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Proper Practice in Impanneling a Jury.

objected. Held, that the defendant could not thereupon challenge another of the original panel, because he should, when the full panel was presented to him, have challenged as many as he thought objectionable.

2. The right to peremptory challenges is given, and the number fixed by statute. State v. McClear, 11 Nev. 39.

3. In a civil action in this State "each party" is entitled to two. 1 L. 1847, p. 130, c. 134; Code Civ. Pro. § 1176.

4. In criminal cases the right is regulated by the following stat

utes:

"Every person arraigned and put on his trial for any offense 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 R. S. 734, § 9.

"Every person arraigned and put on trial for any offense 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, said right of peremptory challenge shall extend to only two of said persons so drawn." 1 L. 1847, p. 130, c. 134, § 2.

"On trial for any offense 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 any offense punishable by imprisonment for a less term than ten years, the people shall be entitled peremptorily to challenge three of the persons drawn as jurors for such trial, and no more." L. 1858, p. 557, § 1. Modified as follows:

"The people and the accused, in all capital cases, shall also [?] be entitled to thirty peremptory challenges." 1 L. 1872, p. 1133, c. 475, § 2.

"All existing acts conflicting with the provisions of the foregoing sections are hereby repealed." Id. § 3.

"On trial of all felonies and misdemeanors, the prosecution shall be entitled to the same number of peremptory challenges as are or may be by law given to the defense." L. 1873, p. 681, c. 427, § 2.

4. The right is absolute, and continues till the juror in question is sworn. Lindsley v. People, 6 Park. Cr. 233; Drake v. State, 51 Ala. 30; People v. McCarty, 48 Cal. 557; Murray v. State, 48 Ala. 675.

So also under the Wisconsin statute. Lamb v. State, 36 Wisc. 424.

Proper Practice in Impanneling a Jury.

Otherwise under local law, in Stewart v. State, 50 Miss. 587; Hoobach v. State, 43 Tex. 242.

5. Where two or more prisoners are tried jointly, the peremptory challenges are not divided, but each is entitled to the full number, unless the local statute indicates otherwise.

VII. Waiver of challenges.

A hasty expression of satisfaction with a juror does not necessarily render it error to allow a subsequent challenge. Adams v. Olive, 48 Ala. 551.

Accepting a juror without inquiry waives the technical objections to want of property qualification, &c. Estep v. Waterous, 45 Ind. 140. If, after the rejection of a juror against objection, twelve others are found with whom both parties declare themselves satisfied, error in the rejection is not available. Grand Rapid, &c. Co. v. Jarvis, 30 Mich. 308. [Doubtful.]

One who knowing of the want of qualification accepts the juror or fails to make inquiry may be held concluded. Lane. Scoville, 16 Kans. 402; Brown v. State, 52 Ala, 345.

According to State v. McQuaig, 5 S. C. 429, error in overruling challenge for cause is waived by failing to exercise a peremptory challenge which would have accomplished the same purpose. But this is not sound as a universal rule, for the use of the peremptory challenge might let in an unacceptable juror. The prisoner has a right to have his challenges for cause correctly passed on before he put to his peremptory challenge.

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way .

Challenging a juror peremptorily has been held to waive error in overruling a previous challenge to the same juror for cause. ConClinton, 1 Utah T. 215. But compare State of Kansas v. Brown, 15 Kans. 400 (Valentine, J., 1875), where it was held that defendant, having exhausted all his peremptory challenges, the admission of a disqualified juror was error, although he was afterwards discharged on a peremptory challenge.

After the jury was sworn, a member thereof informed the court that he was not a citizen of the United States, but no objection being made, the trial went on. Held, that though the alienage of a good ground of objection, if taken at the proper time, the objection not so taken was waived. HALLETT, C. J., 1874, Jones

juror was a

. People, 2 Col. T. 351.

Technical statutory disqualifications are strictly construed, so as not to exclude unless the juror is clearly within their terms. Miss., &c. R. R. Co. v. Munkers, 11 Kans. 223.

A challenge sustained cannot be withdrawn. State v. Lautenschlager, 22 Minn. 514.

Proper Practice in Impanneling a Jury.

VIII. Exceptions.

In connection with the New York statute, cited and construed above, p. 1, and Thomas v. People, 67 N. Y. 218, the following recent cases may be referred to.

An objection that jurors were accepted, whose examination showed were disqualified by reason of opinion, will not be considered on writ of error where no exception was taken at the trial, and the question is first considered on appeal from a conviction. COOLEY, J., 1875, Bronson v. People, 32 Mich. 34.

The defendant, indicted for murder, was convicted (of murder in the second degree), and one ground he relied upon was, that the challenge of the prosecution for implied bias was improperly sustained, and the juror improperly excluded. Held, that under the California penal code, § 1170, subd. 1, this decision was not the subject of an exception. WALLACE, C. J., 1875, People v. Colson, 49 Cal. 679 ; citing People v. Murphy, 45 Id. 137.

A juror, who was examined by the defendant concerning his qualifications, was challenged for actual bias, and the challenge was disallowed. No objection was taken to the admission or rejection of evidence [as to bias], nor to any of the proceedings on the hearing of the challenge. Held, that the decision of the question of fact raised by the challenge was final, and was not subject to review on appeal. RHODES, J., 1875, People v. Vasquez, 49 Cal. 560. The same was held in People v. Cotta (Id. 167), on an indictment for murder (MCKINSTRY, J.).

On appeal great weight is due the opinion of the court before which the venire-men are questioned. Jackson v. Commonwealth, 23 Gratt. 919.

IX. Challenge to the array. For recent cases, see Carpenter v. People, 64 N. Y. 483; Thompson v. People, 6 Hun, 135; Foster's case, 13 Abb. Pr. N. S. 372, n.; Stokes v. People, 53 N. Y. 164; Powell v. People, 5 Hun, 169; Gaffney v. People, 50 N. Y. 416, affi'g 1 Buffalo Super. Ct. (Sheldon) 304; and Code of Civ. Pro. ch. 10, titles 8, 3-5.

X. Talesmen. A talesman is a juror summoned from bystanders, to fill up a panel, for the trial of a particular cause.

Under the N. Y. statutes as amended by L. 1861, p. 528, c. 210, the sheriff can summon talesmen only by consent of parties. Shields v. Niagara Savings Bank, 3 Hun, 477 ; S. C., 5 Sup'm Ct. (T. & C.) 585. But compare Code Civ. Pro. §§ 1171, 1174.

The sheriff cannot summon talesmen for the sole purpose of an action to which he is a party. Howe v. Brundage, 1 Sup'm Ct. (T.

& C.) 429.

Talesman for struck jury. People v. Tweed, 11 Hun, 195.

People v. Shattuck.

PEOPLE v. SHATTUCK.

Superior Court of Buffalo; Criminal Term, June, 1878.

QUASHING INDICTMENT.-PAROL EVIDENCE TO IMPEACH ACTION OF GRAND JURY.-BAIL IN CASES OF FELONY.

If an indictment is found without the concurrence of twelve of the grand jury, the prisoner, on being arraigned and before plea, may move to quash the indictment.

Upon the hearing of the motion, grand jurors may be examined as witnesses before the court, as to whether twelve of the panel actually concurred or not in the finding of the bill.

The power of the superior court of Buffalo, or of a judge thereof, to` bail in a capital case, is indisputable.

In cases of felony, the prisoner cannot, as a matter of right, be admitted to bail. Whether he shall be let to bail, is a question resting in the sound legal discretion of the court.

In such cases, the court or officer, can not, upon the application to bail, look beyond the minutes of the grand jury; and in a capital case, where it appears by the testimony before the grand jury, that was not indifferent whether the prisoner be innocent or guilty, he will not be let to bail.

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Motion to quash an indictment.

The prisoner, Thomas Shattuck, was indicted for murder, and upon being arraigned, and before plea, a motion was made to set aside or quash the indictment, upon the ground that the grand jury never, in fact, found the bill. The foreman of the grand jury was called, and under objection testified, that after the testimony of witnesses was given to the jury, a vote was taken upon the question of bill or no bill, and resulted in a vote of seventeen for, and two against the bill. That no other vote was taken in the case, and the case was not again considered. That the question as to the degree of crime was not submitted to the jury as a question to be voted upon, nor was it voted on at any time, and

VOL. VI.-3

People v. Shattuck.

when the vote was taken, there was no suggestion or understanding by or among the grand jurors, that the question of the degree of crime should be subsequently considered, or any thing to that effect, and he, the foreman, supposed the case was ended, or he should not have signed the bill. The grand jury asked advice from the district-attorney in all cases, as to the degree of crime, and there was something said that led the jury to feel that they were not to act or vote upon the degree of crime. No vote was taken, specifically, as to whether the bill should be for murder. That the

evidence was all taken before the grand jury, and that body acted upon the evidence submitted, and so voted. The assistant district-attorney was present, and advised that there was sufficient proof to warrant the jury in finding a bill for murder, and the degree of guilt was talked over before the vote was taken. The witness, as foreman, examined the bill to the second count, and was told by the district-attorney, that the second count was the same, except as to which hand the weapon was held in. That the question of degree of guilt was not submitted to the district-attorney for his opinion, but during the investigation, that officer said to the grand jury that the evidence warranted a bill for murder.

L. L. Lewis and Geo. W. Cothran, in support of the motion,-Cited: Low's Case, 4 Greenl. [Maine] 439; People v. Restenblatt, 1 Abb. Pr. 268; People v. Strong, 1 Abb. Pr. N. S. 244; People v. Lawrence, 21 Cal. 368; State v. Horton, 63 N. C. 595; People v. Hulbut, 4 Den. 133.

R. C. Titus, district-attorney, opposed.

SHELDON, Ch. J.-The motion was opposed upon the grounds, that parol testimony could not be given to impeach the action of the grand jury; that the indict

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