Copyright
Seymour D. (Seymour Dwight) Thompson.

A treatise on the law of trials in actions civil and criminal (Volume 1) online

. (page 38 of 145)
Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 1) → online text (page 38 of 145)
Font size
QR-code for this ebook


G86; State w. Desmoucliet, 32 La. Ann. State, 11) Ohio St. 584; Colt v. Peopie,

1241. 1 Park. Cr. R. (N. Y,^ 611; Com.©.



Tit. I, Ch. II.] SELECTING, DRAWING, ETC., THE PANEL.



27



pution of emergency, to bring in a sufficient number of qutilitied
persons to act as talesmen whenever a dclieiency may occur ; ^ and
these are not summoned for aparticuhir case, but for the business
of the courtgenerally.2 While talesmcnare ordinarily summoned
for a particular case,'^ yet if they sit in a su})sequent case, it is
an irregularity which is tcaivedhy not objecting before verdict."*

§ 27. [Continued.] By whom and liow Summoned. — By

the common law, the selection of talesmen was contided entirely
to the discretion of the sheriff as was the selection of reo-ular
jurors; and this is still the law where not changed by statute ;5
though an order of court controlling his discretion in this matter
is no ground for now trial unless prejudice appears.'' There-
fore, the sheriff and his deputies who perform this duty ought to
bQ properly qualified; and where there is a statute prescribing the
oatJi which they shall take,Uhe omission to administer it will be
error for which a conviction will beset aside. ^ Talesmen should
possess the qualiticat ions of regular jurors, which will be presumed
until the contrary is shown ; '^ and while the summoning'- officer
nust, of course, judge of their qualitications in the tirst instance,
jet he ought not to interrogaie them as to their opinions or bias.^"



Ilaton, 8 Phila. 428; Com. r. Twitcn-
ell, 1 Brewst. (Pa.) 551.

1 Bac. Abr., Juries D, 337; State v.
Lamon, 3 Hawks (X. C), 175; United
States V. Loughery, 13 Blatch. (U. S.)
207; State r. Kane, 32 La. Ann. 999,
State V. Allen, 47 Conn. 121. The
sheriff, orcoroner, Avhen discharging
tlie duties of that ollicer, may of his
own motion specially request the atten-
dance of persons to serve as talesmen
if necessary. Rex v. Dolby, 2 Barn, &
Cress. 104. The statutes of a large
number of the States now provide that
talesmen may be taken from the by-
standers or from the l)ody of the county.

^ Birdv. State, 14 Ga. 43. See also
State V. Dale, 8 Ore. 22'J; United
States V. Lougliery, 13 Blatch. (U S).
2(j7; O'Connor v. State, 9 Fla. 215



^ Wallace v. Columbia, 48 Me 436;
Sliields V. Niagara Sav. Bank, 3 II un
(X. Y,), 477; s c. 5 Th. & C. (N. Y.)
585-

* Rowland v. Giflford, 1 Pick.
(Mass.) 42, note; Wallace r. Colum-
bia, 48 Me. 436

^5 People ?7. Cummiugs, 3 Park. C.
II (X. Y.) 343, 353

« Capehart v. Stewart, 90 N. C. 101

^ Rev. St. Tex. art. 3056.

8 Wyers v, State (Tex.) 2 S. W.
Rep. 722

9 Yelm Jim v. Territory, 1 Wash
Terr. 76; O'Connor v State, 9 Fla.
215; Lee v. Lee, 71 N. C. 139; Mc-
Guffle V. State, 17 Ga. 497.

1" :. Burr's Triai, p 421; State v.
McCartey, 17 Minn. 76; Joy v State,
14 ImL 139



28 ' IMPANELING THE JURY. [1 ThoUip. Tl..



CHAPTER TIL

OF CHALLENGES

Article I. — Challenges to the Array.
Article II. - — ^Peremptory Challenges.
Article III. — Challenges for General Disqualification,
Article IV. — Challenges for Disqualification in Respect of the
Particular Case.
Subdivision 1. — Challenges Grounded on Consanguinity, Affin-
ity, Interest, Affection.
Subdivision 2. — Challenges Grounded on Bias, Prejudice,
Scruple, Opinion.



Article I. — Challenges to the Array.

Section

3L Of the Various kinds of Cliallenges.

32. Partiality of tlie Sumraouiug Ofiicer.

33. Irregularities or Frauds iu Selecting the Genera] List.

34. Irregularities iu Drawing the Panel.

35. Objection to the Officer who Conducts the Drawing,

36. In the Case of Special or Struck Juries.

37. Time of Conducting the Drawing.

38. Irregularities in Summoning the Panel.

39 Resummoning Members of Quashed Panel.

40 Kinds of Challenges to the Polls.

§ 31. Of the Various kinds of Challenges. — ^ There are two
general divisions of challenges: 1. Challenges to the arraij .
2. Challenges to the polls. In the broadest sense, challenges to
the array are grounded upon some objection which, if well taken,
vitiates the whole panel or venire^ and requires its discharge •,
while challenges to the polls are grounded upon objections to par-
ticular jurors. As the entire ofEce of selecting the panel was, at
common law, committed to the sheriff or other summoning offi-
cer, the usual ground of challenging the array under that system



Tit. I, Ch. III.] CHALLENGES TO THE ARRAY



29



related to the partiality, '* unindifferency,"' as it was called, or
other disqualitication of this officer. This ground of challenging
the array still subsists in some American jurisdictions; hut the
more important and frequent ground is a non-compliance with the
law in some substantial particular in the selection of the general
jury list or in the drawing of the panel therefrom.

§ 32. Partiality of the Suimuoniug Officer. — The })artiality
of the summoning officer, grounded upon his sustaining such re-
lations to a })arty as subjected him to the intluence of the latter,^
or ui)on his being related to the adverse party by consanguinity
or affinity, 2 at least within the ninth degree^^ or himself the ad-
verse party to the suit,^ or interested therein,* or the prosecu-
tor in a criminal case,*"' or the advocate of the opposing party
is, at conunon law, a good ground of quashing the array* ^
though the mere fact that he has expressed an opinion adverse to
the case of the challenging party, will not be.** Attempts by a



1 Bac. Al>r. Juries E.; Co. Litt.
l.jiia; Trials per Pais (ed. of ITi!."*;, p.
123.

2 Co. Litt. \o^ia•, Bac. Abr. Juries, E.

2 3 Bla. Com. 3i;3; Vernon v. Man-
ners, 3 Dyer, 319. a. (13); Ouiton v.
Morse, 2 Kerr (X. B.), 77; Vanaukea
r. Beemer, 4 N. J. L. 3G4; Kector «.
Hudson, 20 Tex. 234; Munshower r.
Patton, 10 Serj;. &K. (Pa.) 334: Moun-
seu f. West, 1 Leon. 8t>; Markliani r.
Lee, cited Ibid. See also Foot v.
Morgan, 1 Hill (X. Y.), 054. But not
that he was a sou of the prosecuting
attorney (State v. Cameron, 2 Chand.
(Wis.) 172), or married to the sister
of one who was surety for costs and
who had supported the plaintiff's ac-
tion with his money (Murchison v.
Marsh, 2 Kerr, N. B. 608), or cousin
of the lessor of the plaintiff in eject-
raeat, the lessor not being a party in
interest' Anon., 3 Dyer, 300. b. (35) ;
Goodtitle v. Thrustout, 2 Stra. 1023.

< Cowgill V. Wooden, 2 Blackf.



(Ind.) 332; Cranmer r. Crawley, 1 N.
J. L. 43; Woods r. Kowan, 5 Johns.
(X. Y.) 133; Munsiiower i;. Patton, 10
Seri;. & li. (Pa.) 334. But see State v.
Judge, 11 La. Ann. 79; Prince u. State,
3 Stew. & Port. (Ala.) 253.

5 People V. Tweed, 50 How. Pr. (X.
Y.) 2.s(). See also liex v. Johnson,
2 Stra. 1000.

« Kex V. Shepherd, I Leach, C. C.
11 'J.

' Co. Litt. 15(1. b. : Baylis r. Lucas,
Cowp. 112; Watkins v. Weaver, 10
Joims. (X. Y.) 107; Tallraan v. Wood-
worth, 2 Johns. (X. 1'.) 385; Stubber
V. Wall, 1 Craw. & Dix (Irish) Cir.
54; Chapman v. Macutchin, 1 Craw. &
Dix (Irish) Cir. 121.

<* Friery f. People, 2 Keyes (X. Y.),
424; s. c. 2 Abb. App., Dec. (X. Y.)
215; 54 Barb. (N. Y.) 319; Ferris v.
People, 35 X. Y. 125; s. c. 31 How. Pr.
(X. Y.) 140; 48 Barb. (X. Y.) 17; 1
Abb. Pr. (x. s.) (N^. Y.) 193. In Texas
the only ground of challenging tlie



30



IMPANELING THE JURY.



[1 Thomp. Tr.,



party to influence the summoning ofiicer in the performance of
his duties will have this effect, without discriminating nicely as to
whether prejudice has resulted or not ; ^ though where the party
is a corporation, the mere fact of giving to the sheriff at his re-
quest information as to who the stockholders are, so that he may
avoid summoning them, will not have this effect.^

§ 33. Irregularities or Frauds in Selecting- the General
List. — As already seen, statutes which prescribe the manner of
selecting, by county, town, or other officers, the general list of
persons liable to jury duty from which the panel is drawn, are
generally treated as directory merely.^ It is hence a general
rule that irregularities in the discharge of this duty constitute no
ground for challengino: an arrav.* If the jurors who have been
selected and drawn arc individually qualified, that is generally
deemed suflicient,^ and objections to particular jurors are made
by challenge to the polls. It has been so held in case of a delay



array in criminal cases is tliat " the
otticer summoning the jury lias acted
corruptly, aucl has willfully summoned
persons upon the jury kuown to ha
prejudiced against the defendant, and
with a view to cause him to be con-
victed." Pasc. Dig., art. 3034; E. S.
Tex. 1879 (Code Cr. Proc), art. 024.
See Tuttle v. State, 6 Tex. App. 550 ;
Coker v. State, 7 Tex. App. 83; Cast-
ancdo v. State, 7 Tex. App. 582. See
also Harris v. State, fi Tex. App. 97 ;
Swofford V. State, 3 Tex. App. 88;
Williams v. State, 44 Tex. 34; Bowman
V. State, 41 Tex. 417.

1 McDonald v. Shaw, 1 N. J. L. C
See also State v. Johnson, 1 N. J. L.
219.

- Quinebaug Bank v. Tarl3.ox, 20
Conn. 510.

3 Ante, § 13.

■» People V. Tweed, 50 Hew. Pr. (N.
Y.) 280; Maffett v. Tonkins, (; N.J.
L. 228; Dolan v. People, 64 N. Y. 485;
Foust V. Com., 33 Pa. St. 338;



Jewell V. Com., 22 Pa. St. 94; Com. v.
Walsh, 124 Mass. 32; Woodsides v.
State, 2 How. (Miss.) 655; Malone v.
State, 49 Ga. 210; Brinkley v. State,
54Ga. 371; Foster v. Speed, 32 La.
Ann. 34; Sumrall v. State, 29 Miss.
202; State v. Neagle, (35 Me. 408. But
see Compton v. Legras, 24 La. Ann.
259. Irregularities in tilling the jury
wheel in Pennsylvania; Com. v. Lip-
pard, Serg. & R. (Pa.) 395; in the
custody of the wheel: Curlcy u.Com.,
84 Pa. St. 151; Rollaud v. Com., 82 Pa.
St. 300.

* State V. Massey, and State v.
Baldwin, 2 Hill (S. C), 379; Rafe r.
State, 20 Ga. 80; Perry v. State, 9
Wis. 19: Gettwerth v. Teutonia Ins.
Co., 29 La. Ann. 30; State y. Petrie,
25 La. Ann. 380; Com. v. Walsh, 124
Mass. 32; State v. Hascall, 6 N. H.
352. Conti'a, that a selection under
the provisions of a repealed law is
void: State v. Da Rocha, 20 La. Ann.
350; State v. Morgan, 20 La. Ann. 442,



Tit. I, Ch. III.] CH.\LLENGES TO THE ARRAY. 31

in returning the list to the clerk of the court,' and of informali-
ties of the certificate of selection ; - though a total failure to re-
cord the list, so as to allow the public inspection of it, has been
held a ground of such challenge,"^ and so has a total departure
from the provisions of the law.^ That the selection was not
made by the officer appointed by the statute,^ or that it was
made by an officer who had never qualified,'' or by persons to
Mhom the proper officers assumed to delegate their functions/
will sup})ort such a challenge; but the objection that it was
made by an officer whose term had expired, will not, since he
was still an officer defacto^ and the court will not, on such chal-
lenge, try the title to ti public office.^ That a great dispropor-
tion exists between the number of persons of different religious
beliefs on the panel,^ or that, a ricJt man being defendant, there
are many poor men on the })ancl,'° are not, /;er .se, grounds of
such challenge. Decisions arc found to the effect that a list^
valid on its face, is conclusive upon a prisoner as to its regularity : "
and a monstrous political case resulted in establishing the doc-
trine in England that it will be noground of challenge to the array
that the list is incomplete through frcntd .^'^ But it is confidently
believed that the doctrine in this country is otherwise.'^

1 State V. Gut, 13 Minn. 341. La. Ann. 423. So, under the old law,

- Carter u. State, 5<! Ga. 403; Brink- it was no ground of challense that the

ley V. State, 54 Ga. 371. See also Gar- array was made by a person two days

diner v. People, a Park. C. R. (X. Y.) after he had received his discharge as

157, 198; State ^•. Clarkson, o Ala. 378. sheriff. Hoare v. Broom, Cro. Eliz.

^ Mitchell V. Likens, 3 Blackf. 3(;!). But compare Anou., Dyer, 177.

(Ind.) 2.J8; Mitchell v. Denbo, //.. 2.5;». b. pi. (34).

^ State V. Da Kocha, 20 La. Ann. 35(; ; » Reg. v. Mitchel, 3 Cox, C. C. 1 .

State ij. Morgan, 20 La. Ann. 442. As i" Ibid., p. 30, per Lefroy, B.

a failure to select from the assessment '' Gardiner v. People, fi Park. C. R.

roll. State v. Jenkins, 32 Kan. 477. (N. Y.) 157, 108; State v. Allen, 1 Ala.

5 Elkins V. The State, 1 Tex. App. 442; State v. Clarkson, 3 Ala. 378:
539. See also Shackleford v. The State v. Brooks, 9 Ala. 9.

State, 2 Tex. App. 385. 12 ijeg, v. O'Connell, 11 CI. & Fin.

6 State V. Vance, 31 La. Ann. 39s. 155; s. c. 1 Cox, C. C. 394, See also
' StateD.Newhouse,29La.Ann.821. Reg. v. Fitzpatrick, Craw. & Dix
8 State V. McJunkin, 7 S. C. 21; (Irish), 513; Reg. t?. Conrahy, 1 Craw.

Vance v. Com., 2 Va. Cas. 1(52; Car- & Dix (Irish) Cir. 50. Compare Peo-
peuter v. People, r.4 N. Y. 483; Dolan pie v. Jewett, 3 Wend. (N. Y.) 314, 320.
V. People, lb. 485; State v. Ferray, 22 i3 People v. Tweed, 50 How. Pr. (N.



32



IMPANELING THE JURY



[1 Thomp. Tr.,



§ 34. Irregularities in Drawing the Panel. — In like man-
ner, statutory provisions respecting the drawing of the panel are
generally regarded as directory mercl}'/ so that irregularities
therein, unless plainly operating to the prejudice of the challeng-
ing party, form no ground for challenging the array. ^ Cases
are found, however, Avhere a palpable disregard of the statutory
provisions have been held sufficient ground for such challenge.*^
Thus, if the clerk put upon the panel the names of persons, at
their own request, who have not been regularly drawn, the pres-
ence of these interlopers, called non-jurors, they not being sub-
ject to challenge personally, vitiates the whole panel.'* Stat-
utes are found which enact that only a material departure
from the forms prescribed for the drawing, or the intentional
omission of the sheriff to summon one or more of the jurors



Y.) 204; People v. Dolan, CA N. Y. 485;
Maffett V. Tonkius, (i N. J. L. 228.

' Ante, § 15.

2 Rafev. State, 20 Ga. G4; State v.
Williams, 3 Stew. (Ala.) 454; Friery
V. People, 2 Abb. App. (N. Y.) Dec.
215; s. c. 2 Keyes (N. Y.) 424; 54
Barb. (N. Y.) 319; Ferris v. People,
35 N. Y. 125; s. c. 31 How. Pr. (N. Y.)
140; 48 Barb. (N.Y.) 17; 1 Abb. Pr. (x.
s.) (N. Y.) 193; State v. Guidry, 28 La.
Ann. 630; Pratt v. Grappe, 12 La. 451;
State V. Miller, 2G La. Ann. 579; Mapes
V. People, 09 111. 523; Wilhelm v. Peo-
ple, 72 111. 468; Dotson v. The State,
62 Ala. 141. See also Crane v. Dy-
gert, 4 Wend. (N. Y.) 675; Rolland v.
Cora., 82 Pa. St. 306, 321. Contra,
Jones V. State (Sup. Ct. Ohio 1851), 8
West. L. J. 508 ; Lindley v. Kindall, 4
Blackf. (Ind.) 189; Friery r. People,
Abb. App. (N. Y.) Dec. 215; s. c. 2
Keyes (N. Y.), 424; 54 Barb. (N. Y.)
319; Gardiner v. People, Park. C. R.
(N. Y.) 155; People v. Rogers, 13 Abb.
Pr. (n. s.) (N. Y.) 370; State v.
Squaires, 2 Nev. 227; People v. Ah
Chung, 54 Cal. 398; Piersou v. People,



18 Hun (N.Y.), 239; Cox v. People,

19 Hun (N. Y.), 430; Dolan v. People,
24 N. Y. 485; Claussen v. La Franz, 1
Iowa, 226, 241; State v. Seaborn, 4
Dev. L. (N. C.) 305.

3 .Jones V. State, 3 Blackf. (Ind.)
37; Anon., 1 Bi'own (Penn.), 121 ; Baker
V. Steamer Milwaukee, 14 Iowa, 214;
Priugle V. Huse, 1 Cow. (N. Y.) 432;
McCloskey v. The People, 5 Park. C.
R. (N. Y.) 308. Such persons are
termed non-jurors; they are mere in-
terlopers,, and not being subject to
challenge personally, their presence
vitiates the Avhole panel. Norman v.
Beaumont, Willes, 484; Abbott, C. J.,
in Rex v. Tremaine, 7 Dowl. & Ry.
684, 687; s. c. 16 Eng. C. L. 318; s. c.

,sub nom. Res v. Tremearne, 5 Barn. &
Cress. 254; 11 Eng. C. L. 218.

4 McCloskey v. People, 5 Park. C.
R. (X. Y.) 308; Norman r. Beaumont,
Willes, 484; Rex v. Tremaine, 7 Dowl.
& Ry. 684, 687; s. c. 16 Eng. C. L. 318;
s. c. sub nom. Rex v. Tremearne, 5
Barn. & Cress. 254; 11 Eng. C. L.
218.



Tit. I, Ch. III.] CHALLENGES TO THE ARRAY. 33

drawn, .<liull afford ground of challenge ; i and still other statutes
in various terms, uphold the conclusion that irregularities or infor-
malities in the discharge of this duty will not ^afford ground for
challenging the array. ^

§ 35. Objections to the Officer who Conducts the Draw-
ingr. — Although the officer who conducts the drawing is re<rarded
for many purposes as the substitute of the sheriff at co'inmon
law,3 yet he has not the same power which was possessed by that
officer corruptly to influence the selection of the jury; and there-
fore challenges to the array, grounded on an objection that the
drawing was conducted by a different officer from the one ap-
pointed by law, have not the same force as such a challcno-e
under the old system. Plainly, it will be no objection that the
drawing took place by a deputy of the statutory officer, if the
latter was duly appointed; ' nor that an officer other than the
statutory officers attended and participated in it,^ nor that one
of the statutory officers was temporarily absent, provided no
names were drawn during his absence." Objections to the ;;ar-
hahly of the officer conducting the drawing, such as prevailed on
a challenge to the array at common law, have been abroo-ated by
statute in some of the States ; ' and in one State there Tre hold-
ings to the effect that the fact that the officer who served the jury
process, or drew and arrayed the panel, was the atlorney of the

^Cal. Penal Code, § 1059; Comp. 730; Laws N. Y. igsi, chap 449

c^C'c ''p' '' ''t" '"^" '''"'' ''"'' ^' ''-' '^^•-^- c-1^' ^' - - 1^' - -. -'t. 62^:

Code Cr. Proc, § 227; Miller, R. C. 3 Gardner r. Turner, 9 Johns (N

Iowa, 1880, §§ 27G4, 4400; Stat, at Y.) 360; Jones v. State, 3 Blackf'

Large Minn 1873, p. 1054, §221; Ark. (Ind.) 37; Mitchell ..Likens, M. 258;'

Dig. Stat. 1874. § 1902; Bullett's Ky. Mitchell v. Denbo, Id '>5<)

Codes (Crira.), p. 40, § 199. The « State v. Gav, 25 La" Ann 47'>-

grounds of challenge stated in such People v. Fuller, "2 Park C IJ rx y"^'

statutes are exclusive. State r. Ar- ](;.

nold, 12 Iowa, 479; State v. Raymond, 'a Hunt v. Mavo, 27 La. Ann. 197-

2 f; ^f 'o ^^^^'^ ^- ^ohan, 19 Kan. 28.
ro 1 \] ''''' P- ^'' § ^' ^'''- ' S*^t^ «• ^'-^^ta, 32 La. Ann. 103.

Code M,ss. 1880, § 1.94. See Hare v. r j,. y. Code Rem. Jus., ,.§ 1177,

S ate, 4_Ho>v. TMiss.) 189; Thomas v. 1178. See also Comp. L. Mich. 1871

&-ite, o Id. 20; King v. State, 5 Id. §§ G013, G014.



34 iMPANELiNa THE JURY. [1 Thomp. Tr.,

party, did not disqualify him for the diity.^ But in another
State it is enacted that a person interested in a suit cannot par-
ticijjate in tlie drawing of the panel by which it is to be tried ; ^
and in still another State such a challenge has been upheld on
the ground that the jury commissioner who assisted in the draw-
ing was ix first cousin to the challenging party. '^

§ 36. Ill the Case of Special or Struck Jviries. — It seems
that " unindifferency " in the officer by whom a special or struck
jury has been nominated is no ground for challenging the array,*
though fraud in the preparation of the list from which such a
jury is struck will be.^

§ 37. Time of Conducting the Drawing. — Statutory pro-
visions prescribing the time of conducting the drawing are gen-
erally treated as directory,^ and it has been held no ground of
challenging the array that the drawing took place a greaterlengih.
of time ^ prior to the session of the court than that prescribed ;
but otherwise where it took place within a shorter period of
time,^ the object of the statute being to aiford parties an oppor-
tunity for the inspection of the list.^

§ 38. Irregularities in Summoning the Panel. — From what
has preceded, ^"^ the conclusion follows that irregularities in the

1 Miles V. Pulver, 3 Deu. (N. Y.) jury, that it was returned by the sher-
84; Wakeman v. Sprague, 7 Cow. (N. iff's deputy, who had not taken the
Y.) 720. oath of office. Denn v. Evall, 1 N. J.

2 2 Ind. Stat. 1876, p. 29, § 1. L. 283. In New York it has been held

3 State V. McQuaige, 5 So. Car. 429. that the statutory mode of obtaining
* Eex V. Edmunds, 4 Barn. & Aid. a special jury must be strictly pur-

471. See also Rex 'y. Despard, 2 Man. sued. People v. Tweed, 50 How. Pr.

& Eyl. 40Gr Webb v. State, 29 Ohio St. (N. Y.) 2(J2, 2G3.

351; Rex v. Johnson, 2 Str. 1000; Rex ^ Wilson v. State Bank, 3 La. Ann.

V. Burridge, 1 Str. 593; s. c. 2 Ld. 196, 198; State v. Pitts, 58 Mo. 556;

Raym. 125. See Thomp. & Mer. Jur., State v. Knight, 61 Mo. 373.

§ 144, subsec. 2. ' Crane v. Dygert, 4 Wend. (N. Y.)

5 Maffett V. Tonkins, 6 N. J. L. 224. 675. But see State v. Hascall, 6 N.

In New Jersey, where the sheriff exer- H. 352, 360.

cises powers in respect of juries analo- * Powell v. People, 5 Hun (N. Y.),

gous to those possessed at common 69.

law, it has been held a good ground ^ Ante, § 16.

for challenging the array of a special ^'^ Ante, § 19.



Tit. I, Ch. III.] CHALLENGES TO THE ARRAY. 35

procedure by Avliich tlie panel, selected and drawn, are brought
into court, afford no ground for challenging the array; ^ and ob-
jections to particular persons summoned are not properly taken
by challenge to the array, but by challenge to ihe polls?

§ 39. Resummoning 3Iembers of Quashed Panel. — The

inutility of challenging the array on the ground of irregularities
merely, is illustrated by a class of cases which hold that, where
such a challenge is sustained and a special venire facias issues
for Avant of jurors, the sheriff may resummon the members of
the quashed panel, ^ unless it has been quashed by reason of
fraud.*

§ 40. Kinds of Challenges to the Polls. — It will serve no
use to refer to the confusing divisions and subdivisions of chal-
lenges to the polls at common law.^ All such challenges fall
into two classes: 1. Peremptory challenges, — that is, chal-
lenges for which no reason need be o-iven. 2. Challenffes for
disqualitication, — that is, challenges for which a legal reason
must be given. The latter obviously again fall into two subdi-
visions: 1. Challenges grounded upon general disqualification.
2. Challenges grounded upon disqualification in respect of
the particular case. By a common-law classification, challenges

1 Hartt7. Tallmadge, 3 Day (S. C), <;0 Ala. 1; Baker v. Harris, 1 Winst.
381; Rex v. Eclmuiuls, 4 Barn. & Aid. (N. C.) 277.

471, 489. See also Rex f. Himt, 4 ^ Caperton r. Nickel, 4 W. Va. 137;

Bam. & Aid. 430; People v. McGeery, State v. Degonia, 09 Mo. 485; State v.

6 Park. Cr. (N. Y.) G53., As a niisde- Owen, Phill. L. 425; State u. McCurry,

scription in the ventre /acias by which GS N. C. 33; Smith v. State, 4 Neb.

the act is called "civil" instead of 277. But see Combs v. Slaughter,

"criminal:" State v. Nerbovig, 33 Hard, (Ky.) C2. It has been held that,

Minn. 480. Compare under the stat- upon process directed to the coi'oner,

nte of California: People v. Coyodo, that officer can suramon-the same panel.

40 Cal. 580; People v. Welch, 49 Payne v. McLean, 1 Up. Can. K. B.

Cal. 174; People v. Rodriguez, 10 Cal. (o. s.) 444. Compare Norbury u. Ken-

50. nedy, 3 Crawf. & Dix (Ir.), Cir.

2 Mitchell V. State, 43 Tex. 517; 124.

Gray v. State, 55 Ala. 86; Hall v. State, ^ Kell v. Brilliuger, 84 Pa. St. 276.

40 Ala. 698. See also Hayes v. Reg., = See Thorap. & Mer. Jur., §§ 152,

10 Ii'ish L. 53; Commander v. State, 153.



30 IMPANELING THE JURY. [1 Thomp. Tr.,

for cause "were divided into challenges for jr;7'inc2paZ cause^
and challenges to the favor. The chief importance of this dis-
tinction lay in the fact that the former were tried by the couri,
.whose decision was revieivahle on error, while the latter were
tried by triors^ whose decision was conclusive} With the aboli-
tion of triors, the distinction has become unimportant,, though
still to some extent kept up.

Article II. — Peremptory Challenges.
Section'

42. In what Cases Allowed.

43. Nature of this Right.

44. Number of such Challenges.

45. Number in Cases of Persons Jointly Indicted.

4G. [Continued.] In Case of Several Parties Plaintiffs or Defendants In
a Civil Action.

47. Power of Legislature to Increase or Diminish Number.

48. Canons of Construction Touching the Number of Challenges.
tO. Eight of Prosecution to Stand Jurors Aside.

§ 42. Ill what Cases Allowed. — According to early writers,
peremptory challenges were allowed in capital felonies only, in
favorem vitae? This statement was not far out of the way, in



Online LibrarySeymour D. (Seymour Dwight) ThompsonA treatise on the law of trials in actions civil and criminal (Volume 1) → online text (page 38 of 145)