A challenge for principal cause, and the decision of the court upon it, forms a part of the record, and are reviewable by certiorari.1 And a bill of exceptions will lie to review questions of law raised and decided on a challenge for favor, even though the prisoner had not exhaused the peremptory challenges when the panel was filled.2 § 95. OF THE KINDS OF CHALLENGE ALLOWED TO THE PEOPLE. On any trial for any offence punishable by death, or by imprisonment in the State prison for the term of ten years, or for a longer time, the people shall be entitled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more; and on the trial of an indictment for an offence punishable by imprisonment for a term less than ten years, the people shall be entitled peremptorily to challenge three of the persons drawn as jurors for such trial, and no more.3 It is also provided by statute that nothing in the above provision shall be deemed to prevent any challenges allowed prior to the passage of the same, either to the array of jurors or to the individual jurors.4 The attorney general or district attorney, prosecuting for the people of this State, shall also be entitled to the same challenges in behalf of this State, either to the array or to individual jurors, as are allowed to parties in civil cases; and the same proceedings shall be had thereon as in civil actions.5 It will be observed that the foregoing provisions, in relation to peremptory challenges by the people contained in the act of 1858, are applicable only to cases where the offence is punishable by imprisonment; but upon the trial of misdemeanors, where the punishment may be other than such imprisoṁent, it would seem that the people have still the right to peremptorily challenge two of the jurors, thus: Upon an indictment for a nuisance, the district attorney claimed the right peremptorily to challenge two of the jurors, Freeman v. Peo., 4 Den., 9; 6 Cow., 555; 7 Cow., 108; 4 Wend., 229. 2 Peo. v. Bodine, 1 Den., 281. Laws 1858, ch. 332, § 1. • Id., § 2. 2 R. S., 734, § 13. and the court held that, by virtue of the act of April 27, 1847, and the provisions of the Revised Statutes, the people were entitled to the same number of peremptory challenges that are allowed to parties in civil actions.1 § 96. OF THE KINDS OF CHALLENGE ALLOWED TO THE PRISONER. Every person arraigned and put on his trial for any offence punishable with death, or with imprisonment in a State prison ten years, or any longer time, shall be entitled peremptorily to challenge twenty of the persons drawn as jurors for such trial, and no more.2 On a preliminary trial of a question of present insanity, it has been held that the defendant is not entitled to peremptory challenges, but that challenges for cause may be made.3 Every person arraigned and put on trial for any offence not punishable with death, or with imprisonment in a State prison ten years, or for a longer time, shall be entitled peremptorily to challenge five of the persons drawn as jurors for such trial, and no more, except that in cases tried in any court of special sessions such right of peremptory challenge shall extend to only two of said persons so drawn.4 Every person indicted for any offence shall also be entitled to the same challenges as are allowed in civil cases, either to the array of jurors or to individual jurors.5 And it is further provided by statute that the provision of the statute giving the prisoner the right of peremptory challenge in the cases above stated, shall not be deemed to prevent any challenge theretofore allowed, either to the array or to individual jurors.6 If an offence may be punished by imprisonment in the State prison for ten years, the prisoner is entitled to the peremptory challenge given by the statute in such case; it makes no difference that a less punishment may be imposed in the discretion of the court." 2 Turnpike v. The Peo., 9 Barb., 161. 2 R. S., 734, § 9. 2 R. S., 734, § 10; Laws 1847, ch. 134, § 2. 2 R. S., 734, § 12. Laws 1847, ch. 134, § 3; 2 R. S., 734, § 11. It has been said that where several defendants are jointly indicted and tried, each of them is entitled to the number of peremptory challenges allowed by law, and a challenge by one excludes the juror challenged as to all.1 But in this State it has been held that, where two or more persons jointly indicted for murder are tried together, only twenty peremptory challenges can be allowed to all the defendants.2 § 97. OF CHALLENGES TO THE ARRAY. By a challenge to the array is meant an objection to all the jurors; not for any defect in them, but for some partiality or default in the officer who selected or arrayed the panel.3 This challenge lies as well for a partiality or default in the clerk of the court as in the sheriff or his under officer.4 As before stated, this challenge is either a principal challenge or a challenge to the favor.5 The grounds of principal challenge are such as the following: Although there may be no personal objection against the sheriff, yet that he has arrayed the panel at the nomination or under the direction of either party; that the officer who makes the array is of kindred or affinity to either party within the ninth degree; 7 that the officer is under the distress of either party; that the officer is counsel, attorney, officer or servant of either party; 8 that the clerk, instead of drawing thirty-six, drew seventy-two names-put them in a list and selected thirty-six from them." A challenge to the array will not be allowed on the ground that all persons of a particular fraternity have been excluded from the jury, if those who are returned possess the necessary qualifications.10 Neither is it a good ground of challenge to the array, that the jury was drawn and the panel certified by the ' 12 Wheat., 480; 6 Ohio, 86; 4 Mason, 159; 2 Yerger, 246. Peo. v. Thayer, 1 Park., 395. 3 Blac. Com., 359; 2 Tidd, 779. Gardner v. Turner, 9 Johns., 260. • Ante. 3 Blac. Com., 359. ' 1 South. Rep., 364. * Cowp., 112. 9 John., 260. For other causes of challenge see Bac. Abr., tit. Juries, E, and cases there cited; also Graham's Practice, 2d ed., 301, 2. 10 Peo. v. Jewett, 3 Wend., 314. deputy clerk instead of the clerk, who was absent.1 It is good ground for challenge to the array, that certain of the jurors had not been sunimoned by any legal authority, and that their names had been put upon the list of jurors by the clerk of the court at their request, without any order having been entered requiring such jurors to serve.2 The causes of challenge to the array for favor are such as imply at least a probability of bias or partiality in the officer, but do not amount to a principal challenge. Thus, that the party is a tenant of the officer, or that the son of the officer has married the daughter of the party, or the like; 3 that the officer and the party are fellow servants, or the party servant to the officer; 5 and so from any cause which the triers may find that he is not entirely indifferent between the parties." § 98. OF CHALLENGES TO THE POLLS. A challenge to the polls is an exception to one or more jurors who have appeared, individually, and this is either a principal challenge or a challenge to the favor. Where the matter charged against one who is drawn as a juror is in judgment of law a disqualification, the challenge is for principal cause, and is entered on the record. When the objection is not per se a disqualification, the challenge is for favor and is made on terms. In the former case, where the facts are ascertained, it is to be determined by the court, in the latter the question is one of fact to be determined by the court." A matter which merely exempts a man from serving on a jury and does not incapacitate, is not a cause of challenge. A challenge to the polls for principal cause to be effectual, must be on account of some matter of fact which, if admitted or proved necessarily and conclusively, disqualifies the juror.9 Challenges to the polls other than peremptory challenges, are divided by the older writers into four classes, viz.: Propter hono ris respectum, propter defectum, propter affectum and propter delictum; and of these, the first, second and the last, appear to be principal challenges, while the third consists of both principal challenges and challenges to the favor.2 A better classification of all challenges to the polls, would seem to be first into challenges for principal cause which, if found true, standeth sufficient for itself, without leaving anything to the conscience or discretion of the triers. Second challenges concluding, to the favor when either party cannot take any principal cause, but showeth cause of favor which must be left to the conscience and discretion of the triers, to find the juror favorable or not favorable, and third peremptory without any cause assigned. We have already con. sidered the cases in which peremptory challenges may be taken, and shall now proceed to an examination of challenges to the polls, both as to principal challenges, and to the favor, following however the classification as laid down by the older writers, viz.: 1. Propter Honoris Respectum.—This cause of challenge has no application with us as depending upon a title of nobility. 2. Propter Deféctum.-On account of some defect in the juror's qualifications to set upon a jury. Among the grounds constituting this ground of challenge may be stated the following: 5 (a) Alienage.-BLACKSTONE says, if a man be an alien born, this is a defect of birth, and this was a good cause of challenge at the common law. (b) Property Qualification.-The statute provides that the jurors should be assessed for personal property belonging to them in their own right, to the amount of two hundred and fifty dollars, or have a freehold estate in real property in the county, belonging to them in their own right or in the right of their wives, to the value of one hundred and fifty dollars.“ 1 3 Blac. Com., 362; Co. Lit., 156; 2 Hawk. C, 43, § 11, et seq. Coke's Com., p. 157 a. Cornell v. The Peo., 1 Park., 275. Idem; U. S. Const., Art. 1, § 9, p. 7. 3 Blac. Com., 362. 2 R. S., 411, § 3. |