law, that may be an- swered . " ^ (4.) Exception also in South Carolina. — In South Caro- lina, a similar exception to the rule obtains. In a case in that State, one of the grounds of appeal was that the judge who presided at the trial held a conversation with, or made a communication, in court, to the foreman of the jury, after the jury had retired for deliberation on the case, not heard by, and not communicated to, the plaintiffs or their counsel. The court held that this was no error, O'Neall, J., who- delivered the opinion, saying: *« The administration of jus- tice in a court necessarily admits a large share of discretion, unregulated by precise rules, from the presiding judge. His choice to the position which he holds, his continuance in ^IPifk. a37, 342. 2 School District No. 1 v. Bragdon, 23 N". H. 507, 517; Shapley v. White, 6 N. H. 172; Allen v. Aldrich, 29 N. H. 63, 74; Bassett v. Salis- bury Man. Co., 28 N. H. 438, 457. See also ante, § 325. 3 Shapley v. White, 6 N. H. 172, 176. The court tlednced this rule from Thayer v. Van Vleet, 5 -Johns. Ill ; Bunn v. Croul, 10 Johns. 239. 424 IMPROPER COMMUNICATIONS. [CH. XVII. it, his learning, exporicneo and impartiality, arc supposed to be guards enough against its improper exercise. The intercourse between the jury and the bench is, in many res- pects, A'ery contidential. Often the connnunications from the jury are of that kind which ought not to be communi- cated to the bar. The case before us is an ilhistration of that. To have communicated the foreman's inquiry, would have been to announce the result of the case before the ver- dict Avas published. This is so irregular that it would have furnished much better ground for appeal than that under consideration. So, too, the foreman of the jury often says to the judge : ' Wc are divided ten to two : we cannot agree ; what are we to do? ' Is that to be conmiu- nicated to the counsel? Certainly not. There can be but one proper rule upon the subject ; that is, to trust all these matters to the discretion of the judge. When it is proper that the attention of the bar should be called to the doubts of the jury, it will be done. 'From the first organization of our judicial system, we have gone on without difficulty under the discretionary administration. The conndence of the bar in the bench has prevented anything, in the shape of suspicion, from doubting the propriety of the administration oi' justice daily administered in their presence. The case from Pickering^ seems to have given occasion to the second ground. That case is, I think, of very questionable propri- ety. For even to hold, after the jury is sent out, and a constable sworn in charge of them, and the court is ad- journed over to the next day, that the judge should have no communication with them, is, I think, pushing coyness to the very verge of mere prudery. Honesty in everything goes upon the motto, 'Think no evil.' Whenever a man begins to think that he is suspected of dishonesty, there is irreat dauirer of his ])ein"; dishonest. In this State we have never pursued any such practice. Here we have been willing to leave it where it should be left — to the discretion of the judge." ■' ' Sargent v. Eoberts, 1 Pick. 337. 2 Goldsmith v. Solomons, 2 Strobh. L. 20G, 300. § 357.] INSTRUCTING IN ABSENCE OF COUNSEL. 425 § 35 G. Otliervvise where the Coinnuinication is open and public. — The rule is otherwise where the comuiuiiiea- tion is open and public, in the presence of the parties or their counsel. "Nothing is more common," say the Su- preme Court of Georgia, "and, in our judgment, more proper, than for the jury, by a committee of one or more of their body, to communicate with the judge relative to the cause, in open court, and in the presence of the parties or their attorneys, and the world. The publicity of the com- munication guards it from all objection, as well as all impro- priety."^ Accordingly, where the judge sent to the jury- room by the bailiff and got the jDapers and filled up cer- tain blanks in a pleading, the amendment being proper, it was held no ground for a new trial. - § 357. Instructing" the Jury in the Absence of Coun- sel. — It is obvious that the rule does not extend, in all cases, to prohibiting the judge from giving the jury addi- tional instructions in the abs'ence of counsel. If it did, counsel, by staying away, might prevent the jury from being properly instructed, and thus work a failure of jus- tice. The correct rule in civil cases, therefore, seems to be that it is competent for the judge, on the request of the jury, to call them into the court room and give them addi- tional instructions, provided the counsel on both sides are present, or have notice and an opportunity of being present.'^ But if he send to them a private instruction in their room, on a material question in the case, without the knowledge or consent of the parties or their counsel, it will be error for which the judgment will be reversed ; and the reviewing court will not inquire whether the communication Avas, in fact, erroneous or prejudicial to the party complaining.* In a civil case, the jury required further instructio'ns, and 1 Dent V. King, 1 Ga. 200, 204. To the same effect, Gao;e v. Wilson. 17 Me. 378. Compare State v. Garrand, 5 Greg. 216. 2 Spencer v. Trafford, 42 Md. 1, 21. 3 Rogers v. Moulthrop, 13 Wend. 274. * Sargent v. Eoberts, 1 Piclv. 337; Read v. Cambridge, 124 Mass. 567; State V. Patterson, 45 Vt. 308; Plunkett v. Appleton, 9 Jones & Sp. 159; s. c, 51 How. Pr. 469. 426 IMPROPER COMMUNICATIONS. [ciI. XVII. the ju(le found, went into the jury- room and gave them the instruction which they rc((uired. It was held no error; though it wouhl have been otherwise if he had gone tiiere to hold a private conversation with them.^ In the United States Circuit Court sitting in Khode Jslaiul, it was stated by Mr. Justice Curtis, that " it is in accordance with the practice of this court, when a jury address a written incjuiry to the court, while not in session, to summon the counsel, and make known to them the in- (juiry, and then proceed to answer it in writing, if the court thinks it safe and pro[)cr to do so."- § 358. Kule applicable to Sheriff's Jury. — This has been applied to instructions given to a sheriff's jury as- sembled under statutes of Massachusetts to assess damages for land taken for public use. If the sheriff instruct the jury on a question of law, in their room, in the absence of the parties and their counsel, and without their consent, it will be ground for setting aside the verdict, without refer- ence to the propriety of the instructions themselves.'^ 1 Cook V. Green, G N. J. L. 109. 2 Norris v. Cook, 1 Curt. C. C 464. 3 Read v. Cambridge, 124 Mass. 567, 570. In tliis case Gray, C. J., said: "The duty of the sheriff or other olhcer presiding at atrial by a sheriffs jury is prescribed by statute to be to keep order, to admin- ister the oath to jurors and witnesses, to decide all questions of law arising at the trial and direct the jury upon any question of law, when requested by either party, and, when requested, to certify to the court, with the verdict, the substance of any decision or direction by him given. Gen. Stats., c. 43, §§ 32, 33; Merrill v. Berkshire, 11 Pick. 269, 274; Tucker v. Mass. Central Railroad, 110 Mass. 124. In perform- ing these duties his functions are judicial; in attending the jury after they havt; retired to deliberate upon their verdict, he acts as an execu- tive officer, just as his deputy miglit. Tripp- v. County Commis- sioners, 2 Allen, 556-558; Briggs v. Taunton. 110 Mass. 423-427. The sheriff does not hold a court, except for the purpose of presiding at a particular time under the warrant to him from the countj^ commission- ers. Gen. Stats, c. 43, § 27. If he has any authority to direct the jury in matter of law, after he has once committed ttie case to them, it can only be :n the presence of the counsel. The statute which requires him to give directions to the jurj-, and to certify them to the court, at the § 359.] AVHAT IF BOTH PARTIES CONSENT. 427 § 359. AVliat if both Parties consent. — In Burrows v. Unwin,^ the jury, after they had retired, sent in a message desiring to have a certain hiw book sent to them from the library of the court. Lord Tenterden, C. J., asked the counsel on both sides if they objected, and both answered that they did not. But nevertheless the request was re- fused, the learned judge observing: "The regular way is for the jury to come into court and state their question and receive the law from the court ; and for the sake of pre- cedent that course should be adopted now." The rule thus made has been so far relaxed by our courts that written instructions may be sent to the juiy in their room, at their request, if both parties consent. But as the rule is one founded in public policy, it will not be relaxed by anything short of an express consent ; a mere passive acquiescence will not do. The mere act of counsel in sitting still and observing the judge in the act of writing a reply to a writ- ten communication which the jury have made to him, will not be sufficient.^ So it has been held error for a justice of the peace to go into the jury room and give the jury additional instructions without the express consent of the parties. The mere fact that they know that he is going to do it, and do not object, is not sufficient.^ request of either party, implies tliat the parties must be present, by themselves or their counsel, when the directions are given. No reason has been or can be suggested why an executive officer, exercising judicial functions in a particular case, should not be subject to the same re- strictions as the judges of the courts. The question of the foreman was evidently addressed to the sheriff and answered by liim in his judi- cial capacity. As he had no right, under the circumstances, to make any communication at all to the jury, the decisions already cited are conclusive to tlie point that the court will not inquire whether the com- munication was in fact erroneous or prejudicial. The statement, in his certificate, that the counsel of both parties, after the jury had l3een dis- missed, assented to its correctness, is wholly immaterial, because it was no part of his duty at that stage of the case to inquire into or to certify their opinion to that point." 1 3 Car. & P. 310. ^ Plunkett V. Appleton, 9 Jones & Sp. 159. 5 Moody V. Pomeroy, 4 Denio, 115; Taylor v. Betsford, 13 Johns. 487; Bunn v. Croul, 10 Johns. 238; Wateitown Bank v. Mix, 51 N. Y. 558. 428 IMPROPER COMMUNICATIONS. [cil. XVII. § 3()0. Tlu' Kijilit to a Xew Trial on this Oroiind is substantial and not a matter of discretion, since it relates to the substance of the jury trial. This mode of contesta- tion is a public proceeding, as well in respect to the pro- ihic'tiou of proof as to the instruction of the jury by the judge. The party has a right to 1)0 heard in respect to everything transacted, and to bring in review all the pro- ceedings at the trial. ^ § 361. Coiumunications between the Jury and the Clerk. — Keeping in mind the paramount rule that courts will not, in civil cases, visit upon an unoffending party to the suit the consequences of an irregularity of the jury, where it has Avrought no injury to the other party, we find that it has been decided that the mere fact that the jury, after having settled in their minds the rights of the parties, and, being uncertain how to compute the damages, call in the clerk of the court to make the computation for them, who makes it correctly, and tliey return their verdict in ac- cordance therewith, is not a ground for a new trial.- Much less will a request by a juror to the clerk in open court in the presence of the counsel, for information, and an answer made by the clerk from the record, not objected to at the time, afford ground for setting aside the verdict.'* § 362. Between the Jurors and tlie Officer havings them ill charge. — (1.) General Rule. — Whether communica- tions between members of the jury and the officer having them in charge will avoid the verdict, will depend upon the nature of the communications. AVhere they are such that it is obvious that no prejudice could have resulted from them, they will not afford ground for a new trial ; * but if the communications were such that prejudice may have resulted, the rule is different.^ A conversation not relating to a mat- ' Wutertowii Bank v. Mix, 51 N. Y. 558. - Dennisou v. Powers, 35 Vt. 39. ■■ Allen V. Blunt. 1 Woodb. & M. 121. 147. ••State V. AVart, 51 Iowa, 587; State v. Stark, 72 Mo. 37,40; Taylor V. Everett, 2 How. Pr. 23. Compare Cole v. Swan, 4 G. Greene, 32. •"' State V. Lantz, 23 Kan. 728; State v. Brown, 22 Kan. 222; Dansby v. State, 34 Tex. 392. Contra., Baker v. Simmons, 29 Barb. 198, a case V iiich cannot be supported. § 362.] BETWEEN JURORS AND OFFICER IN CHARGE. 421> ter connected with the trial will obviously afford no ground for setting aside a verdict.^ It would seem to follow that the mere fact that the bailiff who had charge of the jury was present with them in their room during their delibera- tions, is not a good ground for a new trial, unless his pres- ence was attended with circumstances which cast suspicion on the fairness of the verdict.^ In Louisiana it is held that the presence of the sheriff and his deputies in the jury room or at their meals is not misconduct, and no ground for a new trial. ^ Some courts, however, in late cases, hold that the mere presence of the bailiff in the jury room during their deliberations, is sufficient ground for a new trial, although no communication passed between him and them. The reason on which these courts proceed is, that his presence is an intrusion upon their privacy and confi- dence, a restraint upon their freedom of discussion, and a circumstance which tends to defeat the purpose for which they are sent out. This view is taken by the Supreme Court of Michigan in an ably reasoned opinion by (/OOLEY, J.,** and is concurred in by the Supreme Court of Indiana.*^ In Kansas^ and in Illinois^ it is held that the unexplained presence of the bailiff in the jury room during their de- liberations, will have the same effect, if the bailiff was an important witness in the case, though, in the view of the Illinois court, it will be otherwise if he was a witness merely upon a collateral point not likely to provoke discus- sion among the jurors.® (^2.) Illustrations — Verdict left to stand. — Where one of the jurors asked the officer how long the court would keep them together, and he replied that he did not know 1 Daniel v. Frost, 62 Ga. 697; State v. Summers, 4 La. An. 26. 2 Slaughter v. State, 24 Tex. 410; Martin v. State, 9 Tex. App. 293; Gainey v. People, 97 111. 270. 3 State V. Summers, 4 La. An. 27; State v. Caulfield, 23 La. An. 148. ^ People V. Knapp, 42 Mich. 267. 5 Rickard v. State, 74 lud. 275; McClary v. State, 75 Ind. 260. 6 State V. Snyder, 20 Kan. 306. " Gainey v. People, 97 111. 270. s Gainey v. People, supra. See State v. Hopper, 71 Mo. 425. 430 IMPROPER COMMUNICATIONS. [CH. XVII. I>ut they woukl huvc to stay till Saturday night, this was held no jrround for a new trial, thour Woodhull, J. 444 IMPROPER COMMUNICATIONS. [CH. XMI. longs to his position, or :in unfitness to discburgo the trust reposed in him.^ (2. ) Communicatiojis hy Jurors to Parties. — Communi- cations made, or attempted by members of a jury, to the parties, their agents, rehitives or counsel, though censura- ble and subjecting the jurors themselves to punishment, afford no ground for setting aside their verdict, if the party himself is "without fault. ^ Thus, after the jury in a civil •case had retired to consider of their verdict, one of them separated himself from his fellows and attempted to send to the plaintiff a letter having no connection with the suit, with the request that the plaintiff send it to the juror's Avife. The letter was burned by the sheriff before reaching the plaintiff, who was free from blame in the matter. It was held that, although the juror was censurable for this conduct, yet it was no ground for setting aside the verdict.^ So, where there was no court house at the place of trial of a civil action, and the jur}^ deliberated out of doors, and one of them, while passing the plaintiff's son in the street, told him that his father's nearest neighbors on the jury were the hardest against him, or were for the lowest dam- ages, to which the son made no reply ; and another juror, shortly afterwards told him nearly the same thing, to which the son simply replied that he had heard the same from the first juror — this was no ground for a new trial.* The same ruling M'as made in a case where, during the trial of an in- dictment for rape, a juror, without permission of the court, or consent of the prisoner, left his seat in the jury-box, advanced to where the prosecuting attorney was sitting, and whispered something in his ear. The district attorney made no reply, but merely shook his head ; whereupon the juror immediately returned to his seat. . All this occurred in open court in the presence of the accused, the officers of the court, counsel of the accused, and the other jurors, 1 McCarty v. Kitchen, 59 Ind. 500. 2 Lee V. McLeod, 15Xev. 1.58. a Eicli V. Taylor. 20 Minn. 378. -* Yancy v. Downer, 5 Littell, 8, 11. § 365.] COMMUNICATIONS MADE BY JURORS. 445 The verdict being in accordance with the hiw and the evi- dence, it was held that this was no ground for a new trial. ^ So, the mere fact that a juror attempts to announce the ver- dict to one of the parties before it is delivered in court, has been held no ground for a new trial. ^ The contrary has been held where the oath administered to the jurors required them to keep it secret until they had delivered it in court ; ^ though it has been held otherwise where a juror, having taken a like oath, merely disclosed the fact that the jury had agreed upon a verdict.* (3.) To third Persons. — The same rule for stronger reasons, is undoubtedly applicable to declarations made by jurors to third persons respecting the cause on trial. The party who obtains a verdict fairly and in accordance with law, ought not to be deprived of it merely because a juror has made idle or inadvertent remarks about the cause. But there is, of course, a limit to this.^ A juror may make re- marks about a case in which he is sitting as a juror, which show such a prejudice or such a disposition to disregard his oath as a juror, as to make it obviously improper for a ver- dict rendered by him to stand. Thus, in a late civil case in Illinois, it was alleged that two jurors, pending the trials after part of the proofs were heard, and before the case had been fully submitted to them, publicly and in the presence of several persons, discussed the merits of the controversy ; and that each of them said, in substance, that there was no merit in the defense, and that he would tind for the plaintiff, no matter what argument might be made by counsel, or what instructions might be given by the court. The court said that this conduct, if it happened as stated, was good ground for a new trial ; but as it was dis- puted by the atfidavits of the jurors, the new trial was 1 State V. Fruge, 28 La. An. 657. 2 Fash V. Byrnes 14 Abb. Pr. 12. 3 Orcutt V. Carpenter, 1 Tyler (Vt.) 250. ■• Nichols V. Bronson, 2 Day, 211. 5 In addition to tlie eases below cited, see, in illustration of this, Stock- well V. Railroad Co., 43 Iowa, 470; Chalmers v. Whlttemore, 22 Mina.. 305. 446 IMPROPER COMMUNICATIONS. [CH. XVII. grunted on unothcr uroiuul.^ In :i civil case, if improper rcmiirks made by a juror are brought to the attention of counsel before the case is tinally submitted to the jury, and they choose not to call the attention of the court to it, but to remain silent, and take their chances of a favorable ver- dict, they cannot afterwards make it a ground for a new trial ; for this would be inconsistent with good faith towards the opposite part}^ and towards the court. It was 5o held where a juror, pending an adjournment of court, after the evidence was closed, but before the arguments of counsel had been heard, had remarked in the presence of bystand- ers that it would be useless for the lawyers to make speeches to him, as his mind was made up, and nothing which they could say would change it.^ So, where a juror, after the evidence was heard, said that he had made up his mind ; that all he wanted to hear was the judge's charge, and that whatever should be said (by counsel) would not alter his mind, this, though improper, was not sufficient ground for a new trial. " It does not appear," said the court, " that he would not give due attention to the arguments, although he supposed the case so well under- stood by him that they would avail nothing. There is nothing showing in whose favor he had formed an opinion, or that he had been influenced by anything excepting the evidence in the case. If he speaks the truth, he was de- sirous of hearing the charge from the court ; and, when that should be made, he believed he should be prepared with an opinion, which would be satisfactory to himself without further aid. We do not think this so objectionable as to make it proper to disturb the verdict therefor." ^ So, during a recess of the court, while a civil trial was in pro- gress, one of the jurors was heard to say to a bystander that he thought that the witnesses who swore for the plain- tiff testified very fairly, and that the testimony on the part of the defendants looked dark, and made other similar ^ Jewsbnry v. Spcrry, 85 111. 56. 2 Martin v. Ti(l\vell/36 Ga. 332, 345. 3 McAllister v ibley, 25 Me. 474, 488. § 3(55.] COMMUNICATIONS MADE BY JURORS. 447 declarations, it was held that there was no ground for a new trial. ^ (4.) Remarks of Jurors indicating Prejudice. — Ver- dicts have been set aside on account of misconduct of jurors so gross as to lead to an unavoidable inference that they did not have a proper appreciation of their duties and responsi- bilities as jurors. And where a juror so far forgets his duty as to make remarks to bystanders, concerning the party or his counsel, against whom the verdict is afterwards rendered, which show a feeling of passion or prejudice in his mind against them, it will be ground for a new trial, unless the verdict is clearly right on the merits. The rea- son is, that he who indulges in such remarks in a manner forestalls his own judgment, and commits himself to a par- ticular verdict, so that, although subsequent evidence or a consultation with his fellows might be sufficient to induce him to change his mind, yet the pride of individual opinion will prevent him from doing so.^ But the fact that a sin- 1 Jackson v. Smith, 21 Wis. 26. 2 In a recent case tried in tlie Circuit Court of tlie United States for the District of Iowa, a verdict was given for the defendant, and it was shown by the affidavit of a bystander, that one of the jurors, while the case was in progress and undecided, had said to him of the plaintiff's counsel, in a sneering waj', that " Hageruian had the court room full of Keokuk people, who, whenever he said anything, applauded; and that Keokuk thought they had got this thing fixed up verj^ nice." It was not true that auy applause had been attempted in the court room. The court granted a new trial, resting its decision chiefly on this affidavit. In so deciding. Love, J., used the following language: "There is no right more sacred than the right to a fair trial. There is no wrong more grievous than the negation of that right. An unfair trial adds a deadly pang to the bitterness of defeat. Now the human mind is constituted so that what one himself publicly declares, toucliing any controvei-sy, is much more potent in biasing his judgment and confirming his predilec- tions, than similar declarations which he may hear uttered by other persons. When most men commit themselves publicly to any fact, theory or judgment, they are too apt to stand by their own public declaration in defiance of evidence. This pride of opinion and of consistency belongs to human nature. Where, therefore, a juror talks outside of the jury- room about a case pending and undecided before him, he gives the clearest evidence that he is not an impartial and unbiased juror. The very discussion of any matter by a juror elsewhere than in the jury room, tends to the forming of false impressions and prejudgments. Nor 448 IMPROPER COMaiUNICATIONS. [f II. XMI. glc juror during :i recess in the tritil of a civil case, said to one of the counsel that there was no use in taking up time in trying to liunibug the jury, and that the hiwyer who made the shortest speech would win the case, was not deemed suf- ticient to vitiate the yerdict.^ So, where a juror, after hav- ing heard the eviden(;e, remarked, in the presence and hear- ing of a bystander, " that he [the unsuccessful party] could not hold the property ; that he had exhibited a little piece of paper about as big as a man's hand as his title ; and that he [the juror] believed that Foster [the unsuccessful party] had never paid anything for the negroes, any more than he [the juror] had," — this conduct, though highly censurable^ was held in strictness no ground for a new trial, though a new trial was granted on other grounds.^ So, where a juror separated from his fellows, and, at dinner, asked a stranger how he thought the case would go, and the stranger an- swered that, judging from outside rumor, the jury would find for the defendant, but from the appearance of the jury he thought it would find for the plaintiff ; and the juror re- plied, " Yes, by God, I know it will," and the jury after- wards found for the plaintiff, — it was held that there was no ground for a new trial. The remark was a mere expres- sion of the juror's opinion of the evidence, and, though a will it do for a moment to accept the statement of the jnror, that what lie has said or heard has not affected his judgment or influenced liis verdict. Almost any juror, when detected in such misconduct and arraigned for it, will disclaim the influence upon his own mind of what he has uttei-ed iu violation of liis duty. This is human nature. Moreover, few have either the capacity or candor to speak with any reliable certainty of the elements which enter into their own minds'in pronouncing a judgment or verdict. The only safe rule for the court to follow is, to foi-m its judg- ment from the natural and logical consequences of tiie juror's words and conduct, with little regard to his protestations ii exculpation of himself. All parties, and especially corporations, liave a deep concern iu keeping juries strictly to the line of duty and propriety. When tliey deviate from that line, there is no longer any secui-ity against those ma- lign, extrinsic influences which are sure to pervert and poison the streams of justice." Poole v. Chicago, etc. R. Co., 12 Cent. L. J. 492, 494; s. c, 6 Fed. Rep. 844; 11 Reporter, 828. 1 Taylor v. Cal. Stage Co., G Cal. 228. 2 Foster v. Brooks, 6 Ga. 287, 297. § 365.] COMMUNICATIONS MADE BY JURORS. 449 contempt of court, for which he might have been punished, it did not appear that any prejudice to the defendant had resulted from it.' But where, in a civil case, two of the jury, while charged with the consideration of the case, con- versed with persons not jurors about the case, discussed its merits, and, in the presence of a number of persons at table, commented upon the evidence and misstated it, by saying that the defendant, sworn as a witness, had contradicted himself, this was such a gross violation of duty that the verdict should have been set aside, and the jurors pun- ished.^ ^ Harrison v. Price. 22 Ind. 105, 1G8. 2Blalockv. Phillips, 38 Ga. 21G, 221. (29) 450 EATING AND DRINKING. [cil. XVIII. CHAPTER XVIII. (>F EATING AND DRINKING, MEDICINE AND ENTERTAINMENT. SECTION. 370. Juries allowed Refreshments in Modern Trials. 371. What if procured without the Knowledge of the Court. 372. Or at the Expense of the Successful Pai'tj'. (1.) The General Rule. (2.) Illustrations. 373. Recent Limitation of the Rule in England. 374. This Limitation denied in Nevada. 375. Rule does not extend to Ordinary and Customary Civility and Hospitalitj'. ' 376. Otherwise in case of unusual Civilities, such as excite Suspicion. 377. Xor to Cases where Refreshments were furnished by the Un- successful Pai'ty. 37S. Use of Intoxicating Liquors by the Jury. (1.) In some Jurisdictions vitiates the Verdict. (2.) The General Rule otherwise. (3.) Unless drunk while the Jury are sitting as such. (4.) Or unless the Drinking is attended with other Circum- stances of 31isconduct. (5.) Or where the Liquor was furnished by the Successful Party or his Counsel. (6.) Construction of Statutes — Giving '• by AVay of Treat.'' (7.) The (/orrect Rule suggested. U70. Receiving Gratuities — Fees of a Juror who is also a Witness. § 370. Juries allowed Refreshments in 3Iodern Trials. — By the ancient common law, as is well known, juries were to be kept together, while deliberatino; upon their ver- dict without food, drink, fire or candle, until they were agreed.^ In modern times this usage has been relaxed, but it is still the practice in criminal trials, and, in some ^ Co. Litt. 227. b. § 371.] WITHOUT THE KIsOWLEDGE OF THE COURT. 451 jurisdictions, in civil trials, that the jury are not to be fur- nished with refreshments, except upon order of the court. '^ A court will always, on application of the jury, allow them seasonable refreshments, medicine, and such other necessa- ries as can be furnished without exposing them to outside influence, and such exercises of discretion cannot be assigned for error. '^ § 371, Wliat if procured without the Knowledge of the Court. — The mere fact that jurors send out during their de- liberations, by their bailiff, and procure refreshments, with- out the permission of the court, will not, in the absence of :iny suspicion of improper influence, be ground for setting aside their verdict, although such conduct is censurable, and perhaps punishable.^ Indeed, it is a settled rule of law, dating back to a very early period, that the mere fact that the jury eat and drink at their own cost, or otherwise than at the cost or by the procurement or favor of the suc- cessful party, while deliberating on their verdict, though an irregularity, will not be ground for a new trial. ^ So, where ^ Purinton v. Humphrej^s, 6 Me. 379; O'Barr v. Alexander, 37 Ga. 195. - O'Shields v. State, 55 Ga. 696; Reg. v. Xewton, 3 Car. & K. 85; s. c, 13 Q. B. 716; 3 Cox C. C. 489; 13 Jur. 606; 18 L. J. (M. C.) 201, where tiie judge allowed a sick juror brandj% but refused him beef tea. See nlso, in support of the text, State v. Town, Wright TOhio) 75; Templeton V. State, 5 Tex. App. 399. 3 Puriutou V. Humplireys, 6 Me. 379; O'Barr v. Alexander, 37 Ga. 195; State V. Degonia, 69 Mo. 485. ■• State V. Sparrow, 3 Murph. 487; Harrison v. Rowan, 4 Wash. C. C. 32; Austen v. Baker, 12 Mod. 250. " If they eat and drink at their own costs, by assent of tlieir keepers, it being offered by their keepers, it shall not avoid the verdict. Said to be so adjudged in divers times.'" 21 Vin. Abr. 448, tit. Trial, G. g. Tn. Co. Litt. 227. b., it is said that if a juror eat and drink at his own expense before the jury have agreed, lie is liable to be fined, but the verdict is good. In Duke of Richmond V. Wise, 1 Ventr. 125, the jury had wine, but it did not appear to be at the expense of either party. It was held no ground for a new trial. The leading American case in support of the text is Com. v. Roby, 12 Pick. 496, 516, where the subject is discussed by Chief Justice Shaw, witli his usual ability, and many authorities examined. See also Thompson v. Com., 8 Gratt. 637, 657; Wilson v. Abrahams, 1 Hill (N. Y.), 207. Although the question in this last case was whether the use of intoxicating liquors by a juror, pending the trial, is o 452 EATING AND DRINKING. [ciI. XVIII. :i trial is pi-otr:icted for several days, it is decent and neces- sary, and therefore proper, for the sheriff who has charge of the jury to send and receive for them messages in regard to chan<»es of clothinc:, and to send for and brinjr such chanjjes of clothino; to them.^ § 372. Or at the Expense of the Successful Party. — (1.) The General Rule. — Where a juror has been treated, fed or entertained by the successful party, or at his ex- pense, a new trial will, in nearly all cases, be granted. - This rule is, by most courts, deemed indispensably neces- sary to preserve the integrity of juries. It being, as already stated,' a rule of public policy, it will be enforced without reference to the question whether or not the verdict was right. itself .sufficient to vitiate the verdict, yet the general subject of the effect of jurors taking refreshments without the order of the court was considered on authority. In an old case it was resolved that " if the jury eat and drink at the charge of the party for whom the ver- dict is found, it avoids it; and if at their own charge, they are only fin- able." Rex v. Burdett, 12 Mod. Ill ; s. c, 1 Ld. Raym. 148. In another case it was moved in arrest of judgment that the jurors had taken meat and drink before their verdict was given. This was certified on the posiea, but not examined at whose charge. The court said : "Tliat would make a great difference; for if it were at the cost of the party for whom they gave their verdict, it would make the verdict void ; but if it were at their own costs, it is only finable, and the verdict good." Harebottle v. Placock, Cro. .Jac. 21. In Co. Litt. 227. b., the law is thus stated : "• If the jurie, after their evidence given unto them at the barre, doe, at their own charges eate or drinke, either before or after the}'^ be agreed on their verdict, it is finable, but it should not avoid the verdict; but if before they be agreed on their verdict, they eate or drinke at the charge of the plaintife, if the verdict be given for him it shall avoid the verdict: but if it be given for the defendant, it shall not avoid it; and flic e converso. Buc if, after they be agreed on their verdict, they eate or drinke at the charge of him for whom they doe passe, it shall not avoid the verdict." 1 State V. Caulfield, 23 La. An. 148. 2 Pelham v. Page, 6 Ark. 53.5, 538, per Oldham, J. ; Studley v. Hall, 22 Me. 198; Walker v. Walker, 11 Ga. 203, 20G; Walker v. Hunter, 17 Ga. 364, 414; Sacramento, etc. Mining Co. v. Showers, 6 Nev. 291; Springer v. State, 34 Ga. 379; Drake v. Xewton, 23 N. J. L. Ill ; Pittsburgh, etc. R. Co. v. Porter, 32 Ohio St. 328; Mynatt v. Hubbs, 6 Heisk. 320. 3 Ante, § 364, subsec. 5. § 37 y.] LIMITATION OF THE RULE IN ENGLAND. 453 (2.) Illustrations. — Whilst a case was on trial, one of the counsel for the prevailing party entertained for two nights the prevailing party and two of the jurj'mcn. For this reason a new trial was granted. ^ Pendino- the trial of an issue of devisavit vel non, a juror went home with the caveator, at his invitation, and was there entertained hy him at his expense. The juror made an affidavit that he had known the caveator for twenty years ; that he had no conversation with him with reference to the trial ; and that the circumstance of his spending the night at the caveator's house did not influence him in con- senting to the verdict. The verdict having been for the caveator, a new trial was granted.^ During the progress of the trial, before the jury had retired to deliberate, and while they were under the care of a sworn officer for the purpose of viewing the ground in controversy, they went into a saloon and drank liquor at the expense of the pre- vailing party. It was held in each of these cases that the verdict must be set aside. ^ During the trial of an indict- ment for robbery, one of the counsel for the State took charge of, fed and })rovided for, during the night, the horses of two of the jurymen. The defendant was convicted. For this a new trial was granted.** But the mere fact that the jury in a criminal case, were kept and took their meals at the house of one who aided the prosecutor in impanel- ling the jury, was held no ground for a new trial. ^ § 373. Recent T^iniitation of the Rule in England. — The doctrine of the old English ))ooks already quoted from," that if the jury eat and drink at their own expense, they are to be fined, and if at the expense of a party, their verdict is void, has more recently been hehl to apply only to cases 1 Walker v. Hunter, 17 Ga. 304, 414. ^ Walker v. Walker, 11 Ga. 203. ^ Sacramento, etc. Mining Co. v. Showers, 6 Nev. 291. * Springer v. State, 34 Ga. 379. 5 Wilson V. State, 6 Baxt. (Tenn.) 20G. Compare Odle v. State, Baxt. (Tenn.) 159. '^ Ante, § 371. note. 454 EATI.NtJ AND DUIKKING. [CIl. XVllI. where all that remains for the jury is to doliheratc and give their verdict, and even then to cases wiiere the whole jury, and not one or more of them, have been treated or enter- tained. "Those cases," said Lord Anix(;EU, C. B., refer- ring to the old cases, " seem to apply to the whole jury, and only to acts done by them after they are charged." ^ § 374. This Liiuitation denied in Nevada. — In a case in Nevada, in which much of the learning on the subject is gone over, this limitation is denied, and it is held that the rule that a verdict in favor of a party who treats or enter- tains the jury, will be set aside, applies to any treating of any of the jury at any time after they are sworn and be- fore they agree on their verdict ; whether once or several times; by design or inadvertence; in the presence of the officer, or in his absence ; and whether it might be called for or uncalled for by the proprieties of life.^ § 375. Rule does not extend to Ordinary and Custoni- arj' Civility and Hospitality. — Other courts tend towards the opinion that neither the rule of the common law in question, nor statutes declaratory of it, such as exist in some of the States, arc to be so applied as to put parties to suits under the restraint of denying to jurors the usual and customary ^offices of hospitality and civility. Where jurors drank on a hot day at the house of the defendant in executing a Avrit of ad quod damnum^ which they had there assembled to execute ; ^ where jurors, assembled at the house of the petitioner to assess damages on account of the laying-^ out of a road, had drunk moderately of cider belonging to him and furnished them by the officer, without his knowl- edge ; * where the ratable inhabitants of a town had enter- tained at their houses members of a jury im[)anelled to try a case in which the town was defendant ; ^ where the nom- inal defendant, who had no substantial interest iu the suit^ ^ MonLs V. Vivian, 3 Mees. & W. 137. '■^ Sacraaiento, etc. Mining Co. v. Shower.-;, G Nev. 291, 302-3. 3 Coleman v. Moody, 4 lien. & M. 1. * Tripp V. Commissioners, 2 Allen, 55G. 6 Carlisle v. Sheldon, 3S Vt. -140. § 375.] CUSTOMARY CIVILITY AND HOSPITALITY. 455 entertained at his house every night a member of the jury while the trial was in progress, and before the judge had summed up and sent the jury out to consider of their ver- dict — it appearing that it was customary for country gen- tlemen so to entertain jurors;^ where an employee of the defendant, a corporation, went with a friend into an oyster saloon, and while there, casually met two jurors, and the four ate oysters, and the employee paid for all that the four had eaten, without the knowledge of the jurors ; where the prevailing party, without having sought a juror for that purpose, conveyed him to his home in his wagon, a distance of several miles, but without conversing with him about the case — the court having adjourned over Sat- urday night till Monday morning ; ^ in these and other like cases,* it appearing that the jurors had not been subjected to any improper influence other than that complained of, the courts have refused to set aside verdicts on the ground of tampering. This view is not, however, accepted in all jurisdictions. Thus, in Georgia, in cases where counsel for the prevailing' party, without any imputation of improper motive, enter- tained members of the jury,^ or even their horses,^ new trials were granted. The court in this latter case said : "The honor of the bar and the perfect purity of a jury, alike demand their entire separation in their personal and social intercourse Avhilst trials are progressing. However harmless in themselves, as vvas the conduct of our respected brethren in this case, we feel ourselves called upon, in this and in every case where this separation is not preserved with the utmost care, to evince in the most decisive manner our 1 Morris v. Vivian, 10 Mees. & W. 137. 2 Eakin v. Morris Canal Co., 24 N. J. L. 538. 3 Hilton V. Southwick, 17 Me. 303. Compare Co'tle v. Cottle, cited in the next section. * Koester v. Ottumwa, 34 Iowa, 41. 5 Walker v. Hunter, 17 Ga. 364. c Springer v. State, 34 Ga. 370. 456 EATIXG AND DRINKING. [CH. XVIII. purpose to shut up every avcuuc through which corruptiou or the influence of fricndsliip could possibly make an ap- proach to the jury-box." ^ § 37G. Otliei'Avisc in Case of unusual Civilities, such as excite Suspicion. — But where the civilities are so unusual, or so frequent as to cast suspicion on the verdict, the case is different. Accordingly, where it did not definitely ap- pear that there were private conversations with the jurors on the subject of the case ; but it did appear that unusual civilities and attentions were paid to several of them ; that they were treated more than once ; that this Avas done in such a manner and under such circumstances as to render it in the highest degree probable that it was not inadver- tent and onl}'' so far as called for by the ordinary proprie- ties of life, but for the purpose of influencing their verdict, — it was held sufficient ground for a new trial.^ So, where a party to a suit sought a juror and attempted to impress his mind with the justice of his claim, and did, during the session of the court at Avhich his action was tried, carry him to the house of a friend, where he was gratuitously pro- vided with refreshment and lodging, the verdict was set aside, although it might have been right on the merits.^ So, wdiero, during a recess in the trial of a cause, one of the jjarties took all the jurors, the opposite party, and the wit- nesses, into a saloon and treated them, and, after the cause had been given to the jury, and when they were retiring to •consider of their verdict, passed down the back way with some of them into a saloon, and again treated them, — this was held such misconduct as tended to corrupt the channels of justice, and the verdict w^as set aside* § 377. Nor to Cases Avhero Kefreslinients were fur- nished by the Unsuccessful Party. — If L am a litigant and gain a verdict, it is no ground for setting it aside that the ^ Springer v. State, supra. But see. contra, Ford v. Holmes, Gl Ga. 419. - Phillipsburg Bank v. Fulmer, 31 N. J. L. 53, 57. •" Cottle V. Cottle. G ]Sle. 140. ^Sexton V. I.elicvrre. 4 Coldw. 11 (distinguishing Vaughau v. Dot- soH, 2 Swan, 348) ; antg, § 348, subsec. 3. § 378.] USE or intoxicating liquors by the jury. 457 opposite party tampered with tlie jury and endeavored to corrupt them ; for this would make me a sufferer for his wrong. Putting it in another way, if the unsuccessful party has tampered w^th the jury, or attempted to corrupt them, he should not be heard to urge his own wrong as a reason why he should have a new trial. If, therefore, the mere fact that the jury had refreshment while deliberating, is no o-round for a new trial, still less is it a ojround that they had refreshments at the instance of the party against whom their verdict was rendered. And it has been so held,^ and is very old law.- § 378. Use of Intoxicating Liquors by tlie Jnry. — (1.) In some Jurisdictions vitiates the Verdict. — The courts have been divided in opinion upon the question, whether the mere fact that the jury drink intoxicating liquors during the trial, or in their room while deliberating upon their verdict, is a good o-round for a new trial. Some courts have held that the use of such liquors in quantities however small, without leave of the court, will be good ground for setting aside the verdict, without inquiry as to what effect it had upon the jurors who drank it ;^ and this rule has been ap- plied in civil as well as criminal cases.* ^ State V. Sparrow, 3 Murph. 487. 2 Thus, it is laid down by Lord Hale: "If any of the jury eat or drink without license of the court before they have given up their ver- dict, they are finable for it. But tliough it be not at the charges of either part}', anciently it was held it would avoid the verdict. But at this day the law is settled that it is onlj' a misdemeanor, finable in them that do it. but avoids not the verdict. But if it be at the charge, for the pui-pose of the prisoner, and the verdict find him guilty, the ver- dict is good; but if they find him not guilty, and this appears, etc. tlie verdict shall be sot aside, and a new trial awarded." 2 Hale P. C. 30G. So it is laid down in Viner's Abridgment that if a jury eat and driiilv at the costs of a party, after they are gone from the bar, and be- fore they are agreed, their verdict shall not be received, if the verdict be for the same party that gave the meat and drink; for this induces affec- tion; but if against him, the verdict is good. 21 Vin. Abr. 448, tit. Trial, G. g. 3 People V. Douglass, 4 Cowcn,26, 3G; Jones v. State, 13 Tex. 108, 179; State V. Baldy, 17 Iowa, 39; State v. Bullard, 16 X. II. 139, 145. Contra, Gilmanton v. Ham, 38 N. H. 108, 114. * Leighton v. Sargent, 31 N. II. 120, 137; Gregg v. McDaniel, 4 Ilarr. 458 EATING AND DRINKING. [CH. XVIII (2.) The General Hale otherwise. — But the courts gen- erally have adopted the more reasonable rule, that the fact that members of a jury did, during the trial of a cause, or while deliberating on their verdict , drink Intoxicating liquors, will not be ground for a new tri.ii, unless there is some rea- son to suppose that such liquors were drunk at such time,^ or in such qu.nititics as to unfit t'.iem for the performance of their duties ; unless they were furnished by the party in whose favor the verdict was afterwards rendered ; ^ at least unless the circumstances were suc-h as to create a reasonable suspicion that the drinking may have inq)ropcrly influenced the verdict.'^ (Del.) 3G7; Bilant v. Fowler, 7 Cowen, 562 (overruled in Wilson v. Abrahams, 1 Hill, 207) ; Kyan v. Harrow, 27 Iowa, 494. Contra, Wil- liamson V. Reddish, 45 Iowa, 5.50; Van Buskirk v. Daugherty, 44 Iowa, 42. The rule which exacts, on the part of jurors, eutire abstinence fiom intoxicating liquors, is founded priucipally on the reason that such a rule is a rule of absolute safety, and that any departure from it is at- tended Willi danger. The arguments in its favor have been well expressed by Beck, J., in the leading ease on the subject, in Iowa (Ryan v. Harrow, supra), though subsequentlj'^ the same court regarded this case as going as far as the rule could be extended. Van Buskirk v. Daughertj^ supra. 1 See Fairchild v. Siiydor, 43 Iowa. 23, where the liquors were drank by a juror at niijht pending the trial. 2 Com. V. Roby, 12 Pick. 49G, 517; AVilson v. Abrahams, 1 Hill. 207; Pclham V. Page, 6 Ark. 535, 530; State v. Upton, 20 Mo. 307; Coleman V. Moody, 4 Hen. & M. 1: Redaiond v. Royal Ins. Co., 7 Phila. 167; Tripp V. County Commissioners, 2 Allen, 556; Russell v. State, 53 Miss. 367, 382; Pope v. State, 36 Miss. 121, 136; Roman v. State, 41 Wis. 312, 316: Kee v. State, 28 Ark. 155, 165; Perry v. Bailey, 12 Kan. 539, 546; Larimer v. Kelly, 13 Kan. 7S; Westmoreland v. State, 45 Ga. 225, 2S2; State V. Sparrow, 3 Murpli.487; Davis v. People, 10 111. 74, 77; Purinton V. Humphreys, 6 Me. 370; State v. Jones, 7 Nev. 408, 414 : Richardson v. Jones, 1 Nev. 405; State v. Caultield, 23 La. An. 148; Stone v. State, 4 Humph. 27; Rowe v. State, 11 Humph. 491; Thompson v. Com., 8 Graft. 039, 649; Vaughan v. Dotson, 2 Swan. 348: (Compare Sexton v. Lelievrre, 4 Coldw. 11) ; McCarty v. McCarty, 4 Rich. L. 594; Palmore v. State, 29 Ark. 248; State v. West, 69 Mo. 401. 3 Woodv. State, 34 Ark. 341; Roman v. State. 41 Wis. 312, 316; Pitts- burgh, etc. R. Co. V. Porter, 32 Ohio St. 328; Tuttle v. State, 6 Tex. App. 556; Webb v. State. 5 Tex. App. 500; Pratt v. State, 56 Ind. 179. ••When, in the course of a trial, a juror has in any way come un- der the inlluence of the i)arty who afterwards has the verdict, or § 378.] USE OF INTOXICATING LIQUOES BY THE JURY. 45i> (3.) Unless drunk while the J urt/ are sitting as such. — It is said by Oluham, J., in ti case iu Arkansas, that the there is reason to suspect that he has drunk so much, at his own expense, as to unlit him for tlie proper discharge of his duty, or where he lias so grossly misbehaved himself in anj' other respect as to show that he has no just sense of the responsi- bility of his station, the verdict ought not to stand. But every irregularity which would subject the juror to censure, wliether iu drinking spirituous liquor, separating from his fellows, or the like, should not overturn the verdict, unless thei-e be some reason to suspect that the irregularity may have had an influence on tlie tinal result." Bronson, J., in Wilson v. Abrahams, 1 Hill. 207. Ou the other hand, it has been said with less propriety that a "judge at nisi prius should never hesitate to set aside a verdict in a criminal case where there is even a suspicion that any juror was in the least affected by intox- icating liquor during the progress of the trial, or the deliberaion upon the verdict." Lewis, C. J., in State v. Jones, 7 Xev. 408, 414. In an anonymous case in Dyer (37. b. pi. 45) the jury, having agreed upon tlieir vei'dict, came back to deliver it into court, wIk'u "•• they saw Rede. C. J., going on the way to see an affray, and they followed him, and in going, they saw a cup and drank out of it [what they drank does not appear] ; and for this they were fined eaeli forty pence, and the plaintiff had judgment upon the verdict, and error brought upon it." A note to this case states that in Michaelmas Term. 2 Eliz., ic was resolved by all the judges that a man, after the verdict is given, cannot move in arrest of judgment that the jurors have eaten be- tween their departure from the bar and the time of their giving tlieir ver- dict. In another anonymous case in Dyer (218. a. pi. 4.), which was the trial of a writ of entry, after the court had charged the jury, and they had retired, they returned and said that '' they were all agreed, except one, and he had eaten a pear and drank a draught of ale, wherefore he would not agree. At the request of the plaintiff, the jury departed together again, and found for the plaintiff; and the matter above was examined by the oath of the jurors seriatim, and the bailiff wiio kept them, and found true as above; wherefore the offenders [the jury and the bailiff] were committed, and found surety afterwards again for their fines, if, etc. ;" but the plaintiff had liis judgment to recover damages. In another old case (Duke of Eichmond v. Wise,l Vent. 124), the jury drank wiue while tliey were deliberating, and, after they had given up their privy verdict, they were treated at the tavern by the plaintiff's solicitor, before tlieir affirnianee of it in court. Tlie verdict was for the plaintiff; and " for these misdemeanors" a motion was made to set it aside, but the motion was denied. The judges were agreed "that if the jury ate or drank at the charge of the party for whom they found their verdict, it disannuls their verdict; " " but here," says the report, '• it doth not ap- pear that the wine they drank was had by order of the plaintiff, or any agent for him." The fact that the plaintiff's solicitor had treated them 460 EATINO AND DRINKING. [CH, XVIII. oiivulutiou of spirituous liquors among a jury, while sitting us such, even with consent of the parties, is cause for re- versing the judujnicnt;^ and some of the cases support this doctrine. Thus, in an old case in New York, it was found by a jury in the circuit court, that while the cause utter they liad luado up their verdict, but before they delivered it in court. le defendant to procure a witness. During this time a bottle of liquor was handed around, of which the jurors, and other persons in the room, drank. Nothing was drunk by the jurors for an hour and a half previous to the com- mencement of the proceedings. This Avas held no ground for a new trial. *'The jurors," said the court, "did not take the liquor while they were sitting as a jury. It was during the two hours' suspension of proceedings, which dis- tinguishes this case from that of Kellogg v. Wilder. It does not appear that they drank to excess, or that the liquor was furnished by one party more than the other." ^' These cases bear out the dictum in the Arkansas case ; but the rule is of little value, since cases tried by justices of the peace, when removed to higher courts, are now gene- 1 Rose V. Davis, 4 Cowen, 17. 2 Kellogg V. Wilder, 15 Johns. 455. 3 Dennison v. Collins, 1 Cowen, 111. 462 EATING AND DRINKING. [CH. XVIII. rally tried de novo on their merits, and since it is scarcely conceivable that a court of record would lay itself open to the censure of permitting liquor to be passed round among the jurors during the progress of a trial. Neither is the rule one of universal application ; for obviously, circum- stances may arise (though rarely) making it proper for the judge, even without consent of the parties, to permit jurors t:) partake of intoxicating li(|uor during the progress of the trial, for medical purposes.^ (4.) Or unless the Drinking is attended loith other cir- cumstances of misconduct. — Where the drinking of ardent spirits by a juror is attended with other circumstances of misconduct, as where a juror separates from his follows to drink in a bar room,^or where, on being interrogated touch- ing his qualitications as a juror, he had concealed a bias which he entertained against the opposite party ; ^ or, sepa- rating from his fellows, and while drinking makes remarks showing bias against the unsuccessful party ; * in all such cases the verdict will be set aside.'' (5.) Or v:here the Liquor was furnished by the Success- ful Par tij or J) is Counsel. — Where intoxicating liquor has been drunk by a juror, but not at such times or in such quantities as to disqualify him for the proper discharge of his duties, and there is the additional element that it was furnished at the cost f)f the prevailing party or his attorney, then, whether it will be held ground for a new trial be- comes a complex question. Those courts which hold that the drinking of intoxicating liquors during a trial, or while the jury are deliberating on their verdict is, i^er se, suflS- cient ground for a new trial, will find an additional reason for so holding, where the liquor was furnished at the cost of 1 See, for instance, United States v. Gibert, 2 Sumner, 19, 81. 2 Creeli v. State, 24 Ind. 151; Davis v. State, 35 Ind. 496, 499; State v Prescott, 7 ]SI. H. 287, 296; Jackson v. Jackson, 40 Ga. 150. 3 Ante. § 302, p. 342, note. ^ JacKSon V. Jackson, 40 Ga. 150. ' See also State v._Parrant,'lGMinu. 178, 181. § 378.] USE OF INTOXICATING LIQUORS BY THE JURY. 4r)3 the prevailing party. ^ But those courts which hold that the mere fact that a juror drank intoxicating liquor is no ground for a new trial, unless he drank it in such quantities, at such times, or under such circumstances as to create a sus- picion that it had an improper influence upon the verdict which was rendered, will treat the question very much as they would if, instead of intoxicating liquor, the juror had received food or other entertainment froni the prevailing party. The subject, in this phase of it, was carefully con- sidered in a recent case in the Supreme Court of Ohio, and the rule was laid down that " where it appears that during the progress of a trial, the prevailing party or his counsel in a case has furnished intoxicating liquors to a juror, it is a 2:ood oTound for a new trial, unless it is shown that it was not intended to influence his action in the cause, and that it had no inljuence on his mind as a juror." It was therefore held that the mere fact that, during an adjourn- ment of the trial of a civil case, an attorney for the pre- vailing party casually met a juror and invited him to drink ii glass of ale, the attorney paying for it, and no conversa- tion took place about the case, was no ground for reversing the judgment of the court below denying a new trial. - (6.) Construction of Statutes — Giving '•'-hy Way of Treat.^'' — So jealous have been some of the legislatures of improper interferences with jurors, that there are to be found in some of the States, statutes which substantially re-enact the rule of the common law which we are consid- ering. One of these, in Vermont, provides that "if any party obtaining a verdict in his favor in any court, shall, during the term of said court in which said verdict is ob- tained, give to any one of the jurors in such cause, know- ing him to be such, any victuals or drink, or procure the same to be done, by way of treat, either before or after such verdict, on due proof thereof being made, it shall be sufficient reason to set aside the verdict and award a new ^ Sacramento, etc.. Mining Co. v. Shower.-;, 6 Nev. 291. ^ Pittsburgh, etc. K. Co. v. Porter, 32 Ohio St. 328. 4 Gen. Stats. Vt. p. :{;J2, § IG; Rev. L. Vt. 1880, § 997. 2 Carlisle v. Sheldon, 38 Vt. 440, 44.'). ^ Tripp V. Coinnii.«sioners, 2 Allen, 550. ■• Williamson V. Reddish, 45 Iowa, 550; Pope v. State, 3G Miss. 121. ■' Studley v. Hall, 22 Me. 198. epelhamv. Pao^e, 6 Ark. 535,538, per Oldham, J.; Studley v. Hall, 22 Me. 198. § 379.] RECEIVING GRATUITIES. 465 5. The jealousy of the courts that juries should not be subjected to any improper influences, is such that if it ap- pear that intoxicating liquors have been introduced into the jury room, in a manner, or in quantities, which the afiidavits leave unexplained, there is a presumption that the jury were improperly influenced thereby, and a new trial will be granted.^ 6. Consent of counsel, or of the party, as elsewhere shown, will generally estop a party in a civil case from urging as ground for a new trial, that the jurors indulged in ardent spirits, unless abuse is shown to have resulted from such indulgence;^ but not, it would seem, in cases of fel- ony.^ § 379. Receiving' Gratuities — Fees of a Juror who is also a Witness. — "A juror may always be a witness for either party and still retain his seat as a juror; and a wit- ness may be a legal juror." "* And where a person was legally summoned as a witness for the plaintiff in a suit, after he had been drawn as a juror, but it did not appear that the plaintiff knew that he had been drawn as a juror, although he knew it at the first day of court ; and when called as a juror in the plaintiff's case, he made a statement in open court that he had been summoned as a witness to testify as to the character of a witness for the defendant, and asked to be excused on this ground, and stated at the same time, that he knew nothing of the case ; the fact that he afterwards claimed and received his fees as a witness so long as to include some portion of the time while he was thus sitting as a juror, did not, in the absence of any circum- stances making it appear that he or the plaintiff knew it to be incorrect, afford ground for a new trial ; nor was it re- ceiving a gratuity within the meaning of a criminal statute.® 1 Pope V. State, 36 Miss. 121. ^Ante, § 339; Salter v. Glenn, 42 Ga. 64. 3 Palinore v. State, 29 Ark. 248. < Fellows' Case, 5 Me. 333. But see ante, § 216. * Handly v. McCall, 30 Me. 9, 16. (30) 4G(5 BOOKS AND PAPEKS IN THE JURY-KOOM. [CH, XIX. CHAPTER XIX. OF BOOKS AND PAPERS IN THE JURY-ROOM. SECTION. 3S1. Distinction in the old Law as to Exemplifications under Seal and Sworn Copies. 382. Tiie Fallacy of iliis Distinction pointed out. 383. Modern Kule as to Documeuis which have been received in Evidence. (1.) General Rule. (2.) Exception in Indiana. (3.) Not Error to Refuse to send out such Papers. (4.) Record of former Suits and Proceedings. (5.) Papers which are written upon and under-scored. (6.) Papers which ma}' be used in proving Handwriting by Comparison. (7.) Other Things which have been used in Evidence. (8.) Records containing Irrelevant Matter. 384. Papers vvliich are Evidence on one side only. 385. Rule as to Depositions which have been read in Evidence. (1.) In General must not be taken out by Jury. (2.) Qualifications and Exceptions. (3.) Presumption when so taicen out. (4.) Rule where Parts of the Depo.sition are excluded as Evidence. 386. Papers which have not been received in Evidence. (1.) The General Rule. (2.) Exceptions in Cases of Bills of Particnlars, State- ments of Claim, Computations, etc. (3.) Exception where the paper is Immaterial or not Prejudicial. (4.) How far discretionary with the Trial Court. 387. Pleadings and Process. -388. Written Instructions. 4i89. Judge's Minutes. 390. Juror's Notes of the Testimony. 301. Eaw Books. (1.) Must not be taken out by .Jury. § 381.] SEALED IXSTRUMENTS AND SWORN COPIES. 467 (2.) la Civil Cases. (3.) Rule how far controlled by Judicial Discretioa. (4.) What if taken out Secretly. 3S>2. Scientific Books — Dictionaries — Directories. i}93. Rule where the Paper has been improperly handed to the Jury. (1.) B}^ the prevailing Party or his Counsel. (2.) By Counsel for the losing Party. ■394. What if the Paper was not in fact read by the Jury. 395. Presumption that it was read. 396. But the contrary may be shown by the AfHdavits of Jurors. 397. Such Affidavits not received to show that the Papers had no Improper Influence on them. 398. What if Counsel do not properly object. 399. Where the Court has instructed the Jury to disregard the Paper. 400. Such Error taken Advantage of how. 401. Recalling the Jury and delivering Papers to them. 402. Rules under particular American Statutes, (1.) In Civil Cases. (2.) In Criminal Cases. § 381. Distinction in the Old Law as to Exemplifica- tions under Seal and Sworn Copies. — With respect to papers which might be taken to the jury room, the old law, it seems, made a difference between exemplitications of papers under seal and sworn copies. The former were of so much higher authority as evidence than the latter, that the former were permitted to be taken out by the jury, while the latter were not. The rule was, that " exem- plifications and instruments ^Moe sibi ipsa faciant fidem,^^ were to l^e delivered to the jury to take out with them, while in the case of instruments of lesser dignity, this was not so ; and the reason of the rule is thus given by Baron Gilbert, in his work on Evidence :^ " These exemplifications, and all other under seal, shall be delivered to the jury to be carried with them, but sworn copies shall not: for we have shown in 'The Court of Chancery,' that the invention of sealing was first advanced instead of coins themselves, and that from thence it began to be made use of by way of attes- tations ; and from the example of the King, it began to be used in all the courts of justice for the attestation of their 1 1 Gilb. Ev., Lofffs Ed. (1791). p. 20. 4f)8 BOOKS AND PAPERS IN THE JURY-ROOM. [CH. XIX. transactions ; and from the same example it began to be used by private lords of manors for the authenticating of their grants, and for tickets instead of j)ieces of money. And from hence impressions were devised with distinctions of arms and of families, and these were perfectly known in the neigh- borhood, and therefore are always delivered to the view of the jury ; and the jury are allowed to carry them away with them as the acts of the most remarkal)le solemnity, that the most solemn acts may make the last impression. But the chirograph of a fine, a sworn copy, or any other writing, thouiih it may be given in evidence, yet it shall not be de- livered to the jury ; for these have no intrinsic credit in themselves, and the jury of themselves are not supposed to take notice of them. They have no credit but what they derive from something else, viz., from the oath of the per- son who attests them, or from some presumption in their favor ; so that they receive their credit from some acts in court, but do not carry it along with them ; and therefore cannot be removed out of court with the jury. But things under seal are supposed to have an intrinsic credit from the impression of the signature, and are supposed to be known to the jury in some measure, and therefore are very con- veniently lodged in their possession to discern .of them. But of writings that are not under seal, the jury can make no discernment of their own ; their credit must totally arise from some act in court, and therefore they cannot be put in the power of the jury." In a more modern authority,^ the rule is thus stated: " The jury, after going out of court, shall have no evidence with them but what was shown to the court as evidence,, nor that without the direction of the court .^ The court may permit them to take with them letters patent and deeds under seal,^ and the exemplification of witnesses in chancery, if dead; but not a writing without seal, unless by consent iBuller, N. P.,7thEd.,30S, 2 Citing 2 Rol. Abr. 686, pi. 2. ' Citing Vicary v. Farthing, M. 1695, Cro. Eliz. 411. § 382.] FALLACY or THIS DISTINCTION POINTED OUT. 469 of parties.^ But though the jury take with them patents, deeds, etc., without leave of the court, or writings without seal, books, etc., without consent of court, or party, it shall not avoid the verdict, though they be taken by the de- livery of the party for whom the verdict was given." ^ These observations relate to writings and books which have been admitted as evidence. Further on, it is stated that *' if the part}' for whom the verdict is given, or any one for liim, deliver a letter or any other writing, not given in evi- dence, it shall avoid the verdict." ' This distinction l^etween sealed and unsealed instruments runs through all the old English books.* Writings or books, which are not under seal, cannot be delivered to the jurors without the consent of both parties.^ "Any paper under seal, or not under seal, may be given in evidence ; but nothing may be delivered in evidence to a jury but that which is of record, or under seal, but by consent." ^ The jury cannot carry any evidence fi'om the bar without the consent of both sides, except writings under hand and seal." ^ Examining these authorities, Mr. Justice Cowen said : " The evidence of the law, as it stands upon authority and practice, seems to be all one way, and that is against loading the juiy with papers which they often will not un- derstand, and sometimes, perhaps, cannot even read. As a general rule it seems much safer that the contents should be communicated to them only b}^ counsel in presence of the court." « § 382. The Fallacy of tliis Distinction pointed ont. — This distinction, it will be perceived, is wholh' fallacious. 1 Citing Tomliuson v. Crooke, E. 10 Jac. 1; 2 Kol. Abr. 687, pi. 3; Co. Litt. 411. 2 Citing Graves v. Sliort, M. 159S; Cro. Eliz. 616; Vicaiy v. Farthing, supra. 3 Citing Co. Litt. 277. ^21 Vin. Abr. 449, pi. 7. «21 Vin. Abr. 372, pi. 10. 6 Olive V. Guin, 2 Siderfin, 145. 7 Lord Feter v. Heneage, 12 Mod. 520. To the same effect are Trials per Pais, 297; 2 Hale P. C. 306, 307; 21 Vin. Abr. 448, pi. 6. 8 Farmers, etc. Bank v. Whiufield, 24 Wend. 419, 428. 470' BOOKS AND rAI'ERS IN THE .TIUY-UOOM. [CH. XIX. Ill the one c:ise, the jury are permitted to take the i)!i[)er to their room, heeause it is under seal and [)r()ves itself. In the other, they arc not permitted to take it, because it is proved by a witness, uhoni they are at liberty to believe or disbelieve. But suppose they believe the witness who has authenticated the latter paper, is it not then just as impor- tant for them to have it in order to ascertain from an inspection of it, its terms and import, as to have the former? " I have witnessed the trial of many causes," said TiLGHMAN, C. J., in a case on this subject, "particularly of the mercantile kind, in which the jury could not decide without the aid of unsealed papers, causes which required the minute and laborious investigation of a variety of books and papers, in which long calculations were neces- sary^, founded on accounts and entries. To tell the jury that they must form their verdict on the recollection of what had passed at the bar, would be imposing on them a most unreasonable duty. Under such circumstances, they could do no more than make a vague guess at the truth, and their verdict might be an abuse, instead of a satisfactory admin- istration of justice. ^^^ "Can it l)e competent," said Yeates, J., in the same case, "to one of the litigant par- ties to withdraw from the jurors the only means of settling the matters in dispute fairly? How can complicated ac- counts between merchants be adjusted? How is a question of loss of a policy of insurance, or those arising on the many commercial transactions which occupy our atten- tion, to be justly terminated, unless the jurors in their cham- bers are permitted to have ins})ection of original entries,, invoices, bills of lading, letteis of correspondence, receipts, etc. Upon full consideration thereof, a true verdict must necessarily depend, and by denying a jury the means of information, they are prevented from doing equal justice between the parties." ^ 1 Alexander v. Jameson, 5 Binn. 238, 241-2. ^ Pml., 243. Other parts of the same case, particularly the arji^u- ment of Crawford and Duncan, of counsel, and also the opinion of Breck- enridge, J., deserve attention. § 383.] THE MODERN RULE. 471 § 383. Modern Rule as to Documents, etc., which have- been received in Evidence. — (1.) General Rule. — The modern practice is believed to be to send to the jury-room all documents and papers, other than depositions, which have been received in evidence.^ In the absence of pro- hibitory legislation, it is certainly in the discretion of the judge to permit such papers to be taken out by the jury;* in some States it is provided by statute that this may be done ; ^ and ordinarily a verdict will not be set aside- because this has been done, unless prejudice appears to* have resulted from it. Thus, the fact that the instrument sued on was allowed to be takeu out by the jury was held no> ground for a new trial where there was no defensive evi- dence in the case.'* (2.) Exception in Indiana. — But the American practice- on this subject is not entirely uniform. The common law distinction between documents under seal and those not under seal, has been generally disregarded ; but in some jurisdictions it is still held ground for a new trial to permit any documentary evidence to go to the jury. This appears to be the rule in Indiana.^ (3.) Not error to refuse to send out such Pajjers. — Eveus where the established practice permits the judge to send 1 Alexantlei- v. Jameson, 5 Biuuey, 238; Hovey v. Thompson, 37 111.- 538; Hanger v. Imboden, 12 Mo. 85; State v. Tompkins, 71 Mo. G13; Schappner v. Second Ave. R. Co., 55 Barb. 497; Sliomo v. Zeigler^ 10 Phila. 611; Mullen v. Morris, 2 Pa. St. 85; Seibert v. Price, 5 Watts & S. 438; Sholly v. Diller, 2 Eawle, 177. 2 Sanderson v. Bowen, 4 Thomp. & C. 675; Porter v. Mount, 45 Barb.. 422, 428. 3 Humphries v. McCraw, 5 Ark. 61 ; Atkins v. State, 16 Ark. 590. * Collins V. Frost, 54 Ind. 242. 5 In a late case in that State the court said : " We regard it as settled law in this State, that it is error to permit, over the objections and excep- tions of the opposite party, items of documentary evidence to be takeui to their consultation room by the jury. We approve of this view of the law as likely to be attended, in its practical administration, with less evil than would attend the opposite rule of law on this subject." Nichols v. State, 65 Ind. 512, 521. See also Lotz v. Briggs, 50 Ind. 346. But otherwise under the statute of 1843. Waltz v. Robertson, 7 Blackf. 499. 472 BOOKS AND PAPERS IN THE JURY-ROOM. [CH. XIX. out certain paper* with the jury, such us documents which have been offered in evidence, yet the subject is so far con- trolled by his discretion that he is not bound to do so,^ This being so, a refusal to send out papers with the jury, while it may, in the discretion of the judge who made the ruling,^ afford ground for a new trial, cannot be assigned for error .^ If application is made to send out all the writ- ten evidence taken in the case, and sonie of it is of a nature which ought not to go to the jury under the prevailing rules of practice, such as depositions, it will not be held error to refuse the application, although some of it, such as deeds, might properly have been sent out/ (4.) Htcord of former iSuits and Proceedings. — In Indiana it has been held erroneous to permit the jury, even at their request, against the objection of a party, to take with them when about to retire to consider of their verdict, papers which have been introduced in evidence, constituting the record in another action.^ In a case in Illinois a record in a former suit founded on a note given for the same prop- erty, and at the same time, as the note sued on in the par- ticular case, was read in evidence by consent of parties. Into the record as thus used, was copied a bill of excep- tions, from which the party against whom the verdict was rendered, read to the jury. It was held no error for the 1 State V. Pike, 20 N. H. 346; Sholly v. Diller, 2 Eawle, 177. 2 A new trial was granted hy Sliarswood, P. J., for this reason in Car- son V. Watson, 4 Phila. 88. In Little Schuylkill Nav. Co. v. Richards, 57 Pa. St. 142, it was said that as a general rule the sending out of papers with the jury (meaning papers otlier tlian depositions), is regu- lated bj^ the sound discretion of the court. 3 Spence v. Spence, 4 Watts, 16"), 108; Ilaniilton v. Glenn, 1 Pa. St. 340; 0"Hara v. Richardson, 40 Pa. St. 385, 389; McCully v. Barr, 17 Serg. & E. 445, 452. Compare Hcndel v. Berks, etc. Tp. Road, 10 Serg. & R. 92; Riddlesburg Iron & Coal Co. v. Rogers, 65 Pa. St. 410; Post V. Gazlay. 1 Cin. Sup. Ct. 105; Stltes v. McKibl)en, 2 Ohio St. 588. 4 Negro Jerry v. Townsliend, 9 Md. 145, 1.59. In Riddlesbu(). * Ball V. Carlt'v. 3 Ind. .j77. P.iit this is doubtful. .See next sectioiu § 396.] CONTRARY SHOWX BY AFFIDAVITS OF JURORS. 497 read, and had their influence upon the jury in making up their verdict." ^ In another case the jury had, during their deliberations, the minutes which were taken by the plain- tiff's counsel during the trial. How they came to get them did not appear ; but the Supreme Court said : " The delivery of these minutes to the jury by the plaintiff's counsel (which must be presumed), and their receiving and retaining them^ was a gross impropriety on the part of all concerned in the transaction. If, under any circumstances, a judgment thus obtained can be permitted to stand, it must affirmatively ap- pear that the losing party could not have been prejudiced by this proceeding. From such an abuse of legal proceed- ings, injustice must be presumed, unless the contrary is most clearly and satisfactorily shown. Even if this appeared, it may well be doubted whether such misconduct can he over- looked in any case." And a new trial was granted.^ Other courts, however, refuse to grant new trials on this ground, unless it be made to appear affirmatively that the paper was, in fact, read by the jury. It has been so held in civil cases with reference to depositions which have been used as evidence in the cause,^ and the rule has been ex- tended to documentary evidence,* to written instructions which have been asked for and refused,^ to depositions parts of which had been excluded,^ and even to the case of news- papers containing prejudicial articles in criminal trials.^ § 39(>. But the Contrary may he sliovni by Affidavits of Jurors. — We shall elsewhere see that the affidavits of jurors are admissible to sustain their /erdict.^ Accordingly, in this case it may be shown, by the affidavits of jurors, ' Bi-onson v. Metcalf, 1 Disney, 21. To the same effect, O'Brien v.. Merchants' Fire Ins. Co., 6 .Jones & Sp. 482. 2 D;irfee v. Eveland, 8 Barb. 46. To the same effect is Clark v. Whit- aker, 18 Conn. 543, 549. 3 Shields v. Guffey, 9 Iowa. 322. * Bersch v. State, 13 Ind.434. * Goode V. Linecum, 1 How. (Miss.) 281. 6 Foster v. McO'Blenis, 18 Mo. 88. 7 United States v. McKee, ante, § 351. 8 Pu.sf, § 44G. (32) 498 BOOKS AND PAPERS IN THE JURY-ROOM. [CII. XIX. ihat the paper which got to tlie jury-room was not, in fact, read by any of tlie jury ; ^ or not read by any one until after he had made up his mind ; -' and upon such a showing there will be no ground for a new tria . § 31)7. Such AlHdavits not received to show that the Papers had no Improper Influence on them. — Lt is elsc- Avhere seen that the affidavits of jurors will not be received to impeach their verdict, and that, subject to certain qualiti- cations, such affidavits will be received to defend themselves from charges of misconduct ^ It is clear of doubt, however, ])oth upon principle and authority, that the affidavits of jurors will not l)o received, whether in impeachment of their verdict, or in support of it, to show the reasons w'hich in- jfluenced their action, or the mental conditions under which they acted, or to show what effect on their minds certain improper communications or influences to which they were subjected, actually had.^ Accordingly the rule is said to be that if material papers, not read in evidence, are handed to the jur}' l)y mistake, this is a sufficient cause for a new trial ; and it is not competent to the party who has obtained the verdict to prove by the jurors that they were not influenced 33y the papers in their finding ; but the court must be gov- •erned by the tendency of the papers apparent from the face -of them.^ This rule is, of course, stronger where papers ■which have been read in evidence on the trial have been de- signedly sent to the juiy by the prevailing party. Here the a'ule being, as elsewhere stated, that the court wMll set aside Tthe verdict as a punishment to the party thus tamp ring nvith the jury, without reference to the materiality of the ^)apers or their probable effect on the minds of the jurors,^ it lx}Comes immater al to show that such papers did, in fact, influence the jury ini[)roperly ; and therefore, of course, » Hnckley v. Hastie, 3 Johns. 252. 2 Morris v. Howe, 36 Iowa, 490. This ruling, however, is of very doubtful propriety. 3 Post, § 446. ^Pfjst, §§ 438-441. ^ Page V. Wheeler, 5 X. 11. 01, 03; AVhitney v. Whitman, 5 Mass. 405. ^Ante, § 348, subscc. 3; post, § 424. ^ 398.] WHAT IF COUNSEL DO NOT PROPERLY OBJECT. 499 affidavits of the jurors will not be received to show that fact.i § 398. AVliat if Counsel do not properly object. — If •counsel for the party complaining sees that a certain paper is about to be sent to the jury, and does not object at the time, or in a proper manner, it will be no ground for a new trial. ^ It must appear that the counsel for the party com- plaining objected thereto, or that he had not an opportunity to object, or otherwise that his rights were prejudiced thereby.^ Thus, at the close of a trial, it appeared that the plaintiff's counsel submitted all the papers in the case to the defendant's counsel, calling his attention to them severally, and asking him if he had any objection to their being sent to the jury-room, and he made no other reply than that he objected to all of them. The fact that among these papers were depositions, parts of which had been ex- cluded by the court, afforded no ground for a new trial ; since, in the view the Supreme Court took of it, the circum- stances under which they were delivered to the jury were such that fault might justly be imputed to the defendant him- self. His attention was severally called to the papers, and 1 Foster v. McO'Bleuis, 18 Mo. 88, 91. We may rest this statement of doctrine on tlie case of Coster v. Merest, 3 Brod. & Bing. 272, Here Vaiiglian. Serjt., obtained a rule nisi for a new trial, on an affidavit which stated that handbills retlectino- on the plaintiff's character had been dis- tributed in court at the time of the trial, and had been seen by the jury. Lens, Serjt., who showed cause against the rule, offered affidavits from all the jurors that no such placards had been shown to them; and though he admitted that, in general, affidavits on the subject of the cause could not be received from jurymen, yet he urged that, as in the present case no answ^er could be given to the plaintiff's statement, except by sucli affi- davits, they ought to be received. But the court refused to admit the affidavits, thinking it might be of pernicious consequence to receive such affidavits in anj^ case, or to assume that the jury had been unduly in- fluenced; and though the defendant denied all knowledge of the hand- bills, they made the rule absolute. 2 Watson V. Walker, 23 N. H. 472, 497; Little Schuylkill Nav. Co. v. Kichards, 57 Pa. St. 142, 148; Greff v. Blake, 16 Iowa, 222; Davenport V. Cummings, 15 Iowa, 219; Littletield v. Beamis, 5 Rob. (La.) 145; Mc- Donald V. Hodge, 5 Hayw. 85; Shomo v. Zeigler, 10 Phila. 611; Shields V. Guffej', 9 Iowa, 322; Langworthy v. Myers, 4 Iowa, 18. 3 Turner v. Kelley, 10 Iowa, 573; Shields v. Guffey, 9 Iowa, 322. 500 BOOKS AND PAPERS IN THE JL'KY-KOOM. [CH. XIX. he made no other objection than one which, from its com- prehensiveness, he himself might l)e presumed to have con- sidered frivolous. " His ol)jection, on notice, should have been prompt and intelli«rible ; indicating at once actual oppo- sition in his own mind, and an undoubted purpose of making it known at the moment." ^ It is not enough for counsel to show in support of a motion for a new trial, that a par- ticular paper was sent to the jury by the adverse party without his knowledge. It is his duty to ascertain what papers are sent to the jury before they leave the court ; and no motion for a new trial should be allowed merely because this duty has been neglected. It should appear that the counsel used due care that none but proper papers were passed to the jury, and that the paper in question was sent to the jury by some mistake, or through some trick or artifice of the opposite counsel.'^ It is not the duty of one counsel in a case to w'atch the ojjposite counsel to see that he does not send any improper papers to the jury."^ "Where the paper which the jury took was a deposition which had been offered in evidence by the counsel for the party complaining, there was, of course, no ground for a new trial.* If a paper which is peculiarly the })roperty of one of the counsel, such as his notes of the testimony,, gets to the jury, there is a presumption that he gave it to them intentionally.^ § 3!'9. Where the Court has instructed the Jury to dis- regard the Paper. — Where a [)articular paper is read to the jury, and the court afterwards instructs the jury to disre- 1 Kent V. Tyson, 20 X. II. 121, 127. This rule is in conformity vvitb the principle tliat a general objection to the instructions which the court has given to tlie jury goes for naught, if any one of tliein is good. Johnston V. Jones, 1 Bhick, 20'J; Rogers v. The Marsliall, 1 Wall. 645, 654; Harvey v. Tyler, 2 Wall. 328; Hunt v. Maybee, 7 N. Y. 273; Decker v. Mathews, 12 N. Y. 313. 2 Maynard v. Fellows, 43 X. II. 2.55, 250. 3 Flanders v. Davis, 19 X. II. 139, 149. In this case the duty of coun- sel with reference to this matter is discussed. * Davenport v. Cummins, 15 Iowa, 219. « Durfee v. Eveland, 8 Barb. 46. >§ 399.] JURY INSTRUCTED TO DISREGARD THE PAPER. 50 1 gard it, as having no bearing on the case, but nevertheless, the court, under objection, permits it to be taken by the jury with the other papers in the case, a new trial, it has been held, will not be granted.^ Where a paper, not in evidence, accidentally gets to the jury, and, as soon as the fact is discovered, the court instructs them to disregard it, it will be presumed, unless the case was extraordinary, that they did so.- In a case in Georgia, a brief of the testi- mony taken on a former trial was taken out by the jury. This matter contained the testimony of a witness now dead, which was given on a former trial, and which was verified by a witness who heard it. No part of it, except that which contained the testimony of this deceased witness was read to them as evidence, and the court instructed them at the time that none of it but that portion was evidence. Two of the jurors swore that, in making up their verdict, the jury did not regard this brief of evidence, and one swore that it was not read at all in the jury room. It was held that the 1 In this case the defendiint read in evidence, without objection, a submission of all matters of difference between the parties to arbitration, He also offered in evidence a copy of an award made in pursuance of said submission, which was objected to by the plaintiff and excluded by the court. He also offered parol evidence to prove an award, which was objected to by the plaintiff and excluded by the court. The court, in charging the jury, directed them to consider the case upon the several matters of defense relied upon, aside from the submission and award, and told them that the submission, not being followed by proof of an award made, constituted no defense; and the charge was not excepted to by either party. After the charge, and when the counsel were selecting the papers to be delivfred to the jury, the counsel for the plaintiff ob- jected to the submission being permitted to go to the jury; but the court permitted it to be takt'u b.y the jury with the other papers in the case; and to this the plaintiff excepted. The jury returned a verdict for the defendant. In the opinion of the court. Redfield, J., among other things said : " Courts at the present daj'^ consider jurors as ra- tional beings, and capable of following plain instructions, and willing to do so; and do not suppose that one word more or less, even of in- competent testimony, is incapable of being so expunged from the case as not to intluence the event." Warden v. Warden, 22 Vt. 563. 2 State V. Bradley, G La. An. 5G0. 502 BOOKS AND TAPEUS IN THE JURY-KOOM . [cil. XIX. seiidinir out of this paper with the jury, though irregular^ was not sufficient ground for a new trial.' But, notwithstanding the respect whi(;h is due to the opin- ions of these courts, the correctness of the rule thus laid down cannot he conceded. The natural curiosity of jurors will prompt them to read papers which they are allowed to have in their room, although the court may admonish them not to do so, or not to regard them as evidence ; and if such papers have a tendency to prejudice the party against whom the jury give their verdict, it seems clear that per- mitting them to have access to them ought to be ground for a new trial. This rule, like all others which we are consid- ering, will be of especial force in capital cases. Accordingly it was held in Arkansas that it was error for the court to permit the jury in a capital case, when retiring to consider of their verdict, to take with them for any purpose, a record containing evidence given before the committing magistrate, not offered in evidence on the trial, though the court in- structed them that they must not read said record.^ § 400. Such Error taken Advantage of how. — One court has held that the mere fact that a paper which ought not to have gone to the jury was suffered to go to them is an error in law or wrong decision of the court, which cannot be assisrned for error, unless the court had its attention drawn to it and actually made an illegal decision to which exception was taken, and the same was inserted in the bill of exceptions. It is no more than ground of a motion for a new trial, addressed to the court below.^ Another court ^ Riggins V. Browne, 12 G;i. 271, 277. See also Foster v. McO'Blenis, 18 Mo. 88,91. 2 Atkins v. State, IC Ark. 508, .591. SHopkinson v. Steel, 12 Vt. 582; Warden v. Warden, 22 Vt. 563. This is well illnstrated by a case in Missouri, where the court per- mitted a deposition to be sent to the jury which had been read during the trial, parts of which had been ruled out. The deposition sent to the jury was accompanied by an instruction from the court that the part marked •' ruled out," was no evidence for anj- purpose whatever in the cause. Xo exception was taken to this action, nor did it appear what was the character of the part of the deposition ruled out. For this rea- § 402.] RULE UNDER PARTICULAR AMERICAN STATUTES. 503 has held that such an action on the part of the court is not a subject of exception, since ( under the rule obtaining in that State), it is a matter of discretion with the court to let the jury take out papers or not ; and that whether the discretion was exercised to the prejudice of the losing party involves an inquiry of fact which can only be made by motion sup- ported and opposed by affidavits.^ § 401. Recalling the Jury and Delivering Papers to them. — Subject to certain limitations, Avhich it is unneces- sary to state here, the judge may, of his own motion, recall the jury aud deliver additional instructions to them.^ For the same reason, if, by accident the jury have omitted to take with them papers which they ought to consider in their room, the judge may, in his discretion, recall them and give them such papers.^ And although private communications between the judge and jury are not tolerated by the law, and are generally ground for a new trial,^ yet no reason is per- ceived why the judge might not with propriety, send such papers to the jury room by the officer. § 402. Rules under particular American Statvites. — In several of the States the subject of this chapter is regulated by statute. (1.) In Civil Cases. — Thus, in Alabama, in civil cases,, the jury, on retiring for deliberation, may take with them " all instruments of evidence and depositions read to the son the Supreme Court could not see tluit it influenced tlie jury in find- ing their verdict. Foster v. McO'Blenis, 18 Mo. 88. 1 Hovvlaud V. Willetts, 5 Sandf. 219. Tliis course Avas pursued ia Hackley v. Hastie, 3 Jolins. 252, in wliiclx case the jury liad carried out witli tliem certain depositious. The court denied the motion because it was shown by the affidavits of several of tlie jury that the deposition had not been read by the jurymen. In State v. Tindall, 10 Ricli. L. 212, an important paper went to the jury by accident. The court re- fused to liear an affidavit of the jury to the effect that it had been read, by the jury, and a new trial was refused. See post, § 440. 2 Thomp. "• Charging the Jury," § 99. 3 Flanders v. Colby, 28 N. H. 3-1. 39. * Thonip. " Charging the Jury,'* § 99, p. 133; ante. § § 355, et seq. 504 BOOKS AND PAPERS IN THE Jl KY-KOOM. [cil. XIX. jury ; " ^ in California,- and Nevada,'^ "all papers which have been received as evidence in the cause, except deposi- tions, or copies of such papers, as ought not, in the oi)inion of the court, to be taken from the person having them in possession ; " al.>^o " notes of the testimony or other pro- ceedings on trial, taken by themselves or any of them, but none taken by any other person;" in Colorado, ** all papers, except depositions, accounts, or account books, which have been received as evidence in the case, or copies of such papers as ought not, in the opinion of the court, to be ta- ken from the person having them in possession ; " also " notes of the testimony or other proceedings on the trial taken by themselves, or any of them, but none taken by any other person;'"'* in Delaware, "papers read in evidence to the jury, although not under seal, except depositions ; '" in Illinois, instructions which have been given to the jury in writing;" also "papers read in evidence other than depositions;"^ in Iowa, " all books of accounts, and all papers which have been received as evidence in the cause, except depositions, which shall not be so taken, unless all the testimony is in writ- ing, and none of the same has been ordered to be struck out ;" ^ in Minnesota, " all papers, except depositions, which have been received as evidence in the cause, or copies of such parts of public records or private documents given in evi- dence, as ought not, in the opinion of the court, to be taken from the person having them in possession;" also "notes of the testimony or other proceedings on the trial, taken by themselves, or any of them, but none taken l)y any other 2)erson : " ^ in New Jersey, "papers read in evidence, iz',la. Code of 1S7G, §3023. • 2 Cal. Code Civil Froc, § G12. 5 Comp. Laws Nev. 1873, § 1230. ^ Colo. Code Civil Proc, § 172. ^ Del. Rev. Code, p. GJ9, § 2G. « 111. Eev. Stats. 1880, p. 703, § 55. 7/6t(Z., §56. 8 Rev. Code. Iowa, 1880, § 27!J7. See reterson v. Haiigen, 34 Iowa, 395. 9 Miim. Stats, at Large, 1873, p. Sl-L § 158. § 402.] RULE UNDER PARTICULAR AMERICAN STATUTES. 505 though not under seal ; " ^ in Oregon, " the pleadings in the cause, and all papers which have been received as evidence on the trial, except depositions, or copies of such parts of pul)lic records, or private documents given in evidence, as ought not, in the opinion of the court, to be taken from the person having them in possession ; " also " notes of the testimony or other proceedings on the trial taken hy them- selves, or any of them, but none taken by any other per- son ; " ^ and in Texas, " the charges and instructions in the cause, the pleadings and any written evidence, excei)t the depositions of witnesses ; but when part only of a paper has been read in evidence, the jury shall not take the same with them, unless the part so read to them is detached from that which was excluded." ^ In Maine, there is this provision: " If either party * * * purposely introduce among the papers in the case wdiich are delivered to the jury when they retire with the cause, any papers which have any connection with it, but were not offered in evi- dence, the court, on motion of the adverse party, may set aside the verdict and order a new trial." * (2.) In Criminal Cases. — In Arkansas, in criminal cases, the jury, on retiring for deliberation, may take with them "all papers which have been received as evidence in the cause ;^ in California, "all papers, except deposi- tions, which have been received as evidence in the cause, or Copies of such public records or private documents, given in evidence, as ought not, in the opinion of the court, to be taken from the person having them in possession j" also " the Avritten instructions given, and notes of the testimony, or other proceedings on the trial, taken by themselves, or any of them, but none taken by any other person;"^ in Iowa, " all papers which have been received as evidence in 1 X. J. Rev. 1877, p. 876, § 182. 2 Gen. Laws, Oreg. 1872, p. 146, § 202. 3 Rev. Stats. Tex. 1879, Art. 1303. * Rev. Stats. Me. 1871, p. 6.50, § 79. 5 Ark. Dig. Stats. 1874, § 1942. 6 Cal. Peual Code, § 1137. 506 BOOKS AND PAPERS IN THE JUUY-ROOM. [cil. XIX. the case, except depositions, and copies of such parts of public records or private documents as ought not, in the opinion of the court, to be taken from the person having them in possession ;" ^ also " notes of the testimony or other proceedings on the trial, taken b}' themselves, or any of them, but none taken by any other person ;" ^ in Ken- tucky, " all papers and other things which have been re- ceived as evidence in the cause ;" ^ in Minnesota, "all papers which have been received as evidence in the cause, or copies of such parts of pul)lic records or private docu- ments, given in evidence, as ought not, in the opinion of the court, be tnhcn from the pcison having them in posses- sion ; " also "notes of the testimony, or other proceed- ings on the trial, taken by themselves or any of them, but none taken by any other person ; " ^ in Nevada, " all papers, except depositions, which have been received as evidence in the case, or copies of such parts of public records or pri- vate documents given in evidence, as ought not, in the opinion of the court, to be taken from the person having them in possession ; and also the instructions of the court ; " ^ also " notes of the testimony or other proceed- ings on the trial, taken by themselves, or any of them, but none taken In' any other person;"'^ in New York, "any paper or article which has been received as evidence in the cause, but only upon the consent of the defendant and the counsel for the people ; " ' also " notes of the testimony or other proceedings on the trial, taken by themselves, or any of them, but none taken by an}^ other person ; " ^ in Oregon, the same as in civil cases ; ^ in Texas, " the charges given by the court, after the same have been tiled ; but they shall not J Rev. Code, Iowa, 1880, § 4452. 2/5W..§44r)3. 3 Bullitfs Ky. Ci-ini. Code, § 248. * Minn. Stats, at Large, 187:^ p. 1059, § 264. 5 Conip. L., Nev. 1873, § 2017. •Ibid., § 2018. 7 N. Y. Code Crim. Tioc. (Laws 1881, Cli. 442), § 425. « Ibid., §426; ante, snbsee. 2. 9 Gen. Laws, Oreg. 1872, p. 360, § 157. See tlie preceding snbsection. § 402.] RULE UNDER PARTICULAR AMERICAN STATUTES. 507 be permitted to take with them any charge or portion of a chai-o-e that has been asked of the court and which the court has refused to give ; " ^ also " all the original papers in the cause, and any papers used as evidence." ' 1 Texas Code Crim. Proc, 1879, Art. 684. 2 Ibid., Art. G93. See Heard v. State, 9 Tex. App. 1. 508 VERDICT BY LOT. [CH. XX. CHAPTER XX. OF IMPROPER METHODS OF ARRIVING AT A VERDICT. SECTION. 408. Verdict by Lot. 409. The Quotient Verdict Tllegal. 410. But only when adopted by a previous Agreement. 411. Anotlier Statement of the Rule. 412. The Expediencj' of such Computations denied and defended. 413. Cases within the Rule. 414. This Misconduct of the Jury how shown. 41.5. (Continued.) — How under Statutes. 410. Kxijcrimenting. 417. i'rivate Search of .Turors for Evidence. 418. Compromise Verdicts. § 408. Verdict by T^ot. — The old reports ftiriiisli aii in- stance where the jury, being equally divided in opinion, ojinie to an agreement by lot, and this method was approved b}- the court. T\vo sixpences were put into a hat, from which the officer having the jury in charge drew one out, and the verdict went accordingly. Windham, J., said: "This is as good a way of decision as by the strongest body, which is the usual way, and is suitable in such cases to the law of God." ^ But with the disappearance of the wnger of battle, such methods found no justification in the eyes of the judges; and later ac find many examples of verdicts set aside where it appeared that they had been ob- tained by throwing up " cross and pile," hustling half pence in a hat, and by casting lots.'^ Nay, more, such con- 1 Prior V. Powers, 1 Keble. Sll, pi. (87). Twisden, J., doubted. 2 Foy V. Harder, 3 Keble, 805; Fry v. Hardy, Sir T. Jones, 83; Philips V. Fowler, Comyns. 525; s. c, Barnes' Xotes, 441; Rex v. Lord Fitz- § 409.] THE "quotient" verdict illegal. 509 duct was denounced as a very high misdemeanor,' Avhich the court, upon an information, punished severely, as ap- pears from the casual statement in Keble, that the punish- ment " broke Sir James Altham's heart, one of the jury in the case of Lord Fitz water. " ^ It is needless to add that such verdicts were never defended in this country.^ § 409. The «• Quotient " Verdict Illegal. — Closely allied to these objectionable verdicts is the "quotient" verdict, so called from the fact that the jurors, having agreed to find for the plaintiff, further agree that their ver- dict shall be in such sum as is ascertained by each juror privately marking down the sum of money to which he thinks the plaintiff entitled, the total of these sums being divided by twelve. This method of arriving at a conclu- sion is most common in actions for unliquidated damages, but it sometimes crops out in criminal cases, where the jury have to determine the duration of imprisonment as the punishment of the defendant."* This means of reaching a conclusion is exceedingly common, and is almost universally condemned. The ground of objection to the jurors bind- ino; themselves in advance to the amount to be determ- ined by addition and division by twelve is, that such an agreement cuts off all deliberation on the part of the jurors, and places it in the power of a single juror to make the quotient unreasonably large or small by naming a sum extravagantly high or ridiculously low.^ water, 2 Lev. 140; Foster v. Hawdeii, 2 Lev. 205; Mellish v. Arnold, Bunbury, 51; Hale v. Cove, Strange, 642; Parr v. Seames, Barnes' Notes, 438; Aylett v. Jewel, 2 W. Bl. 1299. ^ Per Lord Mansfield in Vasie v. Delaval, 1 T. E. 11. 2 3 Keble, 805, pi. (11). 3 Warner v. Robinson, 1 Root, 194; (Jovvperthwaite v. Jones, 2 Dall. 55; Donner v. Palmer, 23 Cal. 40; Mitchell v. Elile, 10 Wend. 595; Boynton v. Trumbull, 45 N. H. 408; Levy v. Brannan, 39 Cal. 485. < Thompson v. Com., 8 Gratt. 637; Joyce v. State, 7 Baxt. 273; Crab- tree V. State, 3 Sneed, 302; Leverett v. State, 3 Tex. App. 213; Hunter V. State, 8 Tex. App. 75; Dooley v. State, 28 Ind. 239; State v. Bran- setter, 65 Mo. 149. * See, for example, Parham v. Harney, 6 Smed. & M. .55, where the amounts named bj^ the jui-ors ranged from $30.00 to $10,000.00. 510 WHEN ADOPTED RY A PREVIOUS AGREEMENT. [CII. XX. § 410. But only Avlieii adopted by a previous Agreement. — The objections just noticed are wholly obviated where the calculation is purely informal, for the purpose of ascer- taining the sense of the jury, and every juror feels at lib- erty to accei)t, reject, or (jualify the result according to his convictions. Under such circumstances the jury may adopt as their verdict the exact quotient found, and it will be good.^ Hence the general rule is that, in actions for unliquidated damages, "a quotient" verdict is illegal only where the jurors, having determined upon this mode of finding their verdict, further agree, ])efore the computation is made, to abide by the contingent result at all events, without reserving to themselves the liberty of dissenting.^ And the same rule is adopted in criminal cases, where the jury have taken this means of fixing the quanlum of pun- ishment.^ iGrinnell v. Phillips, 1 Mass. 529; Daua v. Tucker, 4 Johus. 487; Bennett v. Baker, 1 Humph. 399; Harvey v. Jones, 3 Humph. 157; Turner v. Tuolumne Co., 25 Cal. 397; Papinean v. Belgarde, 81 111. Gl ; Barton v. Holmes. IG Iowa, 252; Deppe v. Chicago, etc.R. Co.. 38 Iowa, 592; Kennedy v. Kennedy, IS N. J. L. 450; Guard v. Risk, 11 Ind. 156. 2 Smith V. Cheetham, 3 Caines, 57; Dana v. Tucker, 4 Johns. 487; Bennett v. Baker, 1 Humph. 399; Ellcdge v. Todd, 1 Humph. 43; John- son V. Perry, 2 Humph. 569, 574; AVilson v. Berryman, 5 Cal. 44; Tur- ner v. Tuolumne Co., 25 Cal. 397; Ruble v. McDonald, 7 Iowa, 90; Schanler v. Porter, 7 Iowa, 482; Denton v. Lewis, 15 Iowa, 301; Barton V. Holmes, 16 Iowa, 252; Wright v. Illinois, etc. Tel. Co., 20 Iowa, 195; Hendrickson v. Kingsbury, 21 Iowa. 379; Fuller v. Chicago, etc. R. Co., 31 Iowa, 211; Hamilton v. Des Moines Valley R. Co., 36 Iowa, 31; Illinois, etc. R. Co. v. Able, 59 HI. 131; Dorr v. Fenno, 12 Pick. 521; Com. V. Wright, 1 Cush. 4G; Parham v. Harney, G Smed. & M. 55; Ken- nedy V. Kennedy, 18 N. J. L. 450; Sawyer v. Hannibal, etc. R. Co., 37 Mo. 240; Harvey v. Rickett, 15 Johns. 87; Mulock v. Lawrence, 5 City Hall Rec. 84; Conklin v. Hill, 2 How. Pr. 6; Forbes v. Howard, 4 R. I. 364; St. Martin v. Desnoyer, 1 Minn. 156; Ilandley v. Leigh, 8 Tex. 129; Cheney v. Holgate, Brayton, 171; Fowler v. Colton, Burnett, 175; s. c, 1 Pinney, 331; Chandler v. Barker. 2 Harr. (Del.) 387; Lee v. Clute, 10 Nev. 151. But see Roberts v. Failis, 1 Cow. 238; Cowper- thwaite v. Jones, 2 Dall. 55; Heath v. Conway, 1 Bibb. 398; Zuber v. Geigar, 2 Yeates, 522. » Crabtree v. State, 3 Sneed, 302; Leverett v. State, 3 Tex. Api). 213; Hunter v. State, 8 Tex. App. 75; Warren v. State, 9 Tex. App. 619; Cochlin V. People, 93 111.410; .s. c, 10 Reporter. 422; State v. Bran- § 411.] ANOTHER STATEMENT OF THE RULE. 511 § 411. Another Statement of the Rule. — This rule is sometimes stated in another form, namely, that if, after the computation is made, the jury all agree to it, the verdict is good. This statement is very misleading, because it as- vsumes that it is entirely immaterial whether or not there has been a previous agreement to be bound by the result of the computation. This leads a court or counsel to throw out the query whether such assent is not shcnvn in a case where the jury are polled.^ And some courts seem to hold that the verdict cannot be impeached upon this ground when this express assent to it appears.^ It is apparent from an early decision of the Kentucky Court of Appeals, that the court fell into such perplexity over this erroneous state- ment of the rule, that it was led into the further error of asserting that jurors might pledge themselves in advance of the computation to be bound by it, and the verdict would be permitted to stand, if subsequently assented to and other- wise unobjectionable."^ " In some of the books," said Bibb, J., " it is said that if the jurors previously agree to abide by the sum so produced, the verdict is bad, but if, after the result is known, they do agree to it, the verdict is good. This seems very much like a distinction where no difference in practice can exist ; for, after the result is known, and the jurors are called upon, in the words of the ancient and yet prevailing form, to answer to the verdict pronounced by the foreman, ' so say you all ; ' and when the verdict so delivered and thus interrogated, passes with- out dissent, it seems strange that the court should set it aside because the jurors had not agreed to it." ^ These remarks show a misapprehension of the true dis- tinction. Where jurors by a previous agreement bind them- selves to accept the quotient as their verdict, any subsequent stetter. 65 Mo. 149; .Joyce v. State, 7 Caxt. 273; Dooley v. State, 28 liid. 239. 1 Denton v. Lewis, 15 Iowa. 301. 2 Pekin v. Winkel, 77 111. 5;], 58; Willey v. Belfast, 01 Me. 569. •'' Heath v. Conway, 1 Bibb, 398, 399. ^ Ibid., 399. 512 CASES WITHIN THE RULE. [CH. XX. iissent to this result, however solemnly given, is made under a moral constraint which justly vitiates the verdict. More- over, "the dangerous tendencies of such a practice," observed the Kentucky Court of Appeals, in a later case, correcting its earlier decision, "and the facilities it would afford for the commission of fraud, chicanery and trick, l)y an adroit and cunning juror, u])on his more honest and confiding fel- lows, furnish conclusive reasons against the toleration of such a practice." ^ § 412. The Expediency of sucli Computations denied and defended. — There is an obvious danger that, when jurors adopt this plan of coming to a conclusion, their agreement nuiy take the obnoxious form of a compact to abide the result, whatever it may be. This possibility led the Supreme Court of Iowa on one occasion to reprobate the innocent practice of adopting the computation by way of experiment only. In the language of Beck, C. J. : "Though the plan pursued by them is not in violation of law, it trenches closely thereon, and, if followed, would soon, by imperceptible degrees, lead to the very method condemned by our decisions. It is barely on the safe side. Jurors ought to avoid such dangerous proximity to the violation of law." ^ But the contrary is ably maintained by Thompson, J., of the Virginia Court of Ap- peals,^ and in Dorr v. Fenno the ojjinion was that no better mode of reaching a conclusion could be adopted.* § 413. Cases within tlie Rule. — Of course, any other means of computation involving the previous assent of the jurors to be bound by an uncertain result, is equally as ob- noxious to the law as that producing quotient verdicts. For example, where the jury agreed that to tix the amount of the plaintiff's damages, each juror should mark a sum, and that half of the aggregate of the highest and the lowest sums which should be marked, should l)e taken for such > Allard v. Smith, 2 Mete. (Ky.) 207, HOI. 2 Ilaiuilton v. Dos Moines Valley K. Co., 36 Iowa, 31, 36. ^Tlioinpson v. Coin., 8 Gratt. 637. •» 12 rick. 521, per Morton, J. § 414.] THIS MISCONDUCT OF THE JURY HOW SHOWN. 513 damages, the verdict, made up and returned according to this agreement, without further deliberation, was set aside. ^ That a portion only of the jurors, entered into an agreement in advance of the computation, to be bound by it, or that a portion believed themselves so bound, has been held suffi- cient to vitiate the verdict.^ Where the jurors have made a previous agreement to be bound by the result of the com- putation, it seems that this vice in the verdict is cured if, by a subsequent agreement, they alter the sum found as a a quotient, and return this as their verdict.^ § 414. This Misconduct of the Jury how shown. — We have seen that the early reports show many instances of verdicts annulled, because the jury had resort to fortuitous methods in finding themi. In many of these cases it is not clear how this misconduct of the jury was made apparent to the court. Nothing is better settled, as a general proposi- tion, than that the affidavits of jurors are not admissible to impeach their finding-* How, then, shall the court know of their misconduct, when a gambling verdict has been returned ? Lord Mansfield was confronted with this difficulty in Vasie v. DelavalJ' While conceding the alleged misconduct of the jurors to be a very high misdemeanor, he refused to hear affidavits of certain of the jurors in proof of the fact. "In every such case," said he, "the court must derive their knowledge from some other source ; such as from some person having seen the transaction through a window, or by some such other means," The difficulty of obtaining evidence from any other source prompted the counsel in a later case'' to assail the authority of this decision. And 1 Boynton v. Trumbull, 45 N. H. 408. See also People v. Barker, 2 ^Vheeler Cr. C. 19. * Kuble V. McDonald, 7 Iowa, 90; Johnson v. Hubbard, 22 Kan. 277. 3 Cheney v. Holgate, Brayton, 171 ; Birchard v. Booth, 4 Wis. G7 ; Shobe V. Bell, 1 Band. 39; Thompson v. Com., 8 Gratt. 637; Cochlin v. People, 93 111. 410; s. c, 10 Reporter, 422. But contra, see Dunn v. Hall, 8 Blackf . 32. * Post, § 440. «1T. R. 11. 6 Owen V. Warburton, 1 Bos. & Pul. (N. R.) 32G. (33) 514 IMr'KOI'KK METHODS OF AKHIVINC; AT VEUDICT. [CH. XX. this wjis (lone with isonic force ; for it appeared that there were precedents in existence at the time of the decision in l^rt^'/e V. y^^^Arya/, not brought to the attention of the court,, which authorized the i-e('e})ti()n of affidavits of jurors for this purpose.^ However, the rule as dechired in that case was unshaken: "It is singuUir indeed," said Sir James jVIansfield, C. J., " that ahnost the only evidence of which the case admits, should l)e shut out ; but, considering the arts which might be used if a contrary rule were to prevail, we think it necessary to exclude such evidence. If it w^re understood to be the law that a juryman might set aside a verdict hy such evidence, it might sometimes happen that a juryman, being a friend to one of the parties, and not being able to bring over his companions to his opinion, might propose a decision by lot, with a view afterwards to set aside the verdict by his own affidavit, if the decision should be against him." ^ The rule as settled by these cases is gen- erally adhered to in this country/ The contrary has been declared in some States.* The early decisions in New York 'Philips V. Fowler, Barnes' Notes, 441; Parr v. Seaines, Id. p. 438; Aylett V. Jewel, 2 W. Bl. 1299. 2 Owen V. Warbiirton, 1 Bos. & Piil. (N. R.) 326, 330. See also Straker V. Graham, 4 Mee. & W. 721; s. c, 7 Dowl. P. C. 223; Burgess v. Lang- ley, 5 Man. & Gr. 722; Harvey v. Hewitt, 8 Dowl. P. C. 598. 3 Dana v. Tucker, 4 Johns. 487; People v. Barker, 2 Wheeler Cr. C. 19; Wilson v. Berryman, 5 Cal. 44: Turner v. Tuolumne Co., 25 Cal. 397; St. Martin v. Desnoyer, 1 Minn. 156; Dunn v. Hall, 8 Blackf. 32; Drummoncl v. Leslie, 5 Blackf. 4.53; Pleasants v. Heard, 15 Ark. 403; Heath v. Conway, 1 Bibb, 398; Birchard v. Booth, 4 Wis. 67; Dorr v. Fenno, 12 Pick. 521; Boston, etc. R. Co. v. Dana, 1 Gray, 83; Sawyer v. Hannibal, etc. R. Co., 37 Mo. 240; Cluggage v. Swan, 4 Binn. 150; Handley v. Leigh, 8 Tex. 129; Sheppard v. Lark, 2 Bailey, 576; Cheney V. Holgate, Brayt. 171. The affidavit of one not of the jury as to what one or more jurors told him in regard to the manner of making up the verdict, is, for another and stronger reason, inadmissible. Prior v. Pow- ers, 1 Keble, 811; Goodwin v. Philips, Lofft, 71; Owen v. Warburton, 1 Bos. & Pul. (X, R.) 326; Straker v. Graham, 4 Mee. & W. 721 ; Burgess v. Langlej", 5 Man. & Gr. 722 ; Drummond v. Leslie, 5 Blackf. 453 ; Chandler v. Barker, 2 Harr. (Del.) 387; Mulock v. Lawrence, 5 City Hall Rec. 84; Birchard v. Booth, 4 Wis. 67; St. Martin v. Desnoyer, 1 Minn. 156. Pott, § 445. * Smith T. Cheetham, 3 Caines, 57; Grinnell v. Phillips, 1 Mass. 530; § 414.] THIS MISCONDUCT OF THE JURY HOW SHOWN. 515 and Massachusetts were later overruled ; ^ but the courts of Tennessee and Kansas remain out of line with the other authorities upon this point.'"' The affidavit of the sheriff or constable having the jury in charge is admissible to show misconduct in finding their verdict,^ but this may be contradicted by affidavits of the jurors showing that their proceedings were regular.^ A statement made by one of the jurors in the court room, after the jury had delivered their verdict, and while the jury were receiving their fees, that their verdict had been decided by lot, affords no ground for a new trial. ^ The mere fact that a paper is found in the jury-roDm after the departure of the jurors, upon which is a computation con- sisting of twelve sums added together, the total being divided by twelve, the quotient of which computation cor- responds exactly to the sum rendered in the verdict, is no evidence of misconduct on the part of the jury. Non con- stat that there was a previous agreement to be bound by such quotient.^ The affidavit of one who deposed that he listened at the door of the jury room to violent altercations of the jurors ; that he heard a proposal made by some of the jury to draw lots as to whether the verdict should be for the plaintiff Johnson v. Husband, 22 Kan. 277; Elledge v. Todd, 1 Humph. 43; Ben- nett V. Baker, 1 Humph. 399; Crabtree v. State, 3 Sneed, 302; Joyce v. State, 7 Baxt. 273. 1 Dana v. Tucker, 4 Johns. 487; Dorr v. Fenno, 12 Pick. 521 ; Boston, etc. K. Co. V. Dana, 1 Gray, 83. ^Post, §§440, 451,453. 3 Fry V. Hordy, Sir T. Jones, 83 ; Burgess v. Langley, 5 Man. Gr. 722, 725, per Creswell, J.; Harvey v. Hewitt, 8 Dowl. P. C. 598; Dana v. Tucker, 4 Johns. 487; Wilson v. Berrynian, 5 Cal. 45; Dunn v. Hall, 8 Blackf . 32 ; Parham v. Harney, 6 Snied. & M. 55 ; Kennedy v. Kennedy, 18 N. J. L. 450; Cheney v. Holgate, Brayt. 171; Birchard v. Booth, 4 Wis. 67; Illinois, etc. R. Co. v. Able, 59 111. 131. < Mellish V. Arnold, Bunbury, 51 ; Dana v. Tucker, 4 .Johns. 487; Wil- son V. Berrynian, 5 Cal. 44; Papineau v. Belgarde, 81 111. 01; Kennedy V. Kennedy, 18 N. J. L. 450. 5 Burgess v. Langley, 5 Man. & Gr. 722. 6 Forbes v. Howard, 4 R. I. 364; Levcrett v. State, 3 Tex. App. 213; Willey V. Belfast, 01 Me. 569. 516 IMPROrER METHODS OF ARRIVING AT VERDICT. [CH. XX^ or defendant; that they were quiet for some time, and then came out of their room to deliver their verdict, after which he was told by certain of the jurors that the verdict was determined by lot — proves nothing.^ An affidavit of one of the parties made merely on information and belief, that the jurors found a gambling verdict, is no ground for a new trial. The affidavit should show on what such infor- mation and belief is predicated.'^ §415. (Continued.) How under Statutes. — In some States there are statutory provisions permitting testimony of jurors to be introduced on a motion for a new trial, to show that the verdict was made by lot.^ Such a statute, being in derogation of the common law, is strictly construed. A section of the Practice Act of California provided that the misconduct of the jury should be cause for a new trial, " and whenever any one or more of the jurors shall have been induced to assent to any general or special verdict, or to a finding on any question or questions submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavits of one or more of the jurors." Under this statute, affidavits of jurors who tried the cause were presented to show^ that the jurors had agreed in advance to accept as their verdict the quotient which resulted from dividing the sum total of the separate verdicts of the jurors by twelve. It was held that the stat- ute had not so far changed the common law as to permit this to be done. The court considered such a verdict to be vicious and irregular, but not for the reason that it w^as *' a determination by chance," in which case only could mis- conduct of the jury bie shown by affidavits of themselves.* 1 Owen V. Warbuton, 1 Bos. & Pul. (N. R.) 326. See also Cluggage v. Swan, 4 Binn, 150. Compare Harvey v. Hewitt, 8 Dowl. P. C. 598. 2 Pekin v. Winkel, 77 111. 56; Cumuiings v. Crawford, 88 111. 312; post, §437. 3 Ark. Dig. Stat. 1874, § 1971 ; Tex. Code Criin. Proc. 1879, Art. 777, subsecs. 3 and 8; Fain v. Goodwin, 35 Ark. 109; Hunter v. State, 8 Tex. App. 75; Donner v. Palnaer, 23 Cal. 40; Turner v. Tuolumne Co., 25 Cal. 400. * Turner v. Tuolumne Co., 25 Cal. 397 ; Boyce v. California Stage Co., 25 Cal. 460. § 415.] QUOTIENT VERDICTS AFFIDAVITS OF JURORS. 517 ■" Independent of authority," said Sanderson, C. J., " it is manifest that there is no element of chance in such a ver- dict. Each juror marks a sum which, in his judgment, rep- resents the true amount of damages. Neither of these sums is the result of chance ; on the contrary, each is the result of the judgment or will of the juror by whom it was marked. Neither is the ao-o-reo-ate of these sums, nor the quotient resulting from a division of the aggregate by twelve, the result of chance, but, on the contrary, the result of the most accurate of the sciences. Thus, from the com- mencement to the end of the process no quantity which en- ters into the final result is determined by a resort to chance." This reasoning seems hardly conclusive. It proceeds upon the hypothesis that, at the time the jurors consent to be bound by the result of the addition and division, it is certain what each juror will mark down as his estimate of the damages ; hence this process of finding a verdict is as «xact as the science of mathematics. But the contrary is the fact. The jurors consent that their verdict shall vary from abstract justice in that degree that each juror deviates from sound judgment. All the prejudices, whims and ca- prices which sway a juror in his deliberations are given full play, and they measureably affect the final result. Nothing could well be more the sport of chance than a conclusion reached in this manner.^ Under a provision of the civil code of Iowa, authorizing the use of affidavits of jurors in relation to applications for new trials, the court refused to compel jurors to submit to an examination under oath as to the manner in which they had made up their verdict, on the statement of an attorney effect, when voluntarily made, affords good ground for a new trial. ^ §416. Experimenting. — Cases are found where new trials have been granted because the jury resorted to ex- periments of their own, in order to determine the value of certain testimony. Thus, in a capital case, two witnesses had testified that, at the time the gun was fired, they heard the person talking in a house at a distance from the scene of the homicide. The jury, after they had retired to de- liberate, with the view of ascertaining whether these wit- nesses could have heard the person thus talking, sent the constable out and began talking in their room, and then called the constable in and asked him whether he heard them. In the vicinity of the murder, tracks were found, which were half an inch shorter than the shoe worn by the person. It having been suggested that the foot-prints made by a man while running were somewhat shorter than his tracks made while walking, the jurors and the constable tried a further experiment by running, and found their own tracks half an inch shorter than their shoes. After these experiments they returned a verdict of guilty. A new trial 1 Manix v. Malony, 7 Iowa, 81; Kuble v. McDonald, 7 Iowa, 90 j Schanler v. Porter, 7 Iowa, 482; Barton v. Holmes, 16 Iowa, 252; Wright V. Illinois etc. Tel. Co., 20 Iowa, 195; Ilendrickson v. Kingsbury, 21 Iowa, 379; Fuller v. Chicago etc. R. Co., 31 Iowa, 211. In Warner v. Robinson, 1 Root, 194, 195, the court ascertained this misconduct by in- quiry of the jurors. Such a course is believed to be irregular. 1. Because if guilty of misconduct the jurors have violated their oaths, which they ought not to be heard to allege. 2. Because their misconduct renders them liable to punishment. If the court presumes to make inquiries of them upon this point, the jurors should be cautioned that they are not bound to answer. In Com. v. AVright, 1 Cush. 46, it was held libellous to publish of one in his capacity as a juror, that he agreed with another juror to stake the decision of damages, to be given in a cause then under consideration, upon a game of draughts. " The tendency of the publica- tion," said Forbes, J., " was to degrade the prosecutor in the esteem and opinion of the world; it impeached his integrity as a juror, and must, if the charge which it contains were true, make him an object of distrust and contempt among men." Ibid. 62. When the information sought by a question will have this effect, it ought not to be asked of a juror. AntCy § 245; post, § 440. § 417.] PRIVATE SEARCH OF JURORS FOR EVIDENCE. 519 was granted, the court saying: "We cannot permit ver- dicts which have been obtained like this, upon uncertain and dangerous experiments, instead of a cahn, deliberate and philosophical examination of the proof, to stand, where the lives of individuals are at stake," ^ So, on tlie trial of a capital case, the prosecuting attorney brought in a pan of mud, and called upon the prisoner to put his foot in it, (the court telling him at the same time that he need not do it if he did not want to), with the view of ascertaining whether the track thus made would corre- spond to the foot-prints found near the scene of the murder. For this a new trial was o-ranted."^ It is doubtful whether these decisions can be sustained on sound princi- ples. In all cases of conflicting or of circumstantial evi- dence, the jurors arrive at their verdict by applying their separate experiences to the evidence. One of the chief advantages of trial by jury is supposed to be that, to apply the combined experience of a large number of men to conflicting testimony, is a safer way of arriving at the facts than to trust to the decision of one man. There seems to be no o-ood reason for makino; a distinction between present experiments and past experience in this respect.^ § 417. Private Search of Jurors for Evidence. — In- spection by triers of fact is recognised as one of the modes of producing evidence, or rather of dispensing with it ;* and while a court will, in proper cases, and under proper safe- guards, permit the jury to visit the locus in quo, to inspect the scene where a particular thing is alleged or shown to iJim V. State. 4 Humph. 2^9. - Stokes V. State, 5 Baxter (Tenn,), 619. 3 In a capital case in Illinois, a new trial was granted because the jury- were permitted to experiment with a pistol, with the view of ascertain- ing whether or not the deceased could have shot himself witli the par- ticular weapon in the position in which he was found, and in tlie place where the ball entered. But the objection which the court saw to this seems to have been that the particular pistol had not been sufficiently identified as the pistol which tlie deceased had in his bauds when he was found dead. Yates v. People, 38 111. 527. 4 1 Whart. Ev. § 345, et seq. See Stockwell v. Railroad Co., 43 Iowa, 470. 520 IMPROPER METHODS OF ARRIVING AT VERDICT. [Cll. XX. have been done, or the weapon with which a crime is al- leged or shown to have been committed, and tlic like, yet it is never tolerated that jurors should make such inspec- tions of their own accord.^ It is well settled that jurors must decide cases upon such evidence as is produced before them by the parties to the litigation, and that they cannot go in search of evidence privately, or act upon evidence thus obtained.^ § 418. Compromise Verdicts. — Where the verdict which the jury return cannot be justified upon any hypothesis presented by the evidence, it ought obviously to be set aside. Thus, if a suit were brought upon a promissory note, which purported to be given for $100, and the only defense was that the defendant did not execute the note, and the jury should return a verdict for $50 only, it would not be allowed to stand ; for it would neither conform to the plaintiff's evi- dence, nor to that of the defendant ; it would be a verdict without evidence to support it. And it is not to be tolerated that the jury should thus assume, in disregard of the law and evidence, to arbitrate the differences of parties, or to de- cide according to some supposed natural equity which in reality is merely their own whim. When, therefore, there was a claim and counterclaim, and the damages in each case were certain, and the only question was whether there was such a contract as that which was set up by the defendant in support of his counterclaim, and the jury found for the plaintiff in the amount of his claim, and for the defend- ant for a portion of the amount of his counterclaim onl}^ it was held that as there was no hypothesis of fact on which the verdict could be justified, that, as it must have been the result of a compromise or mistake, the judgment must be reversed.^ The principle upon which cases of this 1 Ante, § 354. See Hayward v. Knapp, 22 Minn. a. 2 Winslow V. Morrill, 68 Me. 362; Heffrou v. Gallupe, 55 Me. 56:5; Bowler v. Washington, 62 Mo. 302; Bradbury v. Cony. 62 Me. 223; ante, § 353. See Thompson v. Mallet, 2 Bay, 94; Ferine v. Van Note, 4 N. J. L. 146. Compare Sandert-on v. Xashua, 44 N. H. 492; Peoi)le v. Bon- ney, 19 Cal. 426. 3 St. Louis Brewery Co. v. Boderaan.MS., St liOuis Court of Appeals. § 418,] COMPROMISE VERDICTS. 521 kind proceed, could not be made clearer by multiplying illustrations.^ This principal, however, applies only to cases where the damages sought to be recovered are liqui- dated. In suits for unliquidated damages where the jury give a round sum, the amount of their verdict is, in many ■cases, necessarily the result of concession and compromise. In such cases a verdict will not be set aside, although the amount of the verdict itself raises a strong inference that it was arrived at as the result of striking; an average — as where, in such a case, the verdict was five hundred and sixty dollars and fifty cents? ^ Koeder v. Studt, MS. St. Louis Court of Appeals; Todd v. Boone Co., 8 Mo. 431 ; Ellsworth v. Central R. Co., 34 N. J. L. 93. But see Coyle V. Gorman, 1 Phila. 326. Where the plaintiff claimed on two distinct grounds, either of which, if found in his favor, would entitle him to a verdict, and it appeai-ed that the jury did not consider and decide upon either ground separately, but that some might have decided upon one and some on the other, the verdict was set aside. Biggs v. Barry, 2 Curt. C. C. 259. It is no objection to a verdict that one of the jurors dissented while the jury were absent from the court, if he afterwards agreed to the verdict which was rendered. Thus, in a civil ease, one of the jurors who could not agree with the others, said he was willing to return into court and allow the foreman to deliver a verdict for the plaintiff, and if they were polled he should declare his dissent; nevertheless, if after that, the jury should again be sent out, he would agree to the verdict. The jury then came in, were polled, and this juryman declared his dis- sent from the verdict. They were again sent out, agreed upon a ver- dict, returned into court, were again polled, and each juryman an- swered that he agreed to the verdict, which was in favor of the plaintiff. It was held that these facts were not sufficient ground for a new trial. Harrison v. Rowan, 4 Wash. C. C. 32. Where a juror held back, when pressed to agree to a verdict of murder in the second degree, sug- gesting to the other jurors to sign a petiton for the pardon of the ac- cused, and upon their agreeing to sign such a petition, assented to the verdict, and it sufficiently appeared that he was not opposed to the ver- dict and did not agree to it because they agreed to sign the petition, it was held no ground for a new trial. State v. Turner, 6 Baxter, 201. ^ Ante, § 409, et seq. ; St. Louis etc. R. Co. v. Myrtle, 51 Tnd. 566. b22 NEW TRIALS FOR MISCONDUCT OF JURIES. [ciI. XXI. CHAPTER XXI. OF THE PRINCIPLES WHICH GOVERN THE GRANTING OF NEW TRIALS ON THE GROUND OF MISCONDUCT OF JURIES. SECTION. 422. Improper Conduct not always Ground for New Trial. 423. Must have been Prejudicial to the Party complaining. 424. Unless the Successful Party has tampered with the Jury. 425. Otherwise where the improper conduct was accidental and not haraiful. 426. What if, upon the whole case, Justice has been done. 427. Effect of Consent and Acquiescience. 428. Objection must be taken at the Proper Time. 429. These Kules applicable to Inquests of Office. 430. In some Courts the granting of New Trials on this Ground Discretionary. 431. How far this Discretion revised in Appellate Courts. 432. How revised where a New Trial has been granted. 433. Mode in which this Discretion is revised iu Appellate Courts. 434. How the Facts are brought to the Attention of the Appellate Courts. (1.) By a Conclusive Finding of Fact in the Court Below. {2.) By Affidavits Embodied in a Bill of Exceptions. 435. Presumption that the Jury acted regular]}-. 436. Evidence to establish Misconduct nuist be Clear and Positive. 437. Affidavits based on Information and Belief not Sufficient. 438. Distinction between Proof of the Fact of Misconduct and Proof of its Effect. 439. Presumption where Improper Conduct or Influence is shown. 440. Testimony of Jurors not received to impeach their Verdict. 441. Or to show that the Particular Juror did not consent to the Verdict. 412. Or to show that the Jury had not in fact agreed upon the Ver- dict. 443. Otherwise to show Mistake in entering the Verdict. 444. Court may interrogate Jury as to Grounds of their Finding. 445. Testimony of Others on Information derived from Jurors, not received. § 423.] NEW TRIALS FOR MISCONDUCT OF JURIES. 523^ 446. Affidavits of Jurors received to sustain their Verdict. 447. Or to show what took place in open Court. 448. Or to show Misconduct of Parties. 449. Whether admissible to show Misconduct of tiieir Bailiff. 450. Or upon the Question of the Juror's Competency. 451. Exceptional Rule in Tennessee as to Affidavits of Jurors. 452. Exceptional Rule iu Iowa. (1.) Under the Code of 1851. (2.) Subsequent to the Revision of 1860. 453. The Iowa Rule followed iu Kansas. 454. Statutory Rule in California and Ai-kansas in case of Chance Verdicts. 455. Statutory Rule in Texas in Criminal Cases. 456. Misconduct in the Presence of the Court. § 422. Improper Conduct not always Ground for New Trial. — We have already seen that jurors may be guilty of many acts of impropriety which may subject them to pun- ishment, but which will not operate to set aside their ver- dict, if no injury is shown to have resulted to the losing party. ^ § 423. Must have been Prejudicial to the Party Com- plaining-. — Of course, an act of misconduct on the part of the jury will afford no ground for a new trial, if it is not, in fact, prejudicial to the party complaining,^ or if it works in his favor. ^ But if the moving party shows such miscon- duct that prejudice may have resulted to him from it, a new trial will be granted, unless the successful party shows 1 Ante, §§ 313, 348, 371 ; People v. Gaffney, 14 Abb. Pr. (n. s.) 36; Med- lar v. State, 26 Ind. 171; Indianapolis v. Scott, 72Ind.l96; State v. Baker, 63 N. C. 276; State v. Durham, 72 N. C. 447; Henry v. Ricketts, 1 Cranch C. C. 545; Puriuton v. Humphreys. 6 Me. 379; Mason v. Rus- sell, 1 Tex. 721; Newell v. Ayer, 32 Me. 334; State v. Cucuel, 31 N. J. L. 249, 257. In Arkansas, it is held that while the courts should be very careful to protect juries iu criminal cases from every improper influence,, and while the provisions of the code designed for that purpose should never be disregarded, yet those provisions are directorj^ and cau- tionarj' merely, and a failure to comply with them will not absolutely, and without some evidence that prejudice or injury has resulted to the defendant, in consequence of an omission to comply with them, be cause for a new trial. Thompson v. State, 26 Ark. 323, 328. * Portis v. State, 27 Ark. 360. 3 Allen v. State, 61 Ga. 166; Medler v. Dunn, 26 Ind. 171; Flatter v. McDermitt, 25 Ind. 326. 524 NKW TRIALS FOR MISCONDUCT OF JURIES. [CH. XXI. that, in fact, such prejudice did not result.^ It has been said that the safest rule to ])e adopted, where the jury has been guilty of such misconduct as might materially have xiffected the rights of the party complaining, is to consider such misconduct a ground for a new trial, where the party complaining has not connived at, or been instrumental in any manner in producing it.^ The following language in an old edition of Graham on New Trials was quoted and approved by the Supreme Court of South Carolina : *' Upon this point [misconduct of the jury] the practice appears to have resolved itself into the exercise of a judicial discretion, confining the motion for a new trial to the ques- tion of abuse, and invariably denying the application where no injury has ensued." ^ § 424. Unless the Successful Party lias tampered with the Jury. — If it l)e made to appear that the success- ful party to the suit has done an improper act with the de- sign of biasing or intlucncing any of the jurors, their ver- dict in his favor will be set aside as a punishment to him ; and no inquiry will be made whether or not the improper act in fact prejudiced the jury or tainted their verdict. The mere attempt to tamper with them and corrupt their 1 Koehler v. Cleaiy, 23 Minn. 325. 2 Luttrell V. Maysville, etc. R. Co., 18 B. Mon. 291. 3 Pulaski V. Ward, 2 Rich. L. 119, 122. Under the Texas Code of Criminal Procedure, which authorizes the court to grant a new trial when, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and impartial trial, misconduct of the jury will not be ground for a new trial, unless it is shown to be such misconduct as has affected the fairness and impartiality of the trial. Texas Code Crim. Proc, Art. G72, subdivision 8; Jack v. State, 26 Tex. 1. " When the right to the new trial is rested upon this ground, the mis- conduct of the jury is evidently not of such character as uncondition- ally entitles the defendant to a new trial under some of tlie clauses of said article. The granting or refusal of it is, therefore, left to the discre- tion of the court, to be guided in its determination by the application of the facts to the result attained in the verdict. If the new trial was claimed in the court below upon this ground, the court, unquestionably, did not err in refusing it. In view of the facts of the case as they fire presented in the record, it cannot be plausibly insisted that the jury would have been warranted in finding a more favorable verdict for the appellant than tlicy have done."' Johnson v. State, 27 Tex. 758, 770. § 426.] IMPROPER CONDUCT NOT HARMFUL. 525 verdict, though it be not successful, will have the effect to vitiate it, if rendered in his favor. The rule is intended to preserve the purity of the trial by jury, and rests upon obvious reasons of public policy.^ § 425. Otherwise where the Improper Conduct was Accidental and not Harmful. — But if the successful party has, without any improper motive, but by mere accident or inadvertence, done an act in connection with the jury, im- proper in itself, and nevertheless it can be fairly assumed that it had no improper influence on the minds of any of the jurors, in such a case it is justly held that the verdict ought not to be disturbed.' But, as elsewhere stated, a presumption obtains in such cases that the improper act did exert an im- proper influence on the minds of the jury, and the verdict will be set aside, unless this presumption is overcome by proof .^ § 426. What if upon the whole Case Jvistice has been done. — In one or two States the rule obtains that a new trial will not be granted on the ground of misconduct of the jury, where the court can see, upon the whole case, that justice has been done.'* These courts to some extent ignore the rule of public policy already stated, and proceed upon the view that when applications for new trials are made, founded upon such complaints, they address themselves to judicial discretion rather than to strict law or absolute right ; and that, whether in any given case the verdict should be avoided, must depend upon the abuse presumed to have followed, and the substantial justice of the case.^ In Texas, expounding a statute, the doctrine appears to have ^ Ante, §§ 348, subsec. 3; 364, 372; Vaughn v. Dotson, 2 Swau, 348; Walker v. Walker, 11 Ga. 206; Walker v. Hunter, 17 Ga. 364, 404; Cottle V. Cottle, 6 Me. 140; Sexton v. Lelievrre, 4 Coldw. 11; State v. Cucuel, 31 N. J. L. 249, 257. 2 Vaughn v. Dotson, 2 Swan, 348; Tripp v. County Conirs., 2 Allen, 556; Pittsburgh, etc. R. Co. v. Porter, 32 Ohio St. 328. 3 Ante, §§ 328; 348, subsec. 2; 385, subsec. 3, 395; i^ost, § 439. * Peire v. Martin, 14 La. 64. See also Randall v. Bayon, 4 Mart. (N. S.) 132; McCarty V. McCarty, 4 Rich. L. 594. s McCarty v. McCarty, 4 Ricli. L. 394. 526 NEAV TRIALS FOK MISCONDUCT OF JURIES. [CH. XXI. taken root, in cases of felony, even in those wliicli are capi tal, that whether or not a new trial will be granted on the ground of misconduct of the jury, is a matter of discretion, in the determination of which the court below is guided by the application of the facts to the result attained in the ver- dict.^ § 427. Effect of Consent and Acquiescence. — Again, consent of the unsuccessful party in a civil case,^ or of the defendant in a criminal case,^ that an indulgence be ex- tended to the jury, such as, if taken without such consent, or without leave of the court, might be suificient to avoid their verdict — as, that the jury be allowed ardent spirits,* or that they be allowed to retire and deliberate w^ithout being attended by an officer,^ — will estop the party who has thus consented from urging the irregularity as ground for a new trial. An exception to this rule has been noted elsewhere.*' § 428. Objection must be taken at the Proper Time. — Moreover, it is essential to the right to claim a new trial on the ground of misconduct of the jury, or of the opposite party or his attorney with respect to the jur}^ that the act of misconduct should be called to the attention of the court at the time w^hen it is discovered, or as soon there- after as the course of the proceedings in the court will per- mit. The rule proceeds upon the ground that the party ought not to be permitted, after discovering an act of misconduct which would entitle him to claim a new trial, to remain silent and take his chances of a favorable verdict, and afterwards, if the verdict goes against him, bring it for- ward as a ground for a new trial. Such a course is incon- 1 Johnson V. State, 27 Tex. 758. See also Jack v. State, 26 Tex. 4; Wakefield v. State, 41 Tex. 556; Jenkins v. State, 41 Tex. 128. Other cases may be found where the fact that the verdict was clearlj' right ou the evidence, obviousl}" affected the conclusion of the court on tliis ques- tion. State v. Turner, 25Ija. An. 573. * Colenpan v. Moodj', 4 Hen. & M. 1. 3 United States v. Gibert, 2 Sumner 19, 83. * Coleman v. Moody, supra; United States v. Gibert, supra. 5 Tower v. Hewett. 11 Johns. 134. 6 Ante, § 339. § 428.] FAILURE TO OBJECT. 527 sistent with the candoi- and good faith which shoukl char- acterize judicial proceedings.^ This rule ai)plies to nearly all the errors and irregularities which take place in a judi- cial trial.- Perhaps one of the most familiar illustrations of it, is the case where improper evidence is admitted, and no objection is made at the time, in which case, the error is DO ground for a new trial. ^ Thus, where, during the progress of a trial for murder, and during the argument of counsel, a juror was taken with a chill, was placed on a pallet by direction of the court, and there went into a drowse, so that he did not hear and comprehend the whole of the argument of the prisoner's counsel, and this fact was known to the prisoner alone, who did not object, it was held no ground for a new trial.* This rule has also been ap- plied in a civil case where one of the jurors made a remark indicating a want of consideration for the solemnities of his 1 Lee V. McLeod, 15 Nev. 158; Baxter v. People, 8 111. 368; Cogswell V. State, 49 Ga. 103; Martin v. Tidwell, 36 Ga. 332, 345; Pettlbone V. Phelps, 13 Conn. 445, 452 ; People v. Wilson, 8 Abb. Pr. 137 ; s. c, 4 Park. Cr. R. 619; Stampofski v. Steffens, 79 111. 303; Hussey v. Allen, 59 Me. 269; United States v. Boyden, 1 Lowell, 266; Gale v. New York, etc. R. Co., 13 Hun, 1; 2 Woodb. & M. 121, 148. In Vermont, it is held that the fact that the moving party neglected to inform the court before the jury retired, of misconduct on the part of jurors during the trial, which came to his knowledge, would not, if proved, neces- sarily, as a matter of law, defeat the motion for a new trial. McDaniels V. McDaniels, 40 Vt. 363. In a case in Iowa, it is said that the fact that the attorney of the moving party knew of the misconduct of the jui-or before the rendering of the verdict, would not constitute such a negli- gence as would defeat the motion, unless it was made to appear that after that time the prejudice might have been avoided. Oleson v. Meader, 40 Iowa, 662. Compare Fox v. Hazelton, 10 Pick. 275; ante, § 275, subsec. 2. 2 State V. Haseall, 6 N. H. 352. "It is well settled that a new trial should not be granted for a cause existing at the trial which was not stated or excepted to then." Woodbury, J., in Allen v. Blunt, 2 Woodb. &M. 121,148. 3 Nichols V. Alsop, 10 Conn. 263; Torry v. Holmes, 10 Conn. 499; Russel V. Union Ins. Co., 1 Wash. C. C. 440; Jackson v. Jackson, 5 Cow. 173; Wait v. Maxwell, 5 Pick. 217; Rice v. Bancroft, 11 Pick. 469; Worford v. Isbell, 1 Bibb, 247; Cannon v. Alsbury, 1 A. K. Marsh. 76; Train v. Collins, 2 Pick. 145. 4 Baxter v. People, 8 111. 368. 528 NEW TRIALS FOR MISCONDUCT OF JURIES. [CII. XXI, position ; ' whore a juror in the absence of the court, before the whole jury had been iuipanellcd, read a newspaper containing an abusive article reflcctin<>: on the prisoner's counsel ; - and where a juror made an improper inquiry of the clerk, which was not objected to at the time.^ On like grounds, a party in a civil case cannot claim a new trial on the ground that one of the jurors was disqual- ified, without alleging in his motion, and making it appear that he did not know of the disqualification, during the trial. " A party cannot l)e permitted to lie by, after having knowledge of a defect of this kind, and speculate upon the result, and complain only when the verdict becomes unsatis- factory to him." * It follows from the foregoing that where a party moves for a new trial on the ground of miscon- duct on the part of the jury, which took place during the trial, he must aver in his motion, and show affirmatively that he and his counsel were ignorant until after the jury had retired, of the fact of such misconduct.^ § 429. These Riiles applicable to Inquests of Office. — The rules of the common law touching the misconduct of juries, which have been framed to guard the purity of ver- dicts, are of equal importance in inquests of office, where, as in case of the laying out of a road, the flowage of land by a mill-dam, or the taking of land for a work of public utility, a jury is required to proceed into the country, in 1 Martin v. ridwell, 36 Ga. 332, 345. 2 Hunter v. State, 43 Ga. 484, 524. 3 Allen V. Blunt, 2 Woodb. & M. 121, 148. * Selleck v. Sugar Hollow Turnp. Co., 13 Conn. 453. To the same effect are Orrok v. Com. Ins. Co., 21 Pick. 457; Herbert v. Shaw, 11 Mod. 118; Reg. v. Sullivan, 8 Ad. & El. 831; Kex v. Sutton, 8 Barn. & Cres. 417; State v. Daniels, 44 N. H. 383; Rollins v. Ames. 2 N. H. 349; Hallock V. County of Franklin, 2 Met. 558; Merrill v. Berksliire, 11 Pick. 2G9; Howland v. Gifford, 1 Pick. 43, note; ante, § 275, subsec. 2. 5 Woodruff V.Richardson. 20 Conn. 238; Pettibone v. Phelps. 13 Conn. 445; Allen v. Blunt, 2 Woodb. & M. 121, 148; Martin v. Tidwell, 36 Ga. 332,345; Hunter v. State, 43 Ga. 484, 524; Cogswell v. State, 49 Ga. 103; McAllister v. Sibley, 25 Me. 474, 487; ante, § 275, subsec. 2. For other applications of the same principle, see Gibson v. Williams, 39 Ga. 660; Brown v. State, 28 Ga. 439; Cannon v. Bullock, 26 Ga. 431; Bar- low v. State, 2 Blackf. 114. § 430.] GRANTING OF NEW TRIALS DISCRETIONARY. 529 charge of the sheriff or other officer, and, upon a view of the land, and perhaps on other testimony, assess the dam- ages. In such cases the fact that the jury are not under the eye of the court, as in an ordinary trial, is deemed an additional reason for requiring strict conduct on their part and on the part of the officer having them in charge. Ac- cordingly, in the absence of statute, it seems that the same jealous vigilance will be exercised to prevent any improper influencing of the jury in cases of inquests of office, as in trials at common law.^ Impressed with this view, the leg- islatures of several of the States, ni providing for the assessment of damages by juries in such cases, have re- enacted, with more or less strictness, the rules of the com- mon law which apply to trials before courts.^ § 430. In some Courts the granting" of New Trials on this Grround discretionary. — It will be remembered that the common law doctrine was, that the granting or refusing of new trials was matter of discretion with the trial court, and that the exercise of this discretion was not a subject for revision in a court of error. ^ While this rule is now generally denied, it is believed, in American courts, yet 1 "I am of opinion," said a learned judge in an early case in Vir- ginia, " that the same jealous vigilance ouglit to be exercised in cases of inquests of office as in trials at common law. The reason is even stronger. The latter are had under the eye of a court of justice which, if it observes anything improper in the conduct of a jury, will imme- diately set aside the verdict. Inquests of office are taken in pais ; the superintendence of the sheriff may not always be adequate to the pre- vention or discovery of improper practices." Coleman v. Moody, 4 Hen. &M. 1, 17. 2 Thus, from the case just cited, it appears that there wei'e some old statutes of this kind in Virginia. The act concerning roads prohibited a juror, on pain of being discharged from the inquest and imprisoned by the sheriff, from taking any meat or drink from any persons zohatever, from the time the jury should come to the place which they were to view until their inquest was sealed. Va. Stat. 1794, ch. .19. The statute for the removal of the seat of government contained a similar provision. Va. Stat. 1799, ch. 21. In other States the statutes are more general, applying to all cases in which verdicts are returned by juries. See, for instance, Gen. Stats. Mass., ch. 132, § 33; Tripp v. County Com- missioners, 2 Allen, oiiQ. ^ Hilliard on New Trials, § 7. (34) 530 NEW TRIALS FOR MISCONDUCT OF JURIES. [CII. XXI. there arc courts in this country which still adhere to it and apply it in the cases we are considering.^ This doctrine has been asserted in North Carolina, even in cases of felonies''' which are capital.^ These decisions are based upon the consideration that it is not competent for an a})pellate court, in cases at law, whether civil or criminal, to examine questions of fact. When, therefore, the matter which is urged as ground for the new trial, arises on the record proper, — when it relates to some action or refusal to act of the court, — it is subject to revision ; but when it rests on extrinsic matters which are brought to the attention of the trial court by the affida- vits of witnesses, the appellate court will not review the conclusion of the trial court thereon ; for, in order to do so, it would have to consider questions of fact, and to say whether or not the trial court was right in refusing credit to the witnesses. In some States the jurisdiction of the Supreme Court is limited by the terms of the Constitution of the State, to the consideration of questions of law. This was so with the Supreme Court of Louisiana under the constitution of 1846. And it was held incompetent for it to revise the discretion of the district court in refusing a new^ trial in a criminal case, where the ground on which the new trial w^as claimed, rested on facts set up by affidavits, which the trial court might or misfht not have believed.^ 1 Downer v. Baxter, 30 Vt. 467, 474; State v. Tucker, 10 La. An. 501 ; State V. Brette, 6 La. An. 652, 657. See also State v. Hunt, 4 La. An. 438; Smith v. Willingham, 44 Ga. 200; Moore v. Edmiston, 70 N. C. 471 ; State v. Tighlman, 11 Ired. L. 513 ; State v. Miller, 1 Dev. & Bat. 500; Love V. Moody, 68 N. C. 200; Vest v. Cooper, 68 N. C. 131; Exchange Bank v. Tiddy, 67 N. C. 169; Pittsburgh, etc. E. Co. v. Porter, 32 Ohio St. 328, 332. 2 State V. Hester, 2 Jones L. S3, 86. » State y. Miller, 1 Dev. & Bat. 500, 509. In Alubunia. tlie improper con- duct of the jury after they have retired to make up their verdict, is no ground for a motion in an-est of judgment, but may be a ground for a motion for a new trial. Nevertheless, the action of the trial court in refusing a new trial on that ground, is not revisable on error. Brister V. State, 26 Ala. 107. < State v. Hunt, 4 La. An. 438; State v. Brette, 6 La. An. 052. § 432.] HOW WHERE NEW TRIAL HAS BEEN GRANTED. 531 § 431. How far this Discretion revised in Appellate Courts. — But this is, nevertheless, generally regarded as a judicial discretion, controlled by the law and affecting the substantial rights of the party complaining. Since, then, the determination must, in each case, depend upon the view taken by the court below of the facts adduced in support of the motion, where the decision does not clearly conflict with the law as applied to the plain facts of the case, the ruling of the court, upon well settled principles, cannot be reversed.^ For like reasons, where the evidence adduced to show misconduct is contradicted, an appellate court will not revise the finding of the trial court upon the fact whether there was such misconduct, unless it is clearly wrong. ^ In other cases, it is held that it requires a clear case to justify a revision of this discretion by an appellate court. ^ § 432. How revised where New Trial has been granted. — It seems that in a few of the States the discretion of the courts of nisi i^rius in granting new trials, is, in cases of manifest abuse, subject to revision on appeal or writ of error. Thus, in North Carolina, an appeal is allowed as well from an order granting, as from an order refusing a new trial ; but in either case the matter appealed from must be matter "of law or legal inference."* Where a new trial is asked for on the ground of misconduct of the jury, the line of demarkation between matter of law or legal in- ference and matter of discretion is said to be this : That to vitiate and avoid a verdict as matter of law, it must appear that undue influence was brought to bear upon the jury ; but all other circumstances of suspicion address themselves exclusively to the discretion of the presiding judge.* Obviously, appellate courts so exercising a jurisdiction will interfere less readily where a new trial has been improvi- 1 Pittsburgh, etc. K. Co. v. Porter, 32 Ohio St. 328, 332. 2 Todd V. Branuer, 30 Iowa, 439; McNamara v. Dratt, 40 Iowa, 413. 3 Hewitt V. Pioneer Press Co., 23 Minn. 178. * N. C. Code Civ. Proc, § 299. 5 Moore v. Edmiston, 70 N. C. 471; State v. Tilghman, 11 Ired. L. 513. 532 NEW TRIALS FOR MISCONDUCT OF JURIES. [CII. XXI. dently granted than where it has been improvidently re- fused. Where a new trial was granted because the father of one of the parties, who had been rejected as a witness by reason of interest, talked loudly in the hearing of the jury about the case, saying that he could have explained the whole thing, if he had been permitted to testify, it was held that there had been no abuse of discretion such as would warrant the court in interfering ; ^ and so in another case the circuit court had granted a new trial l)ecause the jury had separated, although no improper influence ap- peared, and the Supreme Court refused on appeal to set aside this order.' So, where the Supreme Court collected from the affidavits that a new trial had been granted be- cause the jury had been tampered with, it refused to interfere.^ § 433. Mode in whicli this Discretion revised in Appel- late Courts. — It would be impossible to state, without going too much at length into the practice in different States with reference to new trials, the rules of procedure under which the appellate courts revise the discretion of trial courts in this particular. It may be said, however, that the misconduct of a jury can only be examined on a motion for a new trial, and is no ground for arresting the judgment,* nor, under the common law rules of procedure, for reversing it on error. ^ § 434. How Facts brought to Attention of Appellate Court. — (1.) By a Conclusive Finding of Fact in the Court below. — In Massachusetts, on a motion for a new trial on the ground of misconduct in the jury, the court be- low hears evidence and makes a finding of fact. This the Supreme Court will not undertake to revise, but will limit itself to considering whether, upon the facts thus found, the law requires a disallowance of the verdict.** In like 1 Smith V. Willingham, 44 Ga. 200. 2 Moore v. Edmiston, 70 N. C. 471. •■» Love V. Moody, 68 N. C. 200. * Brister v. State, 26 Ala. 107. » United States v. Gillies, 1 Pet. 0. C. 159; s. c, 3 Wheeler C. C. 308. * Tripp V. County Commissioners, 2 Allen, 556. § 434.] HOW PRESENTED TO APPELLATE COURT. 533 manner, the Supreme Court of Vermont has ruled that the only question arismg from a denial by the court below of a motion for a ne\v^ trial on the ground of misconduct in the jury, which can be the subject of its revision, is the decision that the testimony relied upon in support of the motion in the court below was not sufficient in law to justify the court in setting aside the verdict. In considering this question, all the facts which the testimony taken in the court below tends to establish, are treated as established in the court above. The court goes further, and holds that when, in such a case, the court below in the exercise of a sound dis- cretion, decides that the motion for a new trial ought to be denied, it virtually decides that the testimony fails to show that the alleged misconduct had any improper influence on the verdict ; and that this finding is not subject to be reviewed in the Supreme Court. ^ In Louisiana, we are not advised as to the exact practice, but it has been ruled that a state- ment, signed by the judge who tried the case, as to the facts of an alleged case of misconduct, is conclusive upon the court above as a finding of fact.^ In Nevada, where the question was whether a new trial ought to be granted, in a capital case because one of the jurors drank intoxicating liquors while the jury were deliberating on their verdict, and the question whether he drank sufficient to produce in- toxicating effects upon him was controverted, the court held that this was a question of fact with which it, as an ap- pellate court, had nothing to do, its jurisdiction being lim- ited to questions of law alone ; and the inference is, that the finding of the court below on the question was deemed conclusive.^ (2.) By Affidavits embodied in a Bill of Exceptions. — In other States — and this is believed to be the more gen- eral practice — the facts are brought to the attention of the appellate court by embodying in a bill of exceptions the affi- davits which were submitted to the court below. And here 1 Carlisle v. SliPldon, 38 Vt. 440, 444. 2 State V. Caulfield, 23 La. An. 148. -s State V. Jones, 7 Nev. 408, 414. 534 NEW TRIALS FOR MISCONDUCT OP JURIES, [cil. XXI. it must be remembered that it is not sufficient that these af- fidavits arc copied by the clerk of the trial court into the transcript which he sends to the appellate court ; for it is not everything which the clerk of the court chooses to copy into the record of a case that thereby l)ecomes a part of the record for the purpose of being so considered by an appel- late court. ^ The record of a case in an appellate court con- sists of two parts. 1. The record proper, which is generally understood to consist of the process, pleadings and the entry of judgment.^ 2. Matters which are made a part of the record by a bill of exceptions signed and sealed by the judge who presided at the trial. Neither the evidence adduced at the trial of the issues, nor the evidence adduced in support of a motion for a new trial, forms any part of the record, unless made so by a bill of exceptions.^ In order to save an ex- ception to the refusing of a new trial on the ground of mis- conduct of the jury, the affidavits adduced in the court below to show such misconduct must be brought to the attention of the revising court by a bill of exceptions ; they will not be considered for any purpose when they are merely copied inta the record by the clerk.* It is not sufficient, in order to save an exception to the ruling of the court on such a mo- tion, for the bill of exceptions to show that the party com- plaining offered to prove that the jury had been guilty of a certain misconduct. He must make his tenders of proof by affidavits or otherwise, and must put them in his bill of exceptions, so that the revising court may see by what evi- 1 United States v. Gamble, 10 Mo. 457; State v. Eldridge, 65 Mo. 584; Collins V. Barding, G5 Mo. 496; Jefferson City v. Opel, 67 Mo. 394; Sturdivant v. Watkins, 47 Mo. 177; State v. Shehaue, 25 Mo. 565; Christy v. Myers, 21 Mo. 112; State v. Wall, 15 Mo. 208. 2 Bateson v. Clark, 37 Mo. 31 ; State v. Matson, 38 Mo. 489. 3 Fryberger V. Perkins, 66 Ind. 19. * Stott V. Smith, 70 Ind. 298, 305. It was laid down in an early case in Arkansas that when it docs not appear that the misconduct of the jurors was in consequence of the act of either of the parties, then the evidence shall be spread upon the record for the consideration of the appel- late tribunal; otherwise the court will support tlie verdict and judgment of the court below, if by any intendment it can be done. I'elham v.. Page, 6 Ark. 535, 539. § 435.] PRESUMPTION THAT JURY ACTED REGULARLY. 535 dence he oftered to prove it, and whether such evidence was sufficient.^ § 435. Presumption that the Jury acted regiilarly. — The presumption of right acting, which obtains with refer- ence to the conduct of every person in official life unless the contrary is shown,- obtains, it seems, in full force with reference to the conduct of jurors ; and accordingly, a ver- dict will not be set aside, even in a criminal case, upon a bare suspicion that they were tampered with or acted im- properly ; or where the evidence does not make out a fair presumption that they were,^ or leaves it more probable that they were not.^ The judge is not bound, on such an application, to give credit to the affidavits on which it is based, even though they are uncontradicted by other affida- vits.^ So sensible were the Superior Court of South Caro- lina of the evils that would flow from the practice of listen- ing with freedom to affidavits intpeaching the conduct of jurors, that they laid down the rule that no such affidavits should in future be received, unless copies of them should be previously served on the juror or jurors whose conduct was in question, and a reasonable time given to the incul- pated juror to answer them on oath ; ^ and this practice was afterwards followed.^ 1 Jones V. Com., 31 Gratt. 830. 2 Broom Leg. Max. 495; Hicks v. Ellis, 65 Mo. 176, 184. s People V. Williams, 24 Cal. 31, 38; i)ost, §§ 436-439. < Mathis V. State, 18 Ga. 343. 5 State V. Duestoe, 1 Bay, 377, 380. •'For it was the duty of the jiulges to judge, from the necessity of the case, not onlj^ of the credi- bility of the witnesses brought forward in this manner to destroy the verdict of twelve men upon their oatli, but to inquire into and sift such affidavits with an exact and scrupulous attention, and to direct any other examinatioMS which could in any manner develop the truth of the matter; as no body of men can, at this stage of tlie proceedings, talie it under consideration but the judges." Ibid., per Curiam. 6 State V. Duestoe, supra. 7 McCluney v. Lockhart, 1 Bailey, 117; State v. Harding, 2 Bay, 267. It was necessary to serve such papers or copies before the rise of the court. Key v. Holeman, 2 Bay, 315; Pulaski v. AVard, 2 Ricli. L. 119. In the latter case this rule as to the time of making the application was said not to be inflexible. See in this connection post, § 440. 536 NEW TRIALS FOR MISCONDUCT OF JURIES. [CH. XXI. § 48(5. Evidence to establish MiscoiHliut must be Clear aud Positive.^ — Under any circumstances it requires the clearest i)r()of of misconduct on the part of the jury, or of some member of it, to justify the setting aside of their verdict. The mere statement by an affiant of his impres- sion of improper conduct will not be sufficient.^ So, where affidavits are made tending to show bias on the part of some of the jurors, unknown to the defendant till after verdict, and the counter affidavits of the jurors leave the proof in equilibrio, a new trial will not be granted. The burden being on the defendant to show misconduct, he must make out a case at least by preponderating evidence.^ So, as elsewhere seen, although the courts strongly discountenance the practice of jurors eating or drinking at the expense of one of the parties to the suit,'* yet where such misconduct is charged against them, the law, it is said, exacts clear and explicit jjroof . Accordingl}^ where a trial lasted for seve- ral days, the fact that the plaintiff was seen to drink with some of the jurors at the tavern where the latter stayed, and that one of them ate with him, and the further fact that, after the motion for a new trial was made on this ground, the plaintiff was heard to say that no one but him- self could prove the fact of his treating the jury, — was not a sufficient showing of misconduct to warrant a new trial. 5 § 437. Affidavit based on Information and Belief not sufficient. — An affidavit for a new trial charging the jury with misconduct will not be sufficient, if based merely on information and belief. The rule rests on the same princi- ple as that which excludes secondary evidence, until it is made to appear that better evidence is accessible. Such an affidavit must disclose from whom the affiant acquired his ' Johnson v. Root. 2 Cliff. 108, 128; s. c, 2 Fisher's Pat. Cas. 291. 2 Mullins V. Cottrell, 41 Miss. 291, 326. 3 State v. Duniphey, 4 Minn. 438; State v. Ayer, 23 N. H. 301, 321. ^ Ante, § 372. * McCausland v. McCaiisland, 1 Yeatiis, 372. § 439.] PRESUMPTION FROM IMPROPER CONDUCT. 537 information, und it must appear why the testimony of such person cannot be had.^ § 438. Distinction between Proof of the Fact of Mis- conduct and Pi'oof of its Effect. — But, while it requires clear and satisfactory proof to establish misconduct in a member of a jury, when misconduct is thus established, it is not necessary that it should certainly appear that preju- dice resulted from it. If the misconduct was of such a nature that prejudice micjld have resulted from it, a pre- sumption of prejudice arises, which, unless rebutted by the successful party, will require the granting of a new trial. ^ This has been applied in civil cases, though not to the same extent as in criminal cases. ^ § 439. Presumption where improper Conduct or Influ- ence is Shown. — Where facts are established which show that improper influences were brought to l)ear upon the jury, or that they were guilty of improper conduct, such as might have resulted prejudicial!}' to the losing party, a presumption arises against the purity of their verdict ; and unless there is testimony which shows that their verdict was not affected by such influence or conduct, it will be set aside;* and the burden of producing such testimony is 1 People V. Williams, 24 Cal. 31, 38; Cummins v. Crawford, 88 111. 312; post^ § 445. 2 .Johnson v. Eoot, 2 Cliff. 108, 128. Iii Mississippi the doctrine seems to be that in capital cases a separation of the jury conclusively vitiates the verdict and entitles the prisoner to a new trial; but " in all other cases of irregularity , in which it may be made to apjiear that tlie jury, during the trial, liave been exposed to improper influence which might have affected the puritj' of tlieir verdict, such exposure shall vitiate their verdict, unless it affirmativelj' appear that such influence failed to have any effect in procuring it.'" Woods v. State, 43 Miss. 364, 372. '"■Upon the subject of the misconduct of the jury, the practice in this country appears to have resolved itself into the exercise of a judi- cial discretion, confining the motion for a new trial to the question of abuse, and invariably denying tlie application where no injury has re- sulted." English, J., in Collier v. State, 20 Ark. 36, 50. ■♦Pope V. State, 36 Miss. 121, 136; Ned v. State, 33 Miss. 364, 372; •Organ v. State, 26 Miss. 83; Hare v. State, 4 How. (Miss.) 187; McCann v. State, 9 Smed. & M. 465, 469; Phillips v. Com., 19 Gratt. 485; Eiley w. State. 9 Humph. 646; Xesmith v. Clinton Fire Ins. Co., 8 Abb. Pr. 538 NEW TRIALS FOR MISCONDUCT OF JURIES. [CH. XXI. upon the party chiiniing the right to keep the verdict. The rule is one of public policy. In order to preserve pub- lic confidence in the administration of justice, it is not only necessary that judicial trials should be conducted with reasonable regularity, but that verdicts should ])e free from the taint of susi)icion of improper conduct or in- fluences. "The result of the authorities is," as is well stated by Chief Justice Shaw, "that where there is an irregularity which may affect the impartiality of the pro- ceedings, as where meat and drink or other refreshment has been furnished by a party ; or where the jury have- been exposed to the effect of such influence, as where they have improperly separated themselves, or have had communi- cations not authorized, — there, inasmuch as there can be no certainty that the verdict has not been improperly in- fluenced, the proper and appropriate mode of correction or relief is by undoing what is thus improperly, and may have been corruptly, done. Or, where the irregularity consists in doing that which may disqualify the jurors for proper deliberation and exercise of their reason and judgment, as where ardent spirits are introduced, there it would be proper to set aside the verdict, because no reliance can be placed upon its purity and correctness. But where the irregularity consists in doing that which does not and can- not affect the impartiality of the jury, or disqualify them for exercising their powers of reason and judgment, a& where the act done is contrary to the ordinary forms, and to the duties which jurors owe to the public, the mode of correcting the irregularity is by animadversion upon the conduct of the jurors or of the ofiicers ; but such irregu- 141; Com. v. Shields, 2 Bush. 81; Davis v. State, 35 Ind. 496; West- moreland V. State, 45 Ga. 225, 282; State v. Fox, Ga. Decis., Pt. I, p. 35;, State V. Negro Peter, Ga. Decis., Pt. I, p. 46; State v. Ciicuel, 31 N. J. L. 249, 259; Madden v. State, 1 Kan. 340, 354; Coker v. State, 20 Ark. 53, 60; Stanton v. State, 13 Ark. 317, 320; Cornelius v. State, 12 Ark. 782, 809; Stone v. State, 4 Humph. 27; People v. Brannigan, 21 Cal. 340; People v. Turner, 39 Cal. 370, 375; Monroe v. State, 5 Ga. 85, 152. § 440.] AFFIDAVITS OF JURORS TO IMPEACH VERDICT. 539 larity has no tendency to impair the respect due to such verdict." ^ Stated in another way, where the evidence adduced on a motion for a new trial shows that the jury were not in any way influenced, biased, or prejudiced by the exposure, the verdict will not be disturbed ; but unless it is proved that it failed of an effect, the presumption will be against the purity of the trial, and the verdict will be set aside. ^ Ac- cordingly, where it is made to appear that what may have appeared to be an improper influence upon the jury, was not so in fact, a new trial will be refused.^ And this rule must always be accepted with the qualification that this pre- sumption will not arise unless the irregularity was of such a character that its natural tendency was to influence or prejudice the jury against the unsuccessful party, or, at least, to interfere in some degree with the proper discharge of their duties.^ § 440. Testimony of Jvirors not i^eceived to Impeach their Verdict. — Upon grounds of public policy, the courts have almost universally agreed upon the rule that no affidavit, deposition, or other sworn statement of a juror will be received to impeach the verdict,^ to explain 1 Com. V. Roby, 12 Pick. 496, 519. 2 Thompson v. State, 26 Ark. 323, 328. 3 McKenzie v. State, 26 Ark. 334, 343; Collier v. State, 20 Ark. 36, 50. * "Some irregularities," says the Supreme Court of Louisiana, " are of so gross a character that a prejudicial effect may be presumed. * * * But we will not presume it because it is barely possible. We should re- gard jurors as rational men, capable of performing the high duties which the constitution and laws impose upon them. The constitution and laws charge them to judge of the issues upon which life, liberty and propei'ty depend. The law presumes them to possess the capacity and integrity to perform those duties correctly, and that they will not be swerved from their performance by improper influences; and we will not presume or decide the contrary until it appears by proof, or necessa- rily results from their gross misconduct." State v. Bradlej^ 6 La. An. 554, 560. See also Stone v. State, 4 Humph. 27, 38. * Holmead v. Corcoran, 2 Cranch C. C. 119; Dana v. Tucker, 4 Johns. 487; McCray v. Stewart, 16 Ind. 377; Ladd v. Wil- son, 1 Cranch C. C. 5; Pleasants y. Heard, 15 Ark. 403; Amsby V. Dickhouse, 4 Cal. 102; Castro v. Gill, 5 Cal. 40; Bennett v. r)4() NEW TRIALS FOli MISCONDUCT OF JURIES. [CII. XXI. State, 3 Iiul. 167; Com. v. Drew, 4 Mass. 391, 399; Jolmsoii v. Daven- port, 3 J. J. Marsh. 393; Miirdook v. Sumner, ±2 Pick. loG; State v. Doon. R. M. Cliarlt. 1; Cook v.Castner.9 Cu>;h. 2G6; Cain v. Cain, 1 B. Hon. 213; Folsom v. Maneiiester, 11 Ciisli. 334; Boston, etc, R. Co. v. Dana, 1 Gray, S3; Chadbourn v. Franklin, 5 Gray, 312: State v. Cou- penhaver, 39 Mo. 430; Pratte v. Coffman, 33 Mo. 71; Folsom v. Brawn, 25 N. H. 114; Leighton v. Sargent, 31 N. H. 119; Suttrell v. Dry, 1 Murph. 94; Schenck v. Stevenson, 2 N. J. L. 387; Den v. McAllister, 7 N. J. L. 46; Price v. Warren, 1 Hen. & M. 385; Brewster v. Tliompson, 1 N. J. L. 32; Randall v. Grover, 1 N. J. L. 151; Bridge v. Eggleston, 14 Mass, 245; Bidl v. Com., 14 Gratt. 614; Hannum v. Belchertown, 19 Pick. 311; Walker v. Kennison, 34 N. II. 257; State v. Tindall, 10 Rich. I.. 212; AVilling v. Swasej', 1 Browne (Pa.), 123; Cluggage v. Swan, 4 Binney, 150; White v. White, 5 Rawle, 61; Cochran v. Street, 1 Wash. (Va.) 79; Taylor v. Giger, 1 Hardin, 586; Smith v. Culbert- son, 9 Rich. L. 106; Mason v. Russell, 1 Tex. 721; Burns v. Paine, 8 Tex. 159; Robbins v. Windover, 2 Tyler, 11; Bentley v. Fleming, 1 Com. B. 479; Dorr v. Fenno, 12 Pick. 521, .525; Hester v. State, 17 Ga. 146; Jackson v. Williamson, 2 T. R. 281; Elliott v. Mills, lOInd. 368; Barlow v. State, 2 Blackf. 114; Conner v. Winton, 8 Ind. 316; Sinclair v. Roush, 14 lud. 450; Hughes v.Listner, 23 Ind. 396; Ed- miston v. Garrison, 18 Wis. 594; Haun v. Wilson, 28 Ind. 296; Steele v. Logan, 3 A. K. Marsh. 394; Heath v. Conway, 1 Bibb, 398; State v. Caldwell, 3 La. An. 435; Cire v. Rightor, 11 La. 140; State v. Mil- lican, 15 La. An. 557; State v. Brette, 6 La. An. 653; Bishop v. Georgia, 9 Ga. 121; Jacobs v. Dooly, 1 Idaho, 36; Lawrenae v. Bos- well, Sayer, 100; Stanton v. State, 13 Ark. 317; Halght v. Tur- ner, 21 Conn. 593; State v. Freeman, 5 Conn. 348; Clark v. Car- ter, 12 Ga. 500; Brown v. State, 28 Ga. 199; Coleman v. State, 28 Ga. 78; McElven v. State, 30 Ga. 869; Hoj^e v. State, 39 Ga. 718; King v. King, 49 Ga. 622; Anderson v. Green, 46 Ga. 361; Moughon v. State, 59 Ga. 309; Oatisv. Brown, 59 Ga. 711; Hill v. State, 64 Ga. 453; Coker v. Hayes, 16 Fla, 368; Forester v. Guard, 1 111. 44; Peck v. Brewer, 48 111. .54; Martin v. Ehrenfels,24 111. 187; Xiccolls v. Foster, 89 111.386; Brad- ford V. State, 15 Ind. 347; Dunn v. Hall, 8 Blackf. 32; Stanley v. Suther- land, 54 Ind. 339; Butt v. Tuthill, 10 Iowa, 585; Stewart v. Burlington etc. R. Co., 11 Iowa, 62; Hall v. Robison, 25 Iowa, 91 ; Cowles v. Chi- cago, etc. R. Co., 32 Iowa, 515; Cook v. Sypher, 3 Iowa, 484; Garretty v. Brazell, 34 Iowa, 100; Wright v. 111. Tel. Co., 20 Iowa, 195; State V. Home, 9 Kan. 119; Perry v. Bailey, 12 Kan. 539; John- son V. Husband, 22 Kan. 277; Doran v. Shaw, 3 T. B. Mon. 415; Com. V. Skeggs, 3 Bush, 19; Greeley v. Mansur, 64 Me. 211; State V. Pike, 65 Me. Ill; Bradt v. Rommel, 26 Minn. 505; State v. Stokely, 16 Minn. 282; State v. Mims, 26 Minn. 183; Riggs v. State, 26 Miss. 51 ; Friar v. State, 3 How. (Miss.) 422; Lucas v. Cannon, 13 Bush, 650; Campbell v. Miller, IMart. (N. S.) 514; Digard v. Michaud, 9Rob. (La.) 387; Sawyer v. Hannibal, etc. R. Co., 37 Mo. 240; State v. Underwood, 57 Mo. 40; State v. Branstetter, 65 Mo. 149; State v. Alexander, 66 Mo. 148; Ryan v. Kelly, 9 Mo. App. 591; Leighton v. Sargent, 31 N. H.120; § 440.] AFFIDAVITS OF JURORS TO IMPEACH VERDICT. 541 State V. Ayer, 23 N. H. 301 ; Breck v. Blanchard, 27 N. H. 100; Brewster V. Thompson, 1 N. J. L. 32; Dare v. Ogden, 1 N. J. L. 91; Hutchinson V. Consumer's Coal Co., 36 N. J. L. 24; Nichols v. Suncook Man. Co., 24 N. H. 437; People v. Hartung 4Park. Cr. R.256; s. c, 8Abb. Pr. 132; Brownell v. McEwea, 5 Denio, 367; People v. Carnal, 1 Park. Cr. R. 25G; Green v. Bliss, 12 How. Pr. 429; Gale t. New York, etc. R. Co., 53 How. Pr. 385; State v. Smallwood, 78 N. C. 560; State v. McLeod, 1 Hawks,. 344; Taylor v. Everett, 2 How. Pr. 23; Lindauer v. Teeter, 41 N. J. L. 256; Fish v. Cantrell, 2 Heisk. 578; Scott v. State, 7 Lea, 232; Mason v. Russell, 1 Tex. 721 ; Davis v. State, 43 Tex. 189; Clark v. Read. 5 N. J. L. 486; Johnson v. State, 27 Tex. 759; Sheldon v. Perkins, 37 Vt. 550; Downer v. Baxter, 30 Vt. 467; Read v. Com., 22 Gratt. 924; Thomas v. Jones, 28 Gratt. 383 ; Steptoe v. Flood, 31 Gratt. 323 ; Cherry v. Sweeny, 1 Cranch C. C. 530; Custiss V.Georgetown Turnpike Co., 2 Crauch C. C. 81; Howard v. Cobb, 3 Day, 310; Cline v. Bray, 1 Oreg. 89; Meade V. Smith, 16 Conn. 346. In an early case in New Jersey, the rule was upheld with so much stringency, that where a juror had sworn that he was induced to agree to the verdict by being unwell, his affidavit was handed over to the State's Attorney, to belaid before the grand jury as a foundation for a criminal prosecution for misbehavior. Dare v. Ogdeu, 1 N. J. L. 91. A case in New Jersey states the rule in a qualified form thus : That whilst the affi- davit of a juror, or his admissions, are not competent testimony to prove his own misconduct, yet such misconduct may be shown by the oath of a fellow juror who is not inculpated therein. Deacon v. Shreve, 22 N. J. L. 176. We have not found this qualification of the rule in any other case, and do not think it is sound. In an early case in Massachusetts, it was held that a new trial would be granted for gross misbehavior of the jury (in the particular case agree- ing upon their verdict by average) , and that the affidavit of a juror would be admitted to prove that fact. Grinnell v. Phillips, 1 Mass. 530. But this case is unquestionably overruled by subsequent decisions in that State. Dorr v. Fenno, 12 Pick. 521. In an old case in New York, it was held that the confessions of jurors might be heard to set aside their verdict, and so might their affidavits. In that case the confessions were received to show that the verdict was a quotient verdict. Smith v. Cheatham, 3 Caines, 56. But this case is overruled. Dana v. Tucker, 4 Johns. 488. In a later case it was held that affidavits of jurors were admissible to show that they had adopted a principle in estimatino; damages not allowed by law; though not to ac- cuse themselves of misconduct. Sargent v. , 5 Coweu, 106. In another case it is held that such affidavits cannot be received to show a mistake of the jury in making up their verdict, unless such mistake is produced by circumstances passing at the trial which are equivalent to a misdirection by the judge. Ex parte Caykendoll, 6 Cowen, 53. Such affidavits have been held admissible to show that there was a mistake in taking down their verdict when they returned it into court, and that it was entered differentlj' from what they intended. Upon this point the court say that " the information afforded by the affidavits of juries is 542 NEW TRIALS FOR MISCONDUCT OF JURIES. [CH. XXI. it/ to show on whut grounds it was rendered,'^ or to show a mistake in it;^ or that they misunderstood the charge not to impeach but to support the verdict really given by them." Jack- eon V. Dickenson, 15 Johns. 310. And where, in an action of trespass against several defendants, the jury returned a verdict against all of them, and left the court-room, it was held that it was competent for them, upon returning immediately into court, to show that the verdict had been given through mistake, and to correct it by finding against some of the defendants only. Prussel v. Knowles, 4 How. (Miss.) 90. Contra, Little v. Larrabee, 2 Me. 37, where under similar circumstances the verdict was set aside. In an early case in Illinois it is held that affidavits of jurors will not be heard to impeach their verdict, excejjt in a case where a part of the jurors sware that they never consented to the verdict. Smith v. Eames, 4' 111. 76. It need scarcely be suggested that this decision is not law. The last thing that a court will listen to is an afHdavit of a juror con- tradicting the verdict which he has solemnly rendered in open court, under the obligation of his oath as a juror. If he does not agree to the verdict when it's announced in court, he must speak then, or after hold his peace. Infra, § 441. In a case in Missouri it is said by Bay, J. : " While we are disposed to adopt the rule as a general rule of policy, still we think that cases may arise, particularly when life and limb are at stake, which may call for a departure from the rule. As, for instance, when the court shall have reason to believe from evidence derived from other sources than the affidavits of the jurors that there has been such misconduct on their part as to inlluence their verdict, we see no good reason why the affi- davit of a juror might not be received for the purpose of explaining or enlarging such evidence." Pratte v. Coffman, 33 Mo. 71, 78. This, it is believed, is unsound. 1 People V. Hosmer, 1 Wend. 297; Jeter r. Heard, 12 La. An. 3; Staf- ford V. State, 55 Ga. 591; Lloyd v. McClure, 2 G. Greene, 139; Com. v. Skeggs, 3 Bush, 19; Smith v. Smith, 50 N. H. 212. 2 Sheldon v. Perkins, 37 Vt. 550; Tucker v. South Kingstown, 5 R. I. 558; Price v. Warren, 1 Hen. & M. 385; Brownell v. McEwen, 5 Denio, 367; Larkins v. Tarter, 3 Sneed, 681; Heath v. Conway, 1 Bibb, 398; Taylor v. Giger, Hardin, 588; Jeter v. Heard. 12 La. An. 3; Mirick v. Hemphill, Hempst. 179; Clark v. Carter, 12 Ga. 500; Coker v. Hayes, 16 Fla. 368; Ward v. State, 8 Blackf. 101 ; Ford v. State, 12 Md. 514; St. Martin v. Desnoyer, 1 Minn. 156; Folsom v. Brawn, 25 N. H. 114; Lin- dauer v. Teeter, 41 N. J. L. 256; Danville Bank v. Waddill, 31 Gratt. 469; Buchanan v. Reynolds, 4 West Va. 681 ; Lewis v. McMullin, 5 West Va. 582. 3 Duhon V. Landry, 15 La. An. 591; Haight v. Turner, 21 Conn. 593; Clark V. Carter, 12 Ga. 500; Withers v. Fiscus, 40 Ind. 131; Bosley v. Chesapeake Ins. Co., 3 Gill & J., 473, note; Wells v. State, 11 Neb. 409; Ex parte Caykendoll, 6 Cow. 53; Kelly v. Sheehy, 8 Daly, 29; Lester v. § 440.] AFFIDAVITS OF JURORS TO IMPEACH VERDICT. 543 of the court ; ^ or that they otherwise mistook the law, or the result of their tindiug;"^ or that they agreed on their verdict by average,^ or by lot.* The rule has been held specially applicable to the case of a verdict on an issue out of chancery-^ It has been attempted to show, by evidence of this kind, that the jury misap- prehended the effect of their verdict as to the costs ; '^ that the foreman of the jury, after they had retired, had gone from the jury-room, in order to learn from persons not of the jury, the amount of damages which ought to be found in order to carry costs ; ^ that the jurors making the affidavit were influenced in their verdict by information given by one of the jurors in the jury-room ; ^ that they had intended to give the plaintiff a greater amount of dam- ages, and conceived that the verdict which they rendered was for such increased sum.^ But in these and other like cases the courts have steadily refused to listen to such affidavits. Goode, 2 Murph. 37; Taylor v. Everett, 2 How. Pr. 23; Hutchinson v. Sandt, 4 Kawle, 234; Dunnaway v. State, 3 Baxt. 206; Oregon, etc. R. Co. V. Oregon Steam Nav. Co., 3 Oreg. 178. Compare Cutler v. Cutler, 43 Vt. 660. 1 Saunders v. Fuller, 4 Humph. 516, 518 ; Norris v. State, 3 Humph. 333 ; State V. Millican, 15 La. An. 557. " It is sufficient if the charge be cor- rect. If the verdict, from misapprehension, be found, either against the law of the case, or the weight of testimony, the evil can be easily remedied by a new trial without affidavit; and if it be against neither the one nor the other, there is no remedy required, and no necessitj' for in- vestigating the secret operations of the minds of the jurors in arriving at their verdict.''' Saunders v. Fuller, supra, per Turlej% J. ' Jeter v. Heard, 12 La. An. 3; Duhon v. Landry, li La. An. 591. * Ante, § 409; Pleasants v. Heard, 15 Ark. 403; Sawyer v. Hanni- bal, etc. R. Co., 37 Mo. 241, 263; Dana v. Tucker, 4 Johns. 487; Heath V. Conway, 1 Bibb, 398; Haun v. Wilson, 28 Ind. 296. Compare Bennett v. Baker, 1 Humph. 399. * Owen V. Warburtou, 1 Bos. & Pul. (N. R.) 326. So ruled in Vasie v. Delaval, 1 T. R. 11; Straker v. Graham, 4 Mees. & W. 721; Burgess v. Langley, 6 Scott, (N". R.) 518; State v. Doon, R. M. Charlt. 1. * Steptoe v. Flood, 31 Gratt. 323. 6 Folsom V. Brawn, 25 N. H. 114, 123. ' Clum V. Smith, 5 Hill, 560. 8 Price V. Warren, 1 Hen. & M. 385. 9 Jackson v. Williamson, 2 T. R. 281. 544 NEW TRIALS FOR MISCONDUCT OF JURIES. [CII. XXI. § 441. Or to Show that the particular Juror did not consent to the Verdict. — Neither is it admissible to show by the oiith of a juror that he did not agree to the verdict as rendered ; ^ or that he consented to the return of the verdict, without concurring in it, in order to secure his discharge;^ or because his health absolutely required him to be released from confinement.'^ § 442. Or to show^ tliat the Jury had not, in Fact, agreed upon the Verdict. — Neither will the testimony of jurors be received to show that the jury did not, in fact, agree upon a verdict ; or that the verdict which was ren- dered was not, in fact, the verdict of the particular jurors.* It will not be admissible thus to show that the verdict was by mistake returned as the verdict of the whole ^Mvy, when some of them were, in fact, in favor of finding it for the other party .^ § 443. Otherwise to show Mistake in entering the Ver- dict. — Where the foreman of a jury, by mistake, an- nounced a verdict different from that agreed to by the jury, and the erroneous statement was taken as recorded, it was held that the court, upon application made at the same cir- cuit, immediately after the entering of the erroneous ver- dict, has power to correct the record so as to make the ver- dict conform to the actual finding ; and that the affidavits of jurors showing such mistake, might be received upon such application.*^ And there is considerable authority for the proposition that such affidavits will be received to show that the verdict which was entered was delivered by the 1 Johnson v. Davenport, 3 J. J. Marsh. 390, 396; Hester v. State, 17 Ga. 146; Thomas v. Jones, 28 Gratt. 383; Garretty v. Brazell, 34 Iowa, 100. 2 Scott V. State, 7 Lea, •2;>2. 3 State v. Stokely, 16 Minn. 282; Dare v. Ogden, 1 N. J. L. 91. ■* Reaves v. Moody, 15 Ricli. L. 312; Boetge v. Landa, 22 Tex. 10.>; Cochran v. Street, 1 Wash. (Va.) 79; Cire v. Rightor, 11 La. 140. * Two jnrors made affidavit that the}^ were mistaken in the verdict when they rendered it; that they thought they were finding for the op- posite party. It was held that the affidavit could not be received on a motion for a new trial. Cire v. Riglitor, 11 La. 140. ' Dalrymplc v. Williams, 63 N. Y. 361. Folger, J., dissented. § 443.] MISTAKE IN ENTERING THE VERDICT. 545 foreman, or taken down by the clerk of the court, by mis- take, and that it Avas not the actual verdict which the jury returned.^ 1 Cogan V. Ebden, 1 Burr. 383; Jackson v. Dickenson, 15 Jolins. 309; Roberts v. Hughes, 7 Mees. & W. 399; Prnssell v. Knowles, 4 How. (Miss.) 90. Wliere, upon tlie jury being polled, one of tliem declared that tlie verdict was against his conscience, and that lie consented to it only because all the rest had agreed to it, it was held that the jury should be directed to retire and reconsider their verdict; but where, after such a declaration of the juror, the verdict was received and re- corded without objection from the party against whom it was found, it was held no error to refuse a new trial on that ground. Farrell v. Hen- nesy, 21 Wis. 632. See in this connection, Cheney v. Holgatf , Brayt. (Vt.) 171 ; Cutler v. Cutler, 43 Vt. 660. It has been held that where the foreman of a jury changed the finding from guiltj^ as accessory after the fact to guilt}' simply, without consulting with the other jurors, this was such an irregularity as required the granting of a new trial. State v. Levy, 5 La. An. 64. In the leading case on the doctriie of the text, ap- plication to set aside a verdict was made on the ground that it was given by the foreman contrary to the opinion of eight of the jury. It appeared that the defendant justified under a right of waj^ over the plaintiff's ground, to tvw closes of the defendant, namely, Broadmoor, and three acres; upon which two different issues were joined, namel}', one upon the right of a way to Broadmoor, the other upon the right of a way to the three acres. And the foreman gave the verdict as a general verdict for the defendant, upon both issues. But eight of the jury made affi- davit " that it was the meaning and intention of the whole jury to find the former issue for the defendant, and the latter for the plaintiff; and that this mistake was discovered by them an hour afterwards ; but not till the judge was gone to his lodgings." The foreman of the jury de- clined to make any affidavit, because, he said, he should make himself appear a fool to the court of king's bench. And upon the judges re- port, it appeared that, though there was indeed evidence on both sides, yet the weight of evidence was, as it appeared to him, on the side of the plaintiff, as to this latter issue. The report goes on to say that " the court were all clear that this was a mistake arising from the jury's being unacquainted with business of this nature, and from the asso- ciate's omission in not asking the jury particularly 'how they found each respective issue,' and in not making the jurj^ fully understand their own meaning; and that it was agreeable to right and justice that the mistake be rectified. And they had no doubt about the fact of this mistake, from the affidavit of the eight jurors, confirmed (as they held it in effect to be) by their foreman's declining to make any afiidavit at all ; especiallj' as the judge's notes showed the weight of evidence to have been for the plaintiff as to this latter issue. And Lord Mansfield and Mr. Justice Denisou thought that as it was a mere slip, there might be some method of rectifying the verdict according to the truth of the case, (35) 546 M:w TlilALS FOR MISCONDUCT OF JURIES. [ciI. XXI. § 444. Court may intcrrojjiatc Jury as to tlie Grounds of their Findinj;-. — It is held in Massachusetts that when the jury have returned into court with their verdict, before they are discharged, and while yet tliey are a jury, it is competent for the court to interrogate them as to the grounds of their tinding, if there is more than one distinct ground upon which a verdict might be given. The idea of these decisions is, that where there are several distinct grounds upon which a verdict might be based, it is not im- proper for tlie judge to ascertain which ground tlie jury adopted, since there may be little or no evidence u})on an}' one ground, and sutlicient evidence upon another; and if it appears that all of them did not agree upon either of the grounds, their verdict will not be allowed to stand, because unanimity is required.^ But where the jurors, so questioned bv the court, disclosed, not in response to the court's ques- tion, their own misconduct, — as that their verdict was agreed upon by average, in pursuance of a previous agree- ment to a))ide by the result, — such statements will not be listened to as showing such misconduct, and the verdict will not be set aside for that reason.'^ from the judges notes if they were sufficiently particular, without send- ing the issue to he tried over again at great expense." Lord Mans- field afterwards proposed to the counsel who made the motion to set aside the verdict, that he should make a motion to have a rule to show cause why, upon reading the affidavits of those eight jurors, the verdict should not be amended and set right according to the truth of the finding. Such a motion was afterwards made, and a rule to show cause granted; but it never came before the court any more, "• it plainly appearing that the court, upon deliberation among themselves, had come to the opinion that in this shape the verdict might be set right." Cogan v. Ebden, 1 Burr. 383. 1 Parrott v. Thacher, 9 Pick. ■12G; Pierce v. Woodward, G Pick. 206; Spoor v. Spooner, 12 Met. 281. This rule was adopted in the United States Circuit Court for Massachusetts, by Curtis, J. Biggs v. Barry, 2 Curt. C. C. 259. See also Cogan v. Ebdeu, 1 Burr. 383. - Dorr v. Fenno, 12 Pick. 521, the court saying: "The question was proper, but the answer was irrelevant, and seems to us to be inadmis- sible. Now, the jury may have been guilty of misbehavior, but if so. we have no evidence of it, and can derive none from them." § 446.] AFFIDAVITS OF JURORS TO SUSTAIN VERDICT. 547 § 445. Testimony of Others on Information derived from Jurors not received. — If the courts refuse, on grounds of public policy, to listen to primary evidence of a fact, they will, of course, for stronger reasons, refuse to listen to secondary evidence of it. What the law will not allow to be proved by the oath of the person havino- the knowledge, it obviously will not allow to be proved by the oath of another person deriving his information from the unsworn statements of the former person. It follows that the affidavits of counsel, or other persons, of the misconduct of the jury, upon information derived from particular jurors, will not be heard to impeach the verdict. If the same grounds of public policy did not intervene as in the case where the fact is sought to be proved by the oath of the juror himself, a consideration of the infirmity which at- taches to hearsay testimony would operate to exclude it.^ § 446. Affidavits of Jurors received to sustain their Verdict. — ^Yhilst the testimony of jurors will not be re- ceived to impeach their verdict, it does not follow that such testimony will not be received to sustain it when assailed. If the jurors are accused of misconduct, they may show by their oaths, not only in their own vindication, but in further- ance of justice, that they were not guilty of the misconduct charo;ed against them.^ 1 People V. Hartuug, 8 Abb. Pr. 132 ; People v. Wilsou, S Abb, Pr. 137; Pleasants V. Heard, 15 Ark. 403, 411; Hindle v. Birch, 8 Taunt. 26; Price v. Mcllvaiu, 2 Treadw. Const. (S. C) 503; Drummond v. Leslie, 5 Blackf. 453, 455; Allison v. State, 45 111. 37; Dunn v. Hall, S Blackf. 32; St. Martin v. Desnoyer, 1 Minn. 156; Irish v. Wriglit, 8 Rob. (La.) 428; State v. Beatty, 30 La. An. 1266; Smith v. Smith, 50 N". H. 212; Gale v. New York etc. E. Co., 53 How. Pr. 385; Aylett v. Jewel, 2 W. Bl. 1299; Trohan v. McMannus, 2 La. 209; Stone v. State, 4 Humph. 27. Compare Rowland v. State, 14 Ind. 575. 2 Dana v. Tucker, 4 Johns. 487; Hix v. Drury, 5 Pick. 296; Elliott v. Mills, 10 Ind. 368; Barlow v. State, 2 Blackf. 114; Staunton v. State, 13 Ark. 319; Cornelius v. State, 12 Ark. 810; Haun v. Wilson, 28 Ind. 296; Smith V. Eames, 4 HI. 70; Peck v. Brewer, 48 111. 54; Bradford v. State, 15 Ind. 347; Harding v. Whitney, 40 Ind. 379; State v. Underwood, 57 Mo. 40; Smith v. Powers, 15 N. H. 546; State v. Hascall, 6 N. H. 352; State V. Ayer, 23 N. H. 301; Tenney v. Evans, 13 N. H. 462; Hutchin- son V. Consumers' Coal Co., 36 N. J. L. 24; Farrer v. State, 2 Ohio St. 54:8 NEW TUIALS FOR MISCONDUCT OF JURIES. [CH. XXI. § 447. Or to islioAv Avhat took Place in Open Court. — It WHS held ill the English Court of Exchequer, thtit the rule- does not exclude jur3niien from swearing to what took place ill open court/ but only to what took place in their private It room, or as to the grounds on which they found their ver- f diet. ' An affidavit was accordingly received as to what took. })lace on the delivery of their verdict.^ § 448. Or to show Miscoiuliict of Parties. — Whilst, as a general rule, the affidavits of jurors will not be admitted to show their own misconduct for the pur})ose of impeaching their verdict, yet such affidavits will be admitted to show the misconduct of otJter persons. This exception to the rule is supported by the strongest reasons of policy. If it did not exist, the attempts of parties, or their agents, or friends to corrupt jurors would be clothed with substantial immunity.^ Not only this, but where there has been ground. 54; Gilleland v. State, 44 Tex. 35G; Bowen v. State, 3 Tex. App.. 617; Anschicks v. State, 6 Tex. App. r)24; Downer v. Baxter, 30 Vt. 4G7» Where a juror, during the progress of the trial, has been temporarily sep- arated from his fellows, and a new trial is asked for on this ground, it is said to be the practice to receive the afiidavit of the juror as to what took place with him during the sepaiation ; and if his affidavit shows that he held no improper communication with any one, listened to no re- marks about the merits of the case, and was not otherwise tampered with, such affidavit is deemed sufficient to rebut the presumption against the purity of the verdict, which the fact of the separation raises. State V. Cucuel, 31 N. J. L. 249, 260; State v. Carstaphen, 2 Hayw. 238. Such affidavits will always be closel}' scrutinized, and if the act of separating was in itself an act of misconducr, they will receive little weigiit. Ante^ § 440. Indeed, in the estimation of some courts, they are entitled to little weight, even where the act of separating was under the sanction of the court. "How are jurors to make it appear that they were guilty of no misconduct? If they swear generally that they were not, thej' swear to a conclusion only, depending upon their sense of what is improper; asking the court to be satisfied because they were satisfied. Jurors are rarely, perhaps, wilfully guilty of improper conduct to disturb their verdict. A well-meaning juior who is unconsciously so guilty, will, deny it. So that a juror's denial of the conclusion can weigh little. And the forms of improper conduct are so various that it would be very diffi- cult to deny them to the satisfaction of a court." State v. Dolling, 37 Wis. 398, per Kj^an, C. J. 1 Roberts v. Hughes, 7 Mees. & W. 398. - Ante, § 364, subsec. 6; Chews v. Driver. 1 N. J. L. 166; Keynolds v- § 450.] AFFIDAVITS OF JURORS AS TO COMPP'.TENCY. 549 to suspect that the jury have been improperly influenced, it ■seems that the court may rightfully interrogate them on the subject. Thus, if papers have ^ot into their hands which ought not to have got there, the court may interrogate the jurors as to whether the papers were read by them.^ § 449. Whether adinissihle to show Miscoiidiict of their Bailiff. — It has been held that the affidavits of jurors -are not admissible to show misconduct on the part of the officer havino- them in charo-e tendino; to influence their ver- diet, — as that the officer gave them instructions in the jury- room ; ^ but the weight of opinion and of reason seems to be otherwise.^ § 450. Or upon the Question of tlie Juror's Compe- tency. — Cases are rare in which new trials are granted on account of the discovery after verdict of some fact affect- ing the qualification of a particular juror ; * and where affida- vits are admitted tending to show a disqualifying fact, the counter-affidavit of a particular juror will be admitted.^ Whether the affidavit of a juror will be admitted to show liis own disqualification, is more doubtful. In Indiana it has been held that such affidavits are admissible,^ In Wis- consin, such an affidavit was admitted to show that the affi- ant juror was so ignorant of the English language that he •was not able to understand what the witnesses swore to at the trial ; and it was held no error to o^rant a new trial for this reason.' But in another case the affidavit of a juror was offered to show that, by reason of indisposition, he was un- able to attend to and understand all the testimony given at the trial. It was held that such an affidavit could not be •Champlain Trans. Co., 9 How. Pr. 7; Ritchie v. Holbrooke, 7 Sergt. & R. 458. 1 Hiclts V. Drury, 5 Pick. 296. 2 Dorau v. Shaw, 3 T. B. Mon. 415. ' Ante, § 362, subsec. 4. It may be here observed that the Iowa case {Cole v. Swan, 4 G. Greene, 32), there cited, was decided under a i statute since repealed. 4 Ante, § 302. 5 Ante, § 304. 8 Lafayette Plank Road Co. v. New Albany etc. R. Co.. 13 Ind. 90. ■7 Shaw V. Fisk, 21 Wis. 368. Se ; ante, §§ 17/", -259 subsec. 3. 550 NEW TRIALS FOR MISCONDUCT OF JURIES. [CH. XXI» received.^ There is no rule of pul)lic policy which will ex- clude evidence of the declarations of jurors made before being summoned as jurors, which goes to show disqualifica- tion to sit in a particular case ; and such evidence is con- stantly received.^ § 451. Exceptional Rule in Tennessee as to Aflidavits of Jurors. — An exceptional rule exists on this sul)jcct in Tennessee. The early judges of that State fell into the error of listening to the affidavits of jurors to impeach their verdicts ; subsequent courts followed the rule thus started, but the later courts have done all they could to limit the rule and restrain its operation. And they seem to be justified in this by the fact that the rule which their early courts laid down is not the rule in England or in any other State in the Union. The first case in that State upon the subject was a capital case which was before the Supreme Court in 1821. A verdict of guilty of murder was re- turned, with a recommendation to the mercy of the chief masfistrate. On a motion for a new trial, some of the jurors made affidavits that they never would have agreed to a verdict of guilty of murder but for the agreement that there should be a recommendation of mercy, and that they did not consider the accused guilty of murder ; but agreed to the verdict under the belief that the prisoner would be pardoned. It was held that such affidavits might be re- ceived, and that a good ground was shown in the particular case for a new trial. ^ This doctrine was re-affirmed in 1833, in a case where the defendant had been convicted under an indictment for re- ceiving stolen goods. Two of the jurors made oath that another juror had stated that he had put up a stake as to the result of the verdict to be rendered in the case, and that he believed the defendant was not apprised of the fact previous to the trial. They also made oath to the fact that after the jury had retired to their room, one of the jurors- 1 Greeley v. M:in.«ur, 64 Me. 211. 2 Cain V. Cain. 1 B. Mon. 213. s Crawford v. State, 2 Yer^. GO. § 451.] EXCEPTIONAL RULE IN TENNESSEE. 551 stated to the rest of the jury, that the defendant had stolen a hog in the county, and that he made other statements, from what he had heard, which statements were not in evi- dence on the trial, but which the affiants regarded as evi- dence, and which were a strong inducement, and partly the cause of their giving their verdict against the defendant. These statements were held admissible, and good ground for a new trial. ^ In the foregoing cases, both of the opinions were deliv- ered by Judge Whyte. In a later case a person was in- dicted for burglary and larceny, and the case against him was that he effected an entrance into the house by crawling down the chimney. After the jury had retired, they came into court and requested to ask a witness some explanator}'' questions. He was called up and told not to state any new fact ; but, after having been asked several questions, he was asked if he had observed any soot on the defendant's clothes, to which he answered that he had. This fact not having been stated by him on his first examination, the court told the jury that for this reason the evidence was illegal. On a motion for a ncAv trial, the affidavit of a juror was offered, to the effect that he would not have agreed to the verdict, but for the fact thus stated that the prisoner had soot on his clothes the day after the offense Avas committed. The court held that this was not good ground for a new trial ; that the principle introduced by the previous cases was a dangerous one which ought not to be extended, and they therefore limited it by holding that an affidavit of a juror, while admissible to show misconduct of the jury, will not be admitted to show the grounds on which thev rendered their verdict:^ thou£>:h a verdict has been set aside l^ecause it was shown by affidavit that a juror had made statements in the jury-room supporting the credibility of a 1 Boob}- V. State, 4 Yerg. 111. - Hudson V. State, 9 Yero^. 408; so ruled in Larkins v. Tarter, 3 Sneed, 681; Lewis v. Moses, 6 Coldw. 193; Galvin v. State. G Coldw. 283; Dun- nawav v. State, 3 Baxt. 20G. 552 NEW TRIALS FOR MISCONDUCT OF JURIES, [fll. XXI. nuiteriiil witness for the Stiite.^ Such affidavits are also re- ceived ill that State to show that the jury resorted to im- proper methods of arriving at their verdict, — as that they struck their verdict by average, having agreed in advance to abide by thejjresult.'-^ The reluctance with which that court now assents to the admission of affidavits of jurors to impeach their ver- dict is illustrated l)y a case in which a juror made an affi- davit to the fact that he was induced to agree to the verdict which was rendered, by taunts and a))use of his fellow jurors. The affidavit was held insufficient, because it did not state in what the taunts and abuse consisted ; the par- ticular juror might have considered the language, taunts and abuse, but it might have been in reality nothing more than vehement argument.'^ So, where the entire jury made affidavit that they had I)ased their verdict u[)()n a certain state of facts, which facts were neither in issue nor in proof before them, nor had the court given them instructions with reference to such facts, and the verdict was supported by the evidence in the case, it was held no error to disre- gard the afHdavit and to refuse a new trial .^ Neither will jurors be })erniitted to impeach their verdict by showing that they agreed to it only that they might thereby procure their discharge. They will not be permitted, the court say, to show such a miserable excuse. ° § 452. Exceptional lliile in Iowa. — (1.) Under the Code of 1851. — The Iowa Code of 1851 contained the 1 Donston v. State, G Humph. 27.1. In Fish v. Cuntrell, 2 Ileisk. .578, it is said that "it is time tliat circuit judi^es had ceased to allow the affidavits of jurors as to the grounds of their verdict, to be read on mo- tions for new trials, unless in extraordinary cases." 2 Joyce V. State, 7 Baxt. 273; Elledge v. Todd, 1 Humph. -13; Crabtree V. State, 3 Sneed, 302. See also Bennett v. State, 1 Humph. 399, and Harvey v. .Jones, 3 Humph. 157, where such affidavits were received, though a new trial was refused, as it did not appear that the jurors had agreed in advance to abide by tlie result. 3 Fletcher v. State, G Hnmpli. 249. ^ Dunnaway v. State, 3 Baxt. 206. fi Scott v. State, 7 Lea, 232; Galvin v. State, 6 Coldw. 283. § 452,] EXCEPTIONAL RULE IN IOWA. 553 following provision: "In applications for new trials the affidavits of jurors or officers of the court may l)e taken -and used in relation to such application." ^ This statute, At will be perceived, is couched in very general language. It is omitted entirely from subsequent revisions. It iseems to have been passed for the pur})ose of declar- ing a rule previously laid down by the Supreme Court of that state, wdiere it was held that affidavits of jurors might ■be received to show that they entirely misunderstood the instructions of the court, which fact, being thus estab- lished, was held ground for a new trial.-^ Or, possibly, to settle doubts which may have arisen on the subject in con- sequence of other decisions of that court. ^ In so holding, the court went further, it is believed, than any other court has gone. This statute was at once recognized as an inno- vation upon the common law rule, and was strictly con- strued. It was held that jurors could not be compelled to disclose under oath how or in what manner they had made up their verdict. The affidavit must be voluntary.^ It was also held that the oath of a juror would not be received to show that he had not agreed upon the verdict wdiich was rendered, but that it was rendered without his consent.^ But such an affidavit was admissible to show misconduct of the jury in arriving at their verdict — as in making up a quotient verdict.*' Later it was held that such affidavits i Iowa Code of 1851. § 1810. 2 Packard v. United States, 1 G. Greene, 225. ^ It was held that such affidavits were not admissible to explain their verdict in reference to what items of account had been received and what rejected. Lloyd v. McClurc, 2 G. Greene, 139. In a later ■ease, it was held that such affidavits would not be received to show misconduct uf the jury, a-j that they had procured and read a deposition •which had not been offered in evidence. Abel v. Kennedy, 3 G. Greene, 47. * Forshee v. Abrams, 2 Iowa, 571 ; Grady v. State, 4 Iowa, 4G1 ; Crum- ley V. Adkins, 12 Iowa, 363. 5 Cook V. Sypher, 3 Iowa, 484; State v. Douglass, 7 Iowa, 413. " Manix v. Maloney, 7 Iowa, 81; Rubb v. McDonald, 7 Iowa, 90; Schanler v. Porter, 7 Iowa, 482. And so after the repeal of this statute. Barton v. Holmes, 16 Iowa, 252; Hendrickson v. Kuigsbury, 21 Iowa, 379. 554 NEW TIIIALS FOR MISCONDUCT OF JURIES. [CH. XXI. were admissible to show the basis upon which the verdict was found, but not to impeach the verdict.^ This decision was not reported in full ; and what the court meant by it is not very clear. In the next case which we meet, it was held that such affidavits were admissible to show misconduct on the part of the jury — as that a deposition not read in evidence had been taken by them to their room — though it was again said that they would not l)e received to impeach their verdict.^ But in another case in the same volume the court refused to receive affidavits to show that the jurors' notes of the testimony were taken by one of the attorneys- upon the trial. ^ (2.) Subsequent to the Revision of 1860. — Taking up the line of decisions in that State after the provision of the Code of 1851, alread}^ noticed, went out of existence, we find it held that such affidavits are not admissible to show that the jurors misunderstood the instructions of the court.* And where such affidavits were introduced to the effect that the jurors misunderstood the testimony, it was doubted whether they could })roperly be received, but it was held that it must at least, appear that they had reasonahJe ground for misunderstanding it} At length we come to a decision where the whole subject was reconsidered^ and it was resolved that affidavits of jurors may be received, for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury-room, which does not essentially inhere in the verdict itself, — as that a juror was improperly approached by a part}", his agent or attor- ney ; that witnesses or others conversed as to the facts or the merits of the case out of court and in the presence of the jurors ; that the verdict was determined l)y aggregation 1 Butt V. Tiitliill. 10 Iowa, 585. 2 Stewart v. Builinojton etc. K. Co ; 11 Iowa, G2. a State v. Accola, 11 Iowa, 24G. * Davenport v. Ciinimings, 15 Iowa. 219 (overruling Packard v. United States, 1 G. Greene, 225). » Jack V. Xaber, 15 Iowa, 450; Moffit v. Rogers, 15 Iowa. 153. The court does not explain how a man can have a reasonable ground for mis- undcr.standins: a thing. § 453.] THE IOWA RULE FOLLOWED IN KANSAS. 555 and average, or by lot or game of chance, or by other arti- fice, or in any other improper manner. But it was held that such affidavits may not be received to show any matter which does not essentially inhere in the verdict, — as that the afliant juror did not assent to it ; that he misunderstood the instructions of the court, the statements of the witnesses, or the pleadings in the case ; that he was unduly influenced by the statements of his fellow jurors, or mistaken in his cal- culation or judgment, or other matters resting alone in the jurors breast.^ This decision has been followed and applied in subsequent cases. It is accordingly held, as be- fore the repeal of the statute of 1851, that such afiidavits will be received to show that the verdict which was returned was a quotient verdict.^ But such afiidavits were rejected when they set forth the basis or calculation upon which the jurors arrived at their verdict f when they showed that a juror had read a part of the answer and an exhibit thereto which had been held bad on demurrer, and that he was thereby influenced to consent to the verdict ; * or that the verdict was not assented to by all the jurors ; ^ or that the affiant juror was unduly influenced by his fellows.*^ It may be doubted whether this rule is capable of being applied with uniformity or certainty. § 453. The Iowa Rule followed in Kansas. — The rule upon which the Supreme Court of Iowa thus settled ^ — if, indeed, it possesses sufficient certainty to be called a rule — 1 Wright V. Illinois etc. Tel. Co., 20 Iowa, 195. 2 Wright V. Illinois etc. Tel. Co., 20 Iowa, 195; Hendrickson v. Kings- bury, 21 Iowa, 379; Fuller v. Chicago etc. E. Co., 31 Iowa, 211. ^ Hall V. Robison. 25 Iowa, 91. ^ Cowles V. Chicago etc. R. Co., 32 Iowa, 515. But they were received to show that the jury took with them to their room a deposition which had been suppressed, and that a portion of it was read by one of the jurors, though, on account of the showing made by exculpatery affida- vits, the court refused to grant a new trial. Morris v. Howe, 36 Iowa, 490. « Garretty v. Brazell, 34 Iowa, 100. « Bingham v. Foster, 37 Iowa, 339; Dunlavey v. Watson, 38 Iowa, 398. ■ In Wright v. Illinois etc. Tel. Co., 20 Iowa, 195. See the preceding section. 551) NEW TRIALS FOR MISCONDUCT OF JURIES. [CII. XXI. has been adopted in Kansas in express terms. It is accord- ingly held in that State, that such affidavits are not admis- sible to show that the jurors agreed to tind the prisoner guilty, through fear that mob violence Avould result to him in case of an acquittal.^ But they will be received to show that one of the jurors was intoxicated during their delibera- tions,'^ or that the verdict was ol)tained by aggregation and division, the jurors agreeing in advance to be bound by the result of that method of arriving at their verdict.^ § 454. Statutory Rule in California and Arkansas in Case of Chance Verdicts. — By the Code of Civil Pro- cedure in California it is provided that, " Whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any ques- tion submitted to them by the court, by a resort to the de- termination of chance, such misconduct may be proved by the affidavit of any one of the jurors."* As this statute affected the remedy only, it was held to apply to a motion for a new trial in a case where the judgment was rendered prior to its passage.^ Construing this statute, it is held that where the jurors agree to return what is known as a quotient verdict, this is not a verdict determined by chance.' This statute is held to be in derogation of the common law ; it is hence strictly construed ; and in cases not within its terms the affidavits of jurors are not received in that State. '^ 80, in Arkansas, a juror may be examined, upon a motion for a new trial, to show that the verdict was l)y lot; but not otherwise.^ § 455. Statutory Rule in Texas in Criminal Cases. — The Texas Code of Criminal Procedure contains the foUow- 1 State V. Home, 9 Kan. 119. 2 Perry V. Bailey, 12 Kan. 539. 3 Johnson v. Husband, 22 Kan. 277. ^ Cal. Code of Civil Proc, § 657. 5 Douner v. Palmer, 23 Cal. 40. 6 Turner v. Tuolunme Water Co., 25 Cal. 397. But see cihtc, § 410. ^ Ibid.\ People v. Hughes, 29 Cal. 257; Polhenius v. Heiman, 50 Cal. 438. »Ai-k. Dig. Stat 1874, § 1971; Fain v. Goodwin, 35 Ark. 109. § 456.] MISCONDUCT IN PRESENCE OF THE COURT. 557 iiig provision: "New trials in cases of felony shall bo granted for the following causes, and no other: * * * 8. Where, from the misconduct of the jury, the court is of opinion that the defendant has not received a fair and im- partial trial ; and it shall be competent to prove such mis- conduct by the voluntary affidavit of a juror ; and a verdict may in like manner, in such cases, be sustained by such affida- vit." ^ Before this Code, affidavits of jurors were not ad- mitted to show their own misconduct, or otherwise to impeach their verdict ; ^ though the court was disposed to concede that such affidavits might possibly be received un- der peculiar circumstances, or in extreme cases. ^ Under the Code, it has been held that it is competent to show by the affidavit of a juror that he had founded his verdict upon statements made by another juror in the jury-room,, prejudicial to the defendant, and that, upon such a show- ing, a new trial ought to be granted ; * or that the verdict which was returned was a quotient verdict, the jurors agree- ing in advance to be bound by the result.^ § 456, Misconduct in tlie Presence of the Court. — If a juror misconducts himself in the presence of the court, the fact may be brought to the attention of the court by affida- vit, as a ground for a new trial ; ' and it seems that the affi- davit of a juror is admissible for this jDurpose.^ Courts are,, however, reluctant to consider such matters as ground for a new trial, and for the reason that the misconduct ought to 1 Texas Code of Crim. Proc. 1879, Art. 777. subsec. 8. 2 Campbell v. Skidmore, 1 Tex. 475; Mason v. Kussell, 1 Tex. 721; Kilgore v. Jordan, 17 Tex. 341; Little v. Birdwell, 21 Tex. 597; Johnson V. iState, 27 Tex. 758. 3 Little V. Birdwell, 21 Tex. 597; Johnson v. State, 27 Tex. 758; Bren- nan v. State, 33 Tex. 266. * Anschicks v. State, 6 Tex. App. 524. 5 Hunter v. State, 8 Tex. App. 75. In this case it is .8. Kise of the Grand Jury. — How h)iig inquests were taken as indieated in the foregoing cannot be definitely stated. The earliest instance of an innovation, looking to the establishment of a grand jury taken from the county at large, occurs in the 42nd year of Edw. HI., where, at a commission of oyer and terminer, besides the return of an inquest for every hundred by the bailiff, the sheriff likewise returned a panel of knights which, says the old record, were le gvaunde inquest} The speculations of Mr. Reeves upon the functions of the inquests after the appearance of this new bod}^ are substantially adopted by a later and emi- nent authority,""^ and are given at length, showing the final and complete establishment of the institution of the grand Jury. " The inquests for the hundreds still made their pre- sentments, as in Bracton's time, and if they presented, they likewise, no doubt, found indictments ; but these were con- fined to their different hundreds. The grand inquest probably was to inquire at large for every hundred in the county ; and the hundredors became jurors in inquests de bono et malo or ex officio, when called upon ; and if a commission of assize and nisi priiis were sitting, they filled the place of jurors occasionally in assizes, and of juries in civil causes. When the practice began of returning a grand inquest to inquire for the whole body of the county, the business of the hundred-inquest must naturally decline, till at length the whole burthen of presenting and finding indictments devolved upon the grand inquest, and the hundredors con- tinued to be summoned merely for trying issues." ^ Thus, it will be seen, the term grand jury was not originally used, as in later times, to distinguish the accusing body from the trial jury, but it denoted rather a jury taken from the county at large, as distinguished from a jury of the hundred. J 3 Reeves, 133. 2 Forsyth, Trial by Jury, 218. '3 Reeves, 133. § 469.] THE ESTABLISHED GRAND JURY. 563 CHAPTER XXIII. OF THE ESTABLISHED GRAND JURY AND ITS FUNCTIONS. SECTION. 469. Constitutional Right to Accusation by, in England. 470. Constitutional Provisions as to, in the United States. 471. The Gi'and Jury in what cases dispensed with. 472. Abolition of the Grand Jury. 473. Functions of the Grand Jury. 474. Duties of Individual Grand .Jurors in Connecticut and Indiana. 475. The Institution eulogized. 476. This Eulogy criticised. § 469. Constitutional Right to Accusation by, in Eng- land. — The institution shadowed forth in the previous chapter became early fixed in the common law, and contin- ues to-day, though held in varying degrees of estimation. The constitutional right of an Englishman to demand that he shall not be put to trial upon a criminal charge, unless presented by a grand jury regularly returned to inquire into offences, has undoubtedly saved from iniquitous prosecu- tion innocent persons, who otherwise would have fallen vic- tims to the subserviency of a crown officer in proceedings by information. The right is here stated in general terms. There can be no doubt that the indictment is " the most constitutional, regular, and safe, as well by far the most usual mode of proceeding upon criminal charges." ^ The exceptions to the rule would require an elaborate discussion, foreign to the scope of this book, and therefore this will not be attempted. However, the written constitutions of 1 1 Chittv Cr. L. 162. 564 THE ESTABLISHED GKAXD JUKY. [CII. XXIII. some of the States are quite explicit upon this point. A sketch of the })rovisions relating to the grand jury will follow. § 470. Constitutional Provisions as to, in tlie United States. — The tiftli amendment to the Constitution of the United States provides: "No person shall beheld to an- swer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger." And so the constitutions of certain of the States similarly provide.^ The constitutions of some of the States more specifically prescribe what offences must be prosecuted by way of in- dictment. These, with certain exceptions noted, are enu- merated as "any crime, the punishment of which may be death or imprisonment for life ; " '^ '• felony : " ^ " treason, felony, or other crime, not cognizable by a justice ; " * any higher criminal offence than one punishable by a fine of one hundred dollars or imprisonment for thirty days ; ^ all crim- inal offences, except those punishable by fine or imprison- ment otherwise than in In the penitentiary.'' In other States the right to demand an investigation and indictment by a grand jury is conceded generally upon " a criminal charge," ^ to the exclusion of proceedings by information.* 1 See Const. Me. 1820, Art. I., §7; Const. Nev. 1864, Art. 1., § 8; Const. X. Y. 1846, Art. I., §6; Const. Ohio, 1851, Art. I., § 10; Const. R. I. 1842, Art. If., § 7; Const. Fla. 1S68, Art. L, § 9. 2 Const. Conn. 1818, Art. t., § 0. See also G. S. Conn., 1875, p. 532, § 6; id., 536, § 3. 'Const. Mo. 1875, Art. II., §12; Const. Colo. 1876, Art. 11., § 8. * Const. W. Va. 1872, Art. II, § 4. « Const. Iowa 1857, Art. I., § 11 ; Const. S. C. 1868, Art. I., § 19. « Const. Neb. 1875, Art. I., § 10. ^ Const. Ark. 1874, Art. I., § 8; Const. 111. 1870, Art. II.. § 8; Const. Minn. 1857, Art. I., § 7; Const. N. J. 1877, Art. I., § 9; Amend. Const. N. C. 1876, Art. I., §12; Const. Tex. 1876, Art. I., §10; Const. Wis. 1848, Art. I., §8. 8 Const. Ala. 1875, Art. I., § 9; Const. Del. 1831, Art. I., § 8; Const. Ky. 1850, Art. Xll[., §13; Const. Miss. 1868, Art. I., §31; Const. Penn. 1873, Art. I., §10. § 473. ] FUNCTIONS OF THE GRAND JURY. §65 § 471. The Grand Jury in what Cases dispensed with. — The exceptions to the provisions noticed in the pre- vious section generallj^ include certain minor offences which are prosecuted before inferior trii)unals. These are stated to be " cases cognizable by justicrs of the peace ; " ^ " cases of petit larceny ; " ^ " cases of petit larceny and other in- ferior offences ; " ^ " cases of petit larceny, assault, assault and battery, affray, unlawful assemblies, vagrancy and other misdemeanors ; " ** "all offences less than felony, and in which the punishment does not exceed a fine of one hun- dred dollars, or imprisonment for thirty days ; " ^ " cases in which the punishment is by fine, or imprisonment other- wise than in the penitentiary." " § 472. Abolition of tlie Grand Jury. — Sweeping changes are proposed by the constitutions of several of the States. Thus, in Illinois, " the grand jury may be abolished by law in all cases." ^ In Colorado and Indiana, the General As- sembly may regulate, modifj^ or abolish the grand jury sys- tem.^ In Nebraska, "the legislature may, by law, provide for holding persons to answer for criminal offences on in- formation of a public prosecutor ; and may, by law, abolish, limit, change, amend, or otherwise regulate the grand jury system."^ In California and Louisiana, prosecutions may be by indictiuent or information.^*^ § 473. Functions of the Grand Jury. — While in Eng- land, it is believed, the duties of the grand jury are limited 1 Const. Minn. 1S57, Art. I., § 7; Const. X. J. 1844, Art. I., § 9; Const. W. Va. 1872, Art. II., § 4; Const. Wis. 1848, Art. I., § 8. « Const. Fla. 1866, Art. I., § 9. 3 Const. Ohio, 1851, Art. I., § 10. 4 Const. Ala. 1875, Art. I., § 9; Const. Miss. 1868, Art. I, § 31. s Const. Iowa, 1857. Art. I., § 11 ; Const. S. C. 1868, Art. I., § 19. 6 Const. Tex. 1876, Art. I., § 10; Const. Neb. 1875, Art. I., § 10; Const. 111. 1870, Art. II., § 8. 7 Const. 111. 1870, Art. II., § 8. « Const. Colo. 1876, Art. II., § 23 ; Const. Ind. 1851, Art. VII. § 17. 9 Const. Neb. 1875, Art. I., §10. ^0 Const. Cal. 1879, Art. I., § 8; Const. La. 1868, Tit. 1, Art. VI. In some States no grand jury is drawn, unless the judge makes a special order therefor. See Comp. L. Mieh. 1871, §7943; 2 Stats. Ind. 1876, p. 418, note, § 1. 566 THE ESTABLISHED GRAND JURY. [CH. XXllI, to inquiries into offenses against the law, in the several States their sphere of operations has been greatly enhirged. The statutes, it is true, quite generally declare it to be the duty of this body to inquire into all indictable offenses, committed or triable in the county,' as well as the case of every person imprisoned in the county jail and not indicted.^ Besides these ordinary duties, certain others of a special character are deputed to them. This body seems to have been regarded by legislatures as a convenient substitute for boards of commissioners in the performance of necessary investigations. Thus, it is the duty of the grand jury to inspect the county jail for the purpose of examining its security, sanitary condition and discipline;^ to inquire into the wilful and corrui)t misconduct in office of public officers of every description within the county.'* That 1 Code Ala. 187G, § 4767; Conip. L. Ariz. 1877, § 596; Miller's R. C. Iowa, 1880, § 4272; Bullitt's Ky. Cr. Code, § 102; 2 Stat, at Large, Miniu 1873 p. 1036, § 102; Xew York Code Crim. Proe. 1S81, § 252; Gen. Laws New^ Mexico, 1880. p. 369, § 1 ; R. S. Ohio, 1880, § 7194; Stat. Tena. 1871 , § 5078; Gen. Laws Greg. 1872, p. 346, § 43; Laws Utah, 1878, § 138; R. S. W. Va. 1879, eh. 53, § 7. •-i Comp. L. Ariz. 1877, § G04; Penal Code Cal. § 923; Ark. Dig. Stat. 1874, § 1754; Miller's R. C. Iowa 1880, § 4278; Bullitt's Ky. Cr. Code,. § 102; 2 Stat, at Large, Minn. 1873, p. 1036, § 112; Comp. L. Nev. 1873,. § 1835; Gen. Laws New Mexico, 1880, p. 370, § 10; Gen. Laws Greg. 1872,. p. 347, § 54; Xew York Code Crim. Proc. 1881, § 260. 3 Code Ala. 1876, § 4767, 4768; Comp. L. Ariz. 1877, § 604; Cal. Penal Code, § 923; Ark. Dig. Stat. 1874, §§ 17.54, 3572; Code Ga. 1873, § 504; R. S. 111. 1880, p. 639, § 26, et seq.; Laws Ind. 1879, p. 249, § 8; Miller's R. 0. Iowa, 1880, § 4278; Comp. L. Kan. 1879, § 2939; Bullitt's Ky. Cr. Code, § 102; R. S. La. 1876, § 2139; R. C. Md. 1878, p. 563, § 21; 2 Stat, at Large, Minn. 1873, p. 1036, § 112; R. C. Miss. 1880. § 1673; Comp. L. Neb. 1881, p. 327, § 9; id., p. 727, § 409; Comp. L. Nev. 1873, § 1835; Gen. Laws New Mexico, 1880, p. 370, § 10; New. York Code Crim. Proc. 1881, § 260; R. S. Ohio, 1880, § 7209; Stat. Tenn. 1871, § 5079; Gen. Laws Oreg. 1872, p. 347, § 52; Laws Utah, 1878, § 138; G. S. Vt. 1862, p. 702, § 3; 1 Stat. Ind. 1876, p. 601, § 2. * Comp. L. Ariz. 1877, § 604; Cal. Penal Code, § 7.58; Ark. Dig. Stat. 1874, § 1754: Miller's R. C. Iowa, 1880, § 4278; Bullitt's Ky. Cr. Code, § 102; 2 Stat, at Large, Minn. 1873, p. 1030. § 112; Comp. L. Nev. 1873, §1835; Gen. Laws New Mexico, 1880, p. 370, § 10; New York Code Crim. Proc. 1881, § 260; Stat. Tenn. 1871, § 3079; Laws Utah, 1878, § 138; Gen. Laws. Oreg. 1872, p. 347, § 52. § 474.] DUTIES OF INDIVIDUAL GRAND JURORS. 567 these duties may be performed without obstruction, the grand jury is generally granted free access to public prisons and to all public records of the county.^ They must also examine into the condition of the county treasury;"^ inspect the bonds of all county officers with re- gard to their correctness and sufficiency ;^ examine the tax collector's books, his reports and settlements ; * ascertain whether the several towns of the county have duly assessed, collected and expended the tax for the support of schools as required by law ; ^ make a careful examination of the condition of the a(;counts of the collecting officers of the county, dockets of justices of the peace and any other mat- ters relating to the general school fund.*^ In Pennsylvania they are charged with the duty of ap- proving of the erection of county buildings^ and of the in- corporation of boroughs.^ In Georgia they examine state- ments of the liabilities of the county and fix the amount of tax required to discharge such liabilities.^ They also act as a board of equalization for the correction of tax returns,'® and a board of revision for the correction of the list of voters.'^ § 474. Duties of Individual Grand Jurors in Connecti- cut and Vermont. — In these States the grand jurors iCtil. Penal Code, § 924:; Comp. Laws Ariz. §605; Ark. Dig. Stat. 1874, § 1754; Miller's R. C. Towa, 1880, § 4278; Bullitt's Ky. Cr. Code, § 102; 2 Stat, at Large, Minn. 1873, p. 103; R. C. Miss. 1880, § 1674; Comp. L. Nev. 1873, § 18.36; Gen. Laws N^ew Mexico, 1880, p. 370, § 10; New York Code Crim. Proc. 1881, § 261; Stat. Tenn. 1871, § 5080; Gen- Laws Oreg. 1872, p. 347, § 53; Laws Utah, 1878, § 139; Comp. L. Utah, 1876, p. 56, § 4. ^ Code Ala. 1876, §§ 4767, 4768; Code Ga. 1873, § 3920 et seq.; Stat. Tenn. 1871, § 5079. 3 Code Ala. 1876, §§ 4767, 4768; Stat. Tenn. 1871, § 5079. *R. C. Miss. 1880, § 1675. •■' G. S. Vt. 1862, p. 163, § 89. 8 Ark. Dig. Stat. 1874, § 1756. See also Laws Tenn. 1875, oh. 46, § 4. ' Bright. Purd. Pa. Dig., p. 296, § 15. *• Bright. Purd. Pa. Dig., p. 165, § 1 e« seq. '■> Code Ga. 1873, § 510. JO Code Ga. 1873, § 3919. 11 Code Ga. 1873, § 3924. 5(58 THE ESTABLISHED GRAND JURY. [CH. XXIII. possess important functions as peace officers. A limited number, in Connecticut, not less than two nor more than six,* are chosen annually by the town meeting whose duty it is to " diligently inquire after and make complaint of all crimes and misdemeanors that shall come to their knowl- edge, to the court having cognizance of the offense, or to some justice of the peace in the town where the offense is eommitted." - To this end they may require any person informing them of the commission of a crime, to make in- formation under oath, and may administer the witness oath to him." ^ In Connecticut the grand jurors in each town, or any three of them, may meet to advise concerning offenses committed therein, and when so met have all the powers of a justice of the peace, when holding court to commit for contempt.* In Vermont it is the duty of the grand juror to arrest without warrant persons guilty of having for sale intoxicat- ing liquors contrary to law,^ to seize the same;^ also to seize and deliver to the State's attorney counterfeit bank bills and implements for counterfeiting;^ to arrest Avithout warrant disturbers of relioious meetin2:s,^ as also intoxicated persons guilty of a l^reach of the peace.'' § 475. The Institution Euloj^ized. — It is frequently said that, in the struggles which at times arose in England be- tween the powers of the king and the rights of the subject, the grand jury often stood as a l)arrier against persecution in the king's name, until, at length, it came to be regarded as an » G. S. Conn. 1875, p. 241, § 1. See also G. S. Vt. I8G2. p. 107, § 13. 2 G. S. Conn. 1875, p. 531, § 2. See also G. S. Vt. 1862. p. 116, §§ 80. 87; id., p. 602. § 35; p. 616, § 13; p. 606, § 30. See State v. Davis. 52 Yt. 376; State v. Drew, 51 Vt. 56; Biackett v. Stat*-. 2 Tyler, 152; State V. Comstock, 27 Vt. 551; Smith v. Siatc, j9 Conn. 493. » G. S. Conn. 1875, p. 531, § 3. * G. S. Conn. 1875, p. 531, §§ 4, 5. 5 G. S. Vt. 1862, p. 596, § 25. « Ifnd. "> Id., p. 680, § 12. ^ Id., p. 587. § 6. ^ Id., p. 600, §33. § 47().] THIS EULOGY CRITICISED. 569 institution by which the subject wus rendered secure against -oppression from unfounded prosecutions of the crown. ^ § 476. This Euloj?y criticised. — But it is believed that the importance of this institution, as a bulwark for the pro- tection of the rights of the [)eople and thj nobility against regal oppression, has ]>een greatly rveresti united. It is true, indeed, that in the iniquitous proceedings against the Earl of Shaftesl)ury the grand jury merited all the eulogy which it has received for its firmness upon that occasion.^ But there are two potent reasons which go to show that such exhibitions of opposition to the will of the crown must have been rare : ^ 1. Because the selection of every panel of jurors lay wholly within the discretion of the sheriff, himself in a measure a creature of royal authority. 2. Because the crown was apt to deal severeh^ with jurors who opposed its Avill, Each of the foregoing reasons appears in the case of the Earl of Shaftesbury,^ and perhaps it is not too much to sa}^ that the books do not furnish another case like it ; so that the praise which was deserved by this particular grand jury has in later times been quite undeservedly accorded to the institution itself. 1 Mr. Justice Field in a chaige to the grand jury, reported in 2 Sa\vy. <>69. See also the charge of King. .].. ia Ee Lloyd and Carpenter, 5 Penn. L. J. o5, 62; 3 Clark (Penn.),lHS, 196; Whart. C. L. (3rd ed.) 220; AVhart. Cr. PI. & Pr. (Sth ed.) § 338, note. 2 8 How. St. 'J'r. 759. 3 Upon a reading of the whole case of the Earl of Shaftesbury, there •can be little doubt that the sheriff was a zealous aiJherent of that noble- man. The grand jury was probably packed by this officer in behalf of the accused, instead of the crown, as the case must ordinarily have been. The partiality t)f the sheriff for the earl did not escape the notice of the Lord Chief Justice and the Attorney General. Avho wrestled with the grand jury to yjrocure an indictinent. Note the following dialogue early in the proceedings: " Shekifk, P. — I desire the witne-ses may be kept out of the court. and called one by one. Loud CiiiiiF Justice ( Pember- ton). — It is a thing, certainly, that the King's counsel will not be afraid ■of doing; but sheriffs do not use to ny Statute in many States. — How- ever, with the recognition of the right of challenge of grand jurors, deficiencies must necessarily occur in the panel of regular grand jurors ; hence a frequent statutory provision authorizing the summoning of talesmen in the case of a deficiency of grand as well as petit jurors.^ 1 Chap. VII. » Post. § 507. 3 35 Hen. VIII. c. 6, § 6. 4 4 and 5 Phil. & Mary, c. 7. « State V. Syinonds, 36 Me. 128. 6 Dowling V. State, 5 Smed. & M. 683; Johnston v. State, 7 Smed. & M. 58. T Rev. Stat. U. S. § 808; Cal. Code Civ. Proc. § 227; R. S. 111. 1880, p. 049, § 9; Code Ala. 1876, § 4754; R. S. Wis. 1878, § 2546; Ark. Dig. Stat. 1874, § 3682; Rev. Code Del. 1874, p. 660, § 13; G. S. Ky. 1879, p. 571, § 1; R. S. So. Car. 1873, p. 740, § 3; Stat. Tenn. 1871, § 4016; 2 Stat. Ind. 1876, p. 375, § 15; Id., p. 418, § 10; Gen. Laws Colo. 1877, § 1477; Mil- ler's R. C. Iowa, 1880. § 4256; Comp. L. Kan. 1879, § 4566; R. C. Miss. 1880, §§ 1668, 1669; Comp. L. Neb. 1881, p. 618, § 664; G. S. N. H. 1867, ch. 242, § 2; Texas Code Cr. Proc. 1879, Art. 368; G. S. Vt. 18^2, p. 332, § 13; R. S. W. Va. 1879, ch. 53, § 4. In some States it is necessary that a venire facias should issue for the return of such jurors. 2 Stat, at Large Minn. 1873, p. 1034, § 85; R. S. Ohio, 1880, § 5171. In such a case the sheriff may summon the jurors before the receipt of the writ. (37) 578 TALESMEN AND SPECIAL GRAND JURORS. [CH. XXV. § 490. AVlicn Suininoiied. — Although there may be ii de- ficiency in the panel of grand jurors suninioiiod, neverthe- less, if enough appear to form a jury, the court is not compelled to summon jurors to supply the deficiency, not- ivithstanding the statute provides that ** if, for any reason, the panel of the grand jury shall not be full at the opening of such court, the judge shall direct the sheriff to summon from the body of the county a sufficient numl)er of })ersons having the qualifications of jurors, as provided by this act." ^ There being no necessity for the summoning of jurors, it is obvious the word " shall" may be read as " may," and the whole provision treated as directory only.^ Under the statute of Alabama, ^ fixing the number of the grand jury at not less than fifteen of the eighteen persons summoned, it is held that the court has no power, when fifteen of the number summoned are in attendance, to order a tales, in- creasing the number of the jury to eighteen. A judgment of conviction on such an indictment cannot be supported.* However, when twelve persons only attend upon the sum- mons, there is no error in adding six more to the jury by a tales, although three only were necessary to complete the jury according to law.^ After talesmen have been sum- moned to supply a deficiency caused by the non-appearance of certain grand jurors of the regular panel, the court may summon additional talesmen when the panel is again dimin- ished, by challenges, below the requisite number.* § 491. Whence Summoned. — In such cases the tales- men are frequently summoned from the bystanders,^ al- and afterwards return them tliereon. Newman v. State, 14 Wis. 393. In others the deficiency is supplied by jurors drawn forthwitli. G. S. Mass. 1860, eh. 171, § 4; New York Code Crim. Proc. 1881, § 230. 1 R. S. 111. 1877, ch. 78, § 9. - Beaslej' v. People, 89 111. 571. 3 Rev. Code Ala. 1876, § 4754. < Berry V. State, 63 Ala. 126; Preston v. State, 63 Ala. 127; Cross v. State, 63 Ala. 40. But see People v. Colby, 54 Cal. 37. This irref,nilarity cannot be set up in defence of a proceeding to enforce a forfeited recog- nizance. Peck V. State, 63 Ala. 201. 5 Yancy v. State, 63 Ala. 141. * State V. Garhart, 35 Iowa, 315. 7 Ark. Dig. Stat. 1874, § 3682; Rev. Code Del. 1874, p. 660. § 13; G. S. § 493.] SUMMONED IN DISCRETION OF THE SHERIFF. 579 though the statutes in some instances expressly forbid this, directing them to be taken from the body of the county or district.^ In Colorado they may be summoned from the bystanders, from the county at large, or the court may order them to be drawn from the jury box.^ § 492. To what Niiiuber. — Usually, only a sufficient number to complete the panel is summoned. In Alabama, twice as many as this number are brought in. From this body the necessary number is drawn by lot.^ This method of filling the deficiency has been held to be mandatory. An indictment was adjudged void where only a sufficient num- ber of talesmen to complete the panel were summoned.* § 493. Siiininoned in the Discretion of the Sheriff. — The court cannot properly interfere with the discretion of the sheriff in the summoning of talesmen as grand jurors. AVe have seen that this is the rule in the summoning of talesmen upon petit juries.^ Thus, where the statute pre- scribes only that grand jurors shall be freeholders and householders, the court cannot direct the sheriff to summon *'from among the registered voters of the county having the other qualifications required by. the statute, five persons, in order to complete said grand jury." " Registration as a voter," said Brickell, C. J., " is not a qualification of a juror, grand or petit ; and the courts are without power to prescribe it.® But where a statute provided that "in case of a deficiency of grand jurors in any court, writs of venire facias may be issued to the proper officer to return forth- Ky. 1879, p. 571, § 1; R. S. So. Car. 1873, p. 746, § 3; Stat. Tenn. 1871. § 4016; 2 Sta. Ind. 1876, p. 375, § 15; Id., p. 418, § 10. 1 Eev. Stat. U. S., § 808; Cal. Code Civ, Proc. § 227; E. S. 111. 1880, p. 649, § 9. Where the statute directs talesmen to be summoned from the qiialitied citizens of the county, the court cannot direct them to be taken from the bystanders in the court room. This error vitiates the proceedings of a grand jury so formed. Finley v. State, 61 Ala. 201 ; Couch V. State, 63 Ala. 163; Cross v. State, 63 Ala. 40, 47. 2 Gen. Laws Colo. 1877, § 1468, See also Brown v. Com., 76 Pa. St. 319. 3 Code Ala. 1876, § 4754. * Scott V. State, 63 Ala. 59. 5 Ante, § 94. ^ Scott V. State, 63 Ala. 59. Compare Cross v. State, 63 Ala. 40. 580 TALESMEN AND SPECIAL GRAND JURORS. [CH. XXV, with such further number of gnuid jurors as may be re- quired," it was held that the court might so far control the discretion of the sheriff, as to direct him to summon the necessary numl)er of jurors from a drawing made by the- proper authorities from the list of qualified jurors from the county.^ The court has no authority to direct the sheriff to summon talesmen from the bystanders, when the statute directs them to be taken from the (jualified citizens of the county;' nor to summon particular persons as talesmen,^ nor to supply a deficiency in the panel of grand jurors by transferring the requisite number from the petit to the grand jury panel,* Such irregularities vitiate the subsequent pro- ceedings of the grand jury so formed.' § 494, And upon Verbal Order of Court. — That pro- vision found in the statutes of most of the States authoriz- ing the court, upon the failure of the jurors to appear, or where they have been irregularly drawn or summoned, to issue a precept or venire to the sheriff, directing him to- summon persons from the body of the county to serve, etc.,. does not require the issue of such process when a portion only of the jurors fail to appear. In such a case a mere verbal order for the summoning of talesmen will be suffi- cient.^ § 495. Qualifications of Talesmen. — Talesmen for grand, like those summoned for petit jury service, should have all the (qualifications demanded of members of the reg- ular panel. ^ § 496. Maybe summoned upon Reassembling of Grand Jury. — Upon the reassembling of the grand jury for any purpose, talesmen may be summoned to supply any defi- ciency caused by the failure of former members of the 1 Dukes V. State, 14 Fla. 499. 2Finley V. State, Gl Ala, 201. ' Preuit V. People, 5 Neb, 377. * Burley v. State, 1 Xeb. 385. * But see Runnels v. State, 28 Ark, 121. « State V. Miller, 53 Iowa, 84, l84; State v. Pierce, 8 Iowa, 231; State V. Muuzeninaier, 24 Iowa, 87. ' State V. Ilerndon, 5 Blackf, 75, § 498.] UNDER STATUTES OF THE SEVERAL STATES. 581 body to appear,^ or in consequence of their being challenged off after appearance. ^ § 497. Special Grand Jtiry at Common Law. — At com- mon law there were two occasions upon which a new grand jury might be assembled where the original body had been discharged. 1. If, before the end of the sessions, some new felony or misdemeanor were committed, and the offender taken and brought into custody ; or if some former offender not yet indicted were brought in. 2. To inquire into the concealments of the former grand jury, namely, their failure to indict according to their oath.^ Some courts have considered that this common law power, by simple direction to the sheriff, to summon a second jury after the discharge of the first, yet re- mains, notwithstanding the statutes prescribing the vari- ous formalities for the selection and drawing of jurors.* This conclusion can be reached only by regarding the statutes regulating the selection and drawing of jurors as so purely directory that they may be disregarded. If they may be disregarded in the summoning of the second jury, so may they be in the summoning of the original panel ; from which it would follow that the selection of every panel of grand jurors would be relegated to the discretion of the sheriff as at common law. This cannot be the law. When an emergency arises, requiring the presence of a grand jury after the regular body has been discharged, in the ab- sence of statutory authority to summon a new panel, the €ourt should set aside the order of discharge and reas- semble the previous grand jury.^ § 498. Under the Statutes of the Several States. — (1.) In General. — The statutes of many of the States provide, in respect to grand, as in the case of petit jurors," that when, in 1 Watts V. Territory, 1 Wash. T. (N. S.) 409; Dowling v. State, 5 Smed. & M. 683; Dormaii v. State, 56 Ind. 454. 2 State V. Mooney, 10 Iowa, 506. ? 1 Chitty's Cr. L. 314. * Stone V. People, 3 111. 326; Mackey v. People, 2 Colo. 13. * See Newman v. State, 43 Tex. 525, and other authorities posf § 503. •5 Ante, § 81. 582 TALESMEN AND SPECIAL GRAND JUROKS. [CH. XXV, consequence of a neglect of duty by the officers designated by law to jirovide the court with juiors, or when, from any other cause, there are no jurors for the term, the court may direct the sheriff forthwith to summon a panel of qualified jurors to supply this default.^ In Kansas, the court orders a draw- ing of jurors to be made forthwith.^ Other statutes pro- vide that when an offence is committed during the session of the court, after the regular grand juiy has been discharged,^ or when, after the discharge of such jury, any emergency arises, the court may, in its discretion direct the sheriff to summon a new panel of grand jurors.* (2.) Default of Jurors unnecessary under California Practice. — Under the California practice, where an accused person reduces by his challenges the body of grand jurors summoned, to a number below that necessary to constitute a lawful jury, a special grand jury may be ordered to consider his case. This may consist of the residue of the original panel and talesmen to supply the deficiency,^ or an entirely new body may be summoned for this purpose. The accused cannot demand the former as a matter of riirht.^ iCode Ala. 1876, § 4761; Cal. Code Civ. Proc, § 226; Ark. Dig. Stats, 1874, § 3603: Gen. Laws Colo. 1S77, § 1470; Rev. Code Del. 1877, p. 660, § 13; 2 Stat, at Large, Minn. 1873, p. 1034, § 85; R. S. Mo. 1879, § 2785; R. C. Mii^s, 1880. § 1668; Gen. Stats. N. H. 1867, eh. 242, § 3; Stat. Tenn.. 1871, § 4917; Tex. Code Crim. Proc. 1879, Art. 367; Cyphers v. People, 31 N. Y. 373; State v. Holmes, 63 N. C. 18; State v. Mc(3artey,17 Minn. 76; People V. Kelly, 46 Cal. 355; People v. MeDonell, 47 Cal. 134; State v. Myers, 51 Ind. 145; Miers v. State, 56 End. 336; Willey v. State, 52 Ind. 246; State v. Harris, 73 Mo. 287. Conip. L. Kan. 1879, § 2985. 8 Code Ala. 1876, § 4757; Cal. Penal Code, § 907; Ark. Dig. Srat. 1874, § 1772; Comp. L. Kan. 1879. § 4581; R. S. Mo. 1879, § 1789; Comp. L. Xev. 1873, § 1821; Gen. Laws Oreg. 1872, p. 344, § 32; N^w York Code Crim. Proc. 1881, § 235, See State v. Barnes, 20 Mo. 41::. < Comp. L. Ariz. 1877, § 590; G. S. Ky. 1879, p. 570, § 4; R. S. Mo. 1879, §2788; Comp. L. Neb. 1881, p. 726, § 405; R. S. Oliio, 1880, § 7203; G. S. Vt. 1862, p. 331, § 4; R. S. III. 1880, p. 652, § 19. See- Empsou v. People, 78 111. 248. » People v. Manahan, 32 Cal. 68; People v. Colby, 54 Cal. 37. * People v. Manahan, supra. §501.] GRAND JURY FOR SPECIAL TERM. 583 (3.) Total Default construed as a Deficiencij. — Under a statute giving the court power to direct the sheriff, upon the non-attendance of the nunil)er of grand jurors required by law, " to summon forthwith a sufficient number of per- sons qualified to serve as grand jurors, to supply the defi- ciency,'' the court may direct this officer to summon an en- tire panel, if, hy the failure or neglect of the officers charged with the duty of drawing and returning juiors, none ap- pear.^ § 499. Formalities in Procuring'. — The statutes of Ne- vada provide that a grand jury drawn upon the order of the court after the commencement of the term, shall be selected with all the formalities required in procuring the original panel. "^ The practice is otherwise in California.^ Under the provisions of the Tennessee Code, authorizing the Cir- cuit Court to "designate other good and lawful men, and direct the sheriff to summon them," no venire \s necessary.* § 500. Court cannot capriciously create a Default of Jurors. — A judge cannot arbitrarily quash a venire regu- larly issued by the officers charged with this duty under the statute, and proceed to organize another jury under the powers conferred upon the court to do so in certain special cases. The proceedings of the body thus organized will be held void.^ And where a statute expressly prohibits the interposition of a challenge to the array, or a motion to quash the venire, it seems that the court cannot, of its own motion, quash a venire because of an irregularity in the draw- ing, and i)roceed to summon a panel of jurors by a special venire.^' § 501. Grand Jury for Special Term. — (I.) In Gen- eral. — In certain States a grand jury for a special term may 1 Stnviigliiui V. State, IG Ark. 37; Edmonds v. State, 34 Ark. 720. 2 State V. Lawry, 4 ^mv. 1(J1 ; State v. McXainara, 3 Nev. 70. 3 Peo|)le V. Rodrio-uez, 10 Cal. r>0; People v. Ciuutano, 15 Cal. 327; People V. Moice, 15 Cal. 329. * Boyd V. State, 6 Coldvv. 1. 5 O'Byrnes v. State, •")! Ala. 25; State v. Jacobs, G Tex. U',). See in this connection, ante, § 81, subsec. 2. « Baker v. Stale, 23 Miss. 243. 584 TALESMEN AND SPECIAL GRAND JURORS. [CH. XXV. be orgaiiizod whenever, in the opinion of the court, the public good requires it.^ In Arkansas this can be done only in a single eniergenoy, namely, if any person shall be con- fined in jail who may not have been indicted."^ In Illinois and Vermont this jury is organized, as a matter of course, whenever a special term of court is called.^ (2.) Power of Court to order. — A statute authorizing a court to hold special terms in ceilain cases, without any limitation placed upon its powers, impliedly confers author- ity upon the court to summon a grand jury for any such term/ But it has been lield that such a statute does not warrant the finding of an indictment at the special term against any other person than the one for whose trial the court was convened.^ The better opinion, however, would seem to be that whenever a court may be legally held, it possesses all its constitutional jurisdiction.'' (3.) Must be summoned according to Law. — Upon call- ing a special term of court, unless authorized by statute, the judge has no authority to direct the sheriff to summon a grand jury. That body must be selected in the manner prescribed by law, and the court should so direct. A statu- tory provision giving the court power to direct the sheriff to summon a jury when the proper ofiicers fail to provide the court w'ith a panel of jurors, or when the jurors fail to appear, cannot serve thispuri)ose. The application of such a provision must be confined to the exigency which it is plainly designed to relieve." § 5t)2. For adjourned Term. — An order for adjourn- ment of court does not jpev se effect a disorganization of the grand jury in service at the time of making such order ; 1 (Jode Ala. 1876, § 4758; Stat. Tenn. 1871, § 402;}; Kev. Stat*. W. Va. 1879, ch. 53, § 1. 2Ark. Dig. Stat. 1874, §11GG. 3 R. S. 111. 1880 p. 32!), § 51 ; G. S. Vt. 1862. p. 332, § 17. * People V. Carabiii, 14 Cal. 438. * Wilson V. State, 1 Blackf . 428. 6 Young V. State, 2 How. (Mi^;s.) S65; Ilaningtoii v. State. 36 Ahi. 236. ^ McElvoy V. State, 9 Neb. 157. ■§ 503.] EEASSEMBLING OF THE GRAND JURY. 585 therefore it may meet for further action at the adjourned term.^ A grand jury excused until a certain day is not dissolved by its failure to appear upon the day appointed.- § 503. ixeassenibliiig- the Grand Jiii*y. — (!•) In Gen- eral. — The statutes of a few States provide that when the ^rand jury is dismissed before the court adjourns, they may be summoned again, on any special occasion, at such time as the couit directs.^ But it is not clear that this may not be done without the aid of such a statute.* (2.) Within lohat Time. — In the opinion of the Su- preme Court of Iowa, where grand jurors are drawn for a year's service, a court of general and original jurisdiction in criminal matters has power to reassemble the grand jury during any term of the year after its discharge.^ In South ■Carolina, grand juries are drawn for service during the year and serve " until another grand jury is impanelled in their stead." ^ Therefore, although the year of service has expired, the grand jury may be reassembled, if the next •drawing is quashed for fraud or informality.^ In the ab- sence of such a provision, it seems that a panel of grand jurors, drawn for one year's service, cannot find an indict- ment after the expiration of this term.^ (3.) Who included in the Order for Reassembling. — Members of the panel from which the grand jury was formed, who did not appear and act with their fellows be- fore they were discharged, may be re-summoned, and, on 1 Harper v. State, 42 Ind. 405; State v. Pate, 67 Mo. 488: State v. Davis, 22 Minn. 423; Ulmer v. State, 14 Ind. 52. 2 Clem V. State, 33 Ind. 418. s R. S. Me. 1871, cli. 134, § 7; G. S. Mass. 1860, oil. 171, § 9; Comp. L. Midi. 1871, § 7889; R. S. Wis. 1878, § 2556. See also Gen. Laws Oreg. 1872, p. 344. § 32; 2 Stats. Ind. 1876, p. 375, § 15. See Long v. State, 46 Ind. 582. < Reg. V. Hollovvay, 9 Car. & P. 43; Wilson v. State. 32 Tex. 112; New- man v. State, 43 Tex. 525. 5 State V. Reid, 20 Iowa 413. 6 R. S. So. Car. 1873, p. 746, § 1. "< State V. McEvoy, 9 So. Car. 208. See also Com. v. Rich, 14 Gray, 335. 8 Barger v. State, 6 Blackf. 188. 586 TALEiSMEX AND SPECIAL GRAND JURORS. [CH. XXV. appearing and being sworn and impanelled, may act with them on this second convocation.^ Talesmen, selected " to serve only during the term at which they are summoned," * may be reassembled with the remainder of the body during the term for Avliich they were summoned to serve. ^ 1 Findley v. People, 1 Mich. 234. 2 Iowa Key. 1860, § 4G10. 3 State V. Keid, 20 Iowa, 413. CH. XXVI.] OBJECTIONS TO GRAND JURORS. 587 CHAPTER XXVI. OF OBJECTIONS TO GRAND JURORS. Article I. — By Challenge. II. — By Plea in Abatement. III.— By Motion to Quash. IV. — Objections when made. v.— Objections to the Panel. VI. — Objections to the Polls. ARTICLE I.— By Challenge. section. 507. No Case showing Exercise at Common Law. 508. Opinion of Serjeant Hawkins in Favor of the Right. 509. This View repudiated. 510. Plea in Abatement a Statutory Substitute for the Right. 511. Serjeant Hawkins' View adopted by certain American Courts. 512. AVitli Doubts as to Cliallenge to tlie Favor. -» 513. No Allowance of the Peremptory Challenge. 514. No Challenges permitted by certain Courts. 515. Wlio may Challenge. 516. Right of Challenge to tlie Array as guaranteed bj^ Statute. (1.) In General. (2.) Causes Personal to the Summoning Officer. (3.) Causes affecting the Regularity of the Drawing or Summoning. 517. The Right of Challenge to the Poll as guaranteed by Statute. 518. Challenges prohibited by Statute. .519. Statutory Causes of Challenge Exclusive. 520. The Statutes silent as to the Right. 521. Trial of Challenges — Grand Jurors not sworn on the Voir Dire 522. Effect of Allowance of Challenge to Panel or to Poll. 523. Denial of Statutory Right of Challenge vitiates Indictment. 588 OBJECTIONS TO GRAND JURORS. [CH. XXVI. § 507. No Case sliowina" Exercise at Coininon Law. — The reports show no iiuthontic instance of a challenge al- lowed to grand jurors, either individually or to the array, at common law.^ § 508. Opinion of Serjeant Hawkins in Favor of the Right. — It is true that a passage in Hawkins' Pleas of the Crown gives some support to the view that the right existed, although no instance of its exercise is there noted. " It seetns,^' says this learned writer, " that any one who is under a prosecution for any crime whatsoever, may, by the common law, before he is indicted, challenge any of the persons returned on the grand jury, as being outlawed for felony, etc., or villeins, or returned at the instance of the prosecutor, or not returned by the proper officer" ^ § 509. This View Repudiated. — The question was for the first time fully discussed in 1811, in the case of Sheri- dan, tried before the Court of King's Bench in Ireland,^ where, after exhaustive arguments, the court refused to allow the right of challenge, holding that it was justified neither by principle nor by authority.* Of the quotation from Hawkins, Mr. Justice Osborne observed: "It appears to me that the passages in Hawkins, in this particular, are not to be relied upon as authority at all ; because, when we ex- amine the several sections, or paragraphs in his book, we see painted, as it were, the countenance of a man in doubt. .That part of his book is a discussion upon a controverted or uncertain point, rather than the opinion of a juridical author." 5 § 510. Plea in Abatement a Statutory Substitute for the Right. — The potent reason for reaching this conclusion ' See, however, Lewis' Case, 7 How. St. Tr. 2t9. This report is very obscure, but it appears that certain grand jurors were set aside upon tlie objection of the crown officer tliat they were likely to befriend a person whose case was to be brought before them. 2 2 Hawk. P. C, 0. 25, § 16. To the same effect see Bacon's Abr. Juries, A. and 1 Chit. C. L. 309. But these opinions are merely echoes ■of that of Hawkins. 3 31 How. St. Tr. 543. * Mr. Justice Day dissented. 5 31 How. St. Tr. 567. See also Joy on Challenges, 122. § 512.] BY CHALLENGE. 589 is found in the fact that the hiw early provided another rem- edy for excepting to the competency and regularity of the summoning of grand jurors.^ Concurrent remedies by chal- lenge and plea the law did not tolerate, for the obvious reason that otherwise those who were aware that their con- duct was to be the subject of investigation by the grand jury would enjoy an advantage over others indicted without such previous knowledge, § 511. Serjeant Hawkins' View Adopted by certain Aniei'ican Courts. — However, it is not uncommon to meet with decisions of our courts holding that the right of chal- lenge, both to individual grand jurors'^ and to the array, ^ existed at common law. § 512. With Doubts as to Challenge to the Favor. — This right was claimed and exercised without opposition in the proceedings against Aaron Burr,* which case is probably the first instance of the kind in this country. Subsequently it was conceded by other courts,^ but this view is not enter- tained by all. Thus, Hovey, J., delivering the opinion of the Supreme Court of Connecticut in a late case, said r " The statutes contain no provision for challenging jurors ; and we believe that no grand juror was ever challenged for favor in the courts of this State."*' In a case tried by a distinguished Federal judge, the court was of opinion that the disqualification for which a challenge would be allowed ^Post,^ 528, 2 United States v. Williams, 1 Dill. 485, 492; Vattier v. State, 4 Blackf. 73; McQiiilleiiv. State, 8 Sra. & M. 597; Kitrol v. State, 9 Fla. 13; Thayer V. People. 2 Doug. 417; Joues v. State, 2 Blackf. 475; Musick v. People, 40 111. 268. 3 United States v Blodgett, 35 Ga. 340; State v. McNamarra, 3 Nev, 70; Stone v. People, 3 111. 326; Cody v. State, 3 How. (Miss.) 27; Musick V. People, 40 111. 268. In People v. Jewett, 3 Wend. 314, a challenge to the array was taken, discussed and not allowed upon the grounds al- leged, without argument as to the right to interpose it. * Burr's Trial, pp. 38, 44. ^ Com. V. Clark, 2 Bro. (Penn.) 323; People v. Jewett, 3 Wend. 314. 323; State v. Rickey, 10 N. J. L. 83, 86; United States v. White, 5 Cranch C. C. 457, 459. These last three authorities are obiter dicta only. ^ State V. Hamlin, 47 Conn. 95. 590 OB.TECTIOXS TO GRAND JURORS. [CH. XXVI. must 1)C such as is prououaced by statute, and which abso- lutely disqualifies, such as alienage, non-residence, want of freehold qualification, where that is required, etc., and which would constitute cause of principal challenge as dis- tinguished from challenge to the favor, arising from bias, interest and the like.^ § 513. No Allowance of the Peremptory Clialleiige. — If it is to be conceded that the right of challenging grand jurors existed at common law, it would seem clear that consistency requires that this right should embrace all kinds of challenge, namely: to the array, for cause, and l^eremptory. Perhaps the best evidence that a challenge of any sort to grand jurors is anomalous, is found in the fact that no court was ever sufficiently bold to allow peremptory challenges to grand jurors. The early Indiana court, which conceded the right of challenge for cause, denied that of peremptory challenge.^ § 514. Xo Challenges permitted by certain Courts. — The precedent established in the case of Aaron Burr was early regarded by the Massachusetts court as solitary. On one occasion it was suggested by an attorney as amicus curiae, that the case of one charged with murder was about to be taken under consideration by the grand jury, upon which was a neighbor of the accused, and one who had originated the complaint against him, and had most probably formed an opinion of his guilt. The court de- clined to entertain the objection, saying that such a prac- tice would greatly impede public justice. At the same time it was said that if any individual juror should be sensible of such a bias upon his mind that he could not give an impartial opinion, " such juror would feel it his duty, as it would be his right, to withdraw himself from the chamber while the discussion continued." ^ Later, how- ^ United States v. William>. 1 Dill. 485, 492. Contra, United States v. Reed, 2 Blatch. 435. 2 .Jones V. State, 2 B'ackf . 475. a Tucker's Case, S Mass. 286. § 514.] BY CHALLENGE. 591 ever, the same court considered that " objections to the personal qualifications of the jurors, or to the legality of the returns, are to be made before the indictment is found ; and may be received from any person, who is under a pre- sentment for any crime whatsoever, or from any person present, Avho ma}'- make the suggestion as amicus curice.'' ^ But this concession does not seem to be regarded as in- cludino- the rio;ht of challenofe.^ The practice of challenging either the array or the polls of the grand jury has never obtained in North Carolina. Objections which are usually made under these forms of challenge are in that State made by plea in abatement upon arraignment.^ In New Jersey the practice was early disap- proved. "If the mode by challenge is to be adopted," said KiNSEY, C. J., *' it must necessarily result that, nine times out of ten, the benefit of a statute, which provides a security for our lives, fortunes, and reputation, by requir- ing that an indictment shall always be presented by jurors, respectable for their character and standing in society, shall be absolutely lost to the accused, without any actual neglect or fault of his own. It frequently occurs, that the accused is altogether ignorant of the complaint when the grand jury is called : if he should chance to be present, he cannot be assured that the prosecution will proceed ; and, at any rate, it would be most extraordinary for him to make his challenges when there is no certainty that his case will come under their cognizance. In most cases of a capital nature, the person charged with the offense is ac- tually in confinement, and has not the physical capacity to make his challenges : he is never brought up and con- fronted with the grand jurors ; nor is he served with a list of the persons who are to compose it. Thus circumstanced, it would be worse than a form — it would be a mockery of law and justice, to compel him^to^ avail himself of excep- 1 Com. V. Smith, 9 Mass. 107. ^ Turns v. Com., 6 Mete. 224, 234. 3 State V. Grimce, 74 N. C. 316. 592 OBJECTIONS TO GRAND JURORS. [CH. XXVI. tions of this kind, or to be considered as forever waiving every error in the proceedings of the sheriff," ' § 515. Who may Cliallong^o. — Those courts which con- cede the right of challenge to grand jurors, for the most part, limit the exercise of the right to persons under pros- ecution for crime ; in other words, those held to answer, or who have entered into a recognizance to appear for this, purpose.'^ However, it has been held that it is not essential to the right of challenge that the challenger should be in l)rison, or out upon bail, even ; it is enough, if one has been warned by the officer of the government that he intends to prosecute him before a particular term of court, at which time the person affected appears and demands the right of making his challenges.^ § 516. The Right of Challenge to Array as giiaraiiteed by Statute. — (1.) In General. — The uncertainty in which the right of challenge to grand jurors is involved, is dispelled in many States b}' statutes particularly defining for what causes challenges may be taken. Thus, the laws of some of the States and Territories provide that the array or panel may be challenged.* Generally, this right is limited to per- sons held or bound to answer ; but the Texas Code of Crim- inal Procedure secures the right to " any person." '' The statutes of California, Nevada, and the territory of Utah concede this right to the government, as well as the ac- cused.^ In Colorado there seems to be the same right of 1 State V. Rockiifellow. 6 N. J. L. 332, 340. 2 Hudson V. State, 1 Blackf. 317; Ross v. State, 1 Blackf. 300; Mer- shon V. State, 51 Intl. 14: Com. v. Clark, 2 Bro. (Pa.) 323: Tliayer v. People, 2 Doug. 417. 3 United States v. Blodgett, 35 Ga.33G. 4Comp. Laws Ariz. 1877, § 574; Cal. Penal Code, § 894; Gen. Laws- Colo. 1877, § 474; Miller's K. C. Iowa, 1880, § 4258; 2 Stat, at Large, Minn. 187, p. 104, § 88; Gen. Laws New Mexico, 1880. p. 3G9, § 3; Comp. L. Nev. 1873, § 1806; R. S. Ohio. 1880, § 5175; Texas Code Cr. Proc. 1S79. Art. 376: Laws Utah, 1878, § 118; 2 Stat. Ind. 1876, p. 419. §11- « Art. 376. 6 Cal. Penal Code, § 894; Conip. L. Xev. 1873, § ISOG; Laws Utah (Code Cr. Proc). 1878. § 118. ^516.] BY CHALLENGE. 593 -challenge to the panel and polls of grand juries as in the case of petit juries.^ (2.) Causes Personal to the Summoning Officer. — The statutes before noticed provide that the panel may be chal- lenged, if the officer who summoned it is the actual prosecutor or the party aggrieved ; ^ if the summoning officer be of ac- tual affinity to the prosecutor or to the defendant ; ^ if he acts corruptly, and with a view to the favor or injury of the prosecutor or defendant in selecting and summoning ; ^ if he return any person upon the panel at the request of the prosecutor or defendant.^ (3.) Causes affecting the Regularity of the Drawing or Summoning. — Of this character are the following : That •notice of the drawing of the grand jury was not given ; ^ that the drawing was not had a specified number of days before the holding of the court ; ^ that the drawing was not had in the presence of the officers designated by law f that the requisite number of ballots was not drawn from the jury box of the county ; ^ that the jurors were not ap- pointed, drawn or summoned as prescribed by lavv ; ^^ that the persons summoned as grand jurors were not, in fact, the persons selected by the jury commissioners to be sum- moned." The New York Code of Criminal Procedure of 1881, abolishes the challenge to the array of the grand jury, but the same section provides that the court may, in its dis- cretion, at any time discharge the panel, or order another J Gen. Laws Colo. 1877, § 1474. 2 Oomp. Laws Ariz. 1877, § 575. 3 Comp. Laws Ariz. 1877, § 575. * Comp. Laws Ariz. 1877, § 575; Texas Code Cr. Proc. 1879, Art. 380. * Comp. Laws Ariz. 1877, § 575. « Cal. Penal Code, § 895; Comp. Laws Nev. 1873, § 180; Laws Utah, 1878 (Code Cr. Proc), §119, ' 2 Stat, at Large Minn. 1873, p. 1034, § 89. » Cal. Penal Code, § 895; 2 Stat, at Large Minn. 1873, § 1807: Comp. L. Nev. 1873, § 1807; Laws Utah, 1878, § 119. 9 Cal. Penal Code, 895; «2 Stat, at Large, Minn. 1873, p. 1034, § 89; Comp. L. Nev. 1873, § 1807; Laws Utah, 1878, § 119. ^0 Miller's R. C. Iowa, 1880, § 4260; R. S. Ohio, 1880, § 5175. ^1 Texas Code Cr, Proc, 1879, Art. 380. (38) 594 OBJECTIONS TO GRAND JURORS. [CH. XXVI. to be summoned for one or more of the tirst four causes- which we have just mentioned.^ § 517. The Right of Chtillonge to the Poll as guaran- teed by Statute. — The statutes of some States also grant to one held or bound to answer the right to challenge in- dividual grand jurors. In several States the prosecution has the same right.' This is allowed upon the following grounds : that the juror is a minor i'"^ that he is insane ;* that he is an alien ;* that he is not a qualified juror as required by law ;^ that he is the prosecutor against the defendant ; ' that he is a witness on the part of the prosecution, and has been summoned or bound in a recognizance as such ; ^ that i Section 238. 2 See Miller's R. C. Iowa, 1880, § 4258; Cal. Penal Code § 894; Comp.. L. Nev. 1873, § 1806; Texas Code Cr. Proe. 1879, Art. 376; Laws Utah,. 1878, (Code Cr. Proc.) § 118. 8 Comp. L. Ariz. 1877, § 576; Cal. Penal Code, § 896; Miller's R. C. Iowa, 1880, § 4261; 2 Stat, at Laroje, Minn. 1873, p. 1034, § 90; Comp. L. Nev. 1873, § 1808; Gen. Laws New Mexico, 1880, p. 367, § 5; New York Code Crim. Proc. 1881, § 239. * Comp. L. Ariz. 1877, § 576; Cal. Penal Code, § 896; Miller's R. C. Iowa, 1880, § 4261; 2 Stat, at Large, Minn. 1873, p. 1034, § 90; Comp. L. Nev. 1873, § 1808; Gen. Laws New Mexico, 1880, p. 367, § 5; New York Code Crim. Proc. 1881. § 239. 5 Comp. L. Ariz. 1877, § 576; Cal. Penal Code, § 896; 2 Minn. Stat, at Large, 1873, p. 1034, § 90; Comp. L. Nev. 1873. § 1808; Gen. Laws New Mexico, 1880, p. 367, § 5; New York Code Crim. Proc. 1881, § 239. 6 R. S. Mo. 1879, § 2787; Rev. N. J. 1877, p. 532, § 6; Texas Code Cr. Proc. 1879, Art. 381; Laws Utah, 1878, § 120. 7 Comp. L. Ariz. 1877, § 576; Cal. Penal Code, § 896; Ark. Dig. Stat. 1874, § 1773; Miller's R. C. Iowa, 1880, § 4261; Comp. L. Kan. 1879, §4569; Comp. L. Mich. 1871, § 7885; 2 Stat, at Large, Minn. 1873, p. 1034, § 90; R. S. Mo. 1879, § 1772; Comp. L. Nev. 1873, § 1808; Gen. Laws New Mexico, 1880, -p. 367, § 5; Texas Code Cr. Proc. 1879, Art. 381; Laws Utah, 1878, § 120; R. S. Wis. 1878, § 2548; New York Code Crim. Proc. 1881, § 239. See also Code Ala. 1876, § 4771; Stat. Tenn. 1871, § 5086. These statutes do not impair the right of the grand juiy to make a presentment. The statutes of tlie States and Territories here noticed quite generallj^ provide that a grand juror shall not be questioned for his acts as such, '* except for a perjury, of which he may be guilty in making an accusation or giving testimony to his fellow jurors." 8 Comp. L. Ariz. 1877, § 576; Cal. Penal Code § 896; Ark. Dig. Stat. 1874, § 1773; Comp. L. Kan. 1879, § 4569; 2 Stat, at Large, Minn. 1873^ § 518.] BY CHALLENGE. 595 he is related by consanguinity or affinity to some person held to bail or in custody upon a criminal accusation ; ^ that he has served as a grand or petit juror within two years next preceding ; ^ that he has formed or expressed a de- cided opinion that the defendant is guilty of the offense for which he is held to answer.^ The foregoing will be recognized as principal causes of challenge. The statutes of New York, California, Minne- sota and New Mexico further provide that a challenge may be taken to the individual grand juror for favor. The ground of this challeno;e is stated to be "that a state of mind exists on his part in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that he cannot act impartially and without preju- dice to the substantial rights of the party challenging." * § 518. Challenges prohibited hy Statvite. — In some of the States, to remove all doubt as to the intention of the legislature in conferring the right of challenge in certain cases, it is expressly disallowed in others. Thus in New York,^ Michigan,*' Missouri,^ Kansas,^ and Oregon,^ no chal- lenge to the array of grand jurors, for any cause, can be p. 1034, § 90; R. S. Mo. 1879, § 1772; Gen. Laws New Mexico, 1880, p. 367, § 5; Laws Utah, 1878, § 120; R. S. Wis. 1878, § 2548; New York Code Crim. Proc. 1881, § 239. 1 Texas Code Cr. Proc. 1879, Art. 381. See also. Code Ala. 1876. § 4771 ; Stat. Teuii. 1871, § 5086. 2 Laws Utah, 1878, (Code Cr. Proc.) § 120. 3 Comp. L. Ariz. 1877, § 576; Cal. Penal Code, § 896; Miller's R. C. Iowa, 1880, § 4261 ; Laws Utah, 1878, § 120. <]Srew York Code Crim. Proc. 1881. § 239; Cal. Penal Code, § 896; 2 Stat, at Large, Minn. 1873. p. 1035, § 90; Gen. Laws New Mexico, 1880, p. 367, § 5. 5 2 Rev. Stat. N. Y. §§ 27 and 28; New York Code Crim. Proc. 1881, § 238. See Carpenter v. People, 64 N. Y. 483. « Comp. L. Mich. 1871, § 7885. ^ Rev. Stat. Mo. 1835, p. 479, § 3; Rev. Stat. Mo. 1845, p. 863, § 3; Rev. Stat. Mo. 1879, § 1773. See State v. Bleekley, 18 Mo. 428; State v. Welch, 33 Mo. 33. « Comp. L. Kan. 1879, § 4570. 9 Gen. Laws. Oreg. 1872, p. 345, § 35; State v. Fitzhugh, 2 Oreg. 227. 596 OBJECTIONS TO GRAND JURORS. [cii. XXVI. interposed, cither by the State or by one held to answer.' However, it by no means follows that the accused has no remedy, in a case where he has been prejudiced by improper conduct on the part of the officers whose duty it is to make the general list of jurors, and to draw and summon the panel. *'If there has been any improper conduct," said Nelson, ,]., "on the part of those officers in performing that ser- vice, or if any fraud has been committed through their in- strumentality, in the drawing, summoning or organization of the grand jury, of course, the accused who may be prejudiced thereby has his remedy, by motion to the court for relief in consequence of such irregularity or fraud ; because the selecting, summoning and returning of grand jurors are proceedings which are always under the general supervision and control of the court ; and the court will guard them, and will see to it that no one shall be preju- diced thereby. The court has general power to preserve the pure administration of justice, and its sound discretion will always be exercised freely for the purpose of securing that end." 2 In Oregon, no challenge can be made to the individual grand juror. However, before accepting a grand juror, it is the duty of the court to satisf}' itself that he is duly qualified to act.^ This duty is enjoined in other States.* § 519. Statutory Causes of Cliallenge Exclusive. — In view of the fact that the right of challenge either to the array or to the poll did not exist at common law on the part of the prosecution or the accused, it plainly follows ^ An act of the legislature is constitutional which provides that per- sons sunuTioned as grand jurors, who are of the class of citizens qualified by law to serve as such, may constitute a lawful grand jury, ■'notwith- standing any irregularity in any writ of t-enire facias, or in the drawing, summoning, returning and impanelling of said grand jurors.*' Com. v. Brown, 121 Mass. 69. 2 United States v. Reed, 2 BUitch. •llJo, 449; United States v. Tallman, 30 Blatch. 21. 3 Gen. Laws Oreg. 1872, §§ 34 and 35. * R. C. Miss. 1880, § 16G7; Code Ala. 1876, § 4760; Tex. Code Cr. Troc. 1879, Art. .^72. § 521.] 15 Y CHALLENGE. 5 J) 7 that challenges can be taken only for causes specified in the statutes^ and b}^ the persons therein named,-' and the stat- utes of some States expressly so provide.'^ Grave objections may arise to the constitution of the panel from other causes. These may be suggested to the court upon a motion to strike an indictment found by this body from the files. In such a case the court should keep clearly in view the distinction l)etween the acts of a body having no seml)lancc of authority to act at all, and of a body which, though not strictly regular in its organization, is, nevertheless, acting under color of authority. It is not every slight irregularity which may occur in the formation of a grand jury which would justify the court in striking the indictment from the files as a nullity ; otherwise there would be no need of a challenge to the panel, since all ob- jections to the grand jury could be taken on a motion to strike the indictment from the files.* § 520. The Statutes silent as to the Right. — Where the statutes confer no rights in this respect, it would seem clear that none exist ; and such is believed to be the case in Alabama, Connecticut, Delaware, Florida, Georgia, Illinois, Kentuck}^ Louisiana, Maine, Maryland, Massachusetts, Nebraska, New Hampshire, North Carolina, Pennsylvania, Rhode Island, South Carolina and Tennessee. § 521. Trial of Challcitiges — Grand Jm-ors not Sworn on the Voir Dire. — Under some of the foregoing statutes, all challenges, both to the panel and to the polls, are tried by the court.'* In others, only certain specified challenges are to ' State V. Felti-r, i.") lowii, (37; State v. Millaiii, 3 Xev. 409. 2 State V. Davis, 22 ]\[iiiii. 423; Keitler v. State, 4 G. Greene, 291. 3 R. S. Mo. 1879, § 1773; Conip. L. Xev. 1873, § 1814; Kev. N. J. 1877, p. 532, § G; Texas Code Cr. Proc. 1879, Arts. 380,381. See Keed v. State, 1 Tex. Apj). 1; (ireeii v. State, 1 Tex. App. 82; Thomason v. State, 2 Tex. App. :);")(); Stale v. Vahl, 20 Tex. 779; State v. Welch, 33 Mo. 33. * People v. Southwell, 4(j Cal. 141. 5 Conip. L. Ariz. 1877, § 577; Cal. Penal Code, § 898; Miller's R. C. Iowa, 1880. § 4202; Texas Code Cr. Proc. 1879. Art. 382; Xcw York Code Crim. Proe. is;81, § 240. 5*J{S OIUECTIONS TO (iKAM) JLKOKS. [CH. XXVI. be tried l)y the court. ^ In Colorado tlie challenges may be tried by the court, or by triors appointed as the court shall direct.' In view of the fact that grand jurors are not sworn in any particular case, but to investigate offences in general, it is clear that, upon the impanelling of the grand jury, the court ought not to grant the a[)plication of any person whose conduct is to be a subject of investigation by the grand jury, that any one or more of the grand jurors in at- tendance be sworn upon the voir dire with a view to ex- amining him for causes of challenge. Such an apj)lication, if granted to one person, must be granted to all. The re- sult would be that the process of imi)anelling would be al- most interminable. In such a case the Supreme Court of Pennsylvania said: "A due regard for })ublic policy, as well as for the interests of justice and the nature of the inquiry, forbids that grand jurors should be polled and tried in this manner. If the prisoner have evidence to purge the panel, let him produce it."^ § 522. Effect of AlloAvaiue of Challenge to Panel or to Poll. — The statutes in the previous sections generally pro- vide that the allowance of a challenge to the panel will pro- hibit the grand jury from incjuiring into an}' charge against the person by whom it is interposed. If the jury proceed with the inquiry and lind an indictment, it must be set aside If a challenge to an individual i^rand juror be al- lowed, he cannot be permitted to be present at, or take any part in the consideration of the charge against the chal- lenger. A violation of this piovision will subject the juror to punishment for contempt. § 523. Denial of Statutory Kiglit of Challenge vitiates Indictment. — The right of challenging either the panel or the polls of a grand jury, when guaranteed by statute, is a 12 Stat, at Large. Minn. 1873. p. l(«r), Jj 91; Comii. I>. Niv. 1S7:5. §1809; Gen. I>a\vs Now Mexico. ISSO. p. :?(;S. )j C: Laws L'lati. 187S, § 12L 2 Geu. Laws Colo. 1877. § 1474. 3 Brown v. Com.. 7(> Pa. St. ;511), 'XM. § 527.] BY PLEA IN ABATEMENT. 599 substantial rijiht of which the accused cannot be deprived, without vitiatinii" the indictment.^ ARTICLE I[. BY PLEA IN ABATEMENT. SECTION. 527. Necessity for at Common Law. 528. This Want suppplied by Stat. ll^Hen. IV., c. 9. 529. Whetlier this Statute is in Affirmance only of the Common Law. -530. Held to be so by some American Courts. 531. But denied by others. (L) In Massachusetts. (2.) In^IewYork. (3.) In North Carolina. (4.) In Alabama. -532. Confusion the Con.- jquence. 533. What may be shown by Plea in Abatement. 534. The Plea in Abatement not favored. 535. Therefore it must be strictly pleaded. -536. Its Functions as a Substitute for Challenge to the Array impaired or abolished by Statute. (1.) In Mississippi. (2.) In Louisiana. (3.) In Indiann and Kansas. (4.) In Texas. (5.) In Alabama. (6.) In Missouri. T)37. No longer a Substitute for Challenges to the Polls. 538. Objections suggested by Amicus Curiae. § 527. Necessity for this Form of Objection. — When it IS considered that jurors, l)oth grand and petit, were sum- moned at common hiw in tlie discretion of the sheriff,^ and further, that the right of challenging the array or the polls ■of a grand jury did not exist at common law,^ it becomes 1 People V.Romero, 18 Cal. 89; Territory v. Ingersoll, 3 Mont. 454; People v. Winteimute, 1 Dak. Terr. 63. 2 Ante, §§ 44, 483. 3 Atite, § 507 et scq. GOO OBJECTIONS TO GRAND JURORS. [CH. XXVI.. very plain that the .sheriff possessed, to an alarming degree,, the means of procuring the indictment of any person ob- noxious to himself, his party, or to the crown, by sum- moning to any session of the court serviceable person.s as grand jurors. The sheriff seems not to have been above frequent temptation in this connection.^ Or, if this officer performed his duty impartially, a convenient means of fal- sifying his return was found in the corruptibility of depu- ties or clerks. Thus, Lord Coke tells us how that "the sheriff returned a grand inquest, of which one Robert Scarlet, in the county of Suffolk, had requested to be one, but the sheriff, knowing the malice of the man, refused to return him ; but notwithstanding, by confederacy with the clerk who read the panel, he was sworn of the grand in- quest, and was not returned by the sheriff ; and being amongst them of the grand incjuest, and as one of them, of his malice, and upon his own knowledge, as he pre- tended (to whom the rest gave credit), indicted seven- teen honest men, upon divers penal laws." ^ The fore- going is an instance of outrage which must have been of frequent occurrence under the early system of return- ing jurors. To correct and punish these enormities the common law had not, it seems, adequate means. But they were furnished in generous measure by a statute which we will now consider. § 528. TIii.s Want supplied by Stat. 11 Hen. IV., c. 9. — This celebrated statute not only relieved the condition of those suffering at the time of its passage from unjust in- dictment, but also provided against the recurrence of simihir mischief. The brevity and importance of this statute seem to justify its incorporation in these pages. " Because that now of late inquests were taken at Westminster of persons named to the justices, without due return of the sheriif , of which persons some were outlawed before the said justices of record, and some fled to sanctuary for treason, and some 1 See the preamble of Stat. 11 Hen. IV., c. 9 and note in the next section. 2 12 Coke Kep. 98. See the sanie case discussed in 3 Co. Inst. 33. § 528.] BY PLEA IN ABATEMENT. ()01 for felony, there to have refuge, by whom as well many of- fenders were indicted, as other lawful liege people of our lord the king, not guilty, by conspiracy, abettment, and false imagination of other persons, for their special advan- tage and singular lucre, against the course of the common law used and accustomed before this time; our said lord, the king, for the greater ease and quietness of his people,, will and granteth, that the same indictment so made, witli all the dependence thereof, be revoked, ad nulled, void, and holden for none forever ; and that from henceforth no in- dictment be made by any such persons but by inquest of the king's lawful liege people, in the. manner as was used in the time of his noble progenitors, returned by the sheriffs or bailiffs of franchises, without any denomination to the sheriffs or bailiffs of franchises be- fore made, by any person of the names which by him should be impanelled, except it be by the officers of the said sheriffs or bailiffs of franchises, sworn and known, to make the same, and other officers to whom it pertaineth to make the same, according to the law of England. And if any indictment be made hereafter in any point to the con- trary, that the same indictment be also void, revoked and forever holden for none." ^ The statute was in a marked deo;ree effective in correct- ing the evils noticed in the previous section. Thus, in the very case of the knavish Scarlet, the justices, suspecting something wrong in the constitution of the grand jury, from the fact that so many reputable men were indicted, an in- 1 This statute was doubtless a substantial check upon the slieriff, but did not wholly answer the pui'pose of preventing lawful subjects from being put to answer upon indictments fraudulently procured. Lord Coke laments that-' notwithstanding this good law, through the subtelty and untrue demeanor of sheriffs, and their ministers, great extortions and oppressions be and have been committed"' by the return of grand jurors '• wilfully forsworn and perjured by the sinister labor of the said sheriffs and their ministers."' The policy of this statute was therefore extended by Stat. 3 Hen. Vni.,c. 12, providing for the reformation of the- panel, by the justices of goal delivery or of the peace, taking out the names of improper persons, and putting in others according to their dis- cretion. See 3 Co. Inst. 33; 2 Hawk. P. C, c. 25, § 32. ^>()2 OBJECTIONS TO GRAND JURORS. [CH. XXVI. vcstigation was followed by a quashing of the indictments and the punishment of the interloper. § 529. Whether this Statute is in Afllrinauce only of tlie Conunon l^aw. — Some confusion seems to exist upon this point, not onl}' in the minds of judges, but also in the minds of eminent writers upon the common law. Mr. CiiiTTY observes : " This necessity for the grand inquest to consist of men free from all objection existed at common law, and was affirmed by the statute 11 Hen. IV"., c. 9, which en- acts that any indictment taken by a jury, one of whom is uii- (jualified, shall be altogc^ther void and of no effect whatso- ever." ^ This statement is so worded as to leave the reader to infer, according to his choice, whether a part or the whole of the statute is in affirmance of the common law. Lord Coke is more explicit upon this point. He, after making a searching analysis of every word of the statute, •concludes that only a portion of the statute is in affirmance 4md declaratory of the conmion law, namel}^ that which provides : 1. That the grand jurors must be the king's law- ful liege people. 2. Returned by sheriffs or bailiffs of franchises, and other officers to whom it pertaineth. -3. Without any denomination to the sheriffs, bailiffs or other officers.- That i)art of the statute which declares that " if any indictment be made hereafter, in any point to the con- trary, that the same indictment be void, revoked and holden for none" — he expi'cssly states to be " introductory of a new law." ^ And this is reiterated as the decision of the justices in Scarlet's case.* Prior to this statute the Year Books show no case of an indictment avoided for any of the causes mentioned in the statute. The earliest case'^ seems to have been decided contemporaneously with the passitge of the statute; and, al- .t hough no mention of the statute is found in the brief and ' 1 Chitty's Cr. I.. 309. '^:J Co. Inst. 32. •" Ibid. •• 12 Coke Rep. 98. 99. ■■• Year Book. 11 Henry IV.. IIil;iry Term. fol. 41. § 530.] 15Y PLEA IN ABATEMENT. (i03 crude report of the case, Lord Coke regards the plea as decided upon its authority.^ Serjeant Hawkins admits this to be the general opinion, but intimates a doubt as to whether Parliament had i)asstd the act before the decision in question."^ § 530. Held to be so by most Aiiieri favor, cannot be made the subject of a plea in abatement. State v. Handin. 47 Conn. 95; State v. Cole, 19 Wis. 129; State v. Rickey, 10 X. J. L. 83. ■• State V. Symonds, 36 Me. 128; Wilburn v. State, 21 Ark. 198; Finue- ^an V. State, 57 Ga. 427. <)04 OBJECTIONS TO GRAND JURORS. [CH.XXVI- qualitications, or who have not boeii drawn, siunmoned and impanelled in accordanoe with the hiw, have Jio power t(^ tind a valid indietnicnt. These restrictions and requisites have been imposed for wise purj)oses. They are guards thrown round the lil)erty of the citizen. They constitute an important part of the right of trial by jury. A grand jury does not, by our law, consist of thirteen or more men^ congregated by the mere order of court, or by accident, in a jury box ; but it consists of the requisite number of com- petent individuals, selected, summoned and sw^orn, accord- ing to the forms of law." ^ We shall presently see that the effect of this rule was such, that the legislature of this and other States found it necessary to interpose a pos- itive bar to objections here allowed.-^ § 531. But denied by Others. — (1.) In Massachusetts, — The conclusion reached in the previous section does not find favor with other courts. It was early settled in Mass- achusetts that " objections to personal qualifications of jurors or to the legality of the returns, are to be made before the indictment is found." ^ This statement was criticised in a later case. Chief Justice Parker remarking, " there is a difiiculty in the case ; for a bill may be found against a person who has not been recognized to appear^ and who has no opportunity to challenge."^ Nevertheless^ the rule, as previously settled, does not seem to have been departed from. (2.) In Neio York. — The force of this ol)jection was^ also felt in People v. Jewett;^ but the court, after mature deliberation, held that an objection to a grand juror after the indictment found, which would [)reviously have afforded a ground of challenge, could not he then taken. " I can- ' McQiiillen v. State, S Sined. & M. 587. See also Rawls v. State, 8 Smed. & M. "/JO; Barnej^ v. State, 12 Smed. & M. GS; Stokes v. State, 24 Miss. G21. - Po6<, § 53G, subsec. 1. 3 Com. V. Smith, Mas-s. 107. ^ Com. V. Parker, 2 Pick. 549, 5G;^. 5 3 Wend. 314; s. c, affirmed in G Wend. 3SG. ^531.] BY PLEA IN ABATEMENT. 605 not," said Marcy, J., " turn my view from the considera- tion of the great dela3\s and embarrassments which would utteud the administration of criminal justice, if it was to be obtained in the way now proposed. No authority for adopting this course was shown on the argument, and I have not since been able to find any. It would be a novel pi'oceeding, and there is reason to fear it might be followed with more serious difficulties than are now foreseen." ^ (3.) In N'orth Carolina. — The same rule was early iidopted in North Carolina. Here we meet with a statement of an especially cogent reason for the inapplicability of the statute of Henry IV. in this country. " We have legislated for ourselves upon this subject," said Ruffin, C. J., " and have established by many acts a complete system of our own, inconsistent in many respects with that of England." This was said in a case where it was attempted to show in arrest of judgment that the grand jury which found the in- dictment was improperly constituted. The court expressly held that " the statute of Henry IV. is not in force here." At the same time it was stated, obiter this decision, upon the Authority of dicta in a previous case,- that such an objection might be made by plea upon the arraignment.^ But the process of reasoning by which this conclusion is reached is not stated, nor is it easily discovered. (4.) In Alabama. — The Supreme Court of Alabama, also, considering the abuses which called the statute into existence as impossible under our system of procuring jurors, refused to regard the statute as a part of the com- mon law of that State* The authority of this case, how- ever, was wholly repudiated at a later date by the same court: " Let it be granted," said Collier, C. J., " that it ^ 3 Wend. 323. It was also suggested by Mr. Justice Marcy that an obstacle to the hearing of objections to jurors, after the indictment found, is the want of a proper mode to establish the alleged disqualifi- cation. 2 State V. McEntire, 2 Car. L. Eep. 267. 3 State V. Seaborn, 4 Dev. 305. " Boyington v. State, 2 Port. TOO. 606 OBJECTIONS TO GRAND JURORS, [CH. XXVI. does not satisfactorily appear from the elementary authors^ whether the right to plead in avoidance of an indictment the incompetciK'y of a iiiand juror was introduced b}'^ the stat- ute of Henry IV., or was known to the common law, and we think the difficulty of determining the question should,, in itself, induce the allowance of the plea. In adjudging legal (}uestions of doubt, the true rule in favor of life and personal liberty is to lean to the accused." ^ Accordingly,, we iind it established by the decisions in this State, that it may be shown by plea in abatement that the grand jury finding the indictment were not drawn, selected, summoned and impanelled as required by law,'- or that any one or more of the grand jurors had not the prescribed qualifications,, or were disqualified from serving as jurors.'^ But the prac- tical operation of the foregoing rule was found to be such as^ to encourage mere technical and captious objections to the delay of a fair and just administration of the criminal law. It will be seen later, that the effect of the foregoing de- cisions is annulled by statute* § 532. Confusion the Consequence. — In the light of the foregoing sections, it is only proper to echo the remark of Mr. Justice Swayne, in a late case, that "the authori- ties upon the general subject as to how far an indicted party may go behind the indictment, as regards the action of the grand jury, or the questions he may raise, or the objections he may make, or what objections, if sustained, are fatal, or what are otherwise, are in utter confusion." ^ § 583. What may be sho^\^l by Plea in Abatement. — The only objections which can be taken to grand jurors by [)lea in abatement must l)e such as would disqualify the 1 StiiLe V. Middleton. 5 Port. 484. '- Collier v. State, 2 Stew. 388; State v. Williams, 5 Port. 130; State v. Greenwood, 5 Port. 474; State v. Lassley, 7 Port. 526; Nugent v. State, 19 Ala. 540; Morgan v. State. 19 Ala. 557. ' State V. Williams, 3 Stew. 454; State v. Middleton, 5 Port. 484; State V. Ligon, 7 Port. 1G7. ^ P(/.s(, § 536, subsec. 5. 5 United States v. Ambrose, (U. S. Cir. Ct. S. D. Ohio, May, 1880), % Fed. Kop. 283,285. § 535.] BY PLEA IN ABATEMENT. 607 juror to serve in any case. In other words, the plea must show the absence of positive qualifications demanded by law. All other objections affecting the incompetency of the juror must be taken by challenge, if at all, and will not be heard after the time for challenging is past.^ Thus, it is not a good plea to an indictment for murder, that a member of the grand jury which found the indictment was a nephew of the person who was murdered.^ And, in those jurisdic- tions where an exception is allowed to a grand juror be- cause of an expression of opinion, this must be taken l)v way of challenge.^ That one of a panel of grand jurors happens to be disqualified, cannot affect the validity of an indictment, unless he is a member of the particular grand jury finding the indictment.* § 534. The Plea in Abatement not favored. — The objec- tions to a liberal allowance of this plea are concisely stated in an early New Jersey case : " It is the most expensive form in which the matter can be presented, and the policy of the law requires it to be done in a summary way. It may be used as an engine of great delay, so as that a new in- dictment may be impracticable on account of the statute of limitations, before the old one comes to be quashed ; and guilty offenders will, if they are able, seek immunity under it for their crimes, and make it a refuge against public jus- tice, turning it into ridicule and contempt." ^ § 535. Therefore it must be strictly pleaded. — The plea in abatement being of a dilatory character, the law re- quires that it shall contain all essential averments pleaded with strict exactness.^ These should be neither uncertain, 1 State V. Easter, 30 Ohio St. 542; Kocli v. State, 32 Ohio St. 353. 2 State V. Easter, supra. 3 United States v. White, 5 Cranch, C. C. 457; State v. Swayze, 2 Or. L. Mag. 261. A fortiori, if this circumstance would not afford a ground of challenge, it is not to be alleged in support of a plea in abatement. State V. Hamlin, 47 Conn. 95. * Shinn v. Com. 32 Graft. 899. 5 State V. Rickey, 10 X. J. L. 83, 86. Opinion by Ford, J. 6 O'Counell v. Reg. 11 CI. &Fin. 155; Sheridan's Case, 31 How. St. Tr. 612; Com. v. Thompson, 4 Leigh, 667; State v. Newer, 7 Blackf. 307;, ti(>ii ^vho^e tl»e Krr: clearly defined by statute, there would seem to be no doubt, upon principle, that it is relegated to the discretion of the court,^ And the statutes seldom provide anything in this respect. It is rarely stated in what manner the grand jury shall be made up from the panel which is brought into court. The New York Code of Criminal Procedure* provides that, " when more than twenty-three persons, summoned as grand jurors, attend for service, the clerk must prepare separate ballots containing their names, folded as nearly alike as possible, and so that the names cannot be seen, and must deposit them in a box. He must then openly draw out of the box twenty-three ballots, and the persons whose names are drawn constitute the grand jury." '" Before the enactment of this provision it was held that the court might select from the panel a sufficient number and discharge the rest, and in its own way determine in what mode the selection should be made, and for what reasons any of the panel might be discharged or excused,''' The practice is the same in ^Mississippi. The grand jurors need not be drawn by lot from the whole number of persons summoned by the sheriff and in attendance as such. The matter is left to the sound discretion of the court. A proper exercise of that 1 11 Hen. IV., c. 9. See 2 Hawk. P. C. c, 25, §§ 16, 23; ante, § 528. 2 Ante, §§ 528, 545. 3 Ante, § 268. * Laws N. Y. 1881, ch. 442. 5 Sec. 236. « Dolan V. People, 64 N. Y. 485, 493. (41) «642 IMPANELIjyO THE ORAM) .Tl'RY. [CH. XXVIl. tliscretion is to cause the jurors to be sworn and impanelled in the order in which their names appear upon the panel rrturncd by the sheriff, until a jury is procured.^ § 570. Statiitor.A Provision as to Time, Directory only. — A statute making it the duty of the court to impanel the grand jury upon the first day of the term is di- rectory only. The object of the statute is to have the 'body impanelled as soon as possible, so as to i)romote the speedv administration of justice. A jury imj)anclled later is nevertheless qualified to act.'^ § 580. Excusing Jurors.^ — There would seem to l)e no rule to interfere with the discretion of the court to excuse or discharge a member of a grand jury foi- reasons deemed t^ufficient.^ The danger to be apprehended from vesting the court with this discretionary power is very remote, :and ordinarily the exercise of it will not be reviewed.'^ *(1.) Stahitory Grounds not Exclusive. — The court is not •^deprived of its dis(;retion in this resj)cct, because the legis- lature has seen fit to designate one or more causes author- izing the discharge of a grand juror. Thus, the statutes of Arkansas provide one specific cause of discharge, namel}^ : that it is apparent that there are grounds for proceeding against him b}^ indictment. This provision was held not im- ])lied1j to prohibit the court from excusing or discharging •grand jurors for other causes which necessarily would affect the juror's peace of mind, for example, sickness or death in bis family, the funeral of a near relation, the impending •destruction of his buildings, crops, or other property, b}-^ fire or flood, and in general, priA^ate business of a pressing n'\ture. It is plainly against the dictates of public policy tliat the court should be obliged to depend upon a disabled "or distracted grand jury for the performance of its impor- Aiint duties,** • Box v.State, 34 Mifes. 614. 2 State V. Davis,] 4 La. An. 678. 3 See ante, § 2o9. ■•Denning v. State, 22 Ark. l.'H ; Slate v. Braaford, 57 N. H. 188. '• State V. Bradford, supra. * Denning v. State, supra. See in this connection § 259, subsec. 2, § /)81.] SUBSTITUTE FOR GRAND JURORS. 64^ (2.) ^1 Contrary View. — All courts do not subscribe to the foregoing. Thus, it is held by the Mississippi court that, after a grand jury has been impannelled and sworn, the court has no authority to discharge a member of the 'body for a cause not specified by statute ; nevertheless, that this irregular action will not vitiate the findin2r of the re- mainder of the body, where no substitute is sworn in the place of the grand juror excused, and a sufficient number to 'Constitute a legal grand jury remain.^ (3.) l^resumj)tion as to Validity of Excuse. — In the ab- sence of any showing to the contrary, it will be presumed that jurors, excused by the court, furnished sufficient rea- .sons to justify this course.'^ Such reasons need not be stated b}' the jurors under oath in open court. ^ § 581. Substitute for Juror Excused or Iiicouipetent. — -After the grand jury have been impannelled and sworn, if it becomes necessar}^ to excuse one of the number, or if one be discovered to be incompetent, there would seem to be no rational objection to the action of the court in filling the vacancy caused by this withdrawal.^ To hold otherwise would be to place the court in an unfortunate dilemma. 'JMie jury, as originally constituted, with one of its body in- <'ompetent, could not regularly act, and the withdrawal might reduce the number below that fixed by law. To deny to the court power to fill this vacancy would operate to deprive it of a grand jury for the term. However, the Mississippi court hold that if a grand juror, after being impanelled and sworn, is excused for any other cause than those specified by statute, a substitute for such juror cannot be lawfully impanelled ; that, if impanelled, the consti- tution of the body is tainted by the presence of an intruder, 4ind all findings by the grand jury in such a case will be held void.*" ' Portis V. State, 23 Miss. 578. - People V. Millsaps, 35 Cal. 47. a People V. likkleu, 32 Cal. 445. ^ Jetton V. State, Meigs, 192; Com. v. Burton, 4 Leigk, 645; State v. Fowler, .52 Iowa, 103. » Portis V. State, 23 Miss. 578. H44 IMPANELLING THK CIJAXD .71 KV. [CU. XXVIK § 582. Tardy Juimu- iiiav Ix' s<'nt to (iraiul -liiry Rooui. — It is Ji matter within the discretion of the court, whether a juror subsequently :i[)pc;irini>- shall he added to the grand jury after it has been fully formed and has retired for the performance of its duties.' § 583. XiiiulxT of (iraiid Jurors. — ( I ) Af Oommon Law. — Although ariciently, as we have seen, the accusing' body consisted of twelve oidy,' in later times the grand jury was more numerous. Thus, it is stated by Lord Hale, that " if there l)e thirteen or more of the grand inquest, a presentment' by less than twelve ought not to be." ^ The limit of twenty-three is never exceeded, for the plain reason that otherwise twelve of the body might not be suthcient to find an indictment.* This matter received the attention of the court of King's Bench in 1837, where Lord Denman so declared the law, although no previously adjudicated cases could be found in relation to it.^ (2.) As fixed hy Statutes of the several States, — It is certainly competent for the legislature, within the limits l)rescribed by the common law% to fix the number which shall constitute a grand jury, without infringing the consti- tutional rights of the accused." This number has been variously determined as twelve,^ fifteen,^ sixteen," eighteen.^" 1 Findley v. People, 1 Mich. 284; Wadlin's Case. 11 Mass. 142. 2 Ante, § 464. 3 2 Hale P. C. IGl : Clyncaitrs case, Cro. Eliz. 654; State v. Symonds. 36 Me. 128. *4 Bl. Com. 302; 1 Chitty Cr. L. 306, 311. See State v. Symonds. 36 Me. 128; Crimm v. Com., 119 Mass. 326. See "also People v. Green. 1 Utah 11 ; R. S. W. Va. 1879, eh. 53, § 4; R. C. Md. 1878, p. 561, § 5. 5 Rex V. Marsh, 6 Ad. & El. 237. At the same time it was resolved that if more than twenty-three were sworn, and found a bill, the court would not on that account quash the indictment after the defendant had removed It by cprtiorari, had j^one to trial and been convicted. See also Conkey v. People, 1 Abb. App. Dec. 418. Contra, People v. King;. 2 Caines, 98; People v. Thurston, 5 Cal. 60. 6 Brucker v. State, 16 Wis. 333. ' Gen. Laws Colo. 1877, § 1477; R. S. Mo. 1879, § 2783; Texas Code Cr. Proc. 1879, Art. 383. « Comp. L. Kan. 1879, § 4.566; Laws Utah, 1878, § 117; Code Ala. 1876. § 4753 ; Miller's R. C. Iowa, 1880, § 4256. 9 Ark. Dig. Stat. 1874, § 3681. '» G. S. Conn. 1875, p. 536, § 3. § 083.] NUMBER OF GRAND -JURORS. 645 111 othei" States the iiiunbcr has been fixed l)et\veen oei'tain limits. Thus, thirteen and fifteen,^ tifteen and seventeen, ' Hfteen and twenty,'^ sixteen and twenty-three,'' seventeen and twenty -three,* eighteen and twenty-three.'' In some States the number is fixed at less than twelve ; thus, in Indiana it was enacted in 1875, that " a grand jury shall be composed of six reputable freeholders and residents of the ■county."' If constitutional authority were necessarj^ to make this reduction below the number so highlv esteemed •iit common law, it would clearly be found in the provision of the organic law of that State, enacting that " the general iissembly may modify or abolish the grand jury system.'"* However, in certain other States, the legislature has seen fit to reduce the number below twelve, in the absence of a .similar constitutional provision Thus, by the laws of Oregon, the number is fixed at seven.'' In Virginia the grand jur}' for a special term may consist of six or more."'" By the Texas Code of Criminal Procedure, nine constitute a quorum for the purpose of discharging any duty or exer- cising any right properly belonging to the grand jury.'' (3.) Number in Territorial Courts. — Section 8U-S of the Eevised Statutes of the United States provides that " every' grand jury impanelled before any District or Circuit Court .shall consist of not less than sixteen, nor more than twenty- three persons." This applies only to Circuit and District 1 Cal. Code Civ. Proc, § 192. 2K. S. Wis. 1878, § 2545. =* K. C. Miss. 1880, § 1G67. ^Rev. Stat. U. S , § 808; R. S. III. 1880, p. 651, § 16; Id., p. 412, § 407; 2 Stat, at L. Miun. 1873, p. 1033, § 76; Id., p. 1034, § 87; Code Va. 1873, p. 1236, § 5; X. Y. Code Crim. Proc. 1881, § 224. * Couip. L. Ariz. 1877, § 2307. « Code Gu. 1873, § 3014. '2 Stat. Ind. 1S7G, p. 417, § 1, note. Juries of twelve, selc(;ti:.d before the change in tiie law, were permitted to tind indictments after the new law took effect. See State v. May, 50 Ind. 170; St^ate v. Myers, 51 Ind. 145; Veatch v. State, 56 Ind. 584; Meiers v. State, 56 Ind. 336. » Const. Ind. 1851, Art. 7, § 16. '•> Gen. Laws Oreg. 1872, p. 344, § 31. J" Code Va. 1873, p. 1236, § 5. 1' Art. 383. 646 IMPANELLINC; TI[K CiUAND 1 1 UY . [CH. XXVII Courts of the United States. An iiuliclnieiit for an off e nee- against the Federal statutes may, tlicrcfore, he found in a District Court of Utah l)y a grand jury of lifteen ])crsoMs^ impanelled [)ursuant to the hiws of that Territory.' § 584. The XuinI)or tixcd Directory only. — Jnum early Iowa case,'^ the numher of the grand jury heing tixed by the statute at fifteen, it Avas held that, although twelve con- curred in finding the indictment, a grand jury of tiie statu- tory numher ought to have deliberated upon the charge r consequently the finding was held void.'' This decision did not find favor later in the same court. It is now regarded as the law of that State that, although the panel may l)e reduced by challenges below the statutory number required for a grand jury, a finding by twelve will be good, for the reason that jurors so challenged do not cease to be members^ of the body.^ They are simply required not to be " present at or take any part in the consideration of the charge against the defendant."'' Other courts, also, hold that it is not necessary that the entire statutory immber of jurors should delil)erate ui)on every case." Similarly, it has been .held that, although the statute fixes the number of the grand jury at sixteen, a larger number, the whole panel of 1 Reynnlds v. United States, 98 IT. S. 145; .s. c, 1 Utah, 220, 310. 2 Xoriis' House v. State, 3 G. Groeue, 513. 3 See, also. Doyle v. State, 17 Ohio. 222; Strauglian v. State, IG Ark. 37, 43 ; State v. ITawkins, 10 Ark. 71 ; Gladden v. State, 12 Fla. 5(52 ; Fitzp^erald V. State, 4 Wis. 395. sixteen and not more than twenty-three persons," concludes, "and thfr presence of at least sixteen is necessary for the transaction of any busi- ness." Section 224. § 586.] PRESUMITION OF REGULARITY IN ORGANIZATION. <)4T twenty-three, may act as a grand jury ;' but the opinion of other courts is to the contrary.'^ § 585. What if more th Jill Twenty-three Iinpaiielled.' — If tvventj-four persons are in attendance to act as grand jurors, the court may strike off the name of the man who is last upon the list, or direct the body itself to do so before being organized and sworn.* So, where the court ])er- mitted two more persons to be sworn on the grand jury than allowed by law, but afterwards, before any action was taken l)y the grand jury, discharged the two hist sworn, this- action left the body ({ualitied to act.^ § 586. Presumption of Regularity in Organization. — In the absence of any showing to the contrary, it will he- presumed that the officers charged with the duty of selecting- jurors have followed the directions of the statute ; there- fore, upon a challenge to the panel, the burden is upon the challenging party to maintain the truth of his allegations.* Likew'ise, upon the presentation of an indictment in due form, the court will presume, in the absence of specific objection and afiirmat'ive proof to the contrary, that the grand jury was proj)erly organized.^ 1 Beasley v. People, 80 111, 571. 2 Miller v. State, 33 Miss. 35(5; Harding v. State, 22 Ark. 210; Keeoh v- State, 15 Fla. 591 ; United States v. Reynolds, 1 Utali 226. ^ See ante, § 11. * Ridling v. State, 56 Ga. 601. ^ State V. Fee, 19 Wis. 563. See also ante, § 11. If grand jurors, after- being sworn, ar« at once excused, and do not rejoin the grand jury iit their deliberations, they form no part of such body thereafter. Crimni v.. Com., 119 Mass. 326. ^ State V. Howard, 10 Iowa, 101 ; Dutell v. State, 4 G. Greene, 125; State- V. Clougli, 49 Me. 573; Cody v. State, 3 How. (Miss.) 27; Zachary v. State, 7 Biixt. 1. ^ State V. Tazwell, 30 La. An. SS4; State v. Watson, 31 La. An. 379; Thompson v. State, 9 Ga. 210; People v. Kelly, 46 Cal. 355; McClure v.. State, 1 Yerg. 215; Galvin v. State, 6 Cold. 283; HoUoway v. State, 53- Ind. 554; Bell v. State, 42 lud. 335; Long v. State, 46 End. 582; Easter- ling V. State, 35 Miss. 210; Bailey v. State, 39 Ind. 438; Lovell v. State^. 45 Ind. 550; Com. v. PuUan, 3 Bush, 47. But see Parmer v. State, 41 Ala. 416; Be Hackley, 21 How. Pr. 103. 648 SWEAKINO THE (JRAND .TTTRV. [cH. XXVIII, CHAPTER XXVII J OF SWEARING THE (JHAXD JURY. SECTION. 589. The Practice in England. 590. And in tlie several States. 591. Sworn in Open Court. 592. Grand Jurors may Affirm. 593. Form of Oath. (1.) In England. (2.) In the several States. § 58!'. The Practice in England. — When the court is dul}' opened, the grand jur}' are caTlcd, and, having taken their places in the box, the oath is administered to them bv the clerk, the marshal or crier, to the foreman first, and afterwards to the jurors in groups of three.' § 590. And in the several States. — After all objections to the panel and to polls have been heard, and a body of the number required by law has been selected, the foreman takes the oath as such officer, and tlicn, as under the English piac- tice, the other jurors swear or affirm to observe the same oath. This is the general practice, which is slightly varied in Maine, Massachusetts, Michigan and Wisconsin. In these States the two jurors standing first upon the list are sworn, and then the remainder of the panel swear or affirm that they will observe the same oath.'^ Where the statutes re- rjuire that the remainder of the panel shall be sworn in 1 1 Chitty C. L. 312, ;^13. 2 R. S. Me. 1871, ch. 134, § 2; G. S. Mass. 1860, ch. 171. § 5; Comp. E. Mich. 1871, § 7880: R. S. Wis. 1878, § 2547. f § 593.] FORM OF OATH. 649 groups of a certain nuni))or, it seems not essential to the validity ol the swearing that precisel}' this order should bo pursued.^ The statutes generally specify that the oath shall be administered b}' the clerk of the court ; but it seems not material that the duty should be performed by this officer solely. Any officer, authorized by law to administer oaths generally, may, under tlie direction of the court, lawfully administer the prescribed oath to the grand jury.-' A swearing b}' a clerk de facto will be sufficient." § 591. SAvorn in Open Court. — The grand jury is uni- formly sworn in open court; but the swearing will be suffi- cient, although not done in the immediate presence of the judge, and even in his temporary a})scnce from the bench.^ § 592. Grand Jurors may Affirm. — The statutes uni- formly provide, in respect of the swearing of the grand jury, that jurors may affirm or swear to fulfill the duties re- quired of them bylaw ; nevertheless, in the absence of such a special i)rovision, Quakers, and others scrupulous of tak- ing oaths, may, under a general statutory i)rovision author- izing them to affirm, do so when called as grand jurors.'' § 593. Form of Oath. — (1.) In England. — The form of oath in general use varies little from that administered to the grand jury in the proceedings against the Earl of Shaftesbury in 1G81. The oath on that occasion, as set out in the State Trials, is as follows : " You shall diligently in- quire and true presentments make of all such matters, arti- cles and things, as shall be given you in charge, as of all other nuitters and things, as shall come to your own knowl- edge, touching this present service; the king's counsel, y^our fellows' and your own, you shall keep secret; you shall i)resent no person for hatred or malice ; neither shall you leave any one unpresented, for fear, favor or affection, for lucre or gain, or any hoj)es thereof; but in all things 1 Brown V. State. 10 Ark. 007. 013. 2 Allen V. People, 77 111. 484. 3 Herd V. Com., 4 Leigh, 674. "» Jetton V. State, Meigs, 192. * Com. V. Smith. '.) Mass. 107. ()50 SWKAIilXU THK UKANl) .JUKV. [CH, XXVUI. you ^luill [)ri'stMil the Iriitli, the wliolc truth, mid nothiiij^- but the truth, to lh(> Ix'st of your kno\vIed this case as being- from liie •• Booi< of Oaths: " Ye shall truly inquire, and true presentment make of all such thinc of the eoiirt is the head or eontroUiiiji,- power, ^ § 597. Afforcing' the fii'and Jury. — The ancient practice- of forcing petit jurors by tine and imprisonment to find ver- dicts against their convictions, is now iustlvreo-arded as one of the barl^arities of the common hiw. The grand jury were also subject to the same disci[)line, and evidently to a late date. In 1681, upon the famous proceedings against the Earl of Shaftesbury, Lord Chief Justice Pp:mberton strove to influence the grand jury with this threat: "Let me tell you," said he, " if any of yon shall be refractorv, and will not tind any bill where there is a probaI)le ground for an accusation, you do therein undertake to intercei)t justice : and you thereby make yourselves criminals and guilty, and the fault will lie at your door." '^ But the prac- 1 United States V. Hill, 1 Brock. 156; Denning V. State, 22 Ark. 13k 132; Clienyv. State, 6Fla, 679, 6S5; People v. Naughton, 7 Abb. Fv. (N. S.) 421, 423; Com. v, Bannon, 97 Mass. 214, 219; Heard v. Pierce. S (^usli. 338. 339; Lewis v. Wake County, 74 N, C. 194, 198; Com. v. Crans, 3 Penn. L, J. 449, 450; .s. c, 2 Clark, 180, Regarding the grand jury as a co-ordinate branch of tlie court, it has been held that a reflec- tion upon them and their conduct, in the public press, is punish- able as a constructive contempt of court. Ex parte Van Hook, 3 N. Y. (Jity Hall Eec, 64; Ex parte Spooner, 5 Id. 109, But see Storey v. People. 79 111,45; Grand Jury v. Public Press, 4 Brewst. 313. Upon this point it was said in one case: "'The grand jury, being officers of the court and under its legal direction, are entitled to its protection from assaults of every kind, whether the effort is designed to influence them on questions of law or fact, or intended to disturb tliem in their delib- uty. — The duty of charging the grand jury is generally enjoined by statute in the sevem! States, and frequently that particular laws or portions of codes shall be read to them, with a view to bringing the at- tention of the body pointedly to offences denounced by such provisions. It is not clear, however, that a failure of the court to charge the grand jury as required by law, will A itiate their proceedings. The Supreme Court of Indiana li:is held that it will not.^ Xor is it essential that all of the grand jurors should hear the full charge as delivered by the court, flurors who were not present to hear the general charge, have been very briefly instructed as to their duties and sent to the jury room.^ ' Stewart v. State. -24 Ind. 142. - Wadlin's Case, 11 Mass. 142: State v. Froisetli, IGMiiin. :n:{: Findley V. People, 1 Midi. 2S5. CH. XXX.] POWERS OF THE GRAND JURY. 657 CHAPTER XXX. OF THE POWERS OF THE GRAND JURY. SECTION. 604. Powers coextensive with tliose of tlie Court. 605. Prosecution by Indictment or Presentment. 606. The former preferred. 607. Proceedings Preliminary to Indictment. 60S. Examination of Accused by a Committing Magistrate. 609. Not usually had in England. 610. Nor generally guaranteed by Statute in the United States. (1.) Never by Implication. (2.) But expressly granted in certain cases in New Hamp- shire. (3.) Prior to Informations in some States. (4.) Before Trial in Others. 611. Indictments otherwise originate how. 612. Matters of General Notoriety given in Charge by Court. 613. Charges preferred ex officio by Prosecuting Ofiicer. 614. Presentment upon Knowledge by the Grand Jury. (1.) Grounds of this Knowledge. (2.) Private Prosecutor not heard in certain Courts. (3.) Communications with the Grand Jury a Contempt of Court. 615. General Inquisitorial Powers of the Grand Jury. (1.) Expressions of Opinion showing. (2.) Positive Authority to this Effect. (3.) Apparent from Form of Oath. (4.) Inquisitorial Duty enjoined by Statute. 616. Denied by some Courts. 617. Special Inquisitorial Powers. 618. Power to Compel Production of Telegrams. (1.) Telegrams not Privileged Communications. (2.) Eules of Company and Statutes imposing Secrecy to the Contrary notwithstanding. (3.) Production ordered only upon Particular Description^ (42) 658 POWERS OF THE GRAND JURY. [CH. XXX. § 604. Powers coextensive with those of the Court. — The grand jury possesses powers and duties coextensive with the jurisdiction of the court of which it is an integral part. *• Grand juries," observed Chief Justice Marshall, "are accessories to the criminal jurisdiction of a court, and the}' liave power to act and are bound to act, so far as they can aid that jurisdiction. Thus far the power is implied, and is as legitimate as if expressly given. To suppose the pow- ers of a grand jury, created not by express statute but by the necessity of their aiding the jurisdiction of a court, to transcend that jurisdiction, would be to consider grand juries, once convened, to be clothed with powers not con- ferred b}' law, but originating with themselves. This has never been imagined."^ It clearly follows that when the grand jury act in excess of their powers, as limited in the foregoing, their proceedings are without jurisdiction, and furnish no ground for subsequent prosecution,^ § 605. Prosecution by Indictment or Presentment. — The modes of ])rosecution before a grand jury are : 1. By indictment. 2. By presentment. " An indictment," says Serjeant Hawkins, " is an accusation, at the suit of the King, by the oaths of twelve men of the same €ountv wherein the offence was committed, returned to inquire of all offences in general in the county determinable by the court into which they are returned, and finding a bill hrousht before them to be true." ^ " But," he continues, " when such accusation is found by a grand jury, without tmv bill brought before them, and afterwards reduced to a 1 United States v. Hill, 1 Brock. 156, 159. In the Territory of Utah, a grand jury summoned from the body of the judicial district in which the court is held, has the right to inquire into the violations of the teirito- rial criminal laws coextensive with the district, although embracing several counties. People v. Green, 1 Utah, 11. Under a provision of the lievised Statutes of the United States, " the grand jury impanelled and sworn in any district court may take cognizance of all crimes and of- fences within the jurisdiction of the circuit court for said district, as well as of said district court." Rev. Stat. U. S., § 813. 2 United States v. Hill, supra; Beal v. State, 15 Ind. 378. " "An indictment," said Lord Chief Justice Holt, " is not an indict- ancnt till it be found. It is only a writing prepared for the ease of the § 606.] TROSECUTION BY INDICTMENT PREFERRED. 659 formed indictment, it is called a presentment." ^ The two methods of prosecution are .accurately adapted to the inquest of offences by the grand jury. The first, coming from the prosecuting officer, suggests to the grand jury the existence ■of grounds for finding a formal accusation against a sus- pected person ; the second, coming from the grand jury as the ultimate authority, apprizes the prosecuting officer of his duty to prepare a formal accusation.^ A presentment is founded upon the knowledge or observation of the grand jury. Like an indictment, it must be the act of the whole jury, not less than twelve concurring in it. It is, in fact, as much a criminal accusation as an indictment, except that it emanates from their own knowledge, and not from the public accuser, and except that it w^ants technical form.^ Strictly speaking, an indictment is a form of presentment,^ but this circumstance need occasion no confusion, as the limited meaning of the term " presentment," in this con- nection, is generally apparent. § 606. The former preferred. — Speaking of the indict- ment, Mr. Chitty says: "It is the most constitutional, regular and safe, as well by far the most usual mode of pro- ceeding upon criminal charges." ^ Speaking of the present- ment, Mr. Justice Field, in a charge to the grand jury, jury, and for expedition. It is nothinoj till it is found, for the jury make it an indictment by finding it.'' Rookwood's Case, 13 How. St. Tr. 139, 159. ^ 2 Hawk, P. C. ch. 25, § 1. See upon this point, Forsyth, Hist. Trial by Jury, 215; 4 Bl. Com. 302; 1 Chitty C. L. 162; Whart. Cr. PI. & Pr. (8th ed.), § 86; Bish. Cr. Proc. (3d ed.), § 131. '^ Be Lloyd and Carpenter, 5 Penn. L. J. 55; s. c, 3 Clark, (Penn.) 188, quoted with approval in Whart. C. L. (3d ed.) 219, note; Whart. Cr. PI. & Pr. (8th ed.) § 338, note; charge of Mr. Justice Field, 2 Sawyer, 678. '^ Ibid. See also 1 Chitty Cr. L. 163 ; Lewis v. Wake County, 74 si. C. 194, 197. * Lord Coke observes: "Every inditement which is found by the jurors is presented by them to the court; for the record saith, jifraforf^s praesentant, etc., vvhen they find an inditement. And therefore every inditement is a presentment, but every presentment is not an indite- ment." 2 Co. Inst. 739. » 1 Chitty Cr. L. 162. 660 POWERS OF THE GRAND JURY. [CH. XXX. said: " This form of accusation has fallen in disuse since the practice has prevailed — and the practice now obtains generally — for the prosecuting' officer to attend the grand jury and advise them in their investigations. The govern- ment now seldom delivers bills of indictment to the grand jury in advance of their action, but generally awaits their judgment upon the matters laid before them." ^ Regularly, a l)ill of indictment, when formally prepared by the prosecuting officer, in accordance with a present- ment, is not recommitted to the grand jury for final appro- val, but stands an indictment for all purposes, as efficient as any duly laid before and approved by the grand jury.^ But this is not the practice in Tennessee. When the grand jury, or any one of their body, is cognizant of an offence, the practice is to inform the attorney-general thereof, in the first instance, who prepares a bill of indictment upon the information. This document is delivered to the grand jury, and is returned Iwthem, instead of the old informal present- ment. The consequence is, that the only difference between a presentment thus made and a bill of indictment is, that the presentment is signed by all the jurors, and the bill of indictment only by the foreman.^ 1 2 Sawyer, 678. 2 1 Chitty Cr. L. 163; Burn's .Justice, "Presentment;" Rookwood's Case, 13 How. St. Tr. 139, 159, per Lord Chief Justice Holt; Nunn v. State, 1 Ga. 243. In his discussion of the duties of a grand jury, Addi- son, J., says of the presentment: " The person so accused cannot be called to answer to this, till it is drawn up in form, which it is the duty of the officer for the prosecution to do. The best way to do this, is to draw up a formal indictment, and present it to the same jury for their sanction. But if the presentment state all the material facts and circum- stances, I see no reason why such indictment, coupled with this present- ment of the jury to the same effect, should not, without any subsequent examination and approbation by a grand jury, be suflicient; and I be- lieve it would be sutlicientto call on the party toanswer it." Add. Pa. Rep., Appendix. 38. 3 State V. Darnal, 1 Humph. 290. See also State v. Cain, 1 Hawks, 352. It need not appear upon the knowledge of what particular grand jurors the presentment is made. This was not necessary under the com- mon law rule, authorizing a presentment upon the knowledge of any member of the grand jury, and the rule is not changed by a statute author- izing such presentment upon the knowledge of two of the body, Pjid. § 608.] EXAMINATION BY A COIVUVIITTING MAGISTRATE. 661 § 6()7. Pi'oceediiigs preliminary to Indictuieiit. — It is provided by the Sixth Amendment to the Constitution of the United States, among other things, that "in all crim- inal prosecutions the accused shall enjoy the right * * * to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence." Although the settled construction of this provision is that it was not designed as a limit upon the State governments in reference to their own citizens, but exclusively as a re- striction upon Federal power, ^ it is believed that a provision of similar import will be found in the constitution of each State. Such a provision does not prohibit other modes of originating criminal charges against offenders, than that by a prosecution before a committing magistrate.'^ § 608. ExaminatioD of Accused by a Committing' Mag- istrate. — However, various reasons may be urged for this course. If the evidence is insufficient, one ought not to be compelled to bear the odium of indictment, and perhaps restraint of liberty, until his innocence can be shown. The public ought not to be subjected to the un- necessary expense of holding the accused in custody until such time. When it is remembered that the proceedings of the grand jury are generally ex ixirte ; that, as a rule, they hear only the evidence of the prosecution ; and that the minds of grand jurors are untrained in the process of sifting evi- dence, — it is easy to see that an innocent man may readily fall a victim to the vindictive zeal of the public or private prosecutor. On the other hand, the advantages of a prelim- inary examination are obvious. The accused has an oppor- tunity of definitely ascertaining the nature of the charge against him. His counsel are there to cross-examine the witnesses. He may produce witnesses in his defence. A 1 Barron v. Baltimore, 7 Pet. 243 ; Fox v. State, 5 How. 410; Withers v, Buckley, 20 How. 84; Twitchell v. Cora., 7 Wall. 321. 2McCullough V. Com., 67 Pa. St. 30, 33; Kowand v. Com., 82 Pa. St. 405,408; State v. Wolcott, 21 Conn. 272, 279. 662 POWERS OF THE GRAND JURY. [cil. XXX, prima facie case for the prosecution inay ')e entirel}'' over- thrown, or evidence, which, to the minds of the grand jurors- might seem sufficient to put the accused to answer, may l)e rejected by a committing magistrate, as wholly incompetent or insufficient to sustain a criminal charge. But it may be strongly questioned whether such considerations as these are not overcome by others. Besides the advantages which we have enumerated as accruing to the accused from a pre- liminary examination, there is another and very con- siderable advantage which is the necessary result of this proceeding. The prosecution is obliged to disclose its evi- dence to the accused, before he is put upon trial for the charge. There is no doubt that the generality of accused persons are justly accused. Persons who have committed grave oifences do not hesitate at subornation of perjurj^,. and serviceable persons are seldom found wanting to coun- teract the evidence of the prosecution by false swearing. The grand jury is not necessarily deterred from finding' an indictment, because at the time the charge is pre- sented to thoni, it is undergoing examination before a mag- istrate. This circumstance has only a persuasive force with the body to postpone action upon the charge. Cases may be readily imagined where it is highly important to proceed by indictment without delay, and the law does not interfere with the exercise of discretion by the grand jury m such emergencies.^ The grand jury may inquire into any offence committed after they have been impanelled.- And in such a case, it is desirable that the caption of the indictment sliould state that it was found at a court begun and held at,, etc., and continued by adjournment to a day named, being after the time of the alleged offence.^ § 609. Xot usually had in England. — It is familiar knowledge that in England the greater part of criminal pros- 1 People V. Hyler, 2 Park. C. R. 560: People v. Ilorton, 4 Id. 222; People V. Ileffernan, 5 Id. 393. 2 2 Hale P. C. 156; 1 Cliitty Cr. L. 315; People v. Beatty, 14 Cal. 566; (;oin. V. Gee, Gush. 174; Alleu v. State, 5 Wis. 329. 'Gases cited supra. See also Gom. v. Stone, 3 Gray, 453; Gom. v> Hamilton, 15 Gray, 480. § 610,] EXAMINATION BY A COMMITTING MAGISTRATE. ()()3 ecutions are set on foot by private prosecutors, and con- ducted to the end hy such legal assistance as they see fit to employ, with only slight supervision by officers of the gov- ernment.^ The first and natural recourse of aggrieved parties is the grand jury. Therefore, a recent English writer observes: " With certain exceptions, a person may prefer a bill of indictment against another before the grand jury,, without any previous inquiry into the truth of the accusa- tion before a magistrate. This general right was, at one time, an universal right, and was often the engine of tyranny and abuse." ^ The qualification of this once uni- versal right, is found in the Vexatious Indictments Act of 1859.^ § 610. Xor generally guaranteed by Statute in the United States. — (1.) Never hy Implication. — In view of the fact that the grand jury have, from time immemorial, possessed the power to present for offences other than those brought to their attention by bills formally prepared, it is clear that so important a right of the people will not be divested, unless by the positive terms of a statute which will admit of no other construction. The statutes generally provide for the examination of accused persons by commit- ting magistrates, and direct, with considerable detail, how this proceeding shall be conducted. Nevertheless, the accused cannot, by virtue of such statutes, show, in abate- ment of an indictment, that no preliminary examination was had. The examination enjoined is a mere expedient to pre- vent the suspected person from escaping, or for preserving the evidence, or keeping the witnesses within control.* Otherwise, it is clear that no case could be brought before a grand jury, unless the defendant were under arrest, and this he might elude until the offence should be condoned by a statute of limitation. Furthermore, the determination of the magistrate to discharge an accused person, would be 1 1 Bish. Cr. Proc, § 278. 2 Harris Crim. Law (Am. ed. by Force), 288. 3 22 and 23 Vict. c. 17. < 1 Bish. Cr. Proc. (3d ed.) § 239 a. 684 POAVERS OF THE GRAND JURY. [CH. XXX. conclusive against the public. He mijrlit grossly orr or act from improper motives, and there would be no remedy.' (2.) But expressly granted in certain cases in New Hampshire. — A statute of New Hampshire requires that assaults shall be first inquired into upon complaint to a magistrate or police court, before they can be the subject of indictment. The object of this law is merely that cases of trivial importance should not come before the grand jury, and that some evidence should be furnished the court, that the case before them is one proper for a trial by jury in the first instance.^ (3.) Prior to Informations in some States. — Statutes of Michigan and Kansas, and prol)al>ly other States, provide for a preliminary examination (unit .ss waived) by a justice of the peace, or other examining magistrate or officer, of all persons accused of offences whicii may be prosecuted by information, excepting, however, in the case of fugitives from justice, who may be proceeded against by information without such examination.^ The policy of the Michigan statutes has been thus explained by Christiancy, J. : "This examination was, I think, intended as the principal safe- guard against groundless or vindictive prosecutions, which it was supposed might otherwise occur, where the interposi- tion of the grand jury was dispensed with. The legislature do not seem to have been willing to leave the question of prosecution to the judgment or discretion of the prose- cuting officer alone." * 1 French v. People. 3 Park. C. R. 112. 124. See also State v. Oscar, 13 La. An. 297; Harper v. State, 7 Ohio St. 73; State v. Bunger, 14Iia. An. 461 ; State v. Webster, 39 N. H. 96. 2 State; V. Thompson, 20 X. H. 2.50, 255; State v. Hilton, 32 N. H. 285; State V. Stevens, 36 X. H. 59. « Sess. Laws Kan. 1864. ch. 14, § 8; Sess. Laws Mich. 1859, p. 393, § 8. * Morrissey v. People. 11 Midi. 327, 343. See also State v. Montgomery. 7 Ohio St. 107; State v. Barnett, 3 Kan. 250: Washburn v. People, 10 Mich. 372; Anuis v. People, 13 Mich. 511 ; Lightfoot v. People, 16 Midi. 507; Hanna v. People, 19 Mich. 316; People v. Jones, 24 Mich. 215: Hamilton v. People, 29 Mich. 173; People v. Lynch, 29 Mich. 274; Turnery. People, 33 Mich. 363; Yaner v. People, 34 Mich. 286; O'Hara V. People, 41 Mich. 623. In the last edition of Wharton on Criminal § 612.] MATTERS OF NOTORIETY GIVEN IN CHARGE. 665 § 611. Indictments otherwise originate, how. — We have shown in the previous sections that although an ac- cused person cannot generally demand, as a right, that there shall be an examination of the charge before his case is turned over to the grand jury, nevertheless, this is the most regular and satisfactory method of proceeding, when practi- cable. Indictments, however, originate with the grand jur}^ in a variety of ways, which will now be noticed: 1. By the court giving a matter of general notoriety specially in charge. 2. By the exercise of powers, ex officio, of the pros- ecuting officer. 3. From the knowledge of the grand jury. 4. By the exercise of general or special inquisitorial povvers by that body. The procedure here indicated is not recog- nized by all courts. Few if any courts would deny what is stated in propositions 1 and 2. Courts may differ as to what is included in the term " knowledge." Finally, many courts deny in toto the inquisitorial power of the grand jury. § 612. Matters of General Notoriety given in Charge by Court. — It is everj^where conceded to be within the province, if not the particular function of the court, to di- rect the attention of the grand jury to the investigation of such violations of law as are of common report in the com- munity ; to enjoin a searching scrutiny of the causes, and a presentment of persons, against whom, in their judgment, well founded complaints exist. ^ IS^o better expression of the power and duty of the court in this connection is found than in an opinion delivered by King, J., in 1845, in the Court of Quarter Sessions for the city and county of Phila- delphia.'^ Having stated the general rule, that an indict- Pleading and Practice, this eminent writer falls into a material error in supposing, upon the authoritj- of O'Hara v. People, supra, that in Mich- igan a preliminary examination must precede action bj'' the grand jury. Eighth ed., § 339, note. By a curious coincidence, nian_y of the forego- ing cases are also cited by another distinguished authority upon crim- inal law, to the same effect. 1 Bishop on Criminal Proc. (3d ed.) 239 a. 1 McCullough V. Com., 67 Pa. St. 30, 33; Hartranft's Appeal, 85 Pa. St. 433, 441; Grand Jury v. Pnblic Press, 4Brewst. 313. ^iZeLloyd and Carpenter, 5 Peun. L. J. 55: s.c, 3 Clark (Peun.), 188. 666 POWERS OF THE GRAND JURY. [CII.XXX. uiiMit slioiild he founded upon :i [)reliiniiKiry examination of the accused, ho proceeds to note exceptions : " The first of these," said he, " is where criminal courts of their own motion call the attention of grand juries to and direct the investigation of matters of general pul)lic import, which, from their nature and operation in the entire community* justify such intervention. The action of the courts on such occasions rather bears on things than persons, the object being the suppression of general and [)ublic evils, affecting in their influence and operation communities rather than indi- viduals, and, therefore, more properly the subject of gen- eral than special complaint, — such as great riots that shake the social fabric, carrying terror and dismay among the (•itizcns ; general publico nuisances, affecting the public health and comfort ; multiplied and flagrant vices, tending to de- bauch and corrupt the public morals, and the like. In such cases the courts may properly, in aid of inquiries directed by them, summon, swear, and send before the grand jury such witnesses as they may deem wecessary to a full investi- gation of the evils intimated, in order to enable the grand jury to present the offence and the offenders. But this course is never adopted in case of ordinary crimes, charged against individuals, because it would involve, to a certain extent, the expression of opinion by anticipation on facts subsequently to come before the courts for direct judgment, and because such cases present none of tliose urgent neces- sities which authorize a departure from the ordinary course of justice. In directing any of these investigations, the court act under their official responsibilities, and must an- swer for any step taken, not justified by the proper exercise of a sound judicial discretion." ^ This opinion will be also found nearly in full in Wh;irt. Cr. L. (3d ed.). §458, note; Whart. Cr. PI. & Pr. (8th ed.), § 338, note. It has been strongly indorsed, as stating the initiation of criminal proceedings with great fullness and accuracy. See Eovvand v. Cora., 82 Pa. St. 40.5, 407; charge of Field, J., 2 Sawyer, 6G7, 676; Grand Jury v. Public Press, 4 Brewst. 313. ' It is conceived that a moral responsibility only is here indicated. § 614.] PRESENTMENTS UPON KNOWLEDGE. (jt>7 § 613. Charge preferred ex officio by Prosecuting- Officer. — Another exception to the general rule is the con- ceded right of the attorney-generiil, or other prosecuting officer, to bring to the attention of the grand jury the cir- cumstances of a particular case for their action.^ In prac- tice, this power should be cautiously exercised — generally under the direction of the court — and never unless the public good demands it. It is evident that this emergency includes a limited class of cases, for example, such as where the accused has fled the State, and an indictment found may be required previous to demanding him from a neighboring- State, or where a less prompt mode of proceeding might lead to the escape of the offender. AVhen the public officer exercises this power without some pressing and adequate necessity to justify the course, it is the duty of the court to set the officer's act aside. The action of the officer and the court can be made the subject of review by an a[)- pellate court only when the abuse of their powers is both manifest and flagrant.^ § 614. Presentnieut upon Knowledge of the Grand Jury. — ( 1. ) Grounds of this Knoivledge . — The grand jury, from the earliest times, has preferred charges founded upon the knowledge of members of the bod3^■" Referring tf) a previous chapter, it will be seen that the accusing body were contemplated as presenting only upon this ground. Each of the body were sworn to "speak the truth."* Later, they swore to make a true presentment, not only of matters 1 Opinion of King, J., ubi sup.; Rowand v. Com. 82 Pa. St. 40'), 408; McCullough V. Com., 67 Pa. St. 30, 33; Brown v. Com., 76 Pa. St. 319, 337 ; Hartranft's Appeal, 85 Pa. St. 433, 441 ; Grand Jiny v. Pnblic Press, 4 Brewst. 313; United States v. Fuei-s, 12 Int. Rev. Rec. 43; Com. v. Jadwin. 1 Cr. L. Mag. 231 ; cliarge of Field, J., 2 Sawj-er, 673; Com. v. Crans, 3 Penn. L. J. 454; s. c. 2 Claris, 185; Com. v. Ridgway, 2 Ashm. 247, 259. ^ Rowand V. Com. supra. Charges not made before tlie committing magistrate, or on a presentment, cannot be included in an indictment, without the official sanction of tlie district attorney. Com. v. Simons, 6 Phila. 167. •» Add. (Penn.) Appendix, 38; Reg. v. Russell, 1 Car. & M. 247. * Ante, § 465. 668 POWERS OF THE GKAND JURY. [CH. XXX. and things given in churgc, bnt also of all other matters and things which shonld come to their knowledge.^ But some judges have taken a distinction at this point. In the view of these courts, the only knowledge of the grand jury which can properly serve as the foundation for a presentment, is that which is derived, not from rumors and reports, but from their own observation, or, incidentally, from testimony given before them.^ To illustrate : While the grand jury are inquiring into one offence, another and a different offence may be proved, or the witnesses may, to their satisfaction, have been guilty of perjury in giving testimony before them, in either of which cases a presentment may properly fDllow.^ (2.) Private Prosecutor not heard in certain Courts. — We have seen that in England the "knowledge" of the grand jury was, and is generally formed from facts brought to their attention by private prosecutors ; * but under the rule requiring the knowledge of the grand juror to be based upon personal observation, the private prosecutor is rigor- ously excluded from the grand jury room.^ Thus, in the charge of ^Ir. Justice Field, before noticed. Me find this authorative statement of the law: "You will not allow private prosecutors to intrude themselves into your presence, and present accusations. Generall}^ such parties are actu- ated by private enmity, and seek merely the gratification of their personal malice. If they possess any information justi- 1 Ante, § 593. 2 Charge of Field, J., reported 2 Sawyer, 667, 672; Com. v. Crans, 3 Penn. L. J. 454; s. c, 2 Clark, 185. 3 Ibid. See also State v. Terry, 30 Mo. 368. Contra, State v. Robin- son, 2 Lea. 114. * Ante, § 609. * Re Lloyd and Carpenter, opinion of King, .J., 5 Fenn. L. J. 64; s. c. 3 Clark. (Penn.) 197; McCulloiigh v. Com. ,67 Pa. St. 30, 33; Lewis v. Wake County, 74 N. C. 194, 199. A presentment foiind, not upon the knowledge of any of the grand jury, but upon the unsworn statements of a person appearing befoi'e them, should be abated upon the plea of the defendant. State v. Love, 4 Humph. 255. However, the same court holds that a defendant has no right to impeach, by plea, the information of the grand juror upon whose knowledge a presentment is made. State v. McManus, 4 Humph. 258. § 614.] COMMUNICATIONS WITH GR.'VND JURY. 66d fying the accusation of the person agahist whom they com- plain, they should impart it to the district attorney, who will seldom fail to act in a proper case. But if the district attorney should refuse to act, they can make their complaint to a committing magistrate, before Avhom the matter can be investigated ; and if sufficient evidence be produced of the commission of a public offense by the accused, he can be held to bail to answer to the action of the grand jury. When the court docs not deem the matter of sufficient im- portance to call your attention to it, and the district attorney does not think it expedient to submit the matter to your consideration, and the private prosecutor neglects to pro- ceed before the committing magistrate, we think it may be safely inferred that public justice will not suffer if the mat- ter is not considered by you." ^ (3.) Commmvication with the Grand Jury a Contempt of Court. — Not only are the grand jury prohibited from making a presentment founded upon any matter brought to their attention by a private prosecutor, but courts holding this view regard as a high contempt, a written communica- tion to that body, expressive of the particular views of the writer, as to what ought to be their course of action on a subject, either actually or likely to come before them for deliberation and decision. "Individuals" said Parsons, J., " have no more right to appear before them to discuss mat- ters, or send them letters relative to subjects which are before them, or which may come before them, than they would have to communicate with a petit jury after a charge had been delivered from the bench, in relation to a case which has just been tried." '^ Accordingly, a court possess- ing plenary power to punish contempts, will, by a summary proceeding, punish all such communications with the grand jury, as illegal obstructions of the administration of public justice.^ And this view is sometimes enforced by statutes, 1 2 Sawyer, G67, 673. ■^ Com. V. Crans, 3 Penu. L. J. 450; s. c. 2 Clark, 181. ^ Ibid. See also charge of Field, J., 2 Sawyer, 667, 674. '670 POWERS OF THE GRAND JURY. [CH. XXX. inhibiting coniniunication.s with the gi-and jury upon pain of punisiiment for a misdemeanor.^ § G15. (ioneral Inquisitorial Powers of the Grand Jury. — (1.) Exprc'KKions of Opinion fiJiowing. — The views expressed in the preceding section are pointedly contra- dicted by the oi)inions and practice of other courts. Referring to Serjeant Hawkins' definition of an indictment,^ we find that the grand jury were "returned to inquire of
'ERS OF TIIK GRAND .TIUY. [CH. XXX. § f)17, Spocial Inquisitorial Powers. — In Ji former c'hnpter we have seen that the statutes of many States im- pose particuhir duties of investigation upon the grand jury, and, that these may be efficiently performed, they are vested with the necessary powers. Tlius, a common provision is that thev shall inquire into the official misconduct of public officers of every description within the county, and arc en- titled to an examination of all its public records.' In Ten- nessee the grand jury have not general inquisitorial powers ; nevertheless, under the statutes, they may, without any order of court, send for and examine witnesses in a consid- cr^ible number of specified cases.^ It is held that the power thus conferred is in derogation of the common law, and not to be extended beyond the express provision of the statute.' For example, running a horse race, although subject to the penalties of gaming, was held to be not within the meaning of the word "gaming," in a statute giving the grand jury inquisitorial powers in reference to this offence. The policy ■ of the statute was said to be "to ascertain the commission of •offences enumerated in the statute, which can be committed : secretly, and to su[)press them by vigorous punishment." * This principle was in one case carried to a length which can ^iiardly be justified. It was held that where a witness was properly summoned under the inquisitorial powers of the irrand jury to testify as to certain offences, an indictment •could not be found upon the testimony of such witness ^Avhich incidentally disclosed a felony for the investigation ■ of which the statutes did not grant inquisitorial powers. £ The indictment would seem to have been properly found ■upon the knowledge of the grand jury.'' 1 Ante, § 473. 2 State V. Barnes, 5 Lea, 398, 3 Glenn v. State, 1 Swan, It); Harrison v. State, 4 Coklw. 195; State v. Smith, Meigs, 99; State v. Adams, 2 Lea, G47. ■• Harrison V. State, .s«pm. See also State v. Adams, supra-, State v. -Staley, 3 Lea, 565; State v. Estes, 3 Lea, 168; State v. Parrish, 8 Iliunpli. 80; State v. Smith, Meigs, 99; Harless v. United States, Morris (la.), .169. « State V. Robinson, 2 Lea, 114. -«See ante, § 614. § 618.] POWER TO COMPEL PRODUCTION OF TELEGRAMS 675 § 618. Power to compel Production of Telegrams. — (1.) Telegrams not Privileged Communications. — It is believed to never have been judicially determined that com- munications by the telegraph are privileged from disclosure, which otherwise would be relevant and proper testimony to promote the ends of justice. On the contrary, the courts regard telegraphic dispatches as competent evidence.^ Nay more, a telegraphic operator is bound as a witness to dis- close them.-^ (2.) Hides of the Oompaiiy and Statutes interposing Secresy, notwithstanding. — The rule seems to be settled that the agent of a telegraph company may be compelled, by proper process, to produce such messages in a court of justice, in a civil or criminal case, whenever they become ma- terial evidence, notwithstanding all rules of the company to the contrary, as well as the statutory provision, existing in many of the States, making it a penal offence for a servant of a telegraph company to disclose the contents of a mes- sage.^ On principle, therefore, it is clear that the grand jury, in those States at least where it is possessed of a gen- eral inquisitorial power, may cause a subpoena duces tecum to issue to compel a production by the officer having the tel- egrams in custody.* (3.) Productio7i ordered only upon Particular Descrip- tion. — But the exercise of this inquisitorial power by the grand jury cannot be too carefully hedged about with re- ^ Com. V. Jeffries, 7 Allen, 548; iSTatioual Bank v. National Bank, 7 W. Va, 544. 2 State V. Litchfield, 58 Me. 267, 269; s. c, 10 Am. L. Keg. (N. S.) 376; WaddelPs Case, 8 Jur. (JS. S.) Part II. 181; s. c, Allen's Tel. Cas. 496, note; Inee'sCase, 20 L. T. (N. S.) 421; s. c, Allen's Tel. Cas. 497, note. This is strongly controverted bj^ Mr. Justice Cooley in his authoritative work upon Constitutional Limitations (see page 307, note), and in a more exhaustive discussion by him elsewli'ere. See 18 Am. L. Reg. 65. 3 Waddeirs Case, supra; Heinsler v. Freedman, 2 Pars. Sel. Cas. Eq. 274; United States v. Babcock, 3 Dill. 566. * Ex parte Brown, 72 Mo. 83; s. c, 11 Cent. L. J. 491, overruling the decision of the majority of the St. Louis Court of Appeals upon the ques- tion as to the sufficiency of the identiflcatioii of the telegrams called for. See 7 Mo. App. 484; S Cent. L. J. 378. See also an exhaustive discussion of this subject by Henry Hitchcock, Esq., in 5 So. Law Rev. 473. 676 POWERS OF THE GRAND JURY. [CX. XXX, strictions against impertinent curiosity.^ The familiar pro- \ision of the Federal Constitution ^ guaranteeing to the citi- zen security against unreasonable searches and seizures, is duplicated in the constitution or laws of every State. A subpccna duces tecum^ commanding the agent of a telegraph company to produce for the inspection of a grand jury any and all dispatches in his possession which passed between certain parties named, between certain dates covering a con- siderable period of time, Avould seem to be obnoxious to the constitutional provision in question.^ 1 The power of a court of equity to compel a discovery by any party defendant to the suit, of any document in his possession, or fact resting in his knowledge, material to the plaintiff's case, bears a close analogy to that exercised under the supczna duces tecum. 8ee Ex parte Brown, 72 Mo. 83, 95. The court of chancery was never prodigal in granting such ap- plications, but. on the contrarj', maintained a scrupulous regard for the right of security against impertinent intrusion. See Wigram on Discov- ery, 15, 16; Hare on Discovery. (2d ed., 1876), p. 136, ch. 2; Langdell's Summary of Eq. PL, p. 107; Mitford's Eq. PI. 306; Shaftesbuiy v. Arrowsmith, 4 Ves. 66, 71. 2 Amend. 4. 3 Ex parte Brown, 72 Mo. 83. See also the dissenting opiuion of Lewis, P. J., when this case was before the St. Louis Court of Appeals. 7 Mo. App. 484, 494. Eeported also in 11 Cent. L. J. 115. Contra, United States v. Babcock, 3 Dill. 566. ^ 622.] PROCEEDINGS OF THE GRAND JURY. 677 CHAPTER XXXI. OF THE PROCEEDINGS OF THE GRAND JURY. Article I. — Preliminary Proceedings. U.— Sessions how far Secret. III. — Hearing the Evidence. IV. — The Finding. V. — Indorsement of Finding. VI. — Other Indorsements. VII. — Irregularities in Proceedings. ARTICLE I. PRELIMINARY PROCEEDINGS. SECTION. 622. Appointment of Foreman. 623. Appointment of Clerk. 624. Summoning- Witnesses. 625. Swearing Witnesses. (1.) In Open Court. ^2.) In Grand Jury Room by a Magistrate. (3.) B3^ the Foreman and otlier Officers under Statutes. (4.) Effect of sucli Statutes. 626. Form of Oatli. 627. Custody of the Grand Jury. § 622. Appointment of Foreman. — The statutes gener- ally direct the court to appohit a foreman of the body before they are sworn, to whom the oath is usually admin- 678 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. istered singly.^ And generally the court has povver to a[)- point a substitute for the foreman, when that offieer is excused or discharged before the gi-aiid jury is dismissed.^ In Maine, Massachusetts and Michigan, the foreman is elected by the grand jury after it retires to the jury room .^ § 623. Appointment of Clerk. — In many of the States it is the duty of the grand jury to api)oint one of their number a clerk to preserve minutes of their proceedings (except of the votes of the individual meml)ers on a pre- sentment or indictment), and of the evidence given before them.^ In other States the statutes merely authorize this to be done.^ Usually such minutes are delivered to the attorney general, district attorney, or other prosecuting offi- cer, upon the discharge of the grand jury.^ A statute of 1 Ante, §§589, 590. 2 Rev. Stats. U. S. § SOS; Code Ala. 1876, § 4753; Comp. L. Ariz. 1877, § 583; Cal. Penal Code, § 902; Ark. Dig. Stat, 1874, § 1749; Gen. Laws Colo. 1877, § 1475; R. S. 111. 1880, p. 651, § 17; 2 Stat Ind. 1876, p. 374, § 14; Miller's R. C. Iowa, 1880. § 4267; Comp. L. Kan. 1879, § 4566; G. S. Ky. 1879, p. 570, § 5; R. S. La. 1876, § 2136; R. C. Md. 1878. p. 561, § 5; 2 Stat, at Large, Minn. 1S73, p. 1035, § 96; R. S. Mo. 1879, § 1771 ; Comp. L. Neb. 1881, p. 725, § 394; Comp. L. Nev. 1873, § 1815; New York Code Crim. Proc. 1881, § 245 ; Gen. Laws New Mexico, 1880, p. 368, § 10; R. S. Ohio, 1880, § 7190; Stat Tenn. 1871, § 4020; Gen. Laws Oreg. 1872, p. 345, § 36; Laws Utah, 1878, § 126; G. S. Vt. 1862, p. 332, § 14; Code Va. 1873, p. 1237, § 6. 3 R. S. Me. 1871, ch. 134. § 4; G. S. Mass. 1860, eh. 171, §7; Comp. L. Mich. 1871. § 7883. 4 New York Code Crim. Proc. 1881, § 250; Miller's R. C. Iowa, 1880, § 4275; Gen. Laws Oreg. 1872, p. 346, § 41; 2 Stat, at Large, Minn. 1873, p. 1035, § 100. See also Gen. Laws New^ Mexico, 1880, p. 369, § 16. 5 Texas Code Cr. Proc. 1879, § 398; R. S. Wis. 1878 § 2550; Gen. Stat. N. H. 1867, ch. 242, § 7; R. S. Mo. 1879, § 1780; Comp. L. Mich. 1871,, § 7888; G. S. Mass. 1860, ch. 171, § 10; R. S. Me. 1871, ch. 134, § 7; Comp. L. Kan. 1879, § 4573. ^ It is discretionary with the court to order the prosecution to furnish the prisoner with the evidence used before the grand jury. A refusal cannot be made a subject of a writ of error. Eighmy v. People, 79 N. Y. 546, 560. In denying a motion of this kind, on one occasion, the court said of the motion papers: " They do not state wherein any of the pro- ceedings of the grand jury were irregular, so the court can judge whether it is a matter competent for the defendants at this time to challenge or investigate, or wherein au inspection is essential to protect any right of § 623.] PRELIMINARY PROCEEDINGS. 679^ Iowa directs the return of the minutes of the testimony of the witnesses upon which any indictment has been found. These are filed with the clerk of the court, and " remain in h^s office as a record." ^ It further directs that these min- utes shall be open to the inspection of the defendant and hi!> counsel ; that a copy of the same shall be furnished to either of the latter within two days after demand made, or they shall be permitted to take a copy.'^ A similar provision is found in Minnesota with reference to presentments.^ The statutes generally give the defendant no further information as to the character of the testimony upon which the indict- ment was found, than by providing for the indorsement upon the indictment of a list of the names of the witnesses. It is believed the law is sufficiently gracious in making this- concession. Practitioners of Iowa and Minnesota are doubt- less more capal)le than we to say what is the effect of the provisions here noticed. That they must frequently serve a. vicious purpose, would seem clear. The prevention of sub- ornation of perjury upon the trial of the accused, is com- monly stated as one of the reasons for the obligation of secresy imposed upon the grand jurors. The oath of the grand juror in Iowa imposes no injunction of secresy, and the effect of this provision is to inform the defendant spe- cifically as to the evidence against him. If the State had a right to a new trial, or any means of vacating verdicts of the defendant, or wherein the non-prodnctioii of the minutes will work: an injustice, or that he cannot more properly derive all the informa- tion he seeks from other sources. Before the court will order the dis- trict attorney to produce any paper which he has deemed it his duty to- withhold, the party seeking such an order must hring himself strictly within the law." Per Pratt, J., (Kings County N. Y., Oyer and Term- iner), in People v. Naugliton, 7 Abb. Pr. (N. S.) 421, 431. ^ The minutes of the evidence thus returned cannot be contradicted by affidavits of grand jurors, or of witnesses, showing that the record does- not contain all the material evidence given before the grand jury. State- V. Little, 42 Iowa, 51. They are not admissible upon the trial as inde- pendent evidence. State v. Ostrander, 18 Iowa, 435. Or for the purpose of impeaching a witness. State v. Ilayden, 45 Iowa, 11. 2 Rev. I860, § 4647; Code 1S73. § 4293; Miller's Code, 1880, § 4293. 3 2 Stat. atLarge, 1873, §§120, 123. 680 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI acquittal obtained by fraud or perjury, the reasons in justi- fication of a rule which exposes the State's evidence to the accused in advance of the trial, would be more clear. § 624. Summoning- AVitnesses. — The principle is well established that the grand jury is an appendage of the court,^ acting under its authority, and that, for this reason, all witnesses, material to the investigations of the grand jury, are compelled to appear before that body by a sub- poena which issues from the court. Under the English practice, " if a witness neglect to obey a subpoena, on an aflSdavit that he was material to the prosecutor's case, and was duly served with the subpoena, the Court of King's Bench will grant an attachment against him, on which he may be takeji and committed till after the trial of the offender, when an order will be made for his discharge. If he neglect to appear after a recognizance entered into by him, such recognizance will be forfeited, and he will be subject to the consequences of such forfeiture. So, if he be bound over to appear and neglect to do so, he may be committed for a contempt. So if he appears, but refuses to be sworn, he may be committed for a contempt, from which liability not even the privilege of peerage can excuse him."- § 625. Swearing- Witnesses. — (1.) In open Court. — Under the English practice, the witnesses in support of the bill are sworn in court and sent to the grand jury.'^ Proba- bly this was the general practice in early times in this country * Thus, in an old North Carolina case, we find the court absurdly punctilious in this matter. The grand jury made a presentment, upon which a bill was prepared and committed to them for approval. The court held that those 1 Ante, § 596. 2 1 Cliitty Cr. L. 3-21, citing Kex v. Lord Preston, 1 Salk. 278. As to the production of documents before the grand jury, see Rex v. Hunter, 3 Car. & P. 591. 3 1 Chitty Cr. L. 3-22; Tlie Middlesex Special Commission, G Car. & P. 90. * State V. Barnes, 7 Jones L. 20; Gilmau v. State, 1 Humph. 59. It remains the practice in South Carolina. See State v. Kilcrease, 6 So. Car. 444. § (i25.] PRELIMINARY PROCEEDINGS. 681 members of the body, upon whose information the present- ment hud been made, ought to have been brought into court, sworn and sent back to their colleagues before the bill was found true.^ (2.) In Grand Jury Room by a Magistrate. — The Su- preme Court of Connecticut attach no importance whatever to the swearing in open court. Upon this point it was, on one occasion, said: "The custom of administering the oath to the witnesses in the jury room, by a magistrate, has been uniform ; and, so far as we are informed, no witness has ever been sworn in our courts and sent to the grand jury for examination. "'- (3.) By the Foreman and other Officers, under Statutes. — At the present time, the swearing of the witnesses in open court is quite generally dispensed with by statute. Thus, they may be sworn in the grand jury room by the foreman,^ the prosecuting attorney,* the attorney-general,^ any justice upon the jury,*' or a member thereof.^ In Ohio 1 State V. Cain, 1 Hawks, 352. 2 State V. Fasset, 16 Conn. 4G5. 3 Eev. Stat. U. S., § 808; Code Ala. 1876, § 4773; Comp. Laws Ariz. 1877, § 599; Cal. Penal Code, § 918; Ark. Dig. Stat. 1874, § 1758; Gen. Laws Colo. 1877, § 1474; Code Ga. 1873, § 3917; R. S. 111. 1880, p. 651, § 17; 2 Stat. Ind. 1876, p. 375, § 14; Miller's R. C. Iowa, 1880, §4274; Comp. L.Kan. 1879, § 4572; Bullitt's Ky. Cr. Code, § 106; K. S. La. 1876, § 2137; R. S. Me. 1871, ch. 134, § 6; G. S. Mass. 1860, ch. 171, § 9; Comp. L. Mich. 1871, § 7887; 2 Stat, at Large Minn. 1873, p. 1036, § 106; E. S. Mo. 1879, § 1775; Comp. L. Nev. 1873, § 1829; G. S. X. H. 1867, ch. 242, § 6; Eev. IST. J. 1877, p. 526, § 8; New York Code Crim. Proc. 1881, § 253; Gen. Laws New Mexico, 1880, p. 370, § 4; Bright. Purd. Pa. Dig. p. 377, § 11; Gen. Stat. E. I. 1872, p. 434, § 37; Stat. Tenn. 1871, § 5092; Laws Tenn. 1875, ch. 30, § 1 ; Gen. Laws Oreg. 1872, p. 346, § 47; Laws Utah. 1878, § 133 ; E. S. Wis. 1878, § 2549. The validity of a swear- ing by the foreman is not affected by the circumstance that his appoint- ment does not appear upon the minutes of the court. People v. Eoberts, 6 Cal. 214. " Code Ala. 1876, § 4773; E. S. Me. 1871, ch. 134, § 6; G. S. Mass. 1860, ch. 171, § 9; Comp. L. Mich. 1871, § 7887; G.S. N. H. 1867, ch. 242, § 6; E. S. Wis. 1878, § 2549. 5 E. S. Me. 1871, ch. 134, § 6; Comp. L. Mich. 1871, § 7887. 6 Gen. Stat. N. H. 1867, ch. 242, § 6. 7 Bright. Purd. Pa. Dig. p. 377, § 11. 682 PROCEEDINGS OF THE GRAND JURY. [cil. XXXI. the statutes expressly re(|iure the witnesses to be sworn by the clerk of the court. ^ (4.) Effect of such Statutes. — Without such a statute as the foregoing, the foreman has no power, ex officio, to admin- ister an oath.'^ A statute vesting the foreman with power to swear the witnesses, does not abrogate an existing prac- tice of swearing them in open court and sending them to the jury. Either mode may be i)ursued.^ § G26. Form of Oath. — The form of oath administered under the English practice varies from that in general use in this country. This arises from a difference in the modes of proceeding before a grand jury, which we have before noticed. In England, a bill of indictment is prepared in the case of each accused person, and sent to the grand jury as the basis of their investigations. With us, the charge is made, fully considered and sustained by the grand jury before a formal indictment is drawn.'* As a result, in England " each witness, before he leaves the court, is sworn that the evidence he shall give to the grand inquest upon the bill of indictment against the defendant, shall be the truth, the whole truth, and nothing but the truth." ^ Under our system, there is no cause pending in court, or even before the grand jury, in the legal sense of the term, at the time the witnesses are sworn, and, as a consequence, no title to the proceedings can properly be given, or be necessary to the validity of the oath.*^ In other words, a general form of oath, to jrive evidence touch ins: criminal charges to be laid l)efore the grand jury, without reference to any partic- ular person, is sufficient. The validity of the oath is not affected by introducing into it the name of one person followed by " and others ;" but, without this general refer- 1 Rev. Stat. Ohio, 1880, § 7199. 2 State V. Kilcrease, G So. Car. 444. 3 State V. Allen, 83 M. C. 680. * Ante. § GOG. •^ 1 Ohitty Cr. L. 322. « United States v. Reed, 2 Blatch. 435, 4G4, per Xelson, J. See also State V. Freeman, 13 N. H. 488; Com. v. Smyth, 11 Cush. 473; People v. Lawrence, 21 Cal. 368, 373; State v. Burgess, 24 Mo. 381, 382. § 629.] SESSIONS HOW FAR SECRET. 683 ence, the witness can testify only in the case of the person or persons named in the oath.^ § 627. Custody of the Grand Jury* — It is usual and proper for the grand jury to be phiced in charge of some officer, the sheriff, his deputy or constable, specially sworn for that purpose. It is not, however, essential that this should be done. The sheriff, being a sworn offi- cer of the court, is competent to act as custodian of the body without taking any additional oath. Where the statutes prescribe an oath for the officer having the jury in charge, it must refer to some person, like the constable, not already an officer of the court. ■^ AETICLE II. SESSIONS HOW FAR SECRET. SECTION. 629. Private Prosecutor anciently admitted. 630. And King's Counsel in Cases of High Treason. 631. Clerk and Police Officer under English Practice. 632. Persons admitted under American Practice. 633. Exception in certain States. 634. How affected by Statutes. § 629. Private Prosecutors anciently admitted. — The session of the grand jury is ordinarily regarded as secret, and so for practical purposes it is. However, there are two distinct stages in the process of finding an indictment: 1. The hearing of the evidence. 2. The deliberation and vote of the grand jury thereon. During the first of these stages, it appears that the practice in England from the earliest times was to admit the private prosecutor.^ After the abolition of the accusing function of the jury of the hundred,* ^ United States v. Keed, sitpra. 2 State V. Perry, Busb. (N. C.) 330. 8 See post, § 630. * Ante, § 468. 684 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. and the selection of a grand jury of the county at large, it is obvious that if this latter body, like the former, were con fined to the presentation of offences within their own knowledge, they would onl}' imperfectly perform their oflice as an accusing body for the entire county. We have before noticed that, under the English practice, the government does not, without the suggestion of aggrieved persons, take notice of violations of law resulting in injury to particular individuals only.^ By far, the greater part of offences are of this description.^ The persons thus legally entitled to prefer an accusation, are, in general, legally bound to do so, and for this purpose have always had free access to the grand jury, and, according to old authority, were per- mitted to be present "to manage the evidence for finding the bill." ^ As to the modern English practice, Mr. Chitty says: "It is not unusual, except in the King's Bench, where the clerk of the grand juries attend them, to permit the prosecutor to be present dui'ing the sitting of the grand jury, to conduct the evidence on the part of the crown." * § 630. And King's Connsel in Cases of High Treason. — Upon the proceedings against the regicides of Charles I, it was resolved by the judges, "that any of the King's counsel might privately manage the evidence to the grand inquest, in order to the finding of the bill of indictment, and agreed that it should be done privately ; it being usual in all cases, that the prosecutors upon indictments are admitted to manage the evidence for finding the bill ; and the King's counsel are the only prosecutors in the King's case, for he cannot prosecute in person.'^ Without doubt, this practice was frequently attended with great abuse, since we find it later severely reprobated by a distinguished authority. " I know not," said. Sir John Hawles ** " how ' Ante, § GOO. •-'1 Chitty Cr. L. 1. ^Seethe resolution of tlie judges upou tlie trials of the Regicides, in the next section. < 1 Chitty Cr. L. 316. 5 Sir J. Kelyng, 8; 5 How. St. Tr. 972. ® Solicitor General in the reiffu of Will. HI. § G32.] SESSIONS HOW FAR SECRET. 685 long the practice in that matter of admitting counsel to a grand jury hath been. I am sure it is a very unjustifiable and unsufferablc one. If the grand jury have a doubt in point of law, they ought to have recourse to the court, and that publicly and not privately, and not rely on the private opinion of counsel, especially King's counsel, who are, or at least behave themselves as if they were parties." ^ The practice later seems to have fallen into disuse. An instance is noted in 1794, Avhere the King's counsel were admitted to a grand jury, convened upon a special commis- sion of oyer and terminer to inquire of certain treasons, but this was at the desire of the grand jury, and by leave of the court. ^ Two years after this date, during the examination of certain charges of high treason, the solicitor of the Treasury, acting for the attorney general, requested of the grand jury that he be admitted. The grand jury, after debating upon the matter some time, determined that, con- sistentl}^ with their oath, no person, however exalted his station, could, if not a witness upon the occasion, be present whilst the jury were making their inquest into the charges in any indictment. The solicitor was, therefore, not admitted.^ § 631. Clerk and Police Officer under English Practice. — Underthe English practice, at least in the Queen's Bench, it seems to be not uncommon to admit a clerk to the grand jury room, having in charge the evidence taken before the com- mitting magistrate, in order that any discrepancies between the testimony given upon the preliminary examination and that before the grand jury may be noted. ^ A police ofiicer may also be stationed within the grand jury room.^ § 632. Persons admitted luider American Practice. — In 1852, Mr. Justice Nelson stated it to be the uniform practice in the State and Federal courts, for the clerk and 1 5 How. St. Tr. 972, note. 2 5 How. St. Tr. 972, note. 3 Rex V. Crossfield, 8 How. St. Tr. 773, note. * 1 Chitty Cr. L. 316; Keg. v. Hughes, 1 Car. & K. 519, 526. * Reg. V. Hughes, supra. 686 PROCEEDINGS OF THE GRAND JUltY. [CH. XXXI. assistant of the district attorney to attend the grand jury, and assist in investigating the accusations presented before it. "That" said he, ''has been the practice, to my knowl- edge, witliout question, ever since I have had any connec- tion with the administration of criminal justice. * * * We cannot, at this late day, overturn a uniform practice that has been settled for so long a time." ^ The mere presence of a bailiff of the court in attendance upon the grand jury during their investigation of a criminal charge, is not a snfficient ground of objection against the indictment, if he was not present when the vote was taken upon the finding of the indictment.^ The only objection which can arise out of the presence of proper oiEcers before the grand jury, is that they have abused the privilege con- ferred.^ It has been held that the fact that the prosecuting officer or his assistants were present during the deliberations and the voting of the grand jury, will not per se invalidate their finding.* But the soundness of this decision may be doubted. Their very presence at such a time would seem to be an abuse of their official privilege. ° § 633. Exception in Cei-tain States. — The practice, as indicated in the previous section, is not universal. In an early Connecticut case,'' the Supreme Court, in order to solve some doubts which had been expressed as to the power and duty of the grand jury, prepared a model charge, in which is found the following : "You will admit no counsel on the part of the State or of the prisoner." In a recent opinion of the Supreme Court of North Carolina, it was 1 United States v. Heed, 2 Blatch. 435, 455. See also State v. Whitney, 7 Oreg. 386; Ex parte Crittenden. Hempst. 176; charge of Field, J., 2 Sawyer, 678; Shattuck v. State, 11 Ind, 473. It is not necessary that the assistants of the district attorney shonld be sworn as deputy prose- cutors. Shal tuck V. State, sM;>ra. 2 State V. Kimball, 29 Iowa 267. 3 United States v. Eeed, 2 Blatch. 435, 455; Shattnck v. State, 11 Ind. 473. * Shattuck V. State, supra. estate V. Kimball, 29 Iowa 267; Charge of Field, J., 2 Sawy. 678; Rothschild v. State, 7 Tex. App. 519. f Lung's Case, 1 Conn. 428. § 634.] SESSIONS HOW FAR SECRET. 687 bluntly said : " The solicitor has no business in the grand jury rooni."^ In South Carolina it was not the practice, up to 1870, to admit the prosecuting officer, * but later it was held that he might, at the request of the foreman, enter the grand jury room to instruct this officer how to write the findings.^ The Supreme Court of Mississippi hold that per- mission cannot properly be granted to an attorney, employed to assist in the prosecution, to go Ijefore the grand jury with the witnesses, and there act for the district attorney in framing the indictment.* A fortiori, an indictment was quashed, where it appeared that two attorneys, hired to assist the prosecuting officer, were admitted to the grand juiy room, one of whom read to the grand jury extracts from hiw books, and the other advised them that it was their duty to find the bill true if they had grounds for " reasona- ble suspicion of guilt." ^ § 634. How affected hy Statutes. — The statutes of a considerable number of the States distinctly specify the duty and privilege of the prosecuting officer in the matter of attendance upon the grand jury. Thus, he must attend, when required by the grand jury, to examine witnesses ;** and so he may whenever he deems his presence necessary for this purpose.' He must, also, when required by the 1 Lewis V. Wake County, 74 X. C. 194, 198, per Byniim, J. 2 State V. Addison, 2 So. Car. 356, 365. 3 State V. McNincli, 12 So. Car. 89, 95. ^ Durr V. State, 53 Miss. 425. Contra, State v. Whitney, 7 Oreg. 386. 5 State V. Addison, 2 So. Car. 356, 365. For a rebuke of a flagrant and successful attempt of an hired prosecutor, in the capacity of a witness, to influence the finding of tiie grand jury, see United States v. Farring- ton, 2 Crim. L. Mag. 525; s. c, 5 Fed. Eep. 343. « Code Ala. 1876, § 4775 ; Miller's E. C. Iowa, 1880, § 4281 ; Comp. L. Kan. 1879, §§ 1564, 4575; Bullitt's Ky. Cr. Code, § 109; Comp. L. Mich. 1871, § 7892; 2 Stat, at Large Minn. 1873, p. 1037, § 114; R. S. Mo. 1879, § 1781; Comp. L. Nev. 1873, §1837; R. S. Ohio, 1880, § 7195; Gen. Laws Oreg. 1872, p. 347, § 56; R. S. Wis. 1878, § 2551; New York Code Crim. Proc. 1881, § 263. See also Comp. L. Ariz. 1877, § 606; Gen. Laws i\ew Mexico, 1880, p. 370, § 12; Laws Utah, 1878, § 140. ' Cal. Penal Code, § 925; Ark. Dig. Stat. 1874, § 1767; R. S. Mo. 1879, § 1782; Comp. L. Neb. 1881, p. 726, § 399; R. S. Ohio, 1880, § 7195; Tex. Code Cr. Proc. 1879, Art. 391. See, also. Laws Utah, 1878, § 140. 688 TROCEEDINGS OF THE GRAND JURY. [CH. XXXI. grjind jury, attend for the purpose of giving that body legal advice or information as to any matter connected with tlieir duties ;^ and so he may whenever he deems it necessary.^ Neither he nor any other person can be present during their deliberations, or when the vote is taken upon any matter before them -3 The presence of this officer upon the ex- cei)ted occasions gives the accused a right to demand that the indictment shall be set aside* ARTICLE III. HEARING THE EVIDENCE. SECTION. 636. Proceedings ex parte. 637. Practice in Connecticut. 638. Exception to the General Rule suggested. 639. And authorized bj^ Statute. 640. Witnesses called in Discretion of Prosecuting Officer. 641. The Best Evidence required. 642. Effect of hearing Incompetent Evidence. 1 Code Ala. 1876. § 4775; Cal. Penal Code, § 925; Ark. Dig. Stat. 1874, § 1766; Miller's R. C. Iowa, 1880, § 4281; Comp. L. Mich. 1871, § 7892; 2 Stat, at Large Minn. 1873. p. 1037, § 114; R. S. Mo. 1879, § 1781; Stat. Tenn. 1871, § 5082; Gen. Laws Greg. 1872. p. 347, § 56; Texas Code Cr. Proc. 1879, Art. 396; Laws Utah, 1878, § 140; R. S. Wis. 1878, § 2951; New York Code Crim. Proc. 1881, § 263. See, also. Gen. Laws New Mexico, ISSO, p. 370, § 12. 2 R. S. Mo. 1879, §1782; Tex. Code Cr. Proc. 1879, Art. 395; Laws Utah, 1878, § 140; New York Code Crim. Proc. 1881, § 264; Cal. Penal Code, § 925; Comp. L. Kan. 1879, § 1564; Comp. L. Neb. 1881, p. 726, § 399; Comp. L. Nev. 1873. § 1837; R. S. Ohio, 1880, § 7195. See also Comp. L. Ariz. 1877, § 606. 3 Code Ala. 1876, § 4775; Cal. Penal Code, § 925; Ark. Dig. Stat. 1874. § 1767; Miller's R. C. Iowa, 1880, § 4282; Bullitt's Ky. Cr. Code, § 110; Comp. L. Mich. 1871, § 7894; R. S. Mo. 1879, § 1782; New York Code Crim. Proc. 1881, § 264; Comp. L. Nev. 1873, § 1837; Comp. Stat. Neb. 18S1, p. 720, § 399; R. S. Ohio, 1880, § 7195; Stat. Tenn. 1871, § 5082; Tex. Code Cr. Proc. 1879, Art. 395. See, also, Laws Utah, 1878, § 140; Comp. L. Ariz. 1877, § 606. 4 Rothschild v. State, 7 Tex. App. 519. § 636.] HEARING THE EVIDENCE. 689 643. Accused may voluntarily testify. 644. Testimony of Grand Jurors. 645. Quantum of Evidence necessary. 646. Jurors Judges of the Credibility of Witnesses. 647. Power to Coerce Witnesses. 648. Sanity of Accused need not be shown. 649. An Indictment substituted without Evidence. § 636. Proceeding's ex parte In a former chapter it has been seen that, at common huv, the proceedings of the grand jury were looked upon as so distinctly ex parte and preliminary, that no right of challenge to grand jurors ex- isted, although in the case of petit jurors, the provisions of the law were replete with expedients for securing an impar- tial trial.' The same view was and is enforced upon hearing the testimony. The defendant has no right to have counsel, or any person skilled in the law, present as an advocate in his behalf.- The general rule is, that the grand jury are to hear evidence only in support of the charge, and not in ex- culpation of the defendant.^ The policy of this rule is apparent from the remarks of Addison, J., on the duties of a grand jury: "If" said he, ■" witnesses brought forward by the accused person were to be heard in his defence before the grand jury, and thej'^ should find the charge true, this would approach so near to a convic- tion, that the traversing of the indictment afterwards, and the trial by the traverse jury would appear nugatory, and might be abolished. The finding of the bill would raise such an opinion and presumption of the guilt of the accused person, as must be a bias in the minds of all men ; and the prisoner could not come before the traverse jury with a hope of that impartialit}' in his judges, which the constitution of a jury trial supposes him to expect. " 4 1 Ante^ § 507 et seq. 2 1 Chitty Cr. I.. 817. 3 2 Hale P. C. 157; 2 Hawk. P. C, c. 25, § 145, note; Add. (Pa.) Rep. App. 3S; Lung' sCase, 1 Conn. 428; Kespublica v. Shaffer, 1 Dali. 236; United States v. Palmer, 2 Cranch C. C. 11 ; United States v. Blodgett, 35 Ga. 336. 4 Add. Pa. Rep. App. 41. (44) 690 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. § 637. Practice in Connecticut. — In an early Connecti- cut case, the Supreme Court of that State, in order to resolve some doubts Avhich existed i-elative to the powers and duties of the grand jury, prepared a model charge in which it was said: *' You will cause the prisoner and the witnesses to come before you. You will admit no counsel on the part of the State or of the prisoner. You will per- mit the prisoner to put any proper questions to the wit- nesses, but not to call any witnesses on his part." ^ This per- mission to be present during the examination of the wit- nesses, was always regarded as a piece of liberality accorded to the prisoner by the grace of the court. ^ He could not demand it as a matter of right. In a late case it was said by that court: " It always rested in the discretion of the court to grant the privilege or to deny it, and the rule in Lunges Case was not intended to interfere Avith the exercise of that discretion. The grand jury had, therefore, no- authority, unless directed by the court, to cause the defend- ant to come before them." ^ § 638. Exception to the General Rule suggested. — The seeming harshness of the rule excluding all testimony on behalf of the accused, has led to some qualification of it. Thus, it is said that, with the consent of the prosecution^ witnesses for the defendant may be sent to the grand jury.* Mr. Chitty observes upon this point : " The true intention seems to be, that, prima facie, the grand jury have no con- cern with any testimony but that which is regularly offered to them with the bill of indictment, on the back of which the names of the witnesses are inserted ; their duty being 1 Lung's Case, 1 Conn. 428. 2 State V. Fasset, 16 Conn. 469. 3 State V. Hamlin, 47 Conn, 95, 105. * United States v. White, 2 Wasli. C C. 20. However, the contrary was ruled on one occasion by Erskine, J., of the U. S. District Court for the Southern District of Georgia. '•'No such promise or agreement" said he, "can have the sanction of this court. To allow evidence, either oral or written, to go before the grand inquest on behalf of a defendant,, would be subversive of the ancient and well settled rules of courts of justice." United States v. Blodgett, 35 Ga. 336, 339. § ()40.] HEARING THE EVIDENCE. 691 merely to inquire whether there be sufficient ground for putting the accused party on his trial before another jury of a different description. But if they are unable to satisfy themselves of the truth sufficiently to warrant their deter- mination, they may properly seek other information relative to mere facts, but further than this they cannot proceed." ^ In accordance with this view, Mr. Justice Field on one occasion, charged a grand jury : " You will receive all the evidence presented w^iich may throw light upon the matter under consideration, whether it tend to establish the inno- cence or the guilt of the accused. And more: If, in the course of your inquiries, you have reason to believe that that there is other evidence, not presented to you, within your reach, which would qualify or explain away the charge under investigation, it will be your duty to order such evi- dence to be produced." ^ § 639. And authorized by Statute. — What has just been suggested, as a proper qualification of the general rule, has, in many States, been sanctioned by statutory provisions similar to that found in the New York Code of Criminal Procedure of 1881. It is here enacted as follows: " The grand jury is not bound to hear evidence for the defendant ; but it is their duty to weigh all the evidence submitted to them, and when they have reason to believe that other evi- dence, within their reach, will explain away the charge, they should order such evidence to be produced ; and, for that purpose, may require the district attorney to issue pro- cess for the witnesses."^ § 640. Witnesses called in Discretion of Prosecuting' Officer. — It is not usual for the court to give directions regarding witnesses to be called before the grand jury The prosecuting attorney sends such as he believes to be 1 1 Chitty Cr. L. 318. 2 2 Sa\v}\ 667. 670. 3 Sec. 257. See also Cal. Penal Code, § 920; Ark. Dig. Stat. 1874, § 1759; Miller's K. C. Iowa, 1880, § 4276; Bullitt's Ky. Cr. Code, § 107; 2 Stat, at Large Minn. 1873, p. 1036, § 109; Comp. L. Nev. 1873, § 1832- Gen. Laws New Mexico, 1880, p. 370, § 7; Gen. Laws Oreg. 1872, p. 346.. § 49 ; Laws Utah, 1878, § 185. See People v. Tinder, 19 Cal. 359. 692 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. necessary. However, it seems that, upon special reasons susfgested on application, the court will give such direc- tions.^ § 641. The Best Evidence required. -— Although the hearing of the testimony is largely removed from the su- perintendence of the court, the prosecuting officer should never attempt to introduce testimony, which, upon a jury trial, would be regarded as incompetent. "With respect to the Icind of evidence which a grand jury may receive," says Mr. Chittv, " it should be observed that they are l)Ound to take the best legal proof of which the ccse admits, and it must be given on oath."'^ The statutes of many of the States expressly provide that the grand jury shall receive only legal evidence,^ and others further specify that the evidence must be that which is the best in degree.* They can receive no other evidence than such as is given by witnesses produced and sworn before them, or furnished by legal documentary evidence.^ Depositions and the tes- timony taken before an examining magistrate may be received in certain cases." 1 State V. Wolcott, 21 Conn. 272, 280. 2 1 Chitty (;r. L. 318. See also Eex v. Willett, 6 Term Rep. 294; Deiiby"s Case, Leach C. C. 580; United States v. Keecl, 2 Blatch. 435, 457. per Nelson. J. 3 New York Code Criin. Proc. 1881. § 256; Ark. Dig. Stat. 1874. § 1759; BiiUitfs Ky. Cr. Code, § 107; Cal. Penal Code, § 919; 2 Stat, at Large Minn. 1873, p. 1036, § 108; Comp. L. Nev. 1873, § 1831; Gen. LawsOreg. 1872, p. 346, § 48. See also Comp. L. Ariz. 1S77, § 602; Gen. Laws New Mexico, 1880. p. 370, § 5; Laws Utah, 1878, § 134. ^ Sratmes of California, Minnesota, Nevada and Oregon, cited swjo?-a. ^NewY-.rk Code Crim. Proc. 1881, § 255; Code Ala. 1876, § 4776; Cal. Penal Code. § 919; Miller's R. C. Iowa, 1880, § 4273; 2 Stat, at Large Minn. 1873, p. 1036. § 107; Comp. L. Nev. 1873, § 1830. See also Comp. L. Ariz. 1877, § 919: Gen. Laws New Mexico, 1880, p. 370, §5; Laws Utah. 1878, §134. c New York Code Crim. Proc. 1881, § 255; Cal. Penal Code, § 919; Ark. Dig. Stat. 1874, §1768; Mider's R. C. Iowa, 1880, §§ 4273, 4289; Bullitfs Ky. Cr. Code, § 115; Comp. L. Nev. 1873, § 18;50. See also Laws U ail. 1878, § 134. It is no objection to an indictment that it is fonnded soltdy upon this kind of evidence. People v. Stuart, 4 Cal. 18; Sparrenbe rger v. State, 53 Ala. 481, 486. § 642.] HEARING THE EVIDENCE. 093 § 642. Effect of hearing Incompetent Evidence. — But from the very fact that the testhnouy is given apart from the audience of the court, and frequently in the absence of the prosecuting officer, it cannot be expected that a body of men, ignorant of the technical rules of evidence, should not frequently transgress them. Accordingly, it has been ob- served that it would be found intolerable, in practice, to confine them to technical rules of evidence.^ " Whether witnesses are competent," said Dillon, J., "is often a very difficult question of law, and to hold that, if the grand jury, in the course of their investigation, happen to examine an incompetent witness, this will have the effect to vitiate their finding, is going a step further than we are prepared to take." 2 However, this distinction may be taken, that if there be nothing to support the bill but incompetent evidence, the indictment must be set aside. "^ In a case of this kind the 1 State V. Woleott, 21 Conn. 272, 2S0, per Church, C. J. See also State V. Boyd, 2 Hill (S. C), 288, 289. ' Dillon, J., in State v. Tucker, 20 Iowa, §08, 510. See also State v. Fasset, 16 Conn. 457,472; Bloomer v. State, 3 Sneed, 66; People v. Strong, 1 Abb. Pr. (N". S.) 244; Hope v. People, 83 N. Y. 418; State v. logan, 1 Nev. 509; Turk v. State, 7 Ohio (Part H.), 242. But see Peo- ple V. Briggs, 60 How. Pr. 17 ; Steele v. State, 1 Tex. 142. 145. In Com. V. Knapp, 9 Pick. 495, 496, Chief Justice Parker said : "■ If anything im- proper shall be given in evidence before the grand ]\.\\'}\ the error may be corrected subsequent^ly upon the trial before the petit jury." The tfori'ection adverted to doubtless means nothing more than tliat the evi- dence would be rejected when again offered. 3 State V. Logan, 1 Nev. 509; People v. Naughton, 7 Abb. Pr. (IST. S.), 421,r424; People v. Kestenblatt, 1 Abb. Pr. 268; Hope v. People, 83 N. Y. 418; Sparrenberger v. State, 53 Ala. 481, 486; Steele v. State, 1 Tex. 142, 145; State v. (]ain, 1 Hawks, 352; State v. Fellows, 2 Hayvv. 340; United States v. Farrington (U. S. Dist. Court, N. D. New York, 1881), 2 Crim. Law Mag. 525; s. c, 5 Fed. Rep. 343; Com. v. Knapp, 9 Pick. 496, 498. per PiUnam, J. In Eex v. Dickinson, Russ. & Ry. C. C. 401, the witnesses l)efore the grand jury were not sworn, which objectiou was made after the prisoner had been dulj'' convicted. The justices without deciding upon the validity of the objection, directed, as a matter of discretion, that an application be made for a pardon. A conviction in such a case would seem to be a nullity. The Middlesex Special Com- mission, 6 Car. &P. 90. Tiie indictment certainly ought to be quashed for this reason, upon motion seasonablytaken. United States v. Cool- (51)4 PROCEEDINGS OF THE GRAND JURY. [CII. XXXI. court observed: " It is not intended to suo-o-est that when- ever incompetent testimony is received by a grand jury, its reception is such error or irreguhirity as to vitiate their tinding, nor to hold that the evidence upon which an indict- ment is found shall be such as the court would regard as mak- ing out a 2))-ima facie case against the accused. It is not the province of the court to sit in review of the investigations of a grand jury, as upon the review of a trial when error is alleged ; but in extreme cases, when the court can see that the tinding of a grand jury is based upon such utterly insuf- iicient evidence, or such palpably incompetent evidence, as to indicate that the indictment resulted from prejudice, or was found in wilful disregard of the rights of the accused, idge, 2 Gall. 364; State v. Koberts, 2 Dev. & B. 540, 542; Biddle/s Case, cited in State v. Fasset, 16 Conn. 464; People v. Naughtou, 7 Abb. Pr. X. S.),421, 424, per Pratt, J. But in a case at nisi prius, where, dur- jng the trial the objection was made that the swearing of the witnesses be- fore the grand jury had not been in regular form, Gurney, B., and Wight- man, J., are rei)ortcd as being of opinion thac the alleged irregularity ••was a matter which they ought not to inquire into; and also that the mode of swearing the witnesses to go before the grand jur}' would not, if incorrect, vitiate the indictment; as ihe grand jury were at liberty to find a bill upon their own knowledge nierelj% and were anciently in the habit of doing so. And Wightman, .J., added that the same point had arisen lately on the Northern Circuit before Lord Denman and himself, and thej% alter considering the subject, were of the same opinion as had been expressed to-day." Keg. v. Russell, 1 Car. & M. 247. The grand jury can hardly be said to have any '' knowledge "' in such a case. See ante, § 614. In a note to Hawkins" Pleas of the Crown (Book II.. c. 55, § 145), it is said to have been the opinion of manj' of the judges, in the case of Dr. Dodd, that if a grand jurj^ should find a bill upon evidence palpablj" im- proper, and the accused be afterwards convicted on it by lawful evi- dence before a petit jury, the validity of such a conviction could not be impeached. But in the report of this case in Leach's Crown Cases (p. 184, case 85), the opinion of Mr. Justice Aston, delivei'ed for the twelve judges, simpl}' decides that an accomplice is a competent witness against one particeps crirainLs, and the validity of an indictment found upon his testimony is not affected by the circumstance tliat he was illcgallj^ taken from Newgate to deliver his testimony liefore the grand jury, .'•^ee, in this connection, State v. Wolcott, 21 Conn. 272; United States v. Brown, 1 Sawy. 531. §643] HEARING THE EVIDENCE.. 695 the court should interfere and quash the indictment."^ The distinction here taken would seem to be proper and easy of application. Nevertheless, it is not regarded by all courts. On the contrary, a very respectaljle array of au- thority may be cited to support the proposition that the court will, under no circumstances, institute an inquiry as to the character of the evidence upon which an indictment was found. When the indictment has been duly returned, and the finding indorsed as required by law, these facts are considered as conclusive of the regularity of the finding.^ § 643. Accused may Voluntarily testify. — If the defend- ant voluntarily appears before the grand jury, and there gives evidence when his case is under examination, this con- stitutes no ground for setting aside an indictment subse- quently found against him;^ aliter, of course, where the defendant is compelled to appear and give evidence in the proceedings against himself.* But at this point a distinc- tion must be taken. Suppose the grand jury, by virtue of their inquisitorial powers, are engaged in searching out crime. Clearly they may summon any person, whom they have good reason to believe to be cognizant of facts which will lead to the detection of crime. In the end they may see fit to find indictments against some of the persons w^hom they have compelled to appear before them as witnesses. If an}^ of these indicted persons has seen fit to give answers implicating himself, the validity of the indictment found upon this testimony cannot be impeached by the circum- stance that he has been compelled to appear before the grand jury. Otherwise, the inquisitorial powers possessed 1 United States v. Farrington (U. S. Dist. Ct. N. D. New York, 1881;, *2 Grim. L. Mag. 525, 531; s. c, 5 Fed. Kep. 343. 2 United States v. Keed, 2 Blatchf. 435, 466; United States v. Brown, 1 Sawy. 531; People v. Hulbut, 4 Den. 133, 135; State v. Boyd, 2 Hill /S. C.) 288; State v. Fowler, 52 Iowa, 103; Stewart v. State, 24 Ind. 142; Creek v. State. 24 lud. 151; State v. Fassett, 16 Conn. 467; Low's >Case, 4 Me. 43'J, 446. 3 People V. Iving, 28 Cal. 265 ; United States v. Brown, 1 Sawy. 531, 537. * State V. Froiseth, 16 Minn. i>96. 696 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. l)y thia body in many States ' would be greatly impaired. In many cases the iiuiuiry would be stopped at the very threshold. - § 644. Testimony of Grand Jurors. — In a former chap- ter we necessarily considered this point, while discussing the power of the grand jury to originate indictments.^ In this connection, however, it is proper to remark, that when a charge is made by a grahd juror, there is no necessity that he should take an oath as a witness. He is already sworn to make true presentment, and from the earliest times it has been the conceded power and duty of the grand jury to make presentment of all offences resting in the knowledge of the body, or any one of them.* An early decision of the Supreme Court of North Carolina ^ has caused some confusion on this point, but that decision was based upon a statute, and moreover it is believed to be unsound." How- ever, statutes are found in some States requiring the grand juror in such a case to be sworn and examined as a witness,^ and where the juror is not sworn as a witness, the present- ment must Ije upon the information of at least two of the grand jury.'* § 645 Qiiantuiu of Evidence Necessary. — The authori- ties differ as to the degree of certainty to Avhich the guilt of the accused must be proved, in order to justify the jurors in returning the indictment as true. Lord Hale states that " in case there be probable evidence, they ought to find the bill, })ecause it is but an accusation, and the party is to be put upon his trial afterwards." '' Mr. Justice 1 Ante, § 615. 2 United States v. Brown, 1 Sawj'. 531. 3 Ante, § 614. * Add. (Pa.) Rep. App- 38. 5 State V. Cain, 1 Hawks, 352. 6 Ante, § 625. 7 Gen. Laws Ore«?.1872, p. 347, § 57; R. S. 111. ISSO, § 4277. 8R. S. 111. 1880, § 4277; Code Va. 1873, p. 1237, § 9; Rev. Stats. W. Va. 1879, ch. 53, § 8. 9 2 Hale P. C. 157. § 645.] HEARING THE EVIDENCE. 697 Addison states that " most of the reasons, on which it is contended that a grand jury should never assent to an accusation, but on absolute evidence of its truth, have led also to a conclusion, that the grand jury ought to hear Avit- nesses in defence of the accused person."^ But it is not plain how this can be. The very fact that the proceedings before the grand jury are wholly ex parte would seem ta suggest the reasonableness of the requirement that this body should be f ull}^ convinced of the guilt of an accused person before preferring an indictment against him. Ac- cording to Blackstone, " a grand jur}^ ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes ; and not to rest satisfied merely with remote probabilities : a doctrine that might be applied to very oppressive purposes." ^ The force of this last obser- vation is strikingly illustrated by the proceedings in the famous case of the Earl of Shaftesbury.^ This nobleman had been arrested on a charge of high treason, which, how- ever, was a mere pretence, as there was no legal evidence to implicate him, and the bill went before the grand jury. *' The intention " says Mr. Forsyth, " was to remove it, when found, as the parliament was not sitting, to the court of the High Steward, where Lord Shaftesbury would have been tried by peers selected by the King, and his conviction and sentence would have been inevitable." * Upon this oc- casion Lord Chief Justice Pemberton again and again pressed the grand jury with their obligation to find the bill true, if a proba])le cause existed for calling the accused ta account. The disgraceful zeal of the coui't in behalf of the crown detracts much from the value of this case as an authority. Sir John Hawles,^ in his remarks upon Shaftes- bury's case, strongly argues against the rule under dis- 1 Addison (Pa.) Eep. App. 40. 2 4B1. Com. 303. 3 8 How. .St. Tr. 759. * Forsyth, Trial by Jury, 224. * Solicitor General in the reiojn of William III. 698 PROCEEDINGS OF THE GRAM) JURY. [Cll. XXXI. cussion. " I t:ikc the reason of :i lii-und jury to be this," said he, " that no man for a capital matter shall ever be questioned by the King, unless a grand jury take it on their oath that they believe the mutter of the accusation true." ^ These enlightened views have found support in hitor authority,- and the rule generally adopted is doubtless as stated by "Mr. Justice Field in a charge to a grand juiy : "To justify the finding of an indictment" said he, "you must be convinced so far as the evidence before you goes, that the accused is guilty, in other words, you ought not to find an indictment, unless, in your judgment, the evidence before you, unexplained and uncontradicted, would warrant a conviction by a petit juiy."^ This rule is enforced by statute in many States. "* § 64G. Jurors judges of the Credibility of Witnesses. — No doubt exists at the present day, that is not only the privi- lege, but the duty of the grand jury, under their oath to "diligentl}^ inquire," to judge of the credibility of the wit- nesses introduced by the prosecution.^ However, as a matter of historical interest, note the ruling of the court upon the proceedings against the Earl of Shaftesbuiy. The grand jurors, suspecting the character of certain low knaves introduced as witnesses, stated to the court their desire to 1 8 How. St. Tr. 838. 2 1 ChiUv Cr. L. 318. ^ 2 Sawy. 670. See also State v. Fasset, 16 Uonn. 457, 473; People v. Hyler, 2 Park. Cr. R. 570; State v. Atklison, 2 So. Car. 365; Add. (Pa.) Hep. App. 43. Contra, Respublica v. Shaffer, 1 Dall. 23G. The duty of the grand jurj'. as stated by the Tennessee court, ''is simply to inquire whether or not a prima facie case is made out as chai-ged in the in- dictment.'' State V. Cowan. 1 Head, 280. ^ Xew York Code Crim. Proc. 1881, § 258; Penal (Jode Cal.. § 021 ; Ark. JJig. Stat. 1874, § 1760; Miller's R. C. Iowa, 1880, § 4283; Bullitfs Ky. Cr. Code, § 111; 2 Stat, at Large, Minn. 1873, p. 1036, § 110; Conip. I.. Nev. 1873, § 1833; Gen. Laws Xew Mexico, 1880, p. 370, § 8; Gen. Laws Oreg. 1872, p. 347, § 50; Laws Utah, 1878, § 136. See People v. Tinder, 19 Cal. 530. * Respublica v. Shaffer. 1 Dall. 237; Add. (Pa.) Rep. App. 42,43; Tucker's Case, 8 Mass. 286; 1 Burr's trial. 202. § 648.] HEARING THE EVIDENCE. 699 know whether any of the witnesses stood indicted ; where- upon, Pemberton, the Loixl Chief Justice, eager that the grand jury should find a true bill, impatiently ex- claimed: "Look you gentlemen, don't talk of this, but consider with yourselves. An examination of proofs con- cerning the credibility of the witnesses, is not properly he- fore you at this time." ^ § 647. Power to Coerce Witnesses. — Witnesses before the grand jurv are subject to the lawful authority and con- trol of the court, in the same manner as are the witnesses before the trial jury.- "In contemplation of law," said Parsons, J., "a grand jury are supposed to be personally present in court." ^ In view of the fact that the proceed- ings of the grand jury are conducted apart from the court, it is plain that when a witness, who has been duly sum- moned before this body, refuses to be sworn or to answer questions, or is otherwise contumacious, the grand jur}^ may require their officer to take him into custody, and conduct him before the court to obtain the advice and decision of the court under the circumstances, as well as its compulsory power to enforce obedience.'* Such a witness may be fined by the' court, or imprisoned for contempt.^ The decision of the court upon such a matter is not open to review.'' § 648. Sanity of Accused need not be Shown. — It is unnecessary to summon witnesses on the part of the prose- cution to prove the sanity of the accused. Every man is prima facie responsible for his actions, and for the natural and probable consequences of them. The grand jury, it must be remembered, is simply an accusing body, and has nothing to do with the defendant's witnesses, or his matter J 8 How. St. Tr. 802. 2 See ante, § 624. 3 Com. V. Crans, 3 Peuii. L. J. 442, 453; s. c.,2 Clark (Peiiii.), 172,184. 4 Heard v. Pierce, 8 Ciish. 338. « 1 Chitty Cr. L. 321 ; Eex v. Preston, 1 Salk. 278; Lockwood v. State, 1 Ind. 161; Ward v. State, 2 Mo. 120. ^ Lockwood V. State, supra. 700 PROCEEDINGS OF THE GRAND JURY. [cil. XXXI. of defense.^ Indeed, under the Enulish practice, the grand jury have no authority to ignore a hill for murder, on the ground of insanity, although it clearly appears from the testimony of the witnesses introduced by the prosecution, that the accused was in fact insane. If they believe that the accused has done the killing, and that the act, if done by a person of sound mind, would have been murder, they are bound to lind the bill true.'^ § 649. All Iiidietiiu'iit substituted without Evidence. — A grand jur}^ without examining witnesses anew, may find an indictment as a substitute for another indictment, found by them upon an investigation of the facts at a previous term.^ But a grand jury which has never investigated the merits of a charge cannot return an indictment founded upon it. They are bound to make diligent inquiry, accord- ing to the terms of their oath. The mere fact that a former grand jury agreed upon the same or a similar indict- ment, Avhich they failed to return into court, does not warrant a subsequent grand jury in returning the indictment as their own finding.'' So, a finding by a grand jury which has been quashed, or on which a nolle 2>''os. has been en- tered, is not such "legal documentary evidence" as Avill authorize the finding of another indictment by a succeeding grand jury.'^ ARTICLE IV, THE FINDIXG. SECTION. 653. Meaning of " Found.*' 654. Number to concur in Finding. 655. Right to fuid a Tart of the Bill true. ' 1 United States v. Lawrence. 4 Crauch C. C. 51 1. « Reg. V. Hodges. 8 Car. & P. 195. 3 Com. V. Woods, 10 Gray. 477; Creek v. State, 21 lud. 151. 150. * State V. Grady, MS. St. Loui.s Court of Appeals. .June 6. 1882. 5 Sparrenberger v. State, 53 Ala. 481. § 654.] THE FINDING. 701 656. Findino- must be Absolute and without Ambiguity. 657. Keturu of Finding into Court. 658. Amendment of Indictment. 659. Publication of Finding. 660. Filing the Indictment. 661. Effect of finding the Bill not true. § 653, Meaning- of "Found." — An indictment is said to have been found, when concurred in by the constitutional number of grand jurors. For this reason, a statute pro- viding that an indictment shall be set aside upon motion, ^' where it is not found, indorsed and presented as pre- scribed in this code,"^ o-ives no ri^-ht to a defendant to com- plain that the grand jury were drawn from a list irregularly selected by the county authorities, or improperly summoned and impannelled.^ § 654. Number to Concur in Finding-. — In a former chapter it was incidentally shown that at common law, what- ever the numlier of jurors upon the panel, the concurrence of twelve was sufEcient to find an indictment,^ Unless other- wise provided by law, this is the rule to-day,* and the statutes of many States expressly so provide.^ In a few States the concurrence of a less number is sufficient. Thus, in West Virginia the number is fixed at ten ;^ in Missouri, Texas and Colorado, nine ; ^ in Indiana and Oregon, five. ^ iCal. Penal Code, § 995. 2 People V. Southwell, 4G Cal. Ul ; People v. Colby, 54 Cal. 37. See also State v. Logan, 1 Nev. 509, 515; State v. McCartey, 17 Minn. 76. 3 Ante, § 583. See also 1 Chitty Cr. L. 322. * Com. V. S lyers. 8 Leigh, 722. 5 Code Ala. 1876. § 4777; Cal. Penal Code, §§ 931, 940; Ark. Dig. Stat. 1874, § 1776; G. S. Conn. 1875, p. 536. § 3; E. S III. LSSO, p. 412, § 408; Miller's R. C. Iowa, 1880, § 4-291 ; Cump. L. Kan. 187:). § 4587; Con)p. L. Mich. 1871, § 7895; 2 Stat, at Large, Minn. 1873, p. 1037, § 118; Comp, L. Neb. 1881. p. 7-27, § 408; Comp. L. Nev. 1873, § 1841; Id., § 1850; New York Code Crim. Proc. 1881, § 268; R. S. Ohio, 1880, § 7-206; G. S. Vt. 1862, p. 332, § 15; Code Va. 1873, p. 1237, § 9; R. S. Wis. 1878, § 2952. See also Rev. Stat. U, S. § 102 1 ; Comp. L. Ariz,, §§ 610, 6-20; Gen. Laws New Mexico, 1880. p. 371, § 16; Laws Utah, 1878, § 143. « Rev. Stat. W. Va. 1879, ch. 53, § 8, 7R. S. Mo. 1879, § 1795; Tex. Code Crim Proc. 1879, Art. 411; Geu. Laws Coh>. 1877, § 1477. 8 2 Stat. lud. 1876, p, 417, note, § 3; Gen. Laws. Oreg. 1872, p. 348, 702 I'ROCEEDINGS OF THE GRAND JUUY. [CH. XXXI. These chting'es are warriinted by the terms of the constitu- tions of Missouri, Coh)rado and Indiana.^ In the other States mentioned, no such constitutional authority appears. Whether it is necessary, presents an interesting question, which seems never to have been satisfaetoi-ily determined.'^ § 655. Kight to Find a Part of the Bill True. — The determination of this (juestion can l)e of interest only in those jurisdictions which follow the English practice of sending bills of indictment before the grand jur}', as the basis of their investigations. Generally, this is not the prac- tice here. As observed by Mr. Justice Field in a charge to a grand jury, "the government now seldom delivers bills of indictment to the grand jury in advance of their action, but generally awaits their judgment upon the matters laid before them." ^ Bills of indictment are accordingly drawn up by the attorney of the government under their direction, and in conformity to their decision."* However, as the English practice doubtless remains in some States, a statement of the law upon this point is neces- sary. According to Mr. Chitty, it is as follows: "The jury cannot find one part of the same charge to be true and another false, but they must either maintain or reject the whole; and, therefore, if they indorse a bill of indictment for murder, ' hilla vera se defendendo,^ or ' billa vera for manslaughter, and not for murder,' the whole will be in- valid, and may be quashed on motion.^ It has, indeed, been § 60. So in Virginia, wlien tiie grand jury is summoned for a special term of court. Code Va. 1873, p. 1237, § 9. As to tlie number of the grand jury in these States, see ante^ § 583, subsec. 2. 1 Const. Mo. 1875, Art. II, § 28; Const. Colo. 1876, Art. II, §23; Const. Ind. 1851, Art. VII, § 17. 2 An act of the legislature of Georgia establisliing a municipal court for the trial of misdemeanors, and authorizing an indictment in such cases, with the concurrence of nine of the twelve grand jurors, was held to be constitutional. Thurman v. State, 25 Ga. 220. 3 2 Sawyer, 667, 678. * Com. V. Smyth, 11 Cush. 473, 476; Webster's Case, 5 Me. 432. ■• Citing 2 Kol. Rep. 52; 3 Bulst. 206; 1 Kol. Rep. 407, 408; 1 Sid. 230; Cowp. 325 ; 2 Hale T. C. 158 ; 2 Hawk. P. C. c. 25, § 2 ; Com. Dig. Indict- ment, A; Bac. Abr. Indictment, I); Cro. C. C. 32; Burn's J., Indict- ment, VII. § 656.] THE FINDING. 703 said, thut if a grand jury find a bill for manslaughter on an indictment for murder, the words 'of malice aforethought' and ' did murder ' may be struck out, and the indictment amended by reducing it to a mere accusation of the inferior offence, in the presence of the jury.^ This, however, seems questionable, and it is agreed that it is the safer course to prefer a fresh indictment for manslaughter : and so, where the bill is originally -for burglary, to prefer an indictment for theft, which is, in substance, included.^ This rule, how- ever, docs not extend to the finding of different counts, for as each count contains a distinct charge, the jury maj'^ return a true bill upon one of them only, and the finding will be as valid as if no other had ever been inserted.^ And an indict- ment against several may be found against one or more, and rejected as to the rest."* The rule, as thus stated, is not varied in its application in this country.^ § 656. Finding must be Absolute and without Am- bigiiity. — The rule is imperative that the finding must be certain and unconditional.^ Some examples of irregular findings found in the early reports will illustrate this rule. Of this character is the finding " si do7nus non fuit in pos- sessio7ie dominoe, regi^im, tunc hilla veixi.^' And, in a case of libel, " hilla vera, but whether ista verba prolata fuerunty malitiose, seditiose, vel e contra, ignoramus .^ ^ "^ In a case where the grand jury returned a bill of indictment which contained three counts, with an indorsement, " A true bill 1 Citing 2 Hale P. C. 162; Bac. Abr. Indictment, D. 2 Citing 2 Hale P. C. 162; Bac. Abr. Indictment, D. 3 Citing 1 Cowp. 325; 2 Hawk. P. C. c. 25, § 2; Com. Dig. Indictment. A, note; Bac. Abr. Indictment, D; Cro. C. C. 32; Burn's J.. Indictment VII, and Jurors, VI. 4 1 Chitty Cr. L. 322. 5 Cherry v. State, 6 Fla. 679, 686; State v. Cowan, 1 Head, 280; State V. Williite, 11 Humph. 602; State v. Wilburne, 2 Brev. 296; State v. Creighton, 1 Nott. & Mc. 256. " Note the obvious typographical error in the 4th Am. ed. of Chitty on Criminal Law, at p. 323, where it is said that the finding must be " conditional." 7 2 Hawk. P. C, c. 25, § 2; 1 Chitty Cr. L. 323. 704 PROCEEDINGS OF THE GRAND JURY. [CH. XXXl. on both counts," and the defendant was tried and con- victed, judgment was arrested.^ § G57. Return <»f Finding into Court. — When the grand j^ut have concluded their investigations, and have duly indorsed each bill laid before them, so as to indicate the result, they return in a body into court, and, through their foreman, deliver the same into its custody.^ It is the general and probably the universal practice to deliver all indictments to the court in the presence of the grand jury.^ The procedure at this point is usually carefully laid down by statutory provisions in each State. ^ § 658, Amendment of Indictment. — Under the English practice, when the grand jury have returned the indictments into court, the clerk of the peace or clerk of the assize asks them if they agree that the court shall amend matters of form, altering no matter of substance ; to which, as a mat- ter of course, they signify their assent.^ There is no doubt that, with leave of the court, an indictment maybe amended by the grand jury at any time before the prisoner has pleaded, and before they are discharged.** § 659. Publication of Finding-. — It is not necessary that the finding of a grand jury, upon a bill of indictment pre- sented by them, should be read in open court. The hand- ing of the bill to the clerk in open court, and the entry of it by him on the records, is a sufficient publication of the finding of the body.^ And, in furtherance of the secrecy enjoined upon the grand jury and officers of the court in respect of indictments found, it is held that an indictment should not be docketed, nor entered upon the minutes or ' Rex V. C;u-lil<;, citediii Reg. v. Cooke, 8 Car. & P. 582, 584. 2 1 Chitty Cr. L. 324. 3 State V. Squire, 10 N. H. 5(50; State v. Morrison, 30 La. An. 817; Com. V. Cavvood, 2 Ya. Cas. 527; Harriman \'. State, 2 G. Greene, 270, 378. 4 See Fitzoox v. State, 52 Miss. 923; Cachute v. State, 50 Miss, 165. « 1 Chitty Cr. L. 324. « State V. Creiglit, 1 Brev. 1G9. ^ United States v. Butler, 1 Hug lies, 457. §661.] THE FINDING. 705 records of the court, unless the defendant be in custody or held to bail.^ Otherwise, the accused would be apprized of the finding of the indictment before the officers could take him, and would, by this means, be enabled to escape. To ob- viate this difficulty, and at the same time to comply with the requirement of the law that the return of the indict- ment shall appear of record, the clerk should note the fact of such return, and its date, upon the indictment.^ The clerk may also make a record entry of the return of the indictment into court by the grand jury, identifying it by its number, but not disclosing the name of the accused.^ § 660. Filing Indictment. — A statutory requirement that indictments, after presentation, shall thereupon be filed and remain as public records, etc., does not render void an indictment dul}'^ presented, but not filed. Explicit lano;uao;e in the statute that the indictment shall be void unless filed, is necessary that the provision may have this effect.* § 661. Effect of Finding the Bill not trne. — The refusal of the grand jury to find an indictment is never regarded as an acquittal of the offence. It is conclusive of nothing more than that, at such time, the grand jury were not pos- sessed of sufficient evidence to warrant them in putting the accused to answer;'^ therefore, another bill may be sent to another grand jury for the same offence, which, being found true, the defendant may be put to answer.^ A discharge i State V. Corson, 12 Mo. 454. - Wrocklege V. State, 1 Iowa, 169; Herring v. State, 1 Iowa, 205. ^ Willey V. State, 46 Ind. 363; Green v. State, 19 Ark. 178; Shropshire V. State, 12 Ark. 190; Cachute v. ytate, 50 Miss. 165; Speed v. State, 52 Miss. 176. In the last case, it would seem that the court held, with unnecessary strictness, that where the record states that the grand jury returned into court •' numbers 779, 780," etc., giving a considerable list of numbers seriatim, it will not be presumed that these numbers refer to indictments; that the record must expressly state this fact. ^ Dawson v. People, 25 N. Y. 399, 405. 5 Add. (Pa.) Rep. App. 38; Com. v. Miller, 2 Ashm. 61; Knott v. Sar- gent, 125 Mass. 95; State v. Branch. 68 IST. C. 186; Rowand v. Com., 82 Pa. St. 405; 1 Chitty Cr. L. 325. Seeposi, § 664. ^ Cases cited supra. In a recent Pennsylvania case this rule was re- luctantly applied. Rowand v. Com., 82 Pa. St. 405, 407. (45) 706 PROCEEDINGS OF THE GRAND JURY. [CH. XXXf. upon a former indictment, upon payment of costs, in conse- quence of the refusal of the prosecutor further to prosecute, is no bar to a subsequent indictment.' There is a rule of English practice, founded upon reasons of convenience, that where the grand jury have ignored a bill, the court will not permit a second bill of a like nature to be presented by them at the same session.^ If such a bill is presented and found true, the indictment will be set aside. ^ But this practice seems not to have obtained recog- nition in this country.'* " We can see no objection to the practice," said Pearson, C. J., "that, after an indictment has been returned ' not a true bill,' the State's solicitor, upon a suggestion to the court that he has procured further evidence, may be allowed to send another bill to the same grand jury, charging the same offence." ^ ARTICLE V. indorsement of finding. SECTION. 664. At Common Law. 665. The Modern English Practice. 666. Effect of Certificate. 667- How in the United States. 668. Different Forms of Certificate. 669. Official Signature of Foreman. 670. Full Name of Foreman unnecessary. 671. Attestation by the Foreman superfluous. 672. And so is the Certificate of Finding. 673. Contrary Decisions. 674. Certificate of Finding and Attestation by Foreman superfluous. 675. Certificate and Attestation of Foreman required by Statute. 676. Whether these Statutes are Mandatory. i State V. Blackwell, 9 Ala. 79; Com. v. Miller, 2 Ashm. 61. 2 Reg. V. Humphreys, Car. &M. 601 ; Reg. v. Austin, 4 Cox C. C. 385. ' Reg. V. Austin, supra. * See Knott v. Sargent, 125 Mass. 95, 98. » State V. Branch, 68 N. C. 186. § 667.] INDORSEMENT OF FINDING. 707 § 664. At Comiuon Law. — "The mode in which the grand jury formerly returned the result of their inquiries to the court," says Mr. Chitty, " was by indorsing on the back of the bill, if thrown out, ' ignora7nus,' or ' we know nothing of it,' intimating that though the accusation might possibly be true, no facts had appeared in evidence to war- rant that conclusion ; and if found ' biUa vera,' or, if there were several returned at the same time, ' quod separates pre- sentes sunt billae verae.'' " ^ § 665. The Modern English Practice. — "But at the present day," he continues, " the indorsement is in English absolutely ; if found, ' a true bill ; ' and if rejected, ' not a true bill ; ' or which is the better way, ' not found,' in which case the party is discharged without further answer." - § 666. Effect of Certificate. — According to the same authority, the indorsement, "a true bill" made upon the bill, becomes part of the indictment, and renders it a com- plete accusation against the defendant.^ This certificate is the proper evidence that the indictment was found by twelve or more grand jurors, as required by law.* It may, how- ever, be contradicted.* § 667. How in the United States. — The rule uniformly recognized in this country is doubtless the same as prevail- ing under the modern English practice, except that some courts require more, namely, the addition of the signature of the foreman of the grand jury to this certificate, while others require less, in holding that the certificate even is not a part of the indictment, and therefore not essential to its validity. An attempt will be made to arrange the con- trary decisions in intelligible order.'' ^ 1 Chitty Cr. L. 324, citing Cora. Dig. Indictment A. 2 Ihid., citing 4 Bl. Com. 305. 3 Ibid.^ citing Yelv. 99; Com. Dig. Indictment A. « Turns v. Com., 6 Met. 224. 233; Dutell v. State, 4 G. Greene, 125. 5 See i^ost^ § 704. 8 A presentment, unless required by statute, need not be signed by all the grand jurors. It should be handed to the court by the fore- man in the presence of the grand jury, and when entered of record, no further evidence is required of its authenticity. State v. Cox, 6 Ired. L. 440. But see State v. Muzingo, Meigs, 112. 708 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. § 668. Different Forms of Certificate. — In uii early Tennessee case ^ the court considered the following forms of certificate as synonymous, and equally good: "This is a true bill of indictment;" "this is a (rue bill ;" "a true bill of indictment ;" " a true bill ;" and " true bill."^ The latter, it will be observed, is a literal translation of the original Latin, '^ billa vera." In the same case, the court was not prepared to say that the single, emi)hatic word, "true," indorsed upon a bill, was not sufficient to indicate the finding. § 669. Official Signature of Foreman.— It is not clear that, at common law, it was necessary that the certificate of the finding should be signed by any member of the grand jury, or by the foreman of the body. It would rather seem that it was not.^ However, where it is the recognized prac- itice for the foreman to attest this certificate, he should do jso by writing after his name the title of his office : " Fore- anan of the Grand Jury." But the law is not strict in this requirement. Where the words, " A true bill. ■, Foreman of the Jury," were printed upon the back of an indictment, and the name of the foreman was mpp«nded to the words descriptive of his office, instead of preceding them, this was held to be no cause for quashing the indictment.^ The official character of the signer may appear from other sources, the caption of the indictment, or other part of the record; wherefore, the simple designation "foreman" ap- pended to the name of the person signing as such, has been held to refer to the record as verifying the legal inference th:it " foreman" means foreman of the grand jury ;^ and so 1 State V. Elkin.«. Mcig?, 111. 2 See also State v. Davidson, ]2 Vt. 300;. Hopkins v. Com.,. 50 Pa. St. 9. 3 Ante, § 6G4; Com. v. Ripperdon, Litt. Sel. Cas. 195; Price v. Com., :21 Gratr. 846, 859. * State V. Hogan, 31 Mo. 342. See also Overfehiiier v. Com., 2 B. -Mon. 344. * United States v. Plumer, 3 Cliff. 28; Wall v. State, 23 Ind. 150; State '.T. Jolly, 7 Iowa, 15. § 670.] INDORSEMENT OF FINDING. 709 of the letters "f. j. g." following the signature.^ And, on the same principle, it is clear that the simple signature of the foreman to the certificate, bald of any designation of office, will be sufficient.^ Where the name of the foreman, as appearing of record, and that indorsed upon the indict- ment, indicate different persons, an appellate court, not having the whole record before it, will presume that the first appointee was discharged by the court, and that the person whose name appears upon the indictment was appointed in his stead. ^ So, it is no objection to an indictment that it is indorsed a true bill, by one of the jury as " special foreman of the grand jury," when his appointment as such appears of record. The necessity and regularity of this appoint- ment will be presumed, in the absence of proof to the con- trary, although the record fails to show that the regular foreman was absent, excused or discharged.^ § 670. Full Name of Foreman Unnecessary. — The fore- man sufficiently complies with the law by using in his sig- nature the initial letters only of his christian names. ^ As stated by Dewey, J., " the practice of public functionaries of the highest grade, in putting their names to documents of the gravest character, might be cited in support of such form of signature." ^ Where the foreman was unable ta write his name, his mark subscribed to the certificate was. held to be sufficient.^ 1 State V. Chandler, 2 Hawks, 439. '^ State V. Chandler, 2 Hawks, 439; Com. v. Walters, 6 Dana, 290; Com. V. Betton, 5 Cush. 427; State v. Brown, 31 Vt. 602; Com. v. Read, Thach. Cr. C. 180; Friar v. State. 3 How. (Miss.) 422; McGuffie v. State, 17 Ga. 497; HalPs Case, 3 Gratt. 593. s Mohler v. State, 24 111. 26. See also Friar v. State, 3 How. (Miss.) 422. < State V. Collins, 6 Baxter (Tenn.), 151. *Com. V. Hamilton, 15 Gray 480; Easterling v. State, 35 Miss. 210; Minor v. State, 63 Ga. 319; State v. Taggart, 38 Me. 298; State v. Folke, 2 La. An. 744; Studstill v. State, 7 Ga. 2; Wassels v. State. 26 Ind. 30; State V. Collins, 3 Dev. 117, 121; Anderson v. State, 20 Ind. 89; State V. Groome, 10 Iowa 308. ^ Com. V. Hamilton, supra. State V. Tinney, 26 La. An. 460; State v. Powell, 24 Tex. 135. 710 PROCEEDINGS OF THE GRAND JURY. [CH, XXXI. § 671. Attestation by the Foreman Superfluous. — And finally, it has been held that where the bill is indorsed with a proper certificate of the finding, it is not essential that the subscription of the foreman's signature should follow.^ The finding " being in writing, and having been publicly announced by the clerk, as is invariably the case, in the presence of the grand jury, is a sufficient guard against misconstruction or perversion ; and, as there is no positive law requiring it, it is not essentially necessary to its validity that it should be signed by the foreman."'-' This brings us back to what was doubtless the common law prac- tice, and under the strict requirement of the law, that the return of the indictment must appear of record,' it is con- ceived that the indorsement of the c n-tificate "a true bill," is all that is essential to guarantee the genuineness of the indictment. Since the subscription of the foreman's name is not essen- tial to the validity of the endorsement, no advantage can be derived by the accused from a variance between the spelling of the name in the indorsement and that appearing upon the record of his appointment.* For the same reason, where the record does not show the appointment of a foreman, but the indictment is endorsed a true bill by one of the body, and it appears, independently of this endorsement, that it was returned by the authority of the body, the finding is as satisfactorily demonstrated, as by the simple indorsement of a regularly appointed foreman.'^ 1 State V. Creighton, 1 Nott. & McC. 256; Com. v. Walters, 6JDana, 290; State v. Calhoon, 1 Dev. & B. 374; State v. Cox, 6 Ired. L. 440 Com. V. Eipperdon, Litt. Sel. Cas. 194 ; Peter v. State, 3 How. (Miss.) 433 State V. Collins, 3 Dev. 117. 120; Friar v. State, 3 How. (Miss.) 422 State V. Flores, 33 Tex. 444; Finson v. State, 23 Tex. 579. 'Johnson, J., in State v. Creighton, supra. 3 See post, § G96. * State V. Calhoon, 1 Dev. & B. 374; State v. Kimbrough, 2 Dev. 431; State V, Stedman, 7 Port. 495. * Friar v. State, 3 How. (Miss.) 422. The Irish practice requires the signatures of all who concur in the finding, to be indorsed upon the in- dictment, when the grand jury make a return in the absence of their foreman. lie Grand Jury, 3 Craw. & Dix C. C. 395. ^ 672.] INDORSEMENT OF FINDING. 711 § 672. And so is tlie Certificate of Finding. — We have previously alluded to the difference between the English practice and that uniformly prevailing in this country, in the method of preferring charges to the grand jury, as fur- nishing a substantial reason for a variance of certain rules of procedure existing at common law and still retained under the English system.^ It is well to bear this circum- stance in mind, since it is the key to much which, at first blush, is startling and anomalous. Because of this dif- ference in practice, it is held to be not essential to the validity of an indictment that it should bear as an in- dorsement the certificate, "a true bill," or any words of similar import.' " In England," said Gilchrist, J., " an accusation of a crime is preferred to the grand jury by one or more persons in the name of the King, but at the suit of these private prosecutors. Until this accusation is found by the grand jury to be true, it is merely a bill, and is so to be termed in pleading, and not described as an in- dictment. The prosecutor must cause the bill to be properly prepared and engrossed upon parchment. After considering the bill and the evidence in support of it, if the grand jury are satisfied of the truth of the charge, they endorse upon it, ' a true bill.' The bill, thus in- dorsed, becomes an indictment, and a complete accusa- tion against the prisoner. The indictment is then said to be found, and the person stands indicted.'' * * * 'q^^ here the practice is essentially different. No bill is drawn up by a private person, in the first instance, and laid before the grand jury with evidence to support it. Witnesses are first examined before the grand jury, who then de- termine whether the evidence be suflicient to authorize them to prefer a criminal charge against the accused. If they think it is, an indictment is drafted by the attorney- ^ Ante, §§ 606, 655,662. 2 State V. Keyes, Smith (N. H.), 135; State v. Freeman, 13 N. H. 488; ■Com. V. Smyth, 11 Cash. 473. See als© People v. Lawrence, 21 Cal. 368. 3 Citing Com. Dig. Indictment A; Crown Cir. Com. 32; 1 Chit. Cr. L. 162, 163, 324; 4 Bl. Com. 302 et seq. 712 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. general or solicitor, and signed by liiin. This procetMi- ing is not like a charge made by some other person, and laid before them for their approval ; but the indictm(Mit is the result, in legal form, of their deliberations. The- reason for the P^nglish form does not exist ; for it is un- necessary that they should certify that their own proceed- ings are true. There is, strictly speaking, no hill to be certified to be correct, in our practice— the distinction between a bill and an indictment, which arises in P^ngland from their forms, not being necessary here. A\'ith us, the accusation does not take the form, first of a bill and then of an indictment, but it exists only as the latter. * * * jf anything more than the signature of the foreman could be necessary to prove that the instrument signed by the pros- ecuting officer is authorized by the grand jury, the certificate should be ' a true indictment' rather than ' a true bill.' As these words are merely a form, and, moreover, an incorrect form ; and, as the reason for them does not exist here, we think that their omission is not a ground for arrestinsr the judgment."^ The New Hampshire court, although dispensing with the in- dorsement of the certificate of the finding, insist upon the rule laid down by some courts, that the indictment shall bear the teste of the presiding officer of the grand jury. The omis- sion of this attestation may be shown even in arrest of judgment. "Nothing short of such authentication," said Upham, J., " should be regarded as competent evidence of their proceedings." ^ § (J73. Contrary Decisions. — The law, as declared in the previous section, is pointedly controverted in other cases. It was early held in Maine that the omission of the certifi- cate, "a true bill," must be regarded as fatal to the indict- ment, and that, too, although the indictment bore the 1 state V. Freeman, Vi N. H. 488, 490. ■-'State V. Squire, 10 N. II. 55S, 560. See also State v. Freeman, supra. Upon the reasoning of tlie court, the same rule ought to apply as in the case of a simple presentment. This does not require the indorsement of the foreman. State v. Cox, 6 Ired. L. 440. § 674.] INDORSEMENT OF FINDING. 71^ indorsement of the foreman's name.^ It was recently so held in Louisiana.'^ And the Supreme Court of Illinois said upon this point: "We are of opinion that it was neces- sary, in order to give the court the right to try the prisoner, that the grand jury should have indorsed their finding on the bill of indictment, veritied by the signature of their foreman. This was indispensable, and as it appears not to have been done, the proceedings were coi^am non Judice." * In Websiej-'s Case ^ the court allowed the objection to be made in arrest of judgment, and in Nomaque v. People,^ the same objection, although not taken in the court below, was heard in error. These decisions are based upon the common law rule that the indorsement is a part of the in- dictment,^ and, as a consequence, that the defect can neither be amended nor cured by verdict ; the rule being well estab- lished that the ordinary statutes of jeofails do not extend to indictments or proceedings in criminal cases.' § (J74. Certificate of Finding and Attestation by Fore- man superfluous. — Contrary to all of the foregoing, the conclusion has been reached in some cases, that neither the certificate of the finding, nor the attestation of the foreman, need be indorsed upon the indictment. We have hitherto seen that some courts are willing to dispense with one or the other of these indorsements, but not with both. But the Court of Appeals of Virginia declare the law to be that " it is not necessary that a bill, in order to be made a good indictment, should have on it an indorsement by the grand jury, or its foreman, that it is a true bill. It is sufficient that the bill was actually found to be a true bill by the grand jury ; that such finding was announced in court by 1 Webster's Case, 5 Me. 432. 2 State V. Morrison, 30 La. An. 817. 3 Nomaque v. People, 1 111. 109, 110. * 5 Me. 432. « Supra. And so in Morrison v. State, 30 La. An. 817. But see State V. Davidson, 12 Vt. 300, 303. 6 Aide, § 666. See also Rookwood's Case, 13 How. St. Tr. 139, 159, per Lord Chief Justice Holt. ^ 1 Chitty Cr. L. 297. See also State v. Squire, 10 N. H. 558. 714 PROCEEDINGS OF THE GRAND JURY. [CH. XXXI. the clerk on the return, and with the acquiescence of the grand jury, and entered of record." ^ Accordingly, where the foregoing conditions wore satisfied, it was held imma- terial that the indictment was indorsed and attested by the foreman as " a true gun." ^ The Court of Appeals of New York, in a late case, where the copy of the indictment, as set forth in the record, did not contain the indorsed certificate of the foreman of the grand jury that it was a true bill, and the ommission was not made the ground of an objection in the court below, held that the objection could not be made at this stage of the proceedings. " The record," said Church, C. J., '* states that the grand jury appeared in open court, and duly pre- sented the indictment, a copy of which is set forth. From this we must assume that it was presented according to law. The certificate of the foreman is no part of the indictment, but is the statutory mode of authenticating it, and the record furnishes evidence that it was so authenticated." ^ § 675. Certificate and Attestation by Foreman required by Statute. — Statutes will be found in about one-half the 1 White V. Com., 29 Gratt. 824, 828. This view was first broached by Dade, J., iu Burgess v. Com., 2 Va. Cas. 487, and afterwards adopted in Price V. Com., 21 Gratt. 846. The same rule seems to have been declared by the Territorial Supreme Court of Iowa, and later countenanced by the State Supreme Court. Harriman v. State, 2 G. Greene, 270, 279. Henderson, C. J., of the Supreme Court of North Carolina, said, in an early case : "I have been much at a loss to see the necessity of any in- dorsement. The grand jury come into court and make tlieir return, which the court records, not from that memorandum made out of court, but they jironounce, or are presumed to pronounce it iu open court. It is not the indorsement wliich is the record, but tliat which is recorded as the jurors' response. The indorsement is a mere minute for making the record. But I believe the law is understood to be otherwise." State v. Collins, 3 Dev. 117, 121. See also State v. Calhoon, 1 Dev. & B. 374, 376 ; State v. Cox, 6 Ired. L. 440, 446. 2 White V. Cora, supra. Chief Justice Gibson, on ouf^ occasion, held that it was not error to sentence a defendant convicted on an indictment indorsed merely, " A bill." Sparks v. Com., 9 Pa. St. 354. 3 Brotherton v. People, 75 N. Y. 159, 162. See also Price v. Com., 21 Gratt. 846; Harriman v. State, 2 G. Greene, 270; Waukonchawneekaw v. United States, Moms, 332; Gardner v. People, 4 111. 83; Townsend v. State, 2 Blackf. 151. But compare Conner v. State, 19 Ind. 98. § 676.] INDORSEMENT OF FINDING. 715 States and Territories, directing that the indictment, when found, shall be indorsed "a true bill," which indorsement shall be signed by the foreman of the grand jury.^ In addi- tion, statutes of Kansas and Indiana require the court to examine each indictment as returned, to make certain that it is properly indorsed.^ And this the Supreme Court of Illinois held, on one occasion, to be the duty of the court, irrespective of any statutory injunction." § 676. Whether these Statutes Mandatory. — The early Missouri statute provided that " the foreman of the grand jury shall certify under his hand, that such indictment is a true bill."* This statute did not make the foreman's signature an essential part of the indictment. The object of the statute was held to be to secure the authenticity and genuineness of the indictment. The statute, therefore, was expressly stated to be directory only.^ Accordingly, it was too late, upon a motion in arrest of judgment, to raise the objection that the signature of the foreman was omitted from the certificate.® But where the circuit court, upon the arraignment of the accused, quashed the indictment for this omission, the Supreme Court refused to disturb this 1 Code Ala. 1876, § 4777 ; Comp. L. Ariz. 1877, § 619; Cal. Penal Code, § 940; Ark. Dig. Stat. 1874, § 1777; Gen. Laws Colo. 1877, § 1475; Bush's Dig. Fla., p. 271, § 26; K. S. 111. 1880, p. 651, § 17; 2 Stat. Ind. 1876, p. 375, § 16; Miller's K. C. Iowa, 1880, § 4291; Comp. L. Kan. 1879, §4588; Bullitt's Ky. Cr. Code, § 119; Comp. L. Mich. 1871, § 7895; 2 Stat, at Large Minn. 1873, p. 1038, § 132; K. S. Mo. 1879, §1795; Comp. L. Neb. 1881, p. 727, § 408; Comp. L. Nev. 1873, § 1850; Gen. Laws New Mexico, 1880, p. 371, § 16; New York Code Crim. Proc. 1881, § 268; E.S. Ohio, 1880, § 7206; Stat. Tenn. 1871, § 5093; Gen. Laws Oreg. 1872, p. 348, § 60; Laws Utah, 1878, § 143; G. S. Vt. 1862, p. 332, § 14. The Texas Code of Criminal Procedure of 1879, provides, as to indictments found, that the foreman '' shall sign the same officially." Art. 413. ■^ Comp. L. Kan. 1879, § 4590; 2 Stat. Ind. 1876, p. 375, § 17. 3 Gardner v. People, 4 111. 83, 85. * Rev. Stat. Mo. 1835, p. 481, § 19; Spratt v. State, 8 Mo. 247; State v. McDonald, 8 Mo. 283. 5 State v. Mertens, 14 Mo. 94, 97; State v. Burgess, 24 Mo. 381, 383; State V. Murphy, 47 Mo. 274. See also Dixon v. State, 4 G. Greene, 381 ; Brotherton v. People, 75 N. Y. 159, 162. • State V. Mertens, supra. 716 PROCEEDINGS OF THE GRAND JURY. [ciI. XXXI. decision: "The proof of the authenticity of the indict- ment reiiuired by the statute," said Leonard, J., "is the most convenient and trustworty that could be provided ; and we see no reason why the courts should not make the provision effectual bv exacting a comi)liance with it, when it has not been waived, if not, indeed, rendered quite un- necessary by the conviction of the party after a fair trial." ^ The same result is reached in California by express pro- visions of the statutes. The indictment may be set aside upon motion by the defendant, when not indorsed as re- quired by law, provided the motion is made before a de- murrer or plea is interposed ; but if not thus made, the defendant is precluded from afterwards taking the objec- tion."^ The Texas Code of Criminal Procedure provides that the indictment " shall be signed officially by the fore- man of the grand jury," ^ but elsewhere expressly declares that the want of such signature shall not constitute cause of exception to the form of the indictment.'* The courts continue to enjoin this duty upon the foreman, although this officer's signature is unnecessary to the validity of the indictment.' ARTICLE VI, OTHER indorsements. SECTION. 680. lu General. 681. Style of Case and Name of Offence. G82. Signature of Prosecuting Officer. 1 State V. Burgess, 24 Mo. 381, 384. See also Johnson v. State, 23 Ind. 32; Gardner v. People, 4 111. 83; Laurent v. State, 1 Kan. 313; Turns v. Com. 6 Mete. 224. 2 People V. Lawrence, 21 Cal. 368; People v. Johnston, 48 Cal. .549. 3 Art. 420. * Art. 529. 5 See Campbell v. State, 8 Tex. App. 84; Pinson v. State, 23 Tex. 579; State V. Powell, 24 Tex. 135; Hannah v. State, 1 Tex. App. 578. § 682.] OTHER INDORSEMENTS. 717 683. Indorsement by Private Prosecutor. (1.) Policj^ of Statutes reqairin<^. (2.) Indorsement by whom made. (3.) Necessity of. (4.) Who may be a Private Prosecutor. (5.) Form of Indorsement. (6.) Form of Objection for Want of Prosecutor. 684. Indorsement of List of Witnesses. (1.) Statutes requiring. (2.) Policy of these Statutes. (3.) Names of Witnesses by whom indorsed or noted. (4.) Sufticiency of Indorsement. (5.) Form of Objection for Want of. § 680. In G-eneral. — There can be no legal intendment that every indorsement which appears upon an indictment is the act of the grand jury, expressing their will.^ § 681. Style of Case and Name of Offense. — It is the uniform practice of the piosecuting officer to indorse upon the indictment a memorandum of the case for convenience of reference, to distinguish it from other papers of a simi- lar character. The indictment is just as valid without, as with this indorsement. The grand jury, by placing under this indorsement their certiticate, " A true bill," attested by the signature of their foreman, do not, in any manner, recognize this memorandum as a correct index of their tinding : therefore, where the indorsement is for one offense, and the finding, as shown by the body of the indictment, is of another and different offense, the mere memorandum must be disregarded.^ For the same reason, the misspelling of the defendant's name in such an indorsement cannot affect the validity of the indictment.^ But the rule is held to be otherwise, where the name, as misspelled, is incor- porated into the record of the return of the indictment.* § 682. Signature of Prosecuting Attorney. — In some States the practice is for the prosecuting officer to sanction ' Cherry v. State, G Fla. 679, 683. 2 Cherry v. State, 6 Fla. 679; Collins v. People, 39 111. 233; State y. Itohfrischt, 12 La. An. 382; State v. Fitzpatrick, 8 W. Va. 707. 3 State v. Duestoe, 1 Bay, 377. < Com. v. McKlnney, 8 Gratt. 589. >„-ii_j 718 PROCEEDINGS OF THE (;HAN1) JURY. [CH. XXXI. the indictment by the indorsement of his name with the ad- dition of his office. The necessity of this indorsement, the form thereof, and the effect of its omission, do not con- cern the present discussion. Upon this point, therefore, a general reference will ])e made to recognized authorities upon criminal procedure.^ § 683. Indorsement of Name of Private Prosecutor. — (1.) Policy of Statute.'^ requiring. — In some States, also, statutes are found requiring the indorsement of the name of the person at whose instance the prosecution was set on foot. This is only in a minor class of offences, — misde- meanors affecting the person or property of the prosecutor. The policy of these statutes is to discourage frivolous and malicious prosecutions, by taxing the prosecutor with costs in cases where the prosecution turns out to be groundless. - Where the crime reaches the grade of a felony, it is clear that the policy of these statutes no longer prevails.^ ( 2. ) Indorsement by whom made. — In those jurisdictions where indictments are formally prepared and submitted to the grand jury as the basis of their investigations, this in- dorsement is probably uniformly made by the prosecuting officer before sending the indictment to the grand jury. It was so required by the early statutes of Kentucky and Ten- nessee,* and other courts early regarded it as the duty of UBish. Cr. Proc. (3d ed.). §§ 702-704; Whart. Cr. PL & Pr. (8th ed.), §§354-356. 2 State V. Brown, 10 Ark. 104: State v. Harrison, 19 Ark. 565; United States V. Sandford, 1 Cranch C. C. 323; Com. v. Hutcheson, 1 Bibb, 355; State v. Hurt, 7 Mo. 321; Moyers v. State. 11 Humph. 40; United States V. Mundel, 6 Cal. 245; Wortham v. Com.. 5 Kand. 669; United States V. Flanakin, Hempst. 30; State v. Lumbrick, 1 Car. L. Rep. 543; State v. Darr. 63 N. C. 516; Com. v. Patterson, 2 Mete. (Ky.), 374; Baker v. State, 12 Ohio St. 214; White v. State, 13 Ohio St. 569; Com. V. Bybee, 5 Dana, 219; McWaters v. State, 10 Mo. 167; State v. Moles, 9 Mo. 694. » Lucy V. State, 8 Mo. 134; State v. Rogers, 37 Mo. 367; United States V. Flanakin, Hempst. 30; Baker v. State, 12 Ohio St. 214; Gabe v. State, 6 Ark. 540. * Allen V. Com., 2 Bibb, 210; Com. v. Hutcheson, 1 Bibb. 355; Com. V. Gore, 3 Dana, 474; Moyers v. State, 11 Humph. 40. § 683. J OTHER INDORSEMENTS. 7 lit this officer to see that this was done.^ But we have else- where stated that the usual practice now is for the prosecu- ting officer to attend the session of the grand jury, and await their decision, before preparing any indictment.^ The result follows that the grand jury may, with equal, if not greater propriety, make this indorsement. Thus, the present code of Alabama expressly required this indorsement to be made by the foreman of the body,^ and this seems to be the duty of the foreman under the Iowa statute.* Therefore, since the making of this indorsement is one of the possible func- tions of the grand jury, especial attention will be devoted to it. (3.) Necessity of . — "It is extremely clear," said Ire- dell, J., "that it was not necessary at common law that the prosecutor's name should be written at the foot of the indictment, and although the act of Assembly requires it to be done, where the prosecution is at the instance of an indi- vidual, for the sake of rendering him liable for costs if he fails, that does not prevent the attorney for the public from preferring an indictment, ex officio ; or the grand jury from finding one of their own accord." ° To prevent a failure of justice arising from the unwillingness of any individual to become a prosecutor, the Supreme Court of North Caro- lina early conceded to the prosecuting officer the discretion, subject to the control of the court, to indorse as a prosecu- tor whomsoever he thought fit, for example, the governor of the State. ^ Carrying out this view, it is not unusual for the statutes requiring the indorsement of a prosecutor to ^ Moore v. State, 13 Sm. & M. 259. See also State v. McCourtney, 6 Mo. 649; State v. Hughes, 1 Ala. 655. 2 Ante, § 606. » Code Ala. 1876, § 4778. * Miller's Rev. Code, 1880, § 4292. * United States v. Mnndel, 6 Call, 245, 247, s. c, 1 Hughes, 415. See also Eexv. Lukeus, 1 Dall. 5; State v. Eobinson, 29 N. H. 274; Wortham V. Com., 5 Rand. 669; State v. McCann, Meigs, 91; United States v. Lloyd, 4 Cranch C. C. 467. 6 State V. English, 1 Murph. 435. The foreman, or any other member of the grand jury, may be indorsed as prosecutor. King v. State, 5 How. (Miss.) 730. 720 rROCEEDI.VCS OF THE GRAND JURY. [CH. XXXI. provide further, as in Arkansas, that an indictment may nevertheless be presented upon the information of one or more grand jurors, or on the testimony of some witness other than the party injured.^ Under the Missouri statute, an indictment will be quashed, unless the name of a prose- cutor is indorsed upon it, or a statement which brings it within the exceptions of the statute.^ (4.) Who may be a Private Prosecutor. — In view of the policy of the statutes requiring the indorsement of a prose- cutor, it is evident that its purposes would not be accom- plished by permitting an infant or married woman to appear in this capacity. Accordingly, the name of the father or husband should be substituted.^ In the view of some courts, the name of one appearing as a voluntary witness may be indorsed as prosecutor,* and the statute of Oregon ex- pressly requires this to be done.^ One is not to be regarded as a prosecutor, unless his name is marked as such on the indict- ment,^ and it seems that no person ought to be so indorsed without his consent.' But this consent need not be express. One who has notice before trial that his name stands upon an indictment as the prosecutor, will not be allowed, after a verdict for the defendant, to have his name struck off.^ Under the Missouri statute the name of the prosecutor must be indorsed as such by himself.^ (5.) Form of Indorsement. — No presumption arises from the fact that a name is indorsed upon an indictment that the person so named is the prosecutor. There must i State V. Scott, 25 Ark. 107. See also R. S. Mo. 1879, § 1800. 2 State V. Joiner, 19 Mo. 224. Under the Alabama statute a prosecutor need not be indorsed, unless one appears; otherwise the indictment must be indorsed, " no prosecutor.'' Code Ala. 1876, § 4778. « Moyers v. State, 11 Humph, 40; State v. Harrison, 19 Ark. 565. * United States v. Rawlinson, 1 Cranch C. C. 83; Wortham v. Com., 5 Rand. 669. But see State v. Bailey, 21 Me. 62. 5 Gen. Laws Oreg. 1872, p. 348, § 61. • State V. Lupton, 63 N. C. 483. 7 State V. Hodsou, 74 N. C. 151, 154. " Bartlett v. Humphreys, Hardin, 513. See also Com. v. Dove, 2 Va. Cas. 29. 9R. S. Mo. 1879, § 1801. § 683.1 OTHER INDORSEMENTS. 721 be some memorandum showing the purpose of this indorse- ment.^ The indorsement that " this indictment is preferred upon the testimony of the party injured, who was sum- moned on i)resentation, and by order of the grand jury," is insufficient, because, under such indorsement, the injured party would not incur the costs of the prosecution in the event of an acquittal.'^ The omission to include in the indorsement the title or profession of the prosecutor, although required by statute, does not affect the validity of the indictment.^ Under a statute which requires the indictment to be iyi- dorsed by a prosecutor, the law is satisfied by the prosecutor writing his name as such at the foot of the indictment.* (6.) Form of Objection for Want of Prosecutor. — It can hardly be said that statutes requiring the indorsement of a private prosecutor, are directory merely,^ although this view has been taken by one court. ^ However, the omission to make the indorsement is not generally regarded as a fatal defect.' The accused may refuse to plead until a prosecutor is indorsed,** but he cannot demur generally to the indict- ment for this omission, because the indorsement is not an essential part of the indictment.'' Under the early decisions of the Kentucky court, a motion to quash or set aside the indictment for want of a prosecutor, might be made at any time before the jury retired,^" but not afterwards." This is 1 Medaris v. State, 10 Yerg. 239. But see Com. v. Dove, 2 Va. Cas. 29. 2 State V. Denton, 14 Ark. 343; Com. t. Hutcheson, 1 Bibb, 355; Wortham v. Com., 5 Rand. 669; Williamson v. State, 16 Ala. 431. 3 Com. V. Dever, 10 Leigh, 685; Com. v. Bybee, 5 Dana, 219. Contra^ Com. V. Gore, 3 Dana, 474. 4 Williams v. State, 9 Mo. 270. 5 Towle V. State, 3 Fla. 202; Barkley v. State, Meigs, 93, 102. fi State V. Hughes, 1 Ala. 655. ' Towle V. State, supra. 8 United States v. Carr, 2 Cranch C. C. 439. 9 United States v. Sandford, 1 Cranch C. C. 323. i« Com. V. Hutcheson, 1 Bibb, 355; Allen v. Com., 2 Bibb, 210; Com. V. Gore, 3 Dana 474. " Haj'deu v. Com., 10 B. Mon. 125. See also United States v. Lloyd, 4 Cranch C. C. 467. (46) 722 PROCEEDINGS OF THE GRAND JUIIY. [CH. XXXI. doubtlos.s the hotter rule.' The ohjec^tioii will not he heard ill arrest of judgment,- nor for the first time in a court of error.' However, in the view of other courts, this indorse- ment is ail essential part of the indictment, and, upon the principle that the general law of amendments does not ap[)ly to criminal cases, the indictment is fatally defective if the name of the prosecutor is not indorsed as re(j[uired by the statute. The defect cannot l)e cured l)y indorsement made after verdict, and pending a motion in arrest of judgment.* § 684. TudovHeiucnt of List of Witnesses. — (1.) Stat- utes reqmrhigf. — Statutes, too, ai"e more common rc(|uiring' a return into court of a list of the witnesses upon whose testimony indictments have been found. In several States the practice is to return in one list the names of all sworn during the term ; * but generally a list of the witnesses upon whose testimony the indictment was found, is inserted at the foot of each indictment, or indorsed thereon l)efore it is l)reseiited to the court.® In those jurisdictions where a 1 United States v. Sandford, 1 Crancli C. C. ;>2S; United States v. Hel- ri^gle, ;{ Cranch C. C. 179; United States v. Hollinsbeny, 3 Crauch C. C. 645; United States v. Shackleford, 3 Cranch C. C. 287; Towle v. State, ^^ Fla. 202. 2 United States y Jamesson, 1 Cranch C. C. (32; United States v. Sin- gleton, 1 Cranch C. C. 237. So provided by statute in Missouri. R. S. 1879, § 1801. 3 Vezain v. People. 40 111. 397. 4 Moore v. State, 13 Sm. & M. 259; Kirk v. State, 13 Sni. & M. 406; Peter v. State, 3 How. (Miss.) 433; State v. McCourtney, 6 Mo. 649,652; Medaris v. State, 10 Yerg. 239; Moyers v. State. 11 Humph. 40. 5 Code Ala. 1876, § 4773; R. S. Me. 1871, ch. 134, § 6; G. S. Mass. 1860, ch. 171, § 9; Rev. N. J. 1877, p. 520, § 8; R. S. Wis. 1878, § 2549. e Cal. Penal Code, §-943; Ark. Dig. Stat. 1874. § 1778; R. S. 111. 1880, p. 651, § 17; Miller's R. C. Iowa, 1880, § 4293; Bullitt's Ky. Cr. Code. § 120; 2 Stat, at Large, Minn. 1873, p. 1039, ij 134; Comp. L. Nev. 1873. § 1853; Gen. Laws Oreg. 1872, p. 348, § 61 ; Tex. Code Cr. Proc. 1879. Art. 413; R. S. W. Va. 1879. ch. .')3, § 8; New York Code Crim. Proc. 1881, § 271; Comp. L. Mich. 1871, § 7887; Comp. L. Kan. 1879, § 4591; R. S. Mo. 1879, § 1802; 2 Stat. Ind. 1876, p. 375, § 18. See also, Comp. L. Ariz. 1877, § 622; Laws Utah, 1878, § 145. In Virginia, this is re- quired only in the case of presentments by the grand jury. Code Va. 1873, p. 1237, § 9; Com. v. Gordon, 1 Cranch C. C. 48. In Iowa the law is satisfied witli a list of such witi-esses only as give material testimony. § 684.] OTHER INDORSEMENTS. 72.^ general list of the witnesses examined durino- the session is returned, the names of those upon whose testimony any particular indictment has been found, will be furnished upon demand.^ But in Massachusetts this privilege is confined to capital cases. - (2.) Policy of the^e Statutes. — The policy of such stat- utes is, evidently, that the accused may be informed of the nature of the testimony against him, and thus be enabled to prepare his defense.'^ Where the indictment has been found after a preliminary examination of the accused before a committing magistrate, which is the usual course in many jurisdictions, this grace of the law is not so essential to his defence. In a former part of this chapter, however, we have shown that indictments may originate in a variety of other ways."* In such cases, the accused are usually in- dicted without previous notice of the charge ; therefore, upon general principles of justice, these defendants ought to be placed upon the same footing, with reference to facili- ties for making their defence, as is enjoyed by others pri- marily accused before a magistrate. ° There is no rule of public policy demanding that the names of witnesses before the grand jury shall be kept secret, as is obvious from the fact that, formerly, witnesses were usually sworn in open court and sent to the grand jury, and are yet, under the English practice.'' The power was granted to the foreman of this body to swear witnesses, not for the purpose of concealing the names of those testifying, l)ut that the transaction of business might be facilitated. (3.) Names of Witnesses I)y wJtom indorsed or noted. — When the practice was to swear the witnesses in open court, State V. Little. 42 Iowa 51. lu Kansas, Missouri and liKliana. the stat- utes require nothing more. 1 Com. V. Knapp, 9 Pick. 49(), 49S; Com. v. Locke, 14 Pick. 485; Bird V. State, 50 Ga. 585; People v. Naughton, 7 Abb. Pr. (N. S.) 42L - Com. V. Edwards, 4 Gray, 1, 5. ■■ Ray V. State, 1 G. Greene, 316. •*^««e, §611. 5 People V. Naughton, 7 Abb. Pr. (N". S.) 421. « Ante, § G25. 724 PROCEEDINGS OF THE GRAND JUI{Y. [CII. XXXI it was the duty of the clerk to indorse their names upon the indictment,' but this practice is now quite obsolete.^ Some of the statutes, in express terms, mailhat the names of the witnesses are not indorsed as required '^ Gilman v. State, 1 Humph. 59. 2 Ante, § 625, subsec. 3. 3 Code Ala. 1876, § 4773; R. S. Me. 1871, cb. 134, § 6; G. S. Mass. 1860, ch. 171, § 9; Comp. L. Mich. 1871, § 7887; Rev. N. J. 1877, p. 526. 5} 8; R. S. Wis. 1878, § 2.549; R. S. III. 1880, p. 651, § 17; Gardner v. People, 4 111. 83, 89. < Tex. Code Cr. Proc. 1879, Art. 413. ^ Jilhird V. Com., 26 Pa. St. 169; State v. Dickson, 6 Kan. 200. « Scott V. People, 63 111. 508. ^ State V. Stanley, 33 Iowa. 526. The indorsement of a witness by the 'description, " Ex-sheriff Upright," to indicate one Morris J. Upright, was held sufRcient. State v. McComb, 1? Iowa. 43. 8 Ray V. Stare, 1 G. Greene, 316. 3 Cora. V. Edwards, 4 Gray, 1 ; Steele v. State, 1 Tex. 142; Territory v. Anderson, 1 Wyoming, 20. § 686.] IRRKGULARITIES IN PROCEEDINGS. 72i> by law, can he taken only in the trial court.' It cannot be pleaded in bar of the indictment.'^ The objection can onl>' be made by a motion to quash, or to set aside the indict- ment. If this motion is not made before demurrer or plea,, the defendant is precluded from afterwards taking the objec- tion.^ However, under the statutes of New York* and lowa,^ the omission may be supplied after objection is raade.*^ ARTICLE VII. IRREGULARITIES IN PROCEEDINGS. SECTIOX. 680. Time for Objectiou. 687. Form of Objection. § 686. Time for Objectiou. — What was said in a formei chapter,^ as to the time for entering objections to regularity of the organization of the grand jury, is of general applica- tion upon this point. The rule is that no informality in the proceedings of the grand jury upon the Hnding of the in- dictment can be alleged after verdict.'^ The reason for this ' Harrimaii v. State, 2 G. Greene, 270, 280; Rxy v. State, 1 G. Greene,. 316. 2 Com. V. .Jillard, 26 Pa. St. 169. * People V. Symonds, 22 Cal. :US; People v. Lopez, 26 Cal. 112; Peo- ple V. King, 28 Cal. 265; State v. Brandon, 28 Arl<. 410; State v. Flynn, 42 Iowa, 164. * New York Code Crini. Proc. (oh. 442 of Laws 1881), § 271. 5 Miller's Rev. Code, 1880, § 4338. •" State V. Flynu, supra. ' Ante., § 550. « State V. Kimball, 29 Iowa. 267; Wliite v. Com., 29 Giatt. 824; State v.. Pate, 67 Mo. 488; Bedford v. State, 2 Swan, 72; Floyd v. State, 30 Ala. 511; State V. Burlingbam, 15 Me. 104; State v. Wolcott, 21 Conn. 272; State V. Merteu?, 11 Mo. 94; State v. Burgess, 24 :Mo. 381 ; State v. Har- ris, 73 Mo. 287. 726 PKOCEEDINGS OF THE GKAND JURY. [CH. XXXI. l)lainlv is, that the result shows that the person ought to have been tried. An indictment, valid in all respects, deter- mines nothing more. § 687. Form of Objection. — As to the form of objection, the authorities exhibit the same lack of uniformity as before noticed.' Since irregularities in the proceedings must gen- erally be shoAvn deJtors the record, the proj)er form of ob- jection would seem to be a plea in abatement.'- It was so held where an intruder was present during the deliberations of the grand jury •? where more or less than the statutory number concurred in the finding.'* But it has been held that it may be shown, upon a motion to (|uash, that more or less than the proper number concurred in the finding :* that the finding -svas based upon incompetent evidence f that the indictment was returned without the examination of any wit- ness ; ^ that the only witness upon whose testimony it was found, was not sworn ;^ that the grand jury were guilty of misconduct.-' And, according to some cases, it is discre- tionary with the court to decide which mode may be adopted, irrespective of the question whether the irregularities are apparent upon the record.'" 1 Ante, § .541 rt Sfj. 2 Dun- V. State, 53 Miss. 425; Shropshire v. State, 12 Ark. 190. 3 Durr V. State, snpra. * Shropshire v. State, supra; Low's Case, 4 Me. 439. " People V. Shattuck. Abb. N. C. 33; Com. v.Leisening, 10 Reporter, :379. ^ United States v. Farrington. 5 Fed. Eep. 343; s. c, 2 Crim. L. Mag. 525; People v. Hulbut, 4 Den. 133, 136, per Bronson, J.; People v. Griggs. 60 How. Pr. 17. ' State V. Gnidy, MS., St. Louis Court of Appeals. June. 1882. ** United States v. Coolidge. 2 Gall. 364. " Turk V. State. 7 Ohio (Pt. II.), 240. J" State V. Cain, 1 Hawks. 352; State v. llobcrts, 2 Dev. & B. 540; State V. Barnes, 7 Jones Jv. 21; State v. Horton. G." X. C. 596; Com. v. Leis- ening. 10 Reporter. 379. § 689.] WHAT THE RECORD MUST SHOW. 727 CHAPTER XXXII. OF WHAT THE RECORD MUST SHOW. SECTION. 689. Introductory. GOO. Qualifications of Grand -Jurors. G91. The Drawino;, Summoning and Impanelling. C92. Number of Jurors Finding. 693. Their Names. 694. Appointment of Foreman. 695. The Swearing. 696. Return of Indictment. (1.) This must explicitly appear. (2.) How in Case of Presentment. (3.) x\mendment of Record to show Return. 697. Filing of Indictment. 698. Names of Witnesses. § 689. Introductory. — Undei' the English practice, in- dictments are usually found in an inferior court of limited Jurisdiction, after which the case is transferred to a superior court for trial. When this step has been taken, it is clear that enough of the record of the court where it has been found, must be transmitted with the indictment, to show that it was properly found and is valid. ^ So much of the record as appears with the indictment is called the caption. Tne caption is no part of the indictment. Mr. Chitty states this to be " a formal statement of the proceedings, describing the court before which the indictment was found, the time and place where it was found, and the jurors l)y whom it was found, and these particulars it must set forth with sufficient 1 1 Bish. Cr. Froc. (3d ed.) § 653. 728 WHAT THE RECORn MIIST SHOW. [CH. XXXII. certainty. "' ' When it is considoi-ecl tliat , in this country, the court in which the indictment is found, is, almost without ex- ception, one of i^enend jurisdiction, and that the trial of the indictment is there had, it would seem that tlu; retention of the caption with all the formalities i)rescribed by the English l)ractice, is a blind adherence to a form wanting in vitality. - This was early the view of the North Carolina court. " When it appears, therefore," said Hendeksox, C. J., " that they have taken an indictment, it shall be intended that it was duly taken ; that it was taken by the requisite number of good and lawful men, duly drawn, sworn and charged ; in other words, that everything was done correctly, as far as concerns ybr??i and manner.^' ^ Some courts insist upon the English practice, while others have drawn out the commencement of the indictment into a kind of caption ; as a consequence, the question what the caption ought to contain, as noticed by a distinguished authority upon criminal procedure, is one of great per- plexity.* However, we are now especially concerned to discover, not what the caption or the indictment must con- tain, l>ut what, according to the general view, ought to appear of record in respect of the organization and proceed- inofs of the o:rand iurv, w'hich Ix'ing ascertained, it would seem sufficient that the facts appear anywhere in the record.'* § 690. Qualifications of Grand Jurors. — It is not neces- sary that the record should show that the grand jurors were possessed of the qualifications required by law, as that they were jyrobi et legales homines; for this is a necessary intend- ment of law.'^ This rule extends, also, to the enumeration of 1 1 Chitty Cr. L. .326. 2 State v. Peterson, 2 La. Au. 921. 'State V. Kimbrough, 2 Dev. 431, 441. See also State v. Lewis, 3 Hawks, 410; State v. Seaborn, 4 Dev. 305. 308; Gardner v. People, 4 111. 83, 85. ^ 1 Bish. Cr. Proc. (3d ed.) § G65. » 1 Bish. Cr. Proc. (3d ed.) § GG7. See also Bailey v. State, 3!» Fud. 438, 444. 6 2 Bish. Cr. Proc, § 155; citing 1 Stark. (Jr. PI. 230, 237: Keg. v. Biit- terfield, 2 Moody «fe R. 522; Rex v. Vaws, 1 Mod. 24; Rex v. Waite, 4 Mod. 248; Rex v. Roysted, 1 Keny. 255; Aylett v. Rex, 3 Bro. P. C. ^691.] DRAWING, SUMMONING AND IMPANELLING. 729 the special qualiticatioiis required by statute. These need not appear of record.^ If any want of qualification exists, this must be shown by plea in abatement."^ It should appear, with reasonable certainty, that the grand jurors who returned the indictment were of the proper county.^ However, it is sufficient that they are described as grand jurors, or jurors simply, of the State or Commonwealth, when it appears from other parts of the record that they are of the proper county.* But where the criminal jurisdiction of a court is confined to a single municipality, it is not sufficient to de- scribe the jurors as chosen, selected and sworn in and for the city and the county.^ § 691. The Drawing', Siiniinoniiig and Impanelling'. — It need not be stated in the record that the grand jurors were drawn and summoned, or by what authority they were summoned.'^ Although it is usual to state in the caption, 529; s. c, G Ad. &E1. 247, note; Rex v. Feariiley. 1 Loach (4th ed.) 425; Rex v. Davis,! Car. & P. 470; Dakui's Case, 2 Saund. 290; Rex v. Marsh, 6 Ad. & El. 236; s. c, 1 Nev. & P. 187. See also Bac. Abr. In- dictment I.; 2 Hawk. P. C. c. 25, § 126; 1 Chitty C. L. 333; Mansell v. Reg., 8 El. & Bl. 54; State v. Yancey, 1 Const. Rep. (S.C.) 237; Turner V. State, 9 Humph. 119; Tipton v. State, Peck, 308; State v. McCarty, 2 Chand. (Wis.) 199. Contra, State v. Gibbous. 4 N. J. L. 4^. 46. 1 Parks V. State, 4 Oh. St. 234; Beauchamp v. State, 6 Blackf. 299; Weinzorpflin v. State, 7 Blackf. 186; Willey v. State, 46 Ind. 363; Jerry V. State, 1 Blackf. 395; State v. Price, 11 JST. J. L. 203; McGarry v. Peo- ple, 2 Lang. 227; Bonds v. State, Mart. & Yerg. 143; Cornwell v. State. Mart. & Yerg. 147; Bailey v. State, 39 Ind. 438, 443. 2 Parks V. State, supra. 3 Byrd v. State, 1 How. (Miss.) 171 ; State v. Gilmere, 9 W. Va. 641 ; Cornelius v. State, 12 Ark. 782; Clark v. State, 1 Ind. 253. * Com. V. Edwards, 4 Gray, 1; Com. v. Fisher, 7 Gray, 492; Byrd v. State, 1 How. (Miss.) 163, 171; Cornelius v. State, 12 Ark. 782; State v. Xixon, 18 Vt. 70; Lovell v. State, 45 Ind. 550; Mackey v. State, 3 Oh. St. 362; State V. Conley, 39 Me. 78; State v. McCarty, 2 Chand. 199; State V. England, 19 Mo. 386; Vaughn v. State, 4 Mo. 530, .534: State v. Sprinkle, 65 N". C. 463. But see Williams v. State, 30 Tex. 404; State v. Hilton, 41 Tex. 565; Morgan v. State, 19 Ala. 556. 5 Bell V. People, 2 111. 397.' 6 Nugent V. State, 19 Ala. .540; State v. Pile. 5 Ala. 72; Morgan v. State, 19 Ala. 557; Shaw v. State, 18 Ala. 547; Preston v. State, 63 Ala. 127; Collier v. State, 2 Stew. (Ala.) 388; Berrian v. State, 22 N. J. L. 9; State V. Jones, 9 N. J. L. 357, 371; State v. Gustin, 5 N. J. L. 744, 746; 730 WHAT THE RECORD MUST SHOW. [CH. XXXII. or in the commencement of the indictment, that the present- ment is by the grand jurors "impanelled, charged and sworn,"' still, the omission of the word "impanelled" affords no grouiul of objection.- The Supreme Court of Indiana early held a contrary view,-^ which was later al)andoned.^ § G92. Xumber of Jurors Fiiidiii};. — It need not appear of record that the indictment was found by at least twelve of the grand jurors.'* The presence of less than the pre- scribed number will not be presumed, when the record shows that the grand jury returned the indictment into court, and nothing contradictor}' of the conclusion that twelve of the grand jury were present, is disclosed upon the record."' But where the caption sets forth that the indictment was found by a grand jury of twelve men, when the legal number is sixteen, a conviction on the indictment will be set aside.' § 693. Their Xames. — At common law, the names of the grand jurors usually appeared in the caption to the indict- ment.^ But this requirement is now generally disre- State V. Price, ll^N. J. L. 208. See also Bell v. State, 42 Iiul. 335; Long V. State, 46 Ind. 582. 1 State V. England, 19 Mo. 386; Vaughn v. State, 4 Mo. 530; Berrian v. State, 22 N. J. L. 9, 29; DaAvson v. People, 25 N. Y. 399, 403; Turner v. State, 9 Humph. 119; State v. Hilton, 41 Tex. 565; State v. Delue, 1 Chand. 166; Fizell v. State, 25 Wis. 364; Yates v. People, 38 111. 527. 2 Anon., 3 Salk. 191; Green, C. J., in Berrian v. State, 22 N. J. L. 9, 29; Nugent v. State, 19 Ala. 540; Morgan v. State, 19 Ala. 557; Shaw v. State, 18 Ala. 547; State v. Jones. 9 N. J. L. 357, 371. But see Young v. .State, 23 Oli. St. 577. " Impounded," written for " impanelled,'' does not affect tiie validity of the indictment. Williams v. State, 3 Heisk. 376. 3 Sawyer v. State, 17 Ind. 435; Conner v. State, 18 Ind. 428; Conner v. State, 19 Ind. 98; Bodkin v. State, 20 Ind. 281 ; Jackson v. State, 21 Ind. 171. 4 Alley V. State, 32 Ind. 476; Holloway v. State, .53 Ind. 554; Bell v. State, 42 Ind. 335; Long v. State, 46 Ind. 582. 6 Turns v. Com., 6 Met. 224; Com. v. Smyth, 11 Cush. 473, 476. 6 Kussell V. State, 33 Ala. 366; (Jardner v. People. 4 111. 83, 85; Young V. State. 6 Ohio St. 435, 436; Dawson v. People, 25 X. Y. 399. But see State V. Gibbons, 4 N. J. L. 40. 47. ' Fitzgerald v. State, 4 Wis. 395. s 2 Hale P. C. 167; 2 Hawk. P. C. c. 25. §§ 16. 17. 118; 1 Chitty C. L. § 694.] APPOINTMENT OF FOREMAN. 731 gardcd,' although some courts hold that the record of the case should, ill some part, show by Avhom the indictment was returned.- yl fortiori, where the names are inserted, amis- take in the name of a grand juror which does not render his identity df)ubtful,'' or the use of initial letters only to indi- cate their christian names, ^ will not affect the validity of the indictment.'' § 694. Appointment of Foreman. — In the view of some courts, the appointment of the foreman should, in all cases, be a matter of record, so that an inspection of the record will always show to a certainty who was foreman." Assuming this to be necessary, it is evident that a statement in the record that the foreman was sworn, necessarily im- plies his appointment as such hy the court. ^ But, although a convenient practice, it seems not essential that the ap- 326; Clyncaid's Case, Cro. Eliz. 654. See also State v. Murphy, 9 Port. 487; Morgan v. State, 19 Ala. .556; Reeves v. State, 20 Ala. 33; State v. Williams, 2 McCord, 301; Cornelius v. State, 12 Ark. 782; Stated. Gib- bons, 4 X. J. L. 40, 47; State v. Jones, 9 N. J. L. 357; People v. Bennett, 37 N. Y. 117; Noles v. State, 24 Ala. 672, 694; Rose v. State, Minor, 28, 29; Perkins v. State, 50 Ala. 154; Hatcher v. State, 18 Ga. 460; Thomas V. State, 5 How. (Miss.) 20; State v. Glasgow, Conf. (N. C) 38. No advantage can be taken of the omission after judgment. Dawson v. Peo- ple, 25 N. Y. 31>9. 405. ' 1 Chitty C. L. 333; Rex v. Davis, 1 Car. & P. 470; Rex v. Marsh, 6 Ad. & El. 236; Rex v. Aylett, id., p. 247, note; Low's Case, 4 Me. 439 ; Fouts v. State, 8 Oh. St. 98, (overruling tlie obiter dictum to the contrary in Mahanv. State, 10 Ohio, 232); Harriman v. State, 2 G. Greene, 270, 280; Bailey v. State. 39 Ind. 443; State v. Cook, Riley (S. C), 2^14; Young v. Si :)te. G Ohio. 435 ; Com. v. Fisher, 7 Gray. 492; State v. Brady. 14 Vt. 35:5 ; N\t iii/orpflin v. State, 7 Blackf. 186: McKinnej v. People, 7 III. 540; McGarry v. People, 2 Lans. 227; Alley v. State, 32 Ind. 476; Com. v. James, 1 Pick. 375; McCIure v. State, 1 Yerg. 206, 209; State v. Sprinkle. 65 N. C. 463. 2 Fonts V. State, 8 Oh. St. 98; Parks v. State, 4 Oh. St. 234; State v. Peterson, 2 La. An. 921. 3 State V. Mahan, 12 Tex. 283; Hayes v. State, 58 Ga. 35; State v. Norton, 23 N. J. L. 33. •< Hatcher v. State, 18 Ga. 460. * Such mistakes may be amended. Jackson v. State, 11 Tex. 261 ; State V. McNamara, 3 Nev. 70. But see Kneeland v. State, 63 Ga. 641. 6 State V. Brown, 31 Vt. 603; Com. v. Read, Thach. Cr. C. 180. ' Woodsides v. State. 2 How. (Miss.) 055; Cody v. State, 3 How. (Miss.) 27. 732 WHAT THE RECORD MUST SHOW. [CH. XXXII. pointment of this officer should appeal' of record.' A reason for disi)eiisiii Stowball V. Aiisell, Comb. UC>. 2 See also Johnstone v.Sntton. 1 Term Hep. 5;3.); Gorenwelt v. Biirwell, 1 Ld. Raym. 469. 3 1 Chitty Cr. L. 323, 324. This is merely an illustration of that rule of public policy which prohibits the questioning of judicial and other public officers by private citizens in a court of law as to the per- formance of their duties. Thus, in another connection, Mr. Chittj^says : '• Xor can an action be maintained against a juryman, or the attorney- general, or a superior military or naval officer, for an act done in the execution of his office, and within the purview of his general authority." 1 Chitty PI. 90. ■* Be Lloyd and Carpenter, 5 Penn. L. J. GO; s. c, 3 Clark, 193. ^ 5 Penn. L. J. (53 ; 3 Clark, 196. See also Turpen v. Booth, 56 Cal. 65 ; .s. c, 2 Cr. L. Mag. 63; 23 Alb. L. J. 218; Hunter v. Mathis, 40 lud. 357. What act will be regarded as "official" is a nice question. The Supreme Court of the United States makes a distinction between acts in excess of jurisdiction and such as are done in the clear absence of all jurisdiction over the subject matter. See Bradley v. Fisher. 13 Wall. 750 I'EKSOXAL LIAP.ILITV OF GRAND .7UHORS. \_CU . \XXIV. This rule has l>etMi fornudatcd into a statutory provision in inanv States, For example, the \c\v York Code of Crim- inal Procedure' ]>rovides that " a urand juror shall not be questioned for anything he may say, or any vote lie may irive in the grand jury, relative to a matter legally pending l)efore the jury, oxcejit for a perjury of which he may have ])een guilty in making an accusation or in giving testimony to his fellow jurors." - :535. Tliis (listiiu'tion was not observed in AVeavcr v. Devpudorf, :5 Den. 117, 120. iLawsl8Sl,oli. 44-2. 2 Section 2G7. See also Cal. Tenal Code, § 927'; Ark. Dig. Stat. 1874, § 17G5; Miller's R. C. Iowa. 1880, § 428G; Bullitt's Ky. Or. Code, §114; 2 Stat, at Large Minn. 1873, p. 1037, § 117; Comp. I.. Nev. 1S73, § 1840; Gen. Laws Oreg. 1873, p. 347, § 59; Comp. L. Ariz. 1877, § 009; Gen. Laws Xew Mexico. 1880, p. 371, § 15; Laws Utah, 1878. (Code Cr. Proc). vj 142. In Georgia grand jurors are exempt from actions for malicious prosecution for presentments whicli tliey may make. Code Ga. 1873, ^ 2985. INDEX. j8®- The tig-ureis refer to sections and subsections. The parentliesis indicate- the latter. AB^iNDOXMENT. See Waiver. ,VBATEMENT. See Plea in Abatement. ACCUSED PERSONS. See SERVICE of Panel upon the Accused. ACTUAL BIAS. See Challenges for Cause. legislature cannot take away this cause of challenge, 175. trial of challenge for, 249. ADJOUKXJIEKT. distinction between power to permit jury to separate and power to ad- journ, 311. .\_FFIDAVITS OF JURORS. in support of their competency, 304. juror's affidavit to show separation from his fellows for an innocent purpose, 318 (9), 330, 340 (1), 341 (1), 341 (2). affidavits explaining separation must exclude every possibility of prejudice to prisoner, 329, 341 (1). admissible to show communications between jurors and bailiff, 362 (4). whether admissible to show unlawful communications between jurors injury room, 363. if admissible, such affidavits must be voluntary, 303. admissible to show attempts to corruptly influence the jury, 3G4 (6). inadmissible to show that the jury read improper matter in jury room, 391 (4) note, 400 note, admissible to show that improper papers in jury room were not read by them, 390. inadmissible to show what eflfect tbe papers, when read, had upon them, 397. generally inadmissible to show misconduct of jury in making up a chance verdict, 414. exception in Tennessee and Kansas, ib. admissible to show that they did not return a chance verdict, ib. admissible under statutes to show chance verdict, 415, 454, 455. such affidavits miist be voluntary, ib. generally not admissible to impeach their verdict, 440. to show that the affiant did not consent to the verdict, 441. to show that the jury had not in fact agreed upon the verdict, 442. admissible to show mistake in entering the verdict, 443. court may interrogate jurors as to the grounds of their linding, 444. testimony of ethers on information derived from jurors inadmissible, 445. admissible to sustain their verdict, 440. admissible to show what took place in open court, 447, 450. 752 INDEX. AFFIDAVITS OF JL'KORS - Conlinucd. iichulssible to show iniseonduct of parties, US. wbetlier admissible to show uiiscouduct of their bailiff, ;502 (4), 44!). or upon the nts, 3S3 (3). records of former suits or proceedings, 383 (4). record must be complete, 383 (8). Ijapers written upon and underscored, 3S3 (5). duty of counsel to object knowin;.? of improper paper going to jur^- room, 383 (5). papers which may be used in ijroving handwriting by comparison, 383 ((i). instruments used in the commission of crime may be taken out by jury when properly identifltd, 383 (7), 416 note, papers which are evidence on one side only, 384. .as to depositions, 385. depositions did not formerly go to jury room, 385 (1). proper to allow them to be taken out when all the evidence is in this form, 385 (1). court may, in its discretion, grant or refuse permission, 335 (2). how when taken out without permission, 385 (2). how when taken out contrary to provisions of a statute, 385 (2) and (3) . in Ohio error may be assigned for refusal to allow depositions to be taken out, 385 (2). depositions, parts of which are not evidence, must not be taken out, 385 (4). papers not received in evidence cannot be taken out, 38(). statements of account, 386 (1) note, bill or exceptions on former trial, ib. record of coroner's inquest and depositions, iii. county map, ib. bills of particulars, statements of claims, computations, etc., may be taken out for reference, but not as evidence, 386 (2). immaterial and unprejudicial papers going out with jury, 336 (3). papers which are in evidence sent out with jury In discretion of court 386 (4). pleadings may be taken out, but not as evidence, 387. so, in general, as to written instructions of the court, 388. judge's minutes cannot be taken out, 389. nor jurors notes of the testimony, 390. nor counsel's notes of the trial, 395. nor law books, 359, 391 (1) and (2). hut the bare presence of law books in jury room will not vitiate verdict , .3.91 (I). (49) 754 INDEX. BOOKS AND PAPERS IN THE JURY ROOM-Contimieil. nor tlieir use for a trivial purpose, 391 (1). law books sometimes sent to jurj' room, 391 (3). what if taken out secretly, 391 (4). scientific books, majis, dictionaries, directories, 392. Improper papers secretly delivered to jury by prevailing i>arty or liis coun sel,3W (5),393. by counsel for losing party, 393 (2). rule where improper pajiers taken out are not read by jury,3!)4. presumption that such papers were read, 3S5. contrary may bo shown by aftidavits of juroi's, 396. such allidavits not admissible to sliow that improiiei- matter in jury rooni was read by them, 391 (4) note, nor to show what effect the papers, when read, had ujion them, 39". effect of taking out papers which court has instructed jury to disregard, 399. error in permitting jury to take out imi)roper matter, how taken advantage of, 400. recalling jurj- and delivering papers to them, 401. statutory provisions as to, 402. BOX. See Drawing the Panel; Impanei.linu.' BRIBERY OF JURORS. See EMBRACERY. witness fees received by juror not a gratuity, 379. CAPITAL CASES. See SPECIAL VENIRE. Virginia statute for summoning jurors in, 1. waiver of full jury in, 7. service of copy of panel upon accused in, 110 et seq. right of peremptory challenge not restricted to, 1.56. conscientious scruples against capital punishment a ground of challenge in, 202. otherwise as to opposition to capital punishment upon political grounds, 203. prisoner waives nothing in, 303. how as to objections to competency of jurers not known until after verdict, ih. separation of jurors in, 318, 319, .331, 340, 341. reading of newspapers by jury during trial of, 350, 351. communication with jury during deliberations upon, 362 (3) and (5). prejudicial communications between jurors in, 363. CHALLENGES IN GENERAL. divided into challenge to the array and challenges to the polls, 12.). challenges to the polls subdivided into peremptory challenges and chal- lenges for cause, 152. to grand jurors. See Objections to Grand Jl'uors. CHALLENGES TO THE POLLS. See Chailenges FOR Cau.se; Peuemptorv Challbnges. divided into peremptoiy challenges and challenges for cause, 152. (JHALLENGES FOR CAUSE. See Trial of Challenges; Impanelling. Lord Coke's classification, 1.53. usuallj' divided into principal challenges and challenges to the favor, 152. the former ti-iedby the court, the latter by triors, ib. the distinctien between the two fading away, 1.52, 172. but of sufficient value to be retained, 1.52. illustrations of challenges for principal cause at common law, 170 (1) and (2). the causes of favor infinite, 171, 175. existence of this form of challenge under statutes, 152, 175. distinctive statutory system of challenges in some States, 173 and note, general causes of challenge, ib. INDEX. 755 CH-VLLENGES FOR CAUSE— Continued. particular causes of challenge, 173 and note. cliallenges tor implied bias, ib. challenges for actual bias, ib. lack of statutory qualifloations, 174. must be qnalitied at time of service, 174 (1), non resident, 174 (-2). not a voter, 174 (3). not a freeholder, 174 (4). not a householder, 174 (5). not a tax -payer, 174 (6). whether statutory causes of challenge are exclusive, 175, ISl note, 247. iilienage, 176. ignorance of the English language, 177. ■consanguinity and affinity, 178. common law rule as to consanguinity, 178 (1). meaning of the term " affinity," 178 (2). common law rule as to afHnity, 178 (3). relationship must be to a party, 178 (4). exceptions to this rule, 178 (5). mode of reckoning degrees, 178 (6). interest, public or corporate, 179. tax-payer in municipal corporation, 179 (1). how affected by statutes, 179 (2). member of private corporation, 179 (3). interest, private, 180. direct interest in result of suit, 180. interest as executor or administrator, 180 (1). contingent interest as surety, 180 (2). membership in association for suppression of crime, 181. subscription to a fund to prosecute or defend a suit, 181 notes, membership in benevolent associations, 182, prior service, 183. at a term or during a yeai", 183 (1). in the same or a similar case, 183 (2). landlord and tenant, 184. business relations, 1^5. employer and employee, i6. previous misconduct as a juror, 186. party to anotlier suit at the same term, 187. prejudice and bias distinguished, 191. prejudice against the crime charged, 193. l^rejudice arising otherwise, 194. prejudice against a party's occupation, 195. prejudice against a party's nationality, 196. prejudice against an accused person arising from general reputation, 197. prejudice against circumstantial evidence, 202. belief that the accused is innocent, 198. a feeling of lenitj\ 199. the juror unwilling to trust himself, 200. a preference in case the evidence is equally balanced, 201,224 note, conscientious scruples against capital punishment, 202. opposition to capital punislimeiit upon political grounds, 203. opinion upon the subject-matter of a civil or criminal case, 204. confused state of the law upon this point, ib. a ground of challenge for principal cause or to the favor, 205. formation without expression of opinion, 206. light expressions, hypothetical opinions, opinions founded upon rumor, newspaper reports, and the like do not disqualify, 207, 208, 203. this rule to be guardedly applied, 207, 208. 756 INDKX. CHALLEXGKS FOR CAUSK— Coutiiuiod. meaning of the term " Impression," '20.1. liartioular expressions of opinion wliicli do not disiiualify, 211'. what is said in a si>irit of levity, ib. luisty c'xc'himations upon recH'ivinfj stiirtlinf^ information, (7*. nature of opinions whieli do dis(pialify, -Ml. oi)inions founded upon rumor, whi'ii tixinl, disipudify, ib. an unqualified opinion, -2 12. oiiinion derived from an authentic source, 21;!. opinions based upon newspaper rei)orts of testimony of witnesses, 214. opinions whicli can be removed only l)y evidence, ai.l. opinions based upon personal knowledjie, 2IG. opinions upon particular facts involved In the issue, 217, 21s. to disy the court, the latter by triors, ib. distinction between principal challenge and challenge to favor nuw obsolete, ib. various grounds at common law specified, 126, KIO. consanguinity or affinity of summoning officer, l:;i. summoning officer a party to the suit, I:12. or interested in the suit, 132, 144 (2). or an advocate of a party, 132. nomination of jurors by a party, 133. for irregularities in selecting the jury list, 134 et sei/. in general, 134, 135, 141. failure to record the jury list, 13i!. informality in certificate of selection, 137. jury list made by other thanstatutory officers, 1:'>S, 141. jury list made by commissioner not having taken oath of olheo, 13?. perfect list cannot be demanded, 47 note, 130. jury list incomplete through fraud, I4(i. discretion of statutory officers in making jury list cannot be reviewed,. 139, 140. custody of jury wheel, 142. for irregularities in drawing the panel in general, 63, 143 (1). essential statutory provisions mast be followed, 143 (2). departure from statutory forms no ground unless material, U) (3). absence of statutory officers, 144 (li. ixDEX. 757 CHALLENGE TO THE ARRAV— Continued. interest«(l persons and those otliei'wise biased may act at the drawing, U4 (1) and (2). in Soiitli Cai'olina persons conducting the drawing must be as indifferent as tlie sheriff at common hiw, 144 (1). statutory time of conducting the drawing usually directory, 14."). for irregularities in summoning the panel, 140. for defects in venire, 146 (2). See Vbnike. for interest of clerk issuing the venire in New England, 146 (8). for failure to issue venire, 146 (4). for omission to summon one or more persons drawn, 146 (.5). for omission to make return, or failure to return within statutory time, 146 (6) and (8). for defects in return, 146 (7). lor execution of venire by other than statutory officer 146 (9). for summoning jurors for a Territorial court under a statute applicable to Federal courts, 53. for summoning more persons than directed by law, 70. for expression of an opinion iipon the ease, 130. fraud the only ground of objection in some States, 130 and note, 143 (3). objections to particular jurors cannot be taken by challeage to the array, 3 note, 75, 12S, 135, 146 (10). members of quashed panel re-summoned on special venire when, 147, 81 (1). for improper action by the court in excusing jurors, 259 (3) note, 261. precede challenges to the polls, 266 note, 275 (1). of grand jurors. See Objections to Grand Jurors. CIVIL RIGHTS. See Constitutional Law. colored man cannot demand that a portion of the jury shall be of his race, 14, 29. remedy for wrongful exclusion of colored jurors, 29,30, 53G (5) note. CLERK. harmless communications between jury and, 361. appointment of by grand jury, 623. one not of their number admitted to grand jury i-oom, 631. COLORED PERSONS. See Civil Rights. COMMITTING MAGISTRATE. necessity of preliminary examination before. See Indictment. COMMUNICATIONS WITH JURORS. unlawful during separation of the juiy, 314. during recess of court, 341 (2). bj' strangers maj' be shown to be harmless, .349. presumption arising from unexplained communication, 348 (2), 349 (2). in civil cases, communications must be shown to have been prejudicial, 349 (3). presumption arising from communication bj- successful party, .348 (3). undue hospitality extended by successful party, ib. no prejudice arises from after agreeing to a sealed verdict, 349 (1). reading newspapers generally, 350. effect of reading such as contain reports of the trial, .351. ' pi'ejudice to be conclusively presumed from the reading of unfavorable edi- torial comments, 351. communications between jurors and witnesses, 3.52. no ground for a new trial unless prejudicial, 352. i"e-examination of witnesses in the jury room, 353. misconduct of jurors promoted by successful party, 354. judge may not privately communicate with, SiiS (1), 357. prejudice conclusively presumed from such communication, 355 (2>. right to new trial on this ground, 360. 758 INDEX. COMMUNICATIONS WITH JUROUS— Continued. in New Hampshire and South Carolina judge may privately communicato with jury, 35.") (3) and (4). judge may eommunicate with jury in presence of parties* or their attorneys, 356. sheriff may not privately eommunicate with Iii3 jury, 353. judge may send written instructions to jurj'room with consent of counsel, 357, 359. passive acquiescence not consent, 359. harmless conxmunication.s between jury and clerk of court, 361. presence of bailiff in juiy room during deliberations, 362 (1). harmless communications between jurors and oflicer in charge of tliem, 362 (2). prejudicial communications between them, 362 (3). conflict of decisions in New York, 362 (5). proof in such cases, 36'J (4). unlawful communications between jurors themselves in jury room, .363. whether these may be shown by aflidavits of jurors, 363. such aflidavits must be voluntary, 363. vf tampering with juries, 364. embracery at common law, 364 (1). embraceor punished criminally and also subject to civil action for dam- ^, ages, 364(1). difliculties in maintaining civil action for, 364 (2). the offense seldom punished bj' indictment, 364 (1) note, vitiates the verdict, 364 (2) and (5). how punished under statutes, 364 (3). , subjects juror and embraceor to punishment for contempt, 364 (1) and (4). ■""^ aflidavits of jurors admissible to show, 3 4 (6). by counsel, 364 (8). by prosecuting witnesses, 364 (9) and (5). by oflicious third persons, 364 (10). presumption arising from unexplained communications, 364 (11). where communication is disclosed prejudice must be apparent, to consti- tute ground for new trial, 364 (12). duty of party or counsel knowing to disclose to court before verdict, ib. party moving for new trial must himself be innocent, ib. communications made by jurors, 365. to jiarties, 365 (2). , punishable as contempt of court, ib. do not necessarily vitiate the verdict, ib. to third persons, 365 (3). ' no ground for a new trial unless indicative of prejudice, 365 (3) and (4). remarks indicating prejudice, 365 (4). witness fees received by juror not a gratuity, 379. COMPETENCY. See Ch.\llenges for Cau.se; Tkial of Challenges. presumption as to in case of jurors, 262, 294, 690. aflidavits in support of motion for new trial impeaching, 275 (2), 302, 303. affidavit of jr.ror in support of his, 304. CONFESSIONS. of accused before grand jury, 643. testimony of grand jurors as to, 706 (6) note. CONSTABLE. See Bailiff; Siiekiff. CONSTITUTIONAL LAW. power of the State legislatures to direct from whence the jury shall be summoned, 1, 3 note. to authorize a jury of less than twelve, 10. to prescribe qualiflcations of jurors, 22 et seq\ 174 (3) note. to control incidents of the right of jury trial, 23 note, 45 note. INDEX. 759 CONSTITUTIONAL LAW — Continued. to limit jury duty to wliite persons, 27, 481 note. to prescribe exemptions from jury duty, 35. to pass a jury act applicable to particular districts, 45 note. to increase, diminish or take away the right of peremptory challenge 165 (1). to prescribe suffrage as a qnaliflcation for jurors, 174 (3) note, to take away the riglit of challenge for implied bias, 175. to take away the right of challenge for the formation or expression of an opinion, hitherto obnoxious to the law, 223 and note, to regulate order of challenges, 266 (2) note. to pass an act to cure any irregularitj^ in the venire, or in the drawing summoning, returning and impanelling of grand jurors, 518 note, power of Congress. to punish for exclusion of colored jurors, 29. to prescribe exemptions from jury duty, 34 note. COiSSTITUTIONAL PROVISIONS, jury of the vicinage, 2, 3. right of trial by jury, 2, 5, 8, 10, 24. waiver of full jury in civil cases, 8. number of jury in courts not of record, 10. verdict by less than full number, 8. qualifications of jurors, 22. no religious or political test, 25. disqualifications of jurors, 25. CONTEMPT. power of Federal courts to punish, 364 (4). power of grand jury to detain witnesses in custody to be punished for, 595. court will punish witnesses for contempt of authority of grand jury, 596, 624, 647. grand jurors may be punished for by court, 596. libel of the grand jury punished as a, 596 note. communication witli grand jury a contempt in some jurisdictions, 614 (3). COPY OF THE PANEL. See Service of Panel upon the Accused. CORONER. when a proper substitute for sheriff as summoning officer, 82 (1), 557 (5). COUNSEL. See Attorney. " COUNTY AT LARGE." what will be regarded as a taking from, 95. CUSTODY OF JURORS. See SEPARATION OF JURORS, under the old law prisoners of the court, 310. relaxation of this strictness, 310, 350. placed in charge of sworn officers, 310. officers specially sworn for this duty in some States, 322. no officer need attend them when remaining in court or otherwise isolated, 322 and note, who may be sworn to attend them, .323. an interested person shoiild not, 324. personal custody of jury by the judge. 325. form of oath by attending officer, 326. DE FACTO OFFICERS, acts of valid, jury commissioner, 138. sheriff, ib. clerk, 590. DEPOSITIONS. when taken to jury room, 385. of jurors. See Affidavits of Jurors. 7 GO INDEX. DEPUTY. ot clerk iimy act at drawing of panel, U4 (1). of slieriff may siinuiioii talesmen when the .sheriff is gi-ossly ijjnorant of his duties, 8-2 (1). of sheriff before acting must take oath of oflice, 144 ('2). DISCHARGE OF JURY. distinction between power to i)erniit jury to separate and powerto discharge them, 312. effect of without consent of defendant, ;J12. DI^^QUALIFIC.VTIOX. See Challenges i-ok Cause. DISTRINGAS. origin of and use at common law, 66. DRAWING THE PANEL. See Challenge to the Aukav. who may conduct tlie drawing, 144. the usual method stated,.'),"). the method in New Y'ork stated at length, 50, .57. exceptional method in New Jersey, 58. the system in New England, 59. penalty tor neglect to make the drawing, GO. certificate of otlicers as to, 61. list of jurors drawn made public, 62. general views as to irregularities in drawing, 63. no ground of objection to the panel unless prejudicial, ib. what irregularities are prejudicial, ib. in Federal courts. under section SCO of the Revised Statutes, 52 (5). under the act of 1879, 40. of grand jurors, 484. the panel constituted in the discretion of certain ofHcers in some States, 485. grounds of objection to panel of grand jurors for irregularities growing out of drawing, .556. DRINKING INTOXICATING LIQUORS. See Refreshment of Jurors. EATING, DRINKING AND ENTERTAINMENT OF JURORS. See Refreshment OF Jurors. ELISORS. when proper substitutes for the coroner as summoning officer, 82 (2). array brought in by cannot be challenged, ib. EaiBRACERY'. See Communications with Jurors. ENTERT.VINMENT OF JURORS. See Custody of Jurors; Refreshment of Jurors. EXCEPTIONS. See Api'ell.vte Courts ; Bill of Exceptions; Objections; Waiver. EXCUSING JURORS. See Impanelling. court may excuse juror for causes satisfactory to itself, 242, EXEMPTIONS FROM JURY" DUTY*. persons engaged in the public service, 34. persons engaged in certain occupations, 36. only while actually so engaged, 37. tlierefore honorary mambers of public organizations not exempt, 3S. exemption confers no vested right, .35, 39. a contrary view in Missouri, 39 (2). ground of exemption not a ground of challenge, 40. in Federal courts, 51. from grand jurj' duty, 481. l^rivilege may be waived, 481 note. INDEX, 761 FEDERAL COURTS — JURORS IN. See Qdaltfig.vtions ofJukors; Selection. OF Jurors. power to punish foK contempt, 364 (4). FOURTEENTH AMENDMENT TO FEDERAL CONSTITUTION. renijers unconstitutional a statute limiting jury duty to white persons, 27. FREEHOLDER. who is, 174 (4), 565. GR^VND JURORS. See Grand Jury; Orjections to Grand Jurors. qnaiiflcations of at common law, 480. exemptions from grand jury duty, ib. privilege of may be waived, 481 note, qualifications under American statutes, 481. In Federal courts, 482. selection of, 48,3. at common law and under Geo. IV., c. 50, 483 (1). in the United States from the general jury list, 483 (2). separate grand jury list, 483 (3). drawing the panel, 484. the panel constituted in the discretion of certain officers in some States, 485. summoning the panel, 486. tales grand jurors, 488 et seq. no tales for grand jurors at common law, 488. but granted by statutes in many States, 489. when summoned, 490. whence summoned, 491. to what number, 492. summoned in the discretion of the sheriff, 493, 551. and iipon verbal order of court, 494. qualifications of, 495. may be summoned upon reassembling of grand jury, 496. obligation of secresy resting upon, 701 et seq. as presci-ibed by the oath, 701. penalty for violation of, 701 note, policy of this requirement, 702. interpretation of, 703. testimony of grand juror, 704 et seq. to show what was the finding, 704. to sliow who was the prosecutor, 705. to show who were the witnesses and their testimony, 706. vipon an indictment for perjury before the grand jury, 70o (2). to contradict a witness, 706 (3). to confirm a witness, 706 (4). to show that the finding was based upon incompetent testimony,, 706 (5). to show that the indictment was returned without evidence, 706 (5) note, to establish other facts, 706 (6). testimony of others than grand jnrors to show proceedings of the grand jury, 707. personal liabilitj' of grand jurors, 710, 711. GRAND JURY. See Grand Jurors; Objections to Grand Jurors; Present- ment; Indictment. early history of accusing body, 463. it consisted of twelve men, 464. oath of the twelve, 465. charge of the justices, 466. an accusing body for each hundred, 467. (50) 7(12 INDEX. <;RAND jury— Continued, rise of the grand jury, **">■*■ constilutioniil rij^it to aceusiilion bj- in England, 4G0. constitutional provisions as to in the United States, 470. tlie tirand jury in what cases di.spensed witli, 471. abolition of the t,'rana jury, 47-2. functions of the .yrand jury, 473. duties of individual tirand jurors in Connecticut and Vermont, 474. the institution eulogized, 475. this eulogy criticised, 47(5. special grand jury at common law, 407. under statutes of the several States. 498. default of grand jurors unnecessary under California practice, 498 (2). total default construed as a deficiency, 498 (3). formalities in procuring, 499. court cannot capriciously create a default of grand jurors, 500, 551. for special term, .501. power of court to order, .501 (2). must be summoned according to law, 501 (3). for adjourned term, 502. reassembling the, 503. within what time, 503 (2). who included in the order for reassembling, 503 (3). impanelling the, 577 et se.q. accused need not be personally present, 545 note. at common law an e.i- parte proceeding, 577. process of within the discretion of the court, 578. statutory provisions as to time of directory only, 579. excusing grand jurors, 5S0. statutory grounds for excusing of not exclusive, 580 (1). a contrary view, 580 (2). presumption as to validity of excuse, 580 (3). substitute for grand juror excused or incompetent, 581. tardy juror may be sent to grand jury room, 582. number of grand jurors at common law, 583 (1). number as fixed by statutes of the several States, 583 (2). number in Territorial courts, 583 (3). number directory only, 584. what if more than twenty-three impanelled, .585. presumption as to regularity of organization, 586. swearing the, 589 et seq. the practice in England, 589. in the several States, 590. sworn in open court, 591. grand jurors may affirm, 592. form of oath, 593. a-elationship of court and grand jury,. 595 et seq. the grand jury an independent constituent of the court, 595. bui; in certain respects subject to the control of the court, 596. may be punished by court for contempt, .596. afforcing the grand jury, 597. session in open court, .598. charging the grand jury, 599 grand juiT may apply to court or prosecuting attorney for advice, 599, 634. charged only in general terms, 600.. omission to charge. 601. matters of general notoriety given in charge by the court, 612. powers of the, 604 et seq. co-extensive with those of the court, 604. may find an indictment while charge is being considered by a committing INDEX. 763; GRAND JURY— Continued, magistrate, (!08. so where court is not in session or during vacancy in office of prose- cuting attorney, 595. may inquire into oilences committed after they are impanelled, OOS. general inquisitorial powers of, 615. expressions of opinion showing, 615 (1). positive authority to this effect, 615 (2). apparent from form of oath, 615 (3). inquisitorial duty enjoined by statute, 615 (4). these ]iowers denied by some courts, 616. special inquisitorial powers, 617. power to compel production of telegrams, 618. to find an indictment when court is not in session, 595. to find an indictment during vacancy in office of prosecuting attorney, ib. to detain witnesses in custody, ib. to exclude prosecuting officer from grand jury room, ib. proceedings of the, 622 et seq. appointment of foreman, 622. appointment of clerk, 623. testimony of witnesses preserved by clerk, ib. discretionary with court to furnish copy of to prisoner, j6. note, prisoner entitled to copy of testimony in Iowa and Minnesota, 623.. summoning witnesses, 624. witnesses bound to appear and testify, ib. swearing witnesses, 625. in open court, 625 (1). in grand jury room by a magistrate, 625 (2). by foreman and other officers under statutes, 625 (3). effect of such statutes, 625 (4). form of oath, 626. custody of the grand jury, 627. sessions liow far secret, 629 et seq. private prosecutors admitted under English practice, 609, 629. and King's counsel in cases of high treason, 630. private prosecutor excluded in some jurisdictions, 614 (2) and (3). clerk and police officer admitted under English practice, 631. prosecuting officer, assistant and clerk admitted in some jurisdictions, 632. how as to presence of bailiff, ib. solicitors and hired prosecutors excluded in others, 633. counsel of accused excluded, 633, 636. accused admitted in discretion of court in Connecticut, 637. presence of prosecuting officer in jury room how affected by statutes. 634. all persons excluded during deliberations and voting, 6,32, 634. session in open court in the proceedings against the Earl of Shaftesbury, 598. such a session illegal, ib. hearing the evidence, 636 et seq. evidence originally heard onlj' in support of charge, 636, 637. exculpatory evidence now heard, 638, 639. witnesses called in discretion of prosecuting officer, 640. the best evidence required, 641. effect of hearing incompetent evidence, 642. accused may voluntarily testify, 643. testimony of grand jurors, 644. quantum of evidence necessary, 645. grand jury judges of credibility of witnesses, 646. power of grand jury to coerce witnesses, 595, 647. 764 INDEX. -GRAND JURY -Continued. sanity of accused need not be shown, (US. indictment substituted or returned witliout evidence, 619. as to finding and indorsement of indictment, see Indictment. time of objection for irregularities in proceedings of, G86. form of such objection, (W7. record must show what as to constitution and proceedings of, "2". HEARSAY. testimonj' of others on information derived from jurors inadmissible, 44.5. HOUSEHOLDER. wlio is, 174 (.')). HUXDREDORS. challenge for want of, 1. abolition of the challenge, 1. IMPANELLING. See Challenge to the Akr.w; Challenges fou Cause; Peremptory Challenges; Trial of Challenges. meaning of this term, 129 note, 257. duty of the court to supervise, 258. liberal discretion allowed the court for this purpose, 258, 265 notes, 269 (G) note, 269 (4), 270, 273. excusing jurors, 259. generally conceded to be within the discretion of the court, 259 (1). court may examine jurors or other witnesses for grounds, ib. sheriff has no power to excuse jurors, ib. struck juror may be excused, ib. how as to jurors summoned on special venire, ib. some sufficient reasons enumerated, 259 (1) and (2). this power to be exercised with caution, 259, (1). jurors /)»-jma/acie competent, 262. no right of challenge for causes favorable to challenger, 263. right of juror to challenge himself, ib. waiver of peremptory challenge by failure to challenge in turn, 269 (5). waiver of objections to juror known to be subject to challenge, 259 (1), 26;>, 275 (2), 275 (3). waiver of objections to panel by failure to challenge the array, 261. waiver of challenge to array by challenging the polls, 266 (1), 275 (1). counsel to assist in challenging, 264. time for challenging, 265. before the juror is sworn, 265, 269 (6). court may permit afterwards, 265 notes, 269 (6) note, 270. •order of cha lenges, 266. challenge to the array precedes challenges to the polls, 266 (1). challenge for principal cause precedes challenge for favor, ib. whether pareinptory challenges must precede challenges for cause, 266 (2). mode of challenging, 231. challenge to the array to be in writing, that to the polls, verbal, 231 notes. ground of challenge must be stated, 231, 242. proceedings upon challenges, 232. statutory forms to be observed, 267, 269 (5). . how in absence of such provisions, 268. impanelling by lot, 26S. impanelling jurors singly, 269 (1). impanelling in a body of twelve, 269 (2). impanelling by fours, 269 (3). order of challenging between parties, 269 (4) and (5). •discretion of court as to order of challenging, 269 (4). •challenging alternately, 269 (5). INDEX. 7G5 IMPANELLING — Continued. no right of peremptory cliallenge after acceptance of juror, 269 (C). a contrary view, 269 (7). so in respect ot challenges for cause, 269 (8). no vested right to a particular juror, 271. right of exception for improper rejection of a juror, 250, 271. jurors absent wlien called, 272. .jurors set aside after being sworn, 273. withdrawal of a juror, 273, 275 (3) note. a juror's right to serve, 274. errors in must be excepted to at the time of, 275 (3) , 278, 295, 296. party cannot complain of allowance of his own objections, 275 (3). impanelling in Territorial courts, 279. right of challenge to polls of a special jurj', 280. party bound to challenge peremptorily to cure error in disallowing good cause of challenge, 276 (1;. a contrary view, 276 (2). error cured by challenging peremptorily, 276 (3). unless peremptory challenges are svibsequently exhausted, 276 (4). what if more than twelve are impanelled, 11. as to impanelling the grand jury, see Grand Jury. BMPLIED BIAS. See Challenges for Cause. INDICTMENT. See GRAND JURY, defined, 605. power of grand jury to find when cou"t is not in session, 595. power of grand jury to And during vacancy in ofHce of prosecuting attorney, ib. proceedings by indictment preferable to proceedings by presentment, 606. proceedings preliminary to, 607. examination of accused by a committing magistrate, 608. not usually had in England, 609. nor generally guaranteed in United States, 610. expressly granted in certain cases in New Hampshire, 610 (2). prior to informations in some States, 610 (3). indictments originate how, 611. charge preferred ex officio by prosecuting officer, 013. meaning of " found," 653, 672. number to concur in finding, 654. Tight to find a part of the bill true, 655. finding must be absolute and without ambiguity, 656. return of finding into court, 657. amendment of indictment, 658. (publication of finding, 659. filing indictment, 660. effect of finding the bill not true, 661. indorsement of finding, 664 et seq. at common law, 664. the modern Engliiih practice, 665. •effect of certificate, 666. how in United States, 667. ■different forms of certificate, 668. official signature of foreman, 669. full name of foreman unnecessary, 670. foreman's ma^k sufficient, ib. attestation of foreman superfiuous, 671. variance in spelling of foreman's name in indorsement from that ap pearing of record, ib. .certificate of finding s^uperfluous, 672. (teste of foreman essential, 673. 766 INDEX. INDICTMENT — Contimioa. certifleato and attestation by foreman superfluous, 674. certificate and attestation by foreman required by statute, 07'). whether these statutes mandatory, 670. other indorsements, 680 et seq. intendment as to, 680. style of case and name of offense, 081. signature of prosecuting? attorney, 68'2. indorsement of private prosecutor, 08:5. policy of statutes requiring, 683 (1). indorsement by whom made, 083 (2). necessity of, 68:5 (:5) . who may be a private prosecutor, 683 (4). form of indorsement, 685 (5). objection for want of prosecutor, 685 (0). indorsement of list of witnesses, 684. statutes requiring, 0.84 (1). policy of these statutes, 684 (2^. by whom made, 084 (3). sufficiency of indorsement, 084 (4.) objection for want of, 6£4 (5). INDIFFERENT. the juror must stand, 171 and note. Lord Mansfield's standard of impartiality, 207. absolute indifference now hardly attainable, ib: solicitude of the law for an impartial jury, 125. INDORSEMENTS. See Indictment. INITIAL LETTERS. indicating christian names of jurors in the venire, 74 (5), 557 (3). in the copy of the panel served uix>n the accused, 117. in the record, Ofti. Indicating office of foreman of grand jury, 609. indicating christian name of foreman of grand jury, 070. INTOXICATING LIQUORS. See REFRESHMENT OF Jurors. JOINT DEFENDANTS. number of jurors in panel to try, 79 (4) . entitled to their peremptory challenges eacli in the same number as a sole defendant, 102 (1). such defendants jointly or severally tried, in discretion of court, 102 (2). separate trials cannot be demanded by as a matter of right, 102 (3). number of peremptory challenges allowed the prosecution in trial of, 102 (4). how the right of peremptory challenge by is affected by statute, 102 (5) . JUDGE. now generally tries all challenges. See Trial of Challenges. may excuse jurors for reasons satisfactory to himself, 242. See Impanelling. personal custody of jurors by, 325. may not privately communicate with jurors, 355. See Communications witis Jurors. duty of to admonish the jury not to discuss the. case during adjournment 303. JUDGES' MINUTES. cannot be taken to jury room, 389. JUROR'S BOOK. preparation of under English Consolidated Jury Act, 127. JURORS' NOTES OF TESTIMONY. cannot be taken to jury room, 390. I^DEx. 767 JURY BOX. how flUed, 55. JURYDE MEDIETATE I.INGU.E. origin of, IC. generally abolished by statute, 17. JURY LIST. See Selection of Jurors ; Challenge to the Ahh.4.y. preparation of in general, 43, 1-29. preparation of in Federal courts, 49. Statutory number of directory, 47 note. JURY ROOM. See Books and Papers in the Jurv Room. presence of strangers in, 349 (1). newspapers in, 350, 351, presence of bailiff in during deliberations, 362, (532. drinking of intoxicating liquors in, 378. experiments of jurors in to determine their verdict, 41G. weapons used in commission of crime must be identified before they are taken to, 416 note. power of grand jury to exclude prosecuting officer from, 630. JURY WHEEL. filling and refilling, 141. custodj' of, 55, 142. JUSTICE'S COURT. number of jury in, 10. procuring jury in, 85. LAW BOOKS. See Books and Papers in the Jury Room. LEGISLATURE— POWER OF. See Constitutional Law. LOCUS IX QUO. unauthorized visit of jurors to, 354. 3IALICI0US PROSECUTION. grand jurois not liable to action for, 711. MEDICINE. See Entertainment of Jurors. MISCONDUCT OF JURORS. See Separation of Jurors; Communications with Jurors; Refreshment of Jurors; Books and Papers in the Jury Room; Verdict; New Trial; Affidavits of Jurors. unauthorized visit to locus in quo, 354. lu'ivate search of juror for evidence, 383 (4) , 417. finding of trial court as to misconduct in some States conclusive, 434 (1). but not so generally, 434 (2). presumption that the jury acted regularly, 435. evidence to establish misconduct must be clear and positive, 436, 456. affidavit based on information and belief not sufficient to show, 351 and note, 414,436,437. affidavit of constable to show in making up verdict, 414. affidavit of eaves-dropper as to the same, ib. distinction between proof of fact of misconduct and proof of its effect, 438. presumption where improper conduct or influence is shown, 439. testimony of jurors not received to impeach their verdict by showing, 440. See Affidavits of Jukoks. MISNOMER OF JURORS. in the venire, 74, 300, 301. MISTRIAL. by a jury of more or less than twelve, 5. power to discharge jury without consent of accused, 312. 708 INDEX. MOTION TO QUASH. for objections to grand jurors, 541 et seq. plea in abatement the better practice, 541, GST. reason for this preference, 542. motion to quash for matter dehors the record, 543, 687. MUNICIPAL COURT. jury whence summoned, 3 note. record must show what as to grand jury of, 690. NAME. See Mlsnomek OF Jurors IN THE Venire; Initial Letters. NEWSPAPERS. opinions formed by jurors from reading, 207 (2), 214. jurors reading during the trial, 350. effect of reading such as contain reports of the trial, 351. prejudice to be conclusively presumed from the reading of unfavorable ed!i- torial comments, 351. NEW TRIAL. See Separation of Jurors; Communications with Jurors; Books AND Papers in the Jury Room; Refreshment of Jurors; Ver- i>ict; Affidavits of Jurors. for a trial by a jury of less than twelve men, 6. for failure to summon special jurors, 13. for improper allowance or disallowance of a challenge, 250. no exception in certain States for improper allowance of a cliallengc r 251, 271. for in-egiilarities in selection, drawing and summoning of jurors on ob- jection after verdict, 295. for irregularities in impanelling on objection after verdict, 296. for misnomer of jurors, 300, 301. for presence of interloper on the jury, 300, 301. for incompetency of jurors on objection made after verdict, 302. new trial not usually granted, 302, 305. but may be in discretion of court, 302. juror concealing incompetency upon voir dire, 302 note, waiver of by failure to interrogate juror upon voir dire, 302, 303. the theory of waiver examined. 303. affidavits to support motion, 275, .302, 303. juror's affidavit in support of his competency, 304. affidavits of moving party insufficient when groanded only on information. and belief, 351 and note, 414, 436, 437. misconduct of jury not always ground for, 422. prejudice must be shown, 423. prejudice conclusively presumed from tampering with the jury, 424. otherwise where the conduct complained of was innocent, 425. what it upon the wiiole case justice has been done, 426. effect of consent to or acciuiescence in irregularity by party or prisoner, 7, 8, 9, 339, 359, 427. objection constituting gi-ound for must be seasonably taken, 428. whether order of trial court granting or refusing a new trial will be revised, 430,431,432. how revised where new trial has been granted, 432. mode in which this discretion is revised, 433. how facts constituting ground for are brought to attention of appellate court, 4.34. by a conclusive finding of fact in the court below, 434 (1). by affidavits embodied in bill of exceptions, 434 (2). presumption that the jury acted regularly, 435. distinction between proof of fact of misconduct and proof of its effect, 438. presumption where improper conduct or influence is shown, 439. INDEX. 769 NEW TRIAL— Continued. testimony of gurors not received to impeach their verdict, 440. See Affida- vits OF Jurors. misconduct in presence of court as a ground for, 456. NISI PRIUS. writ of, 66. NOTES OF TESTIMONY. taken by jurors cannot be taken to jury room, 390. NUMBER OF JURY. See Constitutional Provisions; Constitutional Law; Waiver; New Trial. OATH. See Swearing the jury. of triors of challenges in civil and criminal cases, 234. form of oath for petit jurors in civil and criminal cases, 289. record need not contain, 299. form of for early accusing body, 465. form of for grand jurors, 593. OBJECTIONS AFTER VERDICT. proceedings in procuring jury presumed to be correct, 294. for irregularities in selection, drawing and summoning of Jurors, 295. for irregiilarities in impanelling, 296. for defects In the record, 279 et seq. See Record. for misnomer of jurors, 300,301. that one of the jurors was an interloper, 309, 301. for incompetency of jurors, 302. new trial not usually granted, 302, 305. but may be in discretion of court, 302. juror concealing incompetency upon voir dire, 302 note. waiver of by failure to interrogate juror upon the voir dire, 302, 30S. the theory of waiver examined, 303, affidavits to support motion for new trial, 275, 302, 303. juror's affidavit in support of his competency, 304. for irregularities in proceedings of grand jury, not heard, 686. OBJECTIONS TO GRAND JURORS. See Grand Jury; Grand Jurors. by challenge, 507 et seq. no case showing exercise of this right at common law, 507. opinion of Serjeant Hawkins in favor of the right, 508. this view repudiated, 509. plea in abatement a statutory substitute for the right, 510. Serjeant Hawkins' view adopted by some American courts, 511. with doubts as to challenge for favor, 512. no allowance of the peremptory challenge, 513. no challenges permitted by certain courts, 514. impolicy of allowing, ib. who may challenge, 515, 516. right of challenge to the array as guaranteed by statute, 516. who may challenge, 516 (1). causes personal to summoning officer, 516 (2). causes affecting the regularity of the drawing or summoning, 516 (3). the right of challenge to the polls as guaranteed Isy statute, 517. challenges prohibited by statute, 518. statutory causes of challenge exclusive, 519. objections to grand jurors how made under such circumstances, 518, 519. the statutes silent as to the i-ight,520. trial of challenges, 521, grand jurors not sworn on the voir dire, ib. effect of allowance of challenge to panel or polls, 522. (51) 770 INDEX. OBJECTIONS TO GRAND JURORS — Continued. denial of statutory right of clialleuge vitiates indictment, 523. by plea in abatement, 5'27 et seq. necessity for this form of objection, 527. this want supplied bj- stat. 11 Hen. IV., c, 9, whether this statute is in affirmance only of the common law, 529. held to be so by some American courts, 5:50. but denied by others, 531. confusion the consequence, 532. what may be shown by plea in abatement, 533. the plea in abatement not favored, 534. theiefore it must be strictly pleaded, 535. Its functions impaired or abolished by statute, 536, 537. objections suggested by amicus cw-iui, 538. by motion to quash, 541, et seq. plea in abatement the better practice, 541. reason for this preference, 542. motion to quash for matter dehors the record, 543. objections when made, 645 et seq. under the English practice, 545 (1). under the statutes of the several States, 545 (2). an opportunity of challenging to be afforded persons held in custody, 546. the right may be waived, 545 note. an opportunity of challenging to be afforded persons under recogni- zance, 547. bow in case of one not pre^'lously under prosecution, 548. challenges to be made before juror sworn, 549. objections waived by plea of not guilty, .550. otherwise as to objections apparent of record, 551. objections to the panel, 553 et seq. same rules apiilied as In case of petit jury, 553. but with even less sti'ingency, 554. pi-eparation of jury list by other than statutory oflticers, 5o5 (1) . perfect list cannot be demanded, .555 (2). nor that the list be certified, 555 (3). certificate when conclusive, 555 (4). grand jurors mvist be drawn from grand jury list, 55G (1). custody of jury wheel, 556 (2). presence of officers at the drawing, 556 (3). whether statutory time of drawing is directory 556 (4). whether statutorj^ number of panel is directory, 5.56 (5) . grand and petit jury panels may be drawn simultaneously, 556 (6). certificate to the dra^^ing, 556 (7). drawing anew, 556 (8). the panel must be summoned as grand jurors, .557 (1). statutory time of summoning directory, 557 (2) . defects in gi-and jury process, 557 (3). venire without seal, i6> no order for venire, ib. Imperfect sealing, ib. christian names indicated by initial letters, 557 (3). no process;necessarj', 557 (4). substitute for sheriff as summoning officer, 557 (5). siibstitutes for regular grand jurors, 558. interloper upon the panel, ib. " nomination " of grand jurors, 5.59. amendment of officers return, 560. objections to the polls, 563 et seq. grand jurors irrima facie competent, .563. alienage, 564. INDEX. 771 OBJECTIONS TO GRAND JURORS — Continued, not a freeholder, 505. obnoxious occupation, 5G6 (1). rebellion against the general government, 566 (3). party to a pending suit, 566 (3). juror not of selected list, 567. prior service, 568. consanguinity and aflinlty to defendant, 569. public interest, 570. private interest, 571. charge against one of the grand jury, ib. contribution for suppression of crime, 572. conscientious scruples against capital punishment, 573. expression of opinion, 574. PANEL. See Drawing the Panel; Summoning the Panel; Service of Panel UPON THE Accused; Challenge to the Panel. PEREMPTORY CH^iLLENGES. defined, 153. in what cases allowed at common law, 154. to what number, ib. the right how affected by early English statutes, 155. the right not restricted to capital cases, 156. allowed in clergyable felonies, ib. allowed in cases of misprison of treason, ib. not allowed upon trial of collateral issues, 156, 160. ' can be taken away only by the express terms of a statute, 156. penalty for making more challenges than allowed by law, 157. unlimited right of peremptory challenge by crown at common law, 158 (1). Stat. 4, 33 Edw. I. curtailed this right, 158 (1). right of the crown under this statute to stand jurors aside, 158 (1). this right belongs to the government in this country, 158 (2). how after peremptory challenges have been restored to the government, ib. the right of peremptory challenge not a right to select, 159. not allowed in case of special jurors, 161, 280. defendants jointly indicted, each entitled to his peremptory challenges, 162 (1). imless they consent to join In their challenges, 162 (2). number allowed the prosecution against joint defendants, 102 (4). right of joint defendants how affected by statute, 162 (5). peremptory challenges granted by statute in civil cases, 163, 165 (2). in such cases, joint plaintiffs and defendants must join in challenging, 103. a distinction taken on this point in Michigan, ib. peremptory challenges m Federal courts, 164. power of the legislature over, 105 (1). how this has been exercised, 165 (2) and (3). sketch of the statutory provisions in each State, 165 (4) et seq. I "■'■■ '^'W,*"?^ bastardy proceeding, a civil suit for the purpose of peremptory challenges, 106 (1). so held in a proceeding for the violation of a municipal ordinance, 166 (IT. but a proceeding in rem held to be of a criminal nature, 166 (1). . other cases of construction, 166 (1) and (2). no presumption of bias in consequence of, 192. Avhether this challenge must pi'ecede challenges for cause, 266 (2). waiver of by failure to challenge in turn, 269 (5). no right of after acceptance of juror, 269 (6). a contrary view, 269 (7). whether a party is ever bound to challenge peremptorily to cure error of court, 270 (1) and (2). 772 INDEX. I'EHKMPTORY CHALLENGES — Continued. improper disiillowance of good cause of cluillengo cured by challcugiug per- emptorily, '276 (3). unless peremptory challenges are subsequently exhausted, 276 (4). TERJUKY. before the grand jury, 706 ('2). PLEA IX ABATEMENT. a statutory substitute for objection by challenge to grand jurors, 510. See OUJECTIONS TO GllANU JUliORS. PLEADINGS. may be taken to jury room, 387. PRECEi'T. jurors summoned upon for sessions of justices of goal delivery, 60 and note, distinction between and venire in New York, 71. PRELIMINARY EXAMINATION. See Indictment. PETIT JURY. must consist of twelve men, 5 et seq. PRESENTMENT. See GRAND JURY, defined, 605. proceedings by indictment preferable, 606. this form of accusation fallen into disuse, ib. upon knowledge of grand jury, 614, 644. -what constitutes " knowledge" of the grand jury, 614 (1), 617, 642 note, whether presentment need be signed by all of the grand jurors, 606,667 note TRESUMPTION OF REGULAR ACTION. ■where record contains names of eleven jurors onlj', 6 note, by ofticera charged with drawing the panel, 63. by shei'iff who returns a venire as executed, 78, 80. in the process of impanelling, 294, 586. by the jury, 435. PRIVATE PROSECUTOR. free access to grand jury by in England, 609, 629. not allowed to communicate with grand jury in certain jurisdictions, 614 (2). such communications punishable as contempts of court, 614 (3). indorsement of name of upon indictment, 683. policy of statutes requiring, 683 (1). Indorsement bj' whom made, 683 (2), necessity of, 683 (3). who may be a private prosecutor, 683 (4). form of indorsement, 683 (5). objection tor want of prosecutor, 683 (6). testimony of grand juror to show who was, 705. PROBI ET LEGALES HOMINES, who are, 26 note, 170, 176, 577. jurors presumed to be, 262, 690. PROFESSIONAL JURORS.| animadversions upon, 35 note, 98 note, '260. statutes aimed at, 84, 102, 183. PROSECUTING OFFICER. grand jury may And indictment during vacancy in office of, 595. grand jury may apply to for advice, 599, 634. power to exclude from grand jury room, 630. charges preferred to grand jury by him c.c officio, 613. admitted to grand jury room in some jurisdictions, 632. excluded from in others, 633. ^ liired i^rosecutors excluded, ib. INDEX. 773 PROSECUTING OFFICER — Continued. presence of prosecuting ofHcer in jury room how affected by statutes, 634. witnesses before grand jury called in discretion of, G-10. PROSECUTOR. See Private Prosecutor. QUALIFICATIONS OF JURORS, freehold at common law, 21. constitutional provisions as to, 22, 25. may be prescribed by legislature, 22 et seq. what prescribed in the several States, 26. statutes limiting jury duty to white persons unconstitutional, 26, 27. of jurors in Federal courts, ol, 51. colored persons competent, 49. lack of a ground of challenge, 174. See Challenges for Cause. of grand jurors, 480 e< seq. at common law, 480. under American statutes, 481. in Federal courts, 482. QUASH. See Motion to Quash. RE-CALLING THE JURY. may be done, 355, 401. additional instructions may be given, 357, 359. counsel must have notice to attend, 357. RECORD. consists of what, 434 (2). must, in general, show what, 327. effect of, showing trial by jury of less than twelve men, 6, 297. need not show affirmatively that a copy of the panel was served upon the accused, 122. misdirection of triors, or refusal of court to admit competent evidence should be entered, 250. must show grounds of challenge, 253, 294, note. need not show grounds upon which jurors were excused, 259 (1) note, need not contain names of jurors, 297. must show the fact of swearing, 298. need not recite the terms of the oath, 299. but a recital must correspond with the statutory form, 299 and note, misnomer of jurors in, 300. from silence of, appellate coui't will presume that accused was held to answer at time of impanelling grand jury, 545 note, order for venire need not appear of, 72. need not show that jurors were admonished as to their duties upon separa- tion, 318 (3), 327. whether record of former suit or proceeding may be taken to jury room, 383 (4). of coroner's inquest can not, .386 (1), note. what must be shown as to constitution and proceedings of grand jury, GSS* et seq. caption of indictment contains what, 689. qualifications of grand jurors, 690. drawing, summoning and impanelling, 691. number of jurors finding, 692. their names, 693. appointment of foreman, 694. the swearing, 695. return of indictment must explicitly appear, 696 (1). how in case of presentment, 696 (2). 774 INDEX. UECORD — Continued. amendment of record to show return, 696 (3). filing of indictment, 697. names of witnesses, 698. REFRESHMENT OF JURORS. none allowed under tlie old law, 310, 326, 334. provided in modern trials, 370. may be provided for jury attended by sworn ofliccr, 321 note. separation of jury during taking of, 340 (1), 341 (1). at expense of successful party avoids the verdict, 371 note, 372 (1), 377 note. so as to entertainment of jurors or tlieir horses by counsel, 372 (2). ordinary hospitalitj' and civilities may be extended to Jurors by a partj' in some jurisdictions, 373, 375, 378 (6). but not in others, 374, 37-J. unusual civilities nowhere tolerated, 376. entertainment by unsuccessful party does not affect verdict, 377. whether drinking of Intoxicating liquors by jurors avoids the verdict, 378. moderate use In most jurisdictions does not, 378 (2) and note. jurors drinking spirituous liquor wliile sitting as such, 378 (3). drinking attended with otlier circumstances of misconduct, 378 (4). drinking at expense of prevailing party, 376, 378 (.5). drinking at expense of counsel for prevailing party, 378 (2) note, 378 (5). "treating" the jury, .376, 378 (6). the correct rule suggested, 378, (7). REMOVAL OF CAUSES. to Federal court for denial of constitutional rights, 27, 29, 30. RESIDENT. ■who is, 174 (2). RETURN OF SHERIFF. See Venire. amended to show service of panel upon the accused, 121. amendment of upon summoning of grand jurois, 500. SEALED VERDICT. returned as a subterfuge to procure separation, 316, 335. may be returned in cases of misdemeanor, 317. may be returned in civil cases, 333, 334. but not in cases of felony, 334. jurors must be present at the time of delivery into court, 334, 338. •dangers in returning sealed verdicts, 335. amending, 336. what if juror dissents from sealed verdict, 337. delivery of verdict into court, 338. communication with juror after agreeing to a sealed verdict, harmless, 349 (1) note. SECRESY. sessions of grand jury how far secret,j;29 et seq. obligation of secresy resting upon grand jurors, 701 et seq. SELECTION OF JURORS. See Challenge to the Array. in discretion of sheriff at common law, 44. sheriff has common law powers in New Jersey, 45. preparation of jury list in the United States, 43, 45. this duty performeu by whom, 45. judges of general election, 45 (2). town ofBcers, 45 (3). special boards, 45 (4). jury commissioners, 45 (5). county courts, 45 (6). penalty for neglect to make juiy list, 45. statutes regulating director 47. INDEX. 775 SELECTION OF JURORS — Continued. in Federal courts under section 800 of the Revised Statutes, 48. rule of court necessary to adopt tlie State practice, 50. discretionary power of court over, 5'2 (1). jury list made by marshall and clerk, 52 (2). persons who might advise in the preparation, 52 (3). number of the jury list, 52 (4). marshall had not common law powers of sheriff, 52, (6). In Federal courts under the Act of IST'J, 49. by the clerk and a jury commissioner of opposite political party, ib. In Territorial courts, 53. of grand jurors, 483. at common law and under 6 Geo. IV., c. 50, 483 (1). in the United States from the general jury list, 483 (2). separate gi-and jury list, 483 (3). grounds of objection to panel of grand jurors for irregularities in preparation of jury list, 555. SEPARATION OF JURORS. absolutely i^rohibited under the old law, 310, 334. relaxation of this strictness, 310. no separation in cases of treason and felony, 310. distinction between power to permit jury to separate and power to adjourn, 311. distinction between power to permit jury to separate and power to discharge them, 312. separation a ground for a new trial, ib. but not always, 313. presumption arising from unauthorized separation, 313. jurors usually permitted to separate in civil cases, 314. may separate during deliberations, 314, 318 (6). may not, 318 (5). unauthorized separation not per se a ground for a new trial, 315. single juror absenting himself may be punished for contempt, ib. but not perse ground for new trial, 316, 318 (4), 318 (9). may be where separation is protracted, 318 (9), 341 (1). a contrary view, 320. how in case separating juror is attended by a sworn officer, 320, 330, 340 (1). separation coupled with circumstances of abuse a ground for a new trial, 316. may be authorized in cases of misdemeanor, 317. and in some States in cases of felony, 818. in some States prejudice will not be presumed from separation in cases of felony, 318, 332 (2). a contrary rule in others, 318 (10), 328. ii distinction in this regard between capital and other felonies, 331. prejudice conclusively presumed in some States, 319 (2), 331, 341 (1). separation with consent of prisoner in cases of felony, 318 (3) and (7). separation without consent of prisoner in cases of felony vitiates verdict, 318 (9). absolute isolation not required, 320. may separate in charge of sworn officer, 320, 321, 3^0. affidavits of jurors to show separation to have been without prejudice, 318 (9), 329, 330, 340, 341 (1) and (2). after being impanelled, 296 note, 332 (1). after being impanelled and sworn, but before evidence introduced, 332 (1). after retiring to deliberate upon the verdict, 332 (2). after returning sealed verdicts. See Sealed VEuDICTS. consent of party or prisoner to separation, 339. not to be asked in cases of felony, ib. may be tendered voluntarilj-, ib. 776 INDEX. SEPARATION OF JUROKS — Continued. consent of counsel, 339. instances where new trail was refused, 340 (1) and (2). jurors eating at separate tables, 310 (I). jurors sleepiiifT in separate rooms, ib. jurors eatiut,' in public dining hall, ib. juror separating for change of linen, ib. juror seiiarating to give orders to servant, »6. juror separating for a necessary purpose, 340 (1), 340 (-2). juror separating to buy a cigar, 340 (1). juror separating to get shaved, 340 (i). instances where new trial was granted, 341 (1) and (2). juror separating momentarily, 341 (1). juror separating for a protracted period, ib. jurors dining at public table, ib. separation after trying one of several indictments against prisoner, 341 (2). separation during recess from Saturday to Monday, ib. record need not show that jurors were admonished as to their duties during, 318 (3), 327. SERVICE OF PANEL UPON THE ACCUSED, at common law, 108. under early English statutes, 10!t. under statutes in this country, 110. policy of these statutes. 111. some of these statutes evidently mandatory, 113. others not so, 113. list must be demanded, ib. list of talesmen cannot be demanded, 114. service maj' be made earlier than as provided by stat\;te, 115. the full panel need not attend, 116. talesmen may be called to supply a deficiency, ib. imperfections in the list as served, 115, 117. in general, prejudice must be shown to result from, 117. effect of list containing names of persons not summoned, ib. objections to caption and form of list, 118. computation of time as to service, 120. SHERIFF. must be an indifferent person at common law, 130 and note. othervf ise under our statutes, 130 and note. selected and summoned jui-ors in his discretion at common law, 44. number of panel summoned originally in his discretion, 79. coroner when a proper substitute for, as summoning officer, 82, 557 (5). court may direct deputy to perform duties of, in summoning talesmen, 6?. talesmen summoned in discretion of, 94, 551. powers of under English Consolidated Jury Act, 127. has no power to excuse jurors, 259 (1), 558. duties of, concerning sheriff's jury, 358. SHERIFF'S JURY. sheriff may not privately communicate with, 358. rules in regard to misconduct of trial juries in courts generally applicable to, 429. SPECIAL JURY, origin of, 12. under the English practice, 13 (1). application for, ib. selection of, ib. Jury sti-uck must try the issue, 13 (2). non-attendance of particular jurors, 13 (3). INDEX. 777 SPECIAL JURY — Continued. costs of, 13 (4.) under the American practice, 14. granted in what cases, 14 (1). statutory provisions as to striking mandators', 14 (2). challenges before striking, ib. jurors nmst have general as well as special qualifications, 14 (3). costs of, 14 (4). talesmen may be summoned to supply a ijeflciencj' in, 103. struck juror may be excused, 259 (1). for trial of issue out of chancery, 3. SPECIAL GKAXD JURY. See Gkand Jury. SPECIAL VENIRE. for jurors in a capital case, 1, 73, 80, 114, 116. -waiver of, 80 (1). defects in order for, 80 (1) note, how drawn, 80 (2). grounds for quashing, SO (3). non-attendance of particular veniremen no ground, 80 (4). time for objecting to, 80 (4). excusing jurors of special venire, 259, (1). to sit in the particular case, 270. for failure of the regular panel to attend, 81 (1) , 147. to supply a deficiency, 101. upon the allowance of a challenge to the array, 81 (1). upon the discharge of the panel by the court of its own motion, 81 (2), 270. in Indiana summoned whenever the business of the court requires it. 81 (3). jurors must be summoned as prescribed by law, 81 (4). variance between order for and copy of, 81 (5). jurors summoned " from the body of the county," 81 (G). special venire for grand jurors issued without authority vitiates indictment, 551,557 (4). STANDING JURORS ASIDE. See Peremptory Challenges. STRUCK JURY. See Special Jury. SUMMONING THE PANEL. See Venire; Challenge to the Array. at common law. jurors originally summoned to Westminster Hall, 66 (1). afterwards to the country assizes, 66 (2). the writ of nisi prius, ib. panel arrayed four days before the session, in civil cases, 66 (3). for this reason the clause of nisi prius taken out of the venire and put in distringas, 66 (4) . jurors summoned for sessions of justices of goal delivery, upon a precept to sheriff, 66 (5) and note, names upon the panel kept secret, 66 (3) note, number to he summoned within discretion of the sheriff, 79. but later limited to twenty-four by statute, ib. this statute lield inapplicable to criminal trials, i6. in such cases tlie court orders as numerous a panel as the case may re- quire, ib. under statutes in this counti-y, 69 et seq. number to be summoned usually fixed by statute, 79 (1) and (2). effect of summoning more than directed by law, 79 (2). fuU panel need not attend, 79 (3). number in case of persons jointly indicted, 79 (4). fines for non-attendance of jurors, 83. under the English consolidated jui-y act, 83 (1). under statutes of the several States, 83 (2). exempt person when summoned must appear and show his exemption, 83 (3). 778 INDEX. SUMMONING THE JURY — Continued. provisions ayalnst fraud in return of jurors, 84 (1). statutes aimed at professional Jurors, 84 (i). of grand jurors, 486 grounds of objection to panel of grand jurors for irregularities in summon- ing, 557. SWEARING THE JURY, time for swearing, 286. as each juror is accepted, 269 (1), 287, 291. not until the whole twelve are procured, 269 (2), 287, 291. statutory form of oath must be used, 288. form of oath, 28y. at common law in ci^al and criminal cases, ib. in case of a default, ib. in suits upon penal bonds, ib. swearing for the term, 290. reswearing after amendment of pleadings, etc., 292. when the oath is begun, 265. waiver of Informality in, 286, 288, 290. as to swearing the gi-and jury, see Grand Jury. TALESMEN. when summoned, 90. summoned from the bystanders, ib. early history of the practice of summoning, 91. power of summoning usually incident to courts of record, ib. neeessitj- of summoning to be avoided, 92. summoned to supjily a deficiency only, 93. summoned in discretion of sheriff, 94. sheriff may submit to direction of court, 95. number to be summoned rests in discretion of the court, 96. to sit only in particular cases, 97. may be assembled in anticipation of emergency, 98. not to be interrogated for causes of challenge bj- summoning officer, 99. qualifications of, 100. must be objected to before they are sworn, ib. array of may be challenged when, 101. special oath to be administered to officers in Texas before summoning, 102. may be summoned to supply deficiency on a special jury, 102. talesmen in Federal courts, 104. talesmen called to supply a deficiency in the panel as served upon the pris- oner, 116. a list of such talesmen cannot be demanded, ib. to supply deficiency in special venire, 80. . coui't may direct deputy to perform duties of sheriff in summoning when, 82. as to tales grand jurors, see Grand Jurors. TAMPERING WITH JURIES. See Communications with Jurors. TAX PAYER. who is, 174 (6). TELEGRAMS. power of grand juiy to compel production of, 618. TERRITORIAL COURTS. juroi's in Federal cases procured according to the laws of the Territory, 53, 583 (3). TREATING THE JURY. See Refreshment of Jurors. TRIAL OF CHALLENGES. by the court and by triors, 126. INDEX. 779 TRIAL OF CHALLENGES— Continued. the court determined principal causes of challenge, ib. the triors causes going to the favor, ib. this tribunal how constituted, 171, 234. oath of the triors, ib. triors to examine all questions of fact, 235. finding of the triors conclusive, 126, l.i2, 205, 237, at7 (2), 266 (1). the court as a substitute for trior's, 238, 249, 251. the court now generally tries all challenges, 172, court cannot charge the triors as to the effect of the evidence, 205, 23R, 237, 247 (2). disagreement of triors, 239. no argument of counsel before triors, 264 note, mode of challenging, 231. challenge to the array to be in writing, that of the polls verbal, 231 notes, ground of challenge must be stated, 231, 242. proceedings upon challenges, 232. decision of courts upon may be reviewed on appeal, 232 and note, form of challenge immaterial where court tries both, 233 note, burden of proof, 240. jnrovs prima facie competent, 262. juror challenged may be examined upon the voir dire, 241. examination generally under oath, i6. otherwise in Connecticut, ib. court may conduct the examination, 241, 242. parties may consent to examination not under oath, 242. a challenge precedes examination, ib. qualifications of this rule, ib. province of court upon examination, 243. attitude of juror and witness dissimilar, i6. jurors to be examined singly, 244. what questions maybe put, 243. what questions may not, 245. questions tending to degrade the juror, 245 (1). questions eliciting expressions of opinion that the accused is guilty, 245 (2). questions eliciting expressions of opinion on the merits in civil cases 245 (3).