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Jury-Challenge on Trial for Felony Going through the Pannel-Ordering Juryman to stand by-Compelling Crown to shew Cause of Challenge-Calling Juror out of order-Power of Judge to set aside Juror for conscientious Scruples against Capital Punishment-Assignment of Errors in Exchequer Chamber in Felony.

On the trial of an indictment for murder, the names of all the jurors on the pannel were called in their order, omitting only the names of twelve, occurring in various parts of the pannel, who formed the jury on another charge of felony, and who were out of court, in the custody of the sheriff, considering their verdict during all the time the pannel was being gone through. On going through the pannel, A, a juryman, having been called and appeared, the counsel for the Crown prayed that he might be ordered to stand by. The prisoner objected, that if this was a challenge, cause of challenge ought to be shewn forthwith, and that A. ought not to be ordered to stand by. The Court, nevertheless, ordered A. to stand by. When the pannel had been called through, owing to challenges by the prisoner and the Crown, there were not jurymen enough to

serve.

The pannel was again begun to be called over in the same order, and A, the first person who had been challenged by the Crown, was again called. The counsel for The counsel for the Crown again prayed that he might be ordered to stand by. The prisoner repeated his objection to that course. Before the Judge decided on this question, the remaining twelve jurymen came into court, delivered their verdict, and were discharged. The counsel for the Crown then prayed that A. might be ordered to stand by until those twelve had been called. The prisoner objected that A. ought to be sworn as a juryman unless good cause of challenge were immediately shewn. The Court, however, ordered him to stand by. B, the juror next on the list below A, was one who had been

* Coram Cockburn, C.J., Williams, J., Willes, J.. Bramwell, B., Watson, B. and Channell, B.

challenged by the Crown without cause shewn on the first going through the list. The prisoner objected that B. ought to have been called next after A, but the Court allowed the twelve, who had come in, to be called first, and after some of them had been called, a full jury was formed. But before they were sworn, one of them, C, stated that he had conscientious scruples against capital punishments. The counsel for the Crown thereupon prayed that he might be ordered to stand by. The Judge said, "if you feel you cannot do your duty, you had better withdraw," and C. was then ordered to stand by, notwithstanding objection made by the counsel for the prisoner. The jury were then sworn, and a verdict of guilty found: Held, that the pannel had not been gone through, so as to compel the Crown to shew cause of challenge forthwith at the time the twelve jurors came into court, consequently that the Judge was justified in ordering A. to stand by the second time, though no cause of challenge had been proved against him.— That a statement on the record that A. was ordered to stand by, was good in law, as it amounted to a statement that the Crown was allowed time to shew cause of challenge against A. until the pannel had been gone through. That where an irregularity in practice occurs in calling the jurors out of the accustomed order of the court, it is no ground of error; but that the course pursued of calling the twelve jurymen before any who had been already called once, was quite proper and regular.-That the Judge was right in ordering C. to stand by at the demand of the prosecution.

c

Quære-whether a Judge has not the right to set aside a juryman before he is sworn, though no objection be made by either party, if the Judge finds that the juror is morally incompetent to serve.

The venire to the sheriff directed him to return good and lawful men of the county of Kent to try the case. The record, after setting out the venire, stated that the sheriff returned" the persons following," and then set out the names of the jurors in the pannel: -Held, that it was not error that the record did not shew that the persons returned were good and lawful men of the county; but that it would be presumed that they

were so.

When error is brought by a person convicted of felony from the Court of Queen's Bench to the Exchequer Chamber, the general rules for governing the proceedings in error in civil cases under the Common Law Procedure Act, or the previous General Rules of Hil. t. 4 Will. 4. do not apply; but the prisoner must be brought up to the court to pray oyer of the record, and to assign errors, by delivering them in writing to the officer of the court, and must be present during the argument and the giving judgment. The counsel representing the Attorney General for the Crown may, if he pleases, orally join in error immediately on the assignment of errors being delivered in.

This was a writ of error issued on the fiat of the Attorney General at the instance of the prisoner, to bring before the Court of Exchequer Chamber the judgment of the Court of Queen's Bench, affirming the judgment of the Court of General Gaol Delivery at Maidstone, at which the prisoner was tried for murder and convicted.

The record is set out in the report of the proceedings in the Court of Queen's Bench (1).

A Judge at chambers having granted a habeas corpus to bring the prisoner up to assign errors, the prisoner appeared in court, during the Sittings in error after Trinity term, on the 13th of June 1857, in custody of the gaoler of Maidstone Gaol, and F. Russell, the counsel for him, proposed then to assign errors, but as no intimation had been given to the counsel for the Crown, it was proposed by the Court, and assented to by the prisoner's counsel, that the prisoner should be brought up on the following Monday, the 15th of June 1857, for that purpose; and the Court ordered the gaoler to take the prisoner back to gaol, and to bring him up to court on that day. On the 15th of June the prisoner being brought up accordingly,

F. Russell, for the prisoner, the plaintiff in error.-The question is as to the proper mode of assigning errors in a case of felony. There is no precedent as to the

(1) 26 Law J. Rep. (N.s.) M.C. 273.

course to be pursued in such a case. The rules of practice in error prescribed for civil actions have no application here. The recent practice under the Common Law Procedure Acts is clearly limited to actions at law. It is submitted, that the provisions as to error in the Reg. Gen. Hil. t. 4 Will. 4. are limited in like manner, and do not apply to cases of felony.

[COCKBURN, C.J.-We are of opinion that the rules of practice in question do not apply to proceedings on writs of error in cases of felony.]

It is apprehended that the proper course is, that the prisoner being present in court, his counsel should for him pray oyer of the record; that the prisoner then should personally deliver in the assignment of errors in writing to the Master of the court, in open court, to be filed, following, as nearly as may be, the practice of the Court of Queen's Bench.

Welsby, on behalf of the Attorney General, for the Crown. There is no objection to the course proposed by the prisoner.

[COCKBURN, C.J.-The course suggested seems the proper one; let errors be so assigned.]

Oyer of the record was then prayed, and it was taken as read. The assignment of errors, which in substance was the same as in the court below, was then handed in.

F. Russell, for the prisoner, then applied to the Court to assign counsel to the prisoner to argue the writ of error for him, and the Court thereupon assigned the same counsel as in the court below-F. Russell and G. Denman.

Welsby, for the Crown, immediately joined in error vivá voce, and prayed the Court to allow the case to be set down for argument immediately.

This was acceded to by the Court, and by arrangement a day was fixed (the 23rd of June), and the prisoner was remanded to the custody of the gaoler of Maidstone, who was ordered to bring him up to court on that day.

The plaintiff in error was to deliver paper books to the Judges of the Court of Common Pleas on the Thursday previous; the defendant in error to the Judges of the Court of Exchequer.

F. Russell, for the plaintiff in error (June 23).-The judgment ought to be reversed for the errors appearing on the record. The main objections are, that the record shews that certain persons on the jury pannel were improperly set aside, and that the prisoner was not allowed to have sworn on the jury those to whose services the law entitled him. This is error in law. Improperly allowing or disallowing a challenge to a juror is error-The King v. Edmunds (2), Year Book, 2 Hen. IV. pp. 2, 3. whether it be to the polls-Gray v. the Queen (3), or to the pannel-O'Connell's case (4). If a juror who has been once challenged try the case afterwards on a new distringas, it is error-Moor v. Vaughan (5). Any serious defect in the course of proceedings previous to the trial is error. It is error if the record shews no writ-Vin. Abr. tit.Error,' 595, or a wrong writ-Vin. Abr. tit. 'Error,' 487, or that an infant appears by attorney-Vin. Abr. tit. 'Error,' 488, or if the venire is to a wrong venue-Vin. Abr. tit. 'Error,'536, or if a defect appear in the statement of the form of swearing the jurors-Vin. Abr. tit. 'Error,' 563, or if in the averment that the jury took a view, it is not stated how many jurors took it—Vin. Abr. tit. 'Error,' 62. In like manner it is error if oyer be improperly refused-1 Tidd's Prac. 588, or a repleader be improperly granted or refused-2 Tidd's Prac. 921. If the Justices appoint a juror it is error-in. Abr. 'Error,' Z, 13, Godb. 429; so if the Court withdraw a juror—lin. Abr. tit. ‘Error,' Z, b, 14. The result of these authorities would seem to shew, that if it appear on the record that by any conduct of the Judge contrary to law the constitution of the jury has been altered to the prejudice of the prisoner, it is error on the record, and vitiates the trial and subsequent proceedings.

[WILLES, J.-There is not on this record a challenge and demurrer to it, and a formal judgment given on it. In The King v. the City of Worcester (6), it is said if a Judge overrule a challenge upon debate

(2) 4 B. & Ald. 471. (3) 11 Cl. & F. 427. (4) Ibid. 156.

(5) Cro. Eliz. 430.

(6) Skin. 101.

without a demurrer, it is ground of a bill of exceptions.]

No bill of exceptions lies now in criminal cases. If it be admitted that error lies, supposing there be a demurrer to an illegal challenge, and a judgment given thereon, it would be inequitable that a writ of error should not lie because the challenge has been not only illegally but irregularly allowed. The practical injustice to the prisoner would be the same in each case. Here it is submitted there is a substantial demurrer to the challenge by the Crown in respect of Iremonger when ordered to stand by on both occasions, for the allegation of the prisoner as to each is, in substance, that the ordering him to stand by is bad in law. In the judgment of the Court of Queen's Bench it is admitted that there was a challenge and a sufficient demurrer to it to form the ground of a writ of error, and to entitle the plaintiff in error to judgment in his favour if the pannel had been gone through.

The first and chief objection is, that when Iremonger was called the second time, the prosecution had no right to have him set aside without shewing good cause of challenge against him forthwith, but that Iremonger ought to have been immediately sworn as a juryman, as no sufficient ground of challenge was then proved. The authorities shew that though the Crown has no peremptory right of challenge, yet on the first going through the pannel the Crown may challenge the jurors, and defer shewing cause till the pannel has been gone through-2 Hale P.C. 271; Stamf. P.C. lib. iii. c. 7. f. 162, b; 2 Hawk. P.C. c. 43. p. 569; 4 Black. Com. c. 27. pp. 352, 353; that that privilege of the Crown ceases when the pannel has once been gone through, and if after that the Crown challenge, the challenge ought not to be entertained unless good cause of challenge be forthwith assigned and proved before any other juryman is called. It is important to define the limit, the punctum temporis, at which this right of the Crown ceases, for so far as it extends it is an absolute right, not controulable by the Court however oppressively it may be exercised -The King v. O'Coigly (7). The ques

(7) 26 St. Tri. 1242.

tion turns on the construction of the statute 33 Edw. 1. stat. 4, Ordinatio de inquisitionibus (since repealed, but re-enacted in the 6 Geo. 4. c. 50. s. 29), and the practice and decisions thereon. The object of the statute, as appears from its language, was not only to prevent inquests (that is, trials) remaining untaken, but also to prevent the Crown challenging without shewing cause in any case. It is plain, from the words used, that it was intended that in every case in which the Crown challenged, the truth of the ground of challenge should be inquired into before the inquest was taken. Stamford P.C. lib. iii. c. 7. f. 162, b, says that it appears by this statute that the right of peremptory challenge of jurymen was a prerogative of the Crown, but the Court now are as capable as that ancient author of putting a construction on the language of the act. Modern researches have shewn that, in the times previous to the passing of the statute, the kings exercised a prerogative beyond law —2 Reeve's Hist. Law, 82, 98, Hale's Hist. Com. Law, 163, 1 Lord Campbell's Lives of the Chancellors, 161, 165. The result of the authorities tends to shew that the statute was passed to correct an abuse that had grown up in the administration of justice, and not to abridge a royal prerogative. The statute, therefore, ought not to be construed against the subject. Lord Coke, 1 Inst. f. 157, hastily assumes that the Crown had originally the prerogative of peremptory challenge, but he is only quoting from Stamford, for he uses Stamford's language, but leaves out Stamford's qualifying introductory words-" it appears by this statute." Notwithstanding the intention of the statute, a practice grew up (which has become inveterate) of allowing the Crown to defer shewing its cause of challenge till the pannel had been gone through, and it was found there were not enough jurymen without the persons so challenged. The statute says, that the cause of the challenge shall be inquired into " according to the custom of the Court." It is not unreasonable to suppose that the criminal courts followed the custom or practice in civil cases; for the rule in civil cases is, that either party may challenge a juryman for cause, but he need not shew his cause of challenge until the

It

pannel has been gone through or perused, with this exception, which supports the rule, that if a party has challenged the array and failed, he is obliged to shew cause immediately on each challenge, and is not allowed to defer it till the pannel has been called through-Finch on Law, b. iv. p. 413, Fitzherbert Gr. Abr. tit. 'Challenge,' 174, Trial per Pais, 190, 200. That the pannel was gone through or perused when once called over is evident from the decisions, though conflicting, as to the effect of a challenge on the second perusal-see Bro. Abr. tit. 'Challenge,' pl. 2. pl. 86, Year Book, 37 Hen. 6. 8, Vin. Abr. tit. 'Trial,' 275, 13. In accordance with this rule in the civil cases, it was sometimes held that the prisoner in criminal cases need not shew cause until the pannel had been perused-2 Hale P.C.274, 37 Hen. 6. pl. 8, The King v. Fitzharris (8). If that were the rule still, it is clear that the time for shewing cause would necessarily be when the pannel had been once called through. Convenience would point to this as the only practicable course. is true that the weight of authorities shews that the prisoner does not now possess this privilege, but, if he challenge for cause, must shew cause immediately. But that cannot affect the construction to be put on the same words when they state the privilege of the Crown. The series of decisions shews the Crown must shew cause after all the available jurors have been called, if there is not then a full jury. In Anonymous case, 1677 (9) and The King v. Fitzharris, 1681, it is said the Crown need not shew cause till the pannel be gone through. In 1682, in The King v. Count Coningsmark (10), Pemberton, C.J., after some challenges by the Crown, advised the prisoner to challenge all the rest of the jurors if he wished to make the Crown shew cause. The same rule is laid down in 1682, in The King v. Ford Lord Grey de Warke (11). The various reports of that case shew that the expressions "calling over" the pannel and "perusing" the pannel mean the same thing as "going through" the pannel. In Lord Preston'

(8) 8 St. Tri. 335. (9) Vent. 309.

(10) 9 St. Tri. 12. (11) Ibid. 127.

case (12), in 1691, Holt, C.J. says, "Cause is not to be shewn by the King's counsel till all the pannel be gone through, and then, if there be not twelve left to try, then they are bound to shew cause." Peter Cook's case (13), in 1696, relied on in the judgment below, does not militate against the prisoner. It does not decide that a juror once challenged can again be challenged by the Crown after the pannel had been gone through when called a second time. In that case no juror was called twice. It is true before beginning to call the pannel again, the Judge allowed the defaulters to be called, but here there were no defaulters to call,-at any rate there was no waiting to call them, and the second calling over of the pannel had commenced. But Spencer Cooper's case (14), in 1699, is quite in point. After the pannel had been gone through, Hatsell, B. decided that the Crown was bound to shew its cause.

In Horne Tooke's case (15), in 1794, Eyre, C.J. deemed the pannel to be gone through, and that the Crown ought to shew cause, even though there remained some invalid jurymen who were not ill enough legally to be discharged from serving, but whom the parties assented to excuse, and in O'Coigly's case, Buller, J. expressed his opinion that the pannel had been gone through in the Case of Horne Tooke. In Cropper's case (16), in 1837, on the second calling of the pannel, it is stated that the Crown assigned cause of challenge. The course adopted in Geach's case (17) should have been followed here. There Parke, B. says, "The proper course will be to call the pannel over in the same order as before, calling those who did not answer before and omitting to call those who have been already peremptorily challenged by the prisoner"; and on the name of one who had been previously challenged by the Crown being called, he directed the counsel for the Crown to shew his cause of challenge, and as no sufficient cause was alleged, ordered the juror to be sworn. The judg

(12) 12 St. Tri. 675. (13) 13 1bid. 311. (14) Ibid. 1106. (15) 25 lbid. 25.

(16) 2 Moo. C.C. 18. (17) 9 Car. & P. 499.

The

ment below cannot be affirmed without overruling this decision, which is precisely in point and in strict conformity with the rule to be gathered from all the cases. The rule being thus established, that when the pannel has been gone through the Crown must shew cause, it is contended for the prisoner that the pannel had been gone through when it was demanded that Iremonger should be directed to stand by the second time. Every available juror had then been called,-every juror except the twelve had been called and disposed of, and there were only nine left to serve on the jury, and the inquest was likely to remain untaken for default of jurors. not going through the ceremony of calling the twelve as the list was gone through cannot affect the position of the parties, for they ought not to have been called at all. The Court calls only those jurors. whom it knows can and ought to come. Jurymen who are dead, excused, or exempted are never called. It would be idle for the Court first to excuse a man and then immediately call him. The Court knew that these twelve could not come, for the record shews that they were, by order of the Court, being kept in custody of the sheriff, until they should agree upon their verdict in another case. It would have been a misdemeanour in them to have separated and come into court until they had been duly discharged from the duty upon which they were engaged-4 Black. Com. 360, Co. Litt. 227, b, The King v. Woolf (18). The Judge himself could not have given them leave to come -2 Hawk. P.C. c. 47, s. 1. A person excused or exempted might have waived his privilege, and legally served as juror, but these twelve at the time could not. If the Crown has the right of going over the list again and again, whenever a juryman who has been excused or exempted is not called, it is clear that the Crown will have the right in almost all cases, for generally, in a large pannel, some are excused. The cases, however, contradict this assumption, for in Horne Tooke's case, the pannel was held gone through though several were excused. In Geach's case it is stated one juror was

(18) 1 Chitt. 401.

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