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.

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§ 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.7

A matter which merely exempts a man from serving on a jury and does not incapacitate, is not a cause of challenge.8

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

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ris respectum, propter defectum, propter affectum and propter delictum;1 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. 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.4

2. Propter Defectum.-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:

(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."

3 Blac. Com., 362; Co. Lit., 156; 2 Hawk. C., 43, § 11, et seq.

The objection that a juror has not the requisite property quali fication is lost if not raised when the jury is drawn, even though the facts do not come to the knowledge of the party until afterwards.1

(c) Property Qualifications in Certain Counties.-In certain counties of the State the property qualification is below that required in other parts of the State.2

(d) Want of Mental Capacity, &c.—One of the statutory qualifications of jurors is, that they shall be in the possession of their natural faculties, and not infirm or decrepit.3

One who is drunk is not a competent juror,4 neither is an insane person.

(e) Other Statutory Disqualifications.-Members of a grand jury or inquest, by which any indictment shall have been found, are disqualified from serving as a juror upon the trial of such indictment if challenged for that cause by the accused; so also 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 allowed to serve as jurors upon the trial of an indictment for any offence punishable with death.7

3. Propter Affectum.—Which is on account of some supposed bias or partiality, and this may be either a principal challenge, or to the favor. In principal challenges, the cause assigned carries with it prima facie, evident marks of suspicion either of malice or favor, but in the challenge to the favor, the objection is only to some probable circumstance of suspicion, or the like. Among the disqualifications arising under this subject of challenge, may be found the following:

(a) Bias in the Juror's Mind on the Question whether or not the Prisoner is Guilty.-The fact that one. drawn as a juror, has expressed an opinion upon the guilt of the prisoner, is a sufficient ground of challenge; the prisoner is entitled to a trial by jurors who stand indifferent; ¿. e., neutral, free of any bias, with minds uncommitted. It is not needful to exclude a juror, that he should entertain any ill will towards the prisoner.1

A challenge for that the juror has expressed an opinion, is a challenge for principal cause, and triable by the court.2

A juror was challenged for principal cause, and being examined under oath, testified, on his direct examination, that he had formed an opinion and expressed it; and on his cross-examination, that he had no fixed opinion which could not be removed by the evidence. The court overruled the challenge, and the juror was then challenged for favor, and on examination said that his mind was balanced; that he did not know that he had any impression or opinion; that that had been removed by a former trial of the prisoner, when the jury were not able to agree. It was held that it was error to admit him. 1. What he said on challenge to the favor, could not be considered upon the question as to the challenge for principal cause. The finding of the triers cannot cure an error in the decision by the court of the challenge for principal cause. 2. By his statement on the first challenge, he was disqualified. The testimony should be construed with liberality to the defendant.3

Where on a trial for murder, a juror who was drawn, was challenged by the prisoner for principal cause, on the ground that he had formed and expressed an opinion, and such challenge was traversed by the public prosecutor, and it appeared by the testimony of the juror who was called upon as a witness to prove the truth of the challenge, that he thought he had an impression as to the prisoner's guilt or innocence; that he rather thought he had formed an opinion; that he presumed he had expressed it, and thought he retained it; that he had formed an opinion if the newspaper accounts of the transaction, of which he had read only a part, were true, and that so far as he read he gave them cre

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Peo. v. Vermilyea, 7 Cow., 108.

Idem; Freeman v. The Peo., 4 Den., 9; 4 Wend., 229; 6 Cow., 555; 14 Serg. & R., 292; 17 Id., 155; 16 N. Y., 501.

' Cancemi v. Peo., 16 N. Y. (2 Smith), 501; 7 Abb. Pr., 271.

dence; that it might or might not require evidence to remove his impression of the prisoner's guilt; that he had not arrived at any definite opinion, and the court overruled the challenge and declared the juror to be competent, it was held on review, that the decision was correct,1 for to sustain a challenge for principal cause, on the ground that the juror has formed and expressed an opinion, it must appear that the opinion was absolute, unconditional, definite and settled; it is not enough that it was a hypothetical condition, indefinite and uncertain. If the opinion belong to the latter class, it is a proper subject for challenge to the favor.2 Where, on the trial of a challenge for favor, the person challenged as a juror testified that he had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner's guilt or innocence; that he had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but would be governed entirely by the evidence produced on the stand, he was adjudged to be a competent juror.3

On the trial of a challenge for principal cause nothing short of a fixed and settled opinion will disqualify the juror. It is proper to exclude questions tending to show a mere impression or bias. But it is otherwise when the challenge is for favor, on the ground of bias.5

The fact that the juror has heard part of the evidence at the coroner's inquest, read and formed an impression that the prisoner was guilty, but has doubts, and would be guided by the evidence, &c., is not enough to support a challenge for principal

cause."

On a challenge for principal cause, grounded on the juror's having expressed an opinion, it is no answer to the objection that the opinion is not based on any knowledge of facts, but on mere rumors and reports.7

A late writer upon criminal law remarks, that if a man leaps in advance of the law, and settles in his own mind the question of

Slout v. Peo., 4 Park., 71.

2 Idem.

Sanchez v. Peo., 4 Park., 535.

Peo. v. Honeymorę, 3 Den. 121; Freeman v. Peo., 4 Den., 9.

Id.

* Freeman v. The Peo., 4 Den., 9; Peo. v. Stout, 4 Park., 71; 4 Park., 535. "Peo. v. Mather, 4 Wend., 554.