Page images
PDF
EPUB

guilt against the prisoner, whether by reason of what he has read or heard, or by reason of an inner impulse, which condemns before it hears, he is not a fit person to be a juror in the cause; for his mind, which ought to be a blank on which the evidence might write its conclusions, is already pre-occupied.1

A challenge for principal cause is not established by merely showing that the juror had formed an opinion that the prisoner had killed the deceased, which he never expressed; this was not an opinion as to the guilt or innocence of the prisoner; he might have killed the deceased and still have been innocent of any criminal offence.2

(b) Bias which comes from near Relationship.-CHITTY says, if the juror is related to either party within the ninth degree, though it is only by marriage, a principal challenge will be admitted.3 So, also, if he has acted as godfather to a child to the party, he may be challenged for that reason. Upon this subject, the relationship by affinity is the same as by consanguinity. But affinity ceases with the dissolution by the death of one of the married parties of the marriage by which it was created.

(c) That the Juror has a Pecuniary or other Interest in the Event of the Action.-It has been allowed a good ground of challenge on the part of the prisoner, that the juror hath a claim to the forfeiture which shall be caused by the prisoner's conviction. The members of any association of men combining for the purpose of enforcing or withstanding the execution of a particular law, and binding themselves to contribute money for that purpose, are incompetent to sit as jurors on the trial of an indictment for violating the law.

8

So, also, if the juror has taken money for his verdict.9

1 Bish. Cr. Pro., 772.

'Lowenberg v. Peo., 27 N. Y., 336.

1 Chit. Cr. Law, 541; 3 Blac. Com., 363, Co. Lit., 157 a.

Co. Lit., 157 a; Burns' Jus. Jurors, IV, I.

1 Bish. Cr. Pro., 765.

• 1 Bish., Mar. & Div., § 314.

2 Hawk. P. C., ch. 43, § 28. Com. v. Livermore, 8 Gray, 18. 3 Black. Com., 363.

(d) That the Juror has Passed upon the same Question while Serving in some other Capacity.—If the juror has passed upon the question, though he has only discharged a duty in so doing, still, as his opinion has been once made up, he is not a fit person to hear the evidence and make up a second opinion.1

Our statute provides that no member of the grand jury or inquest, by which any indictment shall be found, shall serve as a petit juror for the trial of such indictment, if he be challenged for that cause by the accused.2

(e) Bias from Particular Opinions concerning the Law.If the juror holds the statute to be void, as being unconstitutional, and this opinion is of such a nature that he cannot convict, whatever the evidence may be, he is incompetent. If in general terms the juror does not favor the policy of capital punishment, he is not for this reason incompetent. But if he has such conscientious scruples as will forbid his bringing in a verdict of guilty in such case, or trying it fairly, he must be excluded.

This is sufficient ground to challenge for principal cause.

Upon a challenge for favor, upon the ground of conscientious scruples, the following question was held competent before the triers, viz. "Have you any conscientious scruples against rendering a verdict of guilty in a case where the punishment is death."7

Where the juror testified that he was opposed to the punishment of death, but said, that if sworn as a juror on a trial for murder and the evidence of guilt was clear he should find the accused guilty, it was held that the challenge was not sustained. On a challenge for favor, the juror testified before the triers

1 1 Bish. Cr. Pro., 773; 3 Black. Com., 363.

2 2 R. S., 734, § 8.

Com. v. Austin, 7 Gray, 51.

Com. v. Webster, 5 Cush., 295; 16 Ark. 568; 7 Cal., 140; Peo. v. Wilson, 3 Park., 199; Lowenberg v. Peo., 5 Park., 414.

1 Bish. Cr. Pro., 779, and cases cited; 3 Park., 199; Peo. v. Damon, 13 Wend., 351.

Walter v. Peo., 3 N. Y., 147.
Lowenberg v. Peo., 5 Park., 415.
Peo. v. Wilson, 3 Park, 199.

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."3

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.

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

1 Chit. Cr. Law, 541; Co. Lit., 157; Bac. Abr., Juries e; Dick. Sess., 186;

Tidd, 5th ed., 846.

3 Blac. Com., 363.

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.

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,5 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."

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.9

[blocks in formation]

§ 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.1

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.

[blocks in formation]
« PreviousContinue »