that he had conscientious scruples in reference to serving as a juror in a case where the punishment on conviction would be death, that he would, if he took an oath to serve as a juror, render a verdict in accordance with the evidence, but that it would violate his conscience to do so, and that he could not, where the punishment was death conscientiously render a verdict which would take a man's life, even if the evidence clearly showed that the prisoner was guilty, the court refused to charge the triers that, assuming what the prisoner had sworn to to be true, no cause was shown which would justify the triers in finding the challenge true.1

It is also provided by statute in this State that persons of any religious denomination, whose opinions are such as to preclude them from finding any defendant guilty of an offence punishable with death, shall not be compelled or allowed to serve as jurors on the trial of an indictment for any offence punishable with death.2

(f) Social and Civil Connections.-CHITTY says: "If the jurymen be under the power of either party, or in his employment, or if he has eaten or drank at his expense, he may be challenged by the other."

113

4

So, also, it was formerly said, if he be of the same society or corporation with him, but it is doubted whether such a rule now exists. Thus it has been held in this State to be no cause of challenge to a juror that he is a free-mason, where one of the parties to a suit at law was a free-mason and the other not.5

(g) A General Bias Against the Prisoner.-The causes of challenges to the polls are manifestly numerous and dependent on a variety of circumstances, for the question to be tried is whether the juror is altogether indifferent as he stands unsworn, because he may be, even unconsciously to himself, swayed to one side, and indulge his own feelings even when he thinks he is influenced entirely by the weight of evidence.

Lowenberg v. Peo., 5 Park., 414.

6

22 R. S., 734, § 14. Vide 1 City H. Rec., 185; 3 Id., 45.

1 Chit. Cr. Law, 541; Co. Lit., 157;

Tidd, 5th ed., 846.

3 Blac. Com., 363.

Bac. Abr., Juries e; Dick. Sess., 186;

People v. Horton, 13 Wend., 9.

1 Chit. Cr. Law; 1 Bish. Cr. Pro., 767; Co. Lit., 157, b; Bac. Abr., Juries

e; Dick: Sess., 188; Williams' Jus. Juries, V.

Upon a challenge to a juror for favor, any fact or circumstance from which bias or prejudice may justly be inferred, although weak in degree, is admissible evidence before the triers. The causes of challenge for favor are very various, and not subject to precise definition, and the question is to be submitted as a question of fact upon all the evidence, to the conscience and discretion of the triers, whether the juror is indifferent or not.1

(4) Propter Delictum.-These challenges are for some crime or misdemeanor that affects the juror's credit and renders him infamous. It is said to be a good ground of challenge to a juror that he is outlawed, or that he hath been adjudged to any corporeal punishment whereby he becomes infamous, or that he hath been convicted of treason, felony, perjury or conspiracy; but it is also said that none of the above challenges are principal ones, but only to the favor, unless the record of the judgment or conviction be produced.3

§ 99. CHALLENGES, WHEN MADE.

5

HAWKINS says no challenge, either to the array or to the polls, can be made before a full jury have appeared. It is immaterial which party challenges first, so long as the challenge is before they are sworn. But it has been held that if it was made to appear, even after a juror was sworn, that he was totally incompetent to serve, he may, in the exercise of a sound discretion, be set aside by the court at any time before evidence is given.7

The regular practice is to challenge the jurors as they come to the book to be sworn and before they are sworn.8

A juror may be challenged to favor after the same juror has been challenged for principal cause, and such challenge has been tried and overruled."

1 Peo. v. Bodine, 1 Den., 281.

23 Blac. Com., 364.

2 Hawk. P. C., ch. 43, § 25.

• 2 Hawk., ch. 43, § 1.

Tr. per Pais., 144.

1 Arch. Cr. Pro., 163.

Peo. v. Damon, 13 Wend., 351.

• Idem.

Carnel v. The Peo., 1 Park. Cr., 272.

§ 100. CHALLENGES, HOW MADE.

1. The Challenge to the Array.-The challenge to the array should be made in writing, and is entered on the record, so that the other party may plead or demur to it, and the cause of challenge must be stated specifically.1

2. The Challenge to the Polls.-The challenge to individual jurors is to be made verbally, whether it be a peremptory challenge or for cause.2

When a juror is challenged for principal cause or for favor, the ground of the challenge should be distinctly stated, for without this, the challenge is incomplete, and may be wholly disregarded by the court.3

But it was subsequently held that where a challenge for principal cause had been tried and overruled, and a challenge to the same juror was interposed to the favor, that the form of the challenge was sufficient, without stating specifically the grounds of the challenge.4

So, also, where the prisoner's counsel demurred to a challenge to the juror for favor, on the ground that he was not indifferent between the prisoner and the people, and assigned for cause that the challenge did not specify any ground sufficient in law, and the district attorney joined in the demurrer, the demurrer was held not sustainable, and overruled.5

§ 101. CHALLENGE TO THE ARRAY, HOW DISPOSED OF.

If a demurrer is interposed to the challenge, a question of law is raised which the court is to decide." If a plea is entered to the challenge, it is said to lie in the discretion of the court to direct the manner in which it shall be tried; sometimes it is said to be referred to triers from the attorneys, and sometimes to two of the jury; but that when the challenge is on the ground of affinity to the officer arraying the jury, it is best to leave it to two

1 1 Arch. Cr. Pro., 165, and notes; 1 Den. 281; 1 C. & K., 235; 47 E. C., L. R.

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. 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."

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 deci sion, 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.

2

9 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.

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

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

Thompson v. Peo., 3 Park., 467.

2 Park., 230.

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

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

Peo. v. Dewick, 2 Park., 230.