Where the grand jury has found a bill, the judges before whom the case comes to be tried, ought not to inquire whether the witnesses were properly sworn previously to their going before the jury; and it seems that an improper mode of swearing them will not vitiate an indictment, as the grand jury is at liberty to find a bill upon their own knowledge only. Reg. v. Russell, Car. & M. 247-Wightman. If witnesses go before the grand jury without being sworn, and the bill is found, and the prisoner tried and convicted, it is proper to recommend him for a free pardon. Rex v. Dickinson, R. & R. C. C. 401. A grand jury cannot, on a suspicion that the witness has been tampered with by the prisoner, receive in evidence his written explanation in lieu of his parol testimony, for the purpose of finding a bill. Denby's case, 1 Leach, C. Č. 514. 2. Jurymen. is discovered that the prisoner has a relation on the jury, this is no ground for discharging the jury. Reg. v. Wardle, Car. & M. 647— Erskine. The exemption from serving as jurymen, claimed by the members of the Barbers' Company, under the charters of 1 Edw. 4, and 5 Car. 1, and the 18 Geo. 2, c. 15, does not extend to the Central Criminal Court, but is confined to the local courts of the city, viz. those holden before the mayor, the sheriff or the coroner. White, In re, Car. & M. 189. The jury should take the law from the judge; and therefore, when cases had been cited to the jury in a legal argument, and he had given an opinion on them, they were not allowed to be read to the jury in the address of the prisoner's counsel to them. Reg. v. Parish, 8 C. & P. 94-Abinger. if In a case of felony, the judge will not direct the jury to find special facts, and the jury may, they think proper, find a general verdict, instead of finding special facts with a view to raise a question of law. Reg. v. Allday, 8 C. & P. 136-Abinger. Jurors.]-In criminal cases, twelve jurors must appear on the record. Rex v. St. Michael, 2 W. Bl. 718. A new panel of seventy-two jurors may be ordered by the judge to be summoned during the assizes, and a conviction for felony by a If a jury of matrons wishes to jury selected therefrom, after chal- have the evidence of a surgeon belenging, though more than forty-fore they give their verdict, they eight, is valid. Reg. v. Cropper, 2 M. C. C. 18. Upon the trial of an indictment for a misdemeanor, which continued more than one day, the jury, without the knowledge or consent of the defendants, separated at night:Held, that the verdict was not therefore void. Rex v. Kinnear, 2 B. & A. 462. In general, the assent of all the jury to the verdict pronounced by the foreman in their presence and hearing is to be conclusively inferred; and no affidavit can in any case be admitted to the contrary. Rex v. Wooler, 2 Stark. 111. If during the trial of a felony it should return into court, and the surgeon should be examined as a witness in open court. Reg. v. Wycherley, 8 C. & P. 262-Gurney. Where, in a criminal prosecution, it is essential to prove the particular value of an article, the jury may use that general knowledge which any man can bring to the subject; but if any of the jurors has a particular knowledge on the subject, arising from his being in the trade, he ought to be sworn and examined as a witness. Rex v. Rosser, 7 C. & P. 648-Vaughan. Jurors, Swearing.]-By 30 & 31 any Vict. c. 35, s. 8, a juror in "strued to extend to deprive any "criminal proceeding refusing or "alien indicted or impeached of "being unwilling, from alleged con- " any felony or misdemeanor of the "scientious motives, to be sworn, right of being tried by a jury de may be permitted, on the court" medietate linguæ; but on the "being satisfied of the sincerity of "prayer of every alien so indicted "the objection, to make a solemn or impeached, the sheriff or other "affirmation or declaration." proper minister shall, by com"mand of the court, return for one Swearing Jurors.]-A Scotch cov-"half of the jury a competent enanter may be sworn in as a jury-"number of aliens, if so many man in a court of criminal law by "there be in the town or place the ceremony of holding up his "where the trial is had, and if not, hand, without kissing the book." then so many aliens as shall be Walker's case, 1 Leach, C. C. 498." found in the same town or place, Upon trial of a prisoner for mur-"if any; and no such alien juror der, the name of Joseph Henry" shall be liable to be challenged Thorne was called from the jury "for want of freehold or for any panel as a juror to try him, when "other qualification required by William Thorniley, who was also "that act, but every such alien upon the jury panel, by mistake" may be challenged for any other answered to the name, went into " cause, in like manner as if he the jury-box, and, not being chal-" were qualified by the act." lenged, was duly sworn; the trial proceeded, and the prisoner was convicted and sentenced. The mistake was not discovered till the following day-Held, that this was not a question of law arising at the trial over which the Court of Criminal Appeal had jurisdiction. Reg. v. Mellor, Dears. & B. C. C. 468; 4 Jur., N. S. 214; 27 L. J., M. C. 121; 7 Cox, C. C. 454. Held, also, that there had been a mistrial, and that the court had jurisdiction to set aside the verdict and judgment; and that the proper course was to order a venire de novo. Ib. A juror was summoned in error, but not returned in the panel, and in mistake was sworn to try, during the progress of the trial these facts were discovered. The jury was discharged, and a fresh jury constituted, by taking another juryman in the place of the one who had served in error. Reg. v. Phillips, 11 Cox, C. C. 142-Russell Gurney. De Medietate.-By 6 Geo. 4, c. 50, s. 47,"nothing therein con"tained shall extend or be con None but aliens are entitled to be tried by a jury de medietate linguæ. Reg. v. Manning, 1 Den. C. C. 467; T. & M. 155; 2 C. & K. 887; 13 Jur. 962; 19 L. J., M. C. 1; 4 Cox, C. C. 31. By 7 & 8 Vict. c. 66, s. 16, any foreign woman married, or who shall be married, to a natural-born subject, or person naturalized, shall be deemed and taken to be herself naturalized, and to have all the rights and privileges of a naturalborn subject:-Held, that a woman, who was a native of Lausanne, in Switzerland, and was married to a British subject, was not entitled to a jury de medietate linguæ, as by her marriage her civil and political status was changed, she having ceased to be an alien, and having to all intents and purposes become a British subject. Ib. Semble, that when an alien is indicted jointly with a British subject, he is ousted of his privilege, and cannot have a jury de medietate linguæ. Ib. Where a jury de medietate is claimed by a foreigner, on a trial for murder, the crown is compelled to shew cause of challenge to a "will challenge any of those jurors, foreign juror after the panel has "they shall assign of their chalbeen called over, notwithstanding "lenge a cause certain, and the that the panel has not been ex- "truth of the same challenge shall hausted by giving formal challen- "be inquired of according to the ges. The challenge must be made" custom of the court; and it shall before the book is given into the "be proceeded to the taking of the hands of the jury, and before the "same inquisitions as it shall be officer has recited the oath, and it" found, if the challenges be true is too late, though made before the " or not, after the discretion of the juror kisses the book. Reg. v. Gi-" court, and no person arraigned for orgetti, 4 F. & F. 546-Channell." murder or felony shall be admit"ted to any peremptory challenge "above the number of twenty." 66 any of Taken ill during Trial.]-If a juryman is taken so ill as to be in- By 7 & 8 Geo. 4, c. 28, s. 3, "if capable of attending through the "any person indicted for any treatrial, another juryman returned in "son, felony, or piracy, shall chalthe panel may be added to the "lenge peremptorily a greater num eleven jurymen, but the prisoner "ber of the men returned to be of should be offered his challenges "the jury than such person is enover again as to the eleven, the "titled by law so to challenge, in eleven should be sworn de novo, any of the said cases, every perand the trial begin again. Rex v. " emptory challenge beyond the Edwards, R. & R. Č. C. 224; 2 "number allowed by law in Leach, C. C. 621, n.; 3 Camp. 207,"the said cases shall be entirely n.; 4 Taunt. 309. void, and the trial of such person Where a juryman is taken so ill" shall proceed as if no such chalas to be unable to continue, anoth-" lenge had been made." er juryman may be sworn with the eleven jurymen already on the trial, and the witnesses already heard being recalled. Reg. v. Beere, 2 M. & Rob. 472-Cresswell; S. P., Rex v. Scalbert, 2 Leach, C. C. 620. Copy of Panels.]-A prisoner indicted for felony is not entitled to a copy of the jury panel. Reg. v. Dowling, 3 Cox, C. C. 509. 3. Challenges. By 6 Geo. 4, c. 50, s. 29, "in all "inquests to be taken before the "court of King's Bench, and all "courts of oyer and terminer and gaol delivery, wherein the king is a party, howsoever it be, notwith"standing it be alleged by them "that sue for the king, that the "jurors of those inquests, or some "of them, be not indifferent for the "king, yet such inquests shall not "remain untaken for that cause; "but if they that sue for the king The challenge of a juror, either by the crown or by the prisoner, must be before the oath is commenced. The moment the oath has begun it is too late. The oath is begun by the juror taking the book, having been directed by the officer of the court to do so; but if the juror takes the book without authority, neither party wishing to challenge is to be prejudiced thereby. Reg. v. Frost, 9 C. & P. 136— Tindal, Parke and Williams. After issue joined between the crown and the prisoner when the jury is called, and before they are sworn, is the only time when the prisoner has the right of challenge. Reg. v. Key, 3 C. & K. 371; T. & M. 62, 63; 2 Den. C. C. 351; 15 Jur. 1065. Upon a challenge for cause, the person making the challenge must be prepared to prove the cause. Rex v. Savage, 1 M. C. C. 51. It is no objection in arrest of judgment that the sheriff, who was the prosecutor, returned the jury; it ought to have been taken by way of challenge. Rex v. Sheppard, 1 Leach, C. C. 101. It is not a ground of challenge that a juror on other trials has not found a verdict for the crown. Sawdon's case, 2 Lewin, C. C. 117Coleridge. Alienage is a ground of challenge to a juror; but if the party has an opportunity of making his challenge, and neglects, he cannot afterwards make the objection. Rex v. Sutton, 8 B. & C. 417; S. C. nom. Rex v. Despard, 2 M. & R. 406. A prisoner, in a case of felony, having challenged twenty jurors peremptorily, cannot withdraw one of those challenges to challenge another jury, instead of one that he had previously challenged. Rex v. Parry, 7 C. & P. 836; 1 Jur. 674 If, on the trial of a case of felony, the prisoner peremptorily challenges some of the jurors, and the counsel for the prosecution also challenges so many that a full jury-Bolland. cannot be had, the proper course is to call over the whole of the panel in the same order as before, only omitting those who have been peremptorily challenged by the prisoner, and as each juror then appears, for the counsel for the prosecution to state their cause of challenge; and if they have sufficient cause, and the prisoner does not challenge, for such juror to be sworn. Reg. v. Geach, 9 C. & P. 499-Parke. It is no cause of challenge of a juror by the counsel for the prosecution in case of felony, that the juror is a client of the prisoner, who is an attorney. Ib. Nor that the juror has visited the prisoner as a friend since he has been in prison. Ib. In a case of felony, after a prisoner has challenged twenty of the jurors peremptorily, he may still examine any other of the jurors who are subsequently called, as to their qualification. Ib. There can be no peremptory challenges in collateral issues. Rex v. Radcliffe, 1 W. Bl. 3. No challenge, either to the array or to the polls, can be taken until a full jury has appeared; therefore, where the challenges are taken previously, they are irregularly made, and out of season. Rex v. Edmonds, 4 B. & A. 471. No jury can be challenged until a full jury appears in the box. Reg. v. Lacey, 3 Cox, C. C. 517. On the trial of an indictment for a riot, it is ground for the prosecutor's challenging a juror, that he is an inhabitant of the town where the riot occurred, and that he has taken an active part in the matter which led to it. Reg. v. Swain, 2 M. & Rob. 112; 2 Lewin, C. C. 116 Coleridge. The right of a prisoner to a peremptory challenge of jurors to the number of twenty exists in all cases of felony, and is not confined to those which are punishable capitally. Gray v. Reg. (in error), 11 C. & F. 427; 8 Jur. 879. A challenge of the array, stating that the sheriff "has not chosen the panel indifferently and impartially, as he ought to have done, and that the panel is not an indifferent panel," is bad, as being too general. Reg. v. Hughes, 1 C. & K. 235Gurney and Cresswell. On the trial of a misdemeanor on the crown side of the assizes, it is a fair mode of practice to allow the defendants to object to the jurors, as they are called, without shewing any cause, till the panel is exhausted, and then to recall the jurors in the same order in which they were called at first, and then not to allow any challenge except for cause, and this is the constant practice on the Welsh circuit, where challenges of jurors very frequently occur. Reg. v. Blakeman, 3 C. & K. 97— Wil liams. Where a prisoner was found-Held, that, it being conceded that guilty on an indictment for larceny, the 33 Edw. 1, st. 4, and 6 Geo. 4, which contained a count for a previous conviction, and after conviction for the larceny, the court thought fit to swear the jury afresh to try the question of whether the prisoner had been previously convicted-Held, that he was not entitled to challenge the jury afresh. Reg. v. Key, T. & M. 623; 2 Den. C. C. 347; 3 C. & K. 371; 15 Jur. 1065 21 L. J., M. C. 35. The right of ordering jurors to stand by, in cases of misdemeanor, may be exercised by a private prosecutor equally with the crown. Reg. v. M'Cartie, 11 Ir. C. L. R. 207. On a writ of error upon an indictment for murder, the record stated, that in forming the jury, after challenges by the crown without cause assigned, and by the prisoner, nine only of those called were elected to be sworn. Twelve of the jurors returned upon the panel were during that time deliberating upon their verdict in another case. Thereupon the name of I., who had been before ordered to stand by upon a challenge by the crown without cause being assigned, was again called, and being again challenged by the crown, the counsel for the prisoner prayed that the crown might be put to assign cause. Before any judgment was given by the court the twelve jurors who sat as the jury in the other case came into court and gave their verdict. There upon the counsel for the crown prayed that I. should be ordered to stand by until those twelve should be called. The counsel for the prisoner objected that I. should be sworn, unless good cause of challenge was assigned by the crown. The court adjudged that I. should stand by, and that the names of the jurors who so came into court should then be called instead of the name of P., who stood next after I. The three required to complete the panel were taken from those jurors c. 50, s. 29, did not take away the power of the crown to challenge without assigning cause till the panel had been gone through or perused; the panel had not been gone through or perused, so as to require the crown to assign cause of challenge, when the twelve jurors came into court, nor until their names had been called, and thereupon the judge was right in ordering I. to stand by the second time. Mansell v. Reg. (in error), 8 El. & Bl. 54; Dears. & B. C. C. 375; 27 L. J., M. C. 4-Exch. Cham. The record stated that P., named on the panel, was called, and elected, and tried, to the intent that he should be sworn; without being sworn, he said that he had conscientious scruples against capital punishments. The counsel for the crown prayed that he should be ordered to stand by. The counsel for the prisoner prayed that the crown should assign cause of challenge. The judge told him that if he felt that he could not do his duty he had better withdraw; and thereupon it was ordered by the court that he should stand by-Held, that this was a challenge by the crown without assigning cause, and therefore the judge was right in ordering P. to stand by. Ib. Held, that the statement that the court ordered jurymen to stand by was unobjectionable, as it meant, that, being challenged by the crown, they were to stand aside until the proper time for deciding upon the challenge arrived. Ib. The names of the jurors who had served in the other case, standing in different parts of the panel, were called over consecutively before any one who had been already called once were called again:- Held, that this was a proper course; that there was no fixed rule of practice as to the order in which the names of the jurors on the panel should be |