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of the jurymen returned; but if for favor or partiality, then to two indifferent persons taken from the bystanders.1

If the facts are admitted, but deemed insufficient, as where a demurrer is interposed, the court adjudges on them, and either quashes the array or overrules the challenge.2 The learning upon this subject has to be sought out of old books, and there is great difficulty in deriving from them any precise rules.3

It has been said that there is some distinction between trying challenges; those that are manifest or principal challenges being tried by the court, without the appointment of any triers.

The present English practice, according to Roscoe," is that triers would be appointed in all cases; but it is believed that in this State challenges to the array for principal cause are, like similar challenges to the polls, to be tried by the court.

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If the challenge to the array be found against the party, he may yet have his challenge to the polls, but neither party shall take a challenge to the polls which they might have had to the array.7

§ 102. CHALLENGES TO THE POLLS, HOW DISPOSED OF.

When a challenge is made to the polls, if it be a principal challenge for some apparent partiality, it is sufficient if the ground be made out to the satisfaction of the court, without any further investigation.

It is said that a question of fact upon a principal challenge, in the absence of consent to a different mode of trial, is properly triable before triers appointed by the court. It is competent, however, for the parties, by consent, to waive the appointment of triers and submit to the court the question of fact for its decision, and such has become the general practice."

1 2 Hale, 275; Dick. Sess., 189; 2 Rol. Rep., 363; 4 Blac. Com., 353, n. 8; Burn, J., Jurors, 4, 3; Williams, J., Juries, 5; Gardner v. Turner, 9 John. R., 260.

29 John., 260.

Ros. Crim. Ev., 6 Am. ed., 196

• Co. Lit., 156 a; Bac. Abr., tit., Juries, e, 12.

Ros. Cr. Ev., 6th Am. ed., 197.

• 1 Den., 281.

Co. Lit., 156 b, 157.

* Co. Lit., 157 b; Bac. Abr., Juries, e, 12; Williams, J., Juries, 5; 1 South

ard, 364; 1 Leigh, 598; Peo. v. Bodine, 1 Den., 281.

Stout v. Peo., 4 Park., 132.

If the challenge, however, be of favor, it is one of fact for the decision of the triers.1

Where a juror is challenged to the favor the triers are to decide whether he is, at the time of the trial, wholly indifferent; the inquiry is not confined to the state of the juror's mind before coming to court, but if anything has occurred in court which has produced on his mind an impression of the guilt or innocence of the prisoner, it is a sufficient reason for finding the juror indifferent between the parties.?

In challenges for principal cause there may be a demurrer admitting the fact and' denying its sufficiency. Then a simple question of law is presented for the decision of the court.3

When the facts on which a challenge rests are disputed the proper case is to submit the question to triers; but if neither of the parties ask for triers to settle the issue of fact, and submit their evidence to the judge and take his determination thereon, they cannot afterwards demand that the challenge be passed upon by triers, and in such cases the decision of the court is final.5

When challenges for the favor are interposed, there can be no demurrer by a party intending to controvert them. The decision of the triers either way is conclusive as to the fitness or disqualification of the juror. In case of a disagreement of the triers, the challenge still remains. The usual practice in cases where triers are appointed is, where no juror has been sworn, two triers are named without restriction by the court. When one of the jurors has been sworn he acts as trier with any two other individuals selected by the court, and when two of the jurors have been sworn they are chosen, and if more, the first two. Whether a challenge can be interposed to a trier thus designated does not seem to have been decided; probably not, as challenges then might be interminable. No doubt, however, objections may be urged by either party to any one called as a trier, and in such cases the matter should be summarily investigated and decided by the

1 Peo. v. Bodine, 1 Den., 281; Co. Lit., 157 b; 4 B. & A., 471; 6 Cow., 559; 1 Cow., 441; 2 Park., 232.

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Peo. v. Mather, 4 Wend., 250; 21 Wend., 509; 4 Park., 132.

Sanchez v. Peo., 22 N. Y., 147.

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court. In a case where the two jurors first admitted were sworn as triers and heard the evidence, the argument of counsel and the charge of the court, and, after consultation, reported that they could not agree in deciding the challenge, the court held that the challenge must be re-tried, and the court selected the third and fourth jurors to act as triers for that purpose.1

The triers having been selected by the court, the following oath is administered to them by the clerk:

"You shall well and truly try and find whether A B, the juror challenged, stands indifferent between the people of the State of New York and the prisoner at the bar. So help you God."

The triers then take their seat in the jury box. Where the triers of a challenge for favor to a juror were sworn to find whether the juror was indifferent "upon the issue joined," that qualification being objected to, it was held that the oath was erroneous.2

When the juror is challenged for favor and triers are appointed, the juror himself may be sworn as a witness before them, to state or explain any facts which do not impeach his character or his motives, or in relation to his having formed or expressed an opinion on the guilt of the prisoner, so, also, other witnesses may be called and sworn before the triers.3

Where, upon a challenge for favor, witnesses were introduced to prove an opinion expressed by the juror, as to the guilt of the prisoner, the district attorney was allowed to examine the juror himself, to rebut the evidence.4

The juror thus sworn is said to be sworn on his voir dire. The following is the form of oath administered to a witness before the triers:

"You shall true answers make to such questions as shall be put to you, touching the challenge of A B as a juror, so help you God."

And where on a criminal trial a person is drawn as a juror, and challenged to the favor, and called as a witness in support of the challenge to prove a bias growing out of what he had

1 2 Hale, 175; Co. Lit., 158 a; Peo. v. Dewick, 2 Park. Cr. R., 230; Dick. Sess., 190; 4 Park., 134.

Freeman v. The Peo., 4 Den., 9.

Peo. v. Fuller, 2 Park., 16; Co. Lit., 158; 1 Salk., 153; 2 Park., 579; 2 Abb. Pr. R., 256; 19 John., 115.

Peo. v. Fuller, 2 Park., 16-579; 1 Park., 302.

heard or read on the subject, it is proper, on his cross-examination, to ask him his opinion as to the character and extent of the supposed bias, and whether he thinks it would influence him after hearing the evidence.1

And when examined as a witness for the purpose of sustaining a challenge to the favor, he will not be excused from answering whether he has any prejudice or bias against a religious sect, on the ground that such answer would disgrace him.2

The following oath is administered by the clerk to the juror, where he is sworn before the triers upon his voir dire:

"You do solemnly swear that you shall true answers make to such questions as shall be put to you, touching your competency to serve as a juror in this cause (or, 'touching the challenge exhibited against you'), so help you God."

The finding of the triers is, "that he stands indifferent, or (not indifferent)."

The triers are the exclusive judges of the weight to be attached to the evidence of favor, and the challenging party is not entitled to an instruction from the judge that the evidence shows that the juror is not indifferent.3

The triers are to decide whether the juror is at the time of the trial altogether indifferent; the inquiry is not confined to the state of the juror's mind before coming into court; but if anything has occurred in court which has produced on his mind an impression of the guilt of the prisoner, it is sufficient to exclude him.1

Where a juror was found competent upon his own answers, but after he had been sworn and taken his seat, it transpired that he had misunderstood a question put to him, and had given a wrong answer, it was held that the decision upon his competency should be vacated and the trial of the challenge resumed.5

It is competent in the cross-examination of the juror, to ask him his opinion as to the character and extent of his supposed bias, and whether, in his opinion, he could try the case upon the

' Peo. v. Knickerbocker, 1 Park., 302.

Peo. v. Christie, 2 Park., 579.

Smith v. Floyd, 18 Barb, 522; Peo. v. McMahon, 2 Park., 663; 4 Den., 9-35.

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evidence without bias; but the opinion of the juror is by no means conclusive unless in the negative.2

Where the juror testified that he had read something about the case, and had formed an impression that the prisoner's character was bad, it was held competent to ask him whether, as a juror, he would disregard what he had heard out of the court, and would render a verdict upon the evidence.3

Where on the trial of a challenge to the favor, improper evidence is received, and the triers find the juror indifferent, and he is then challenged peremptorily, and it appears that the prisoner had not exhausted all his peremptory challenges when the panel was completed, the prisoner cannot afterwards avail himself of excep. tions taken to the admission of such improper evidence before the trial.4

§ 103. OF THE SUMMONING OF TALESMEN AS PETIT JURORS.

At the common law, if by reason of challenges or the default of the jurors, a sufficient number cannot be had of the original panel, a tales, a it was called, was awarded until the number of twelve was sworn.5

Our statute provides that when twenty-four jurors, duly drawn and summoned do not appear, or when, by reason of there being one or more jurors empaneled, or in consequence of jurors being set aside, or for any other reason, there shall not remain twentyfour ballots, containing the names of jurors then attending, the court shall order the sheriff to summon from the bystanders or from the county at large, so many persons qualified to serve as jurors, as shall be necessary to make at least twenty-four jurors, from which a jury for the trial of the indictment may be selected." The names of the persons so summoned by the sheriff, shall be written on distinct pieces of paper, and shall be rolled or folded each in the same manner as near as may be, and shall be deposited with the ballots remaining undrawn, if any there be, or in a sufficient box by themselves, if there be no undrawn ballots from which a jury shall be drawn."

Peo. v. Knickerbocker, 1 Park., 302.

Lohman v. Peo., 1 N. Y. (1 Com.), 379.

• Idem.

Peo. v. Knickerbocker, 1 Park., 302. 2 R. S., 734, § 3.

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4 Blac. Com., 355. 7 Id., § 4.

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