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CHAPTER V.

SECTION 405.

406.

CHALLENGING THE JURY.

Definition and division of challenges.

When there are several defendants, they must unite in their challenges.

407. Challenge to the panel, defined.

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410. If sufficiency of the facts be denied, adverse party may except.

Exception, how made and tried.

411. If exception overruled, court may allow denial of challenge. If allowed, may permit challenge to be amended.

412. Denial of challenge, how made, and trial thereof.

413. Who may be examined on trial of challenge.

414. If challenge allowed, jury to be discharged. If disallowed, jury to

be impanelled.

415. Defendant to be informed of his right to challenge an individual

juror.

416. Kinds of challenge to individual juror.

417. Challenge, when taken.

418. Peremptory challenge, what, and how taken.

419. Number of peremptory challenges to which defendant is entitled.

420. Challenge for cause, by whom taken.

421. Definition and kinds of challenge for cause.

422.

General causes of challenge.

423. Particular causes of challenge.

424. Grounds of challenge for implied bias.

425. Grounds of challenge for actual bias.

426. Exemption, not a ground of challenge.

427. Causes of challenge, how stated.

428. Exceptions to challenge and denial thereof.

429. Challenge, how tried, if denied.

430. Triers, how appointed. Majority may decide.

431. Oath of triers.

432. Juror challenged may be examined as a witness.

433. Rules of evidence on trial of challenge.

434. Challenge for implied bias, how determined.

435. Instructions to triers, on trial of challenge for actual bias.

436. Verdict of triers, and its effect.

437. Challenges, first by defendant and then by the people. Each must

exhaust challenges, before the other begins.

438. Order of challenges.

439. Peremptory challenge may be taken, after challenges on both

sides exhausted.

§ 405. A challenge is an objection made to the trial jurors, and is of two kinds:

1. To the panel:

2. To an individual juror.

The same as the existing practice, except that instead of challenges to the array or to the polls, they are more plainly designated as challenges to the panel, or to an individual juror. See Liv. Crim. Code, 528, art. 321.

§ 406. When several defendants are tried together, they cannot sever their challenges, but must join therein.

In accordance with the existing rule.

§ 407. A challenge to the panel, is an objection made to all the trial jurors returned, and may be taken by either party, as well to the panel returned for the term, as to the additional panel ordered to complete the jury as prescribed by section 388.

In conformity with the present practice.

§ 408. A challenge to the panel can be founded only on a material departure from the forms prescribed by the code of civil procedure, in respect 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.

Taken from Liv. Crim. Code, 528, art. 324; and in accordance with the spirit of the existing statute. 2 R. S., 3d. ed., 515, 516, sec. 56, 57.

§ 409. A challenge to the panel must be taken, before a juror is sworn, and must be in writing, specifying

plainly and distinctly the facts constituting the ground

of challenge.

Declaratory of the existing practice. 1 Gra. Prac. 3d. ed., 769.

§ 410. If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court; and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true.

411. If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting, to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge.

The provisions of the last three sections are the saine as the existing practice, except substituting "exception" for “demurrer” to the challenge.

§ 412. If the challenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact.

§ 413. Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be

examined to prove or disprove the facts alleged as the ground of the challenge.

§ 414. If, either upon an exception to the challenge, or a denial of the facts, the challenge be allowed, the court must discharge the jury, so far as the trial of the indictment in question is concerned; and no other jury for the trial thereof, can be summoned for the same term. If it be disallowed, the court must direct the jury to be impanelled.

§ 415. Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn.

§ 416. A challenge to an individual juror, is either,

1. Peremptory, or

2. For cause.

The last five sections are substantially in accordance with the existing practice.

§ 417. It must be taken when the juror appears, and before he is sworn; but the court may, for good cause, permit it to be taken after the juror is sworn, and before the jury is completed.

The general rule now is, that a challenge to an individual juror must be taken when the juror appears. It is proposed to qualify it, by giving to the court the discretion. to allow it to be interposed after the particular juror is sworn, and before the jury is completed. This is in ac

cordance with the case of The People v Damon, 13 Wend, 351, in which it was held that, a juror who, after he is sworn in chief and has taken his seat, is discovered to be incompetent to serve, may, in the exercise of a sound discretion, be set aside by the court, at any time before evidence is given; and that this may be done even in a capital case, and as well for cause existing before as after the juror is sworn.

§ 418. A peremptory challenge can be taken by the defendant only, and may be oral. It is an objection to a juror, for which no reason need be given, but upon which the court must exclude him.

In conformity with the existing practice.

§ 419. If the offence charged be punishable with death or with imprisonment in a state prison for life, the defendant is entitled to twenty peremptory challenges. On a trial for any other offence, he is entitled to five peremptory challenges.

Taken from 2 R. S. 3d. ed., 819, sec. 9; and from Laws of 1847, p. 130, ch. 134.

§ 420. A challenge for cause may be taken either by the people, or by the defendant.

§ 421. It is an objection to a particular juror, and is either,

1. General, that the juror is disqualified from serving in any case; or

2. Particular, that he is disqualified from serving in the case on trial.

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