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Seymour D. (Seymour Dwight) Thompson.

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Gratt. (Va.) 648), is more specious
than sound; since it is met by another
I^rinciple, which is, tliat negligent ig-
norance operates against a party the
same as actual knowledge ; and there-
fore he ought not to be permitted to de-
stroy a verdict by urging a ground of
challenge which, but for his negli-
gence, he might have discovered and
urged at the proper time. Note the
language of Lord Tenterden in Rex v.
Sutton, 8 Barn. & Cres. 417, 419. See
also \yhelan v. Reg., 28 Tp. Can. Q. B.
2, 63, 177, 178; Reg. v. Mellor, Dears.
& Belie. C. 468, 617, per Willes, J.;
Ibid., p. 523, per Byles, J.

1 Brown r. State, 60 Miss. 447. The
mere fact, in a criminal case, that the
prisoner had no knowledge of the
grounds of challenge so as to inter-
pose it at the proper time, counts for
little ; since, as well suggested by Cat-
ron, J., how can tlie court know this
after verdict except by the affidavits of
a convicted felon — proof always to be
had when necessary? McClurei'. State,
1 Yerg. (Teun.) 206, 219. See also
Gillespie I). State, 8 Yerg. (Tenn.) 507;
Calhoun v. State, 4 Humph. (Tenn.)
477; Meyer V. State, 19 Ark. 156.

2 Rex V. Huut, 4 Barn. & Aid. 430,
432; Williams v. Great Western R.
Co., 3 Hiirl. & N. 869, 870; s. c. 28 L.
J. (Exch.) 2; Trueblood v. State, 1
Tex. App. r,50; O'Mealy v. State, 1
Tex. App. 180; "Whituer v. Hamlin, 12



Tit. ] , Cll. I^^] CHALLENGING AND IMPANELING.



123



Unless there is plain evidence of injustice done to the party com-
plainMig, the verdict should be allowed to stand. ^

§117. Evidence in Support of such Objections. — Such
objections, then, are to be received with great caution, as tend-
ing to perjury and to the defrauding of i)ublic justice; ^ other-
wise, as soon as a verdict is rendered, another trial, to wit, that
of the jurors, will begin. ^ It follows that the evidence in sup-
})ort of such objections will be closely scrutinized, and if con-
Jiictinj, the decision of the trial court, refusing a new trial, will



Fla. 2] •, Fiuley v. Hayden, 3 A. K.
JMarsh. (Ky.) 330; Beuuett v. Mat-
thews, 40 How. Pr. (N, Y.) 428;
Zickefoose v. Knykeudall, 12 "W. Va.
23; State v. Madoil, 12 Fla. IT)!; Hull
V. Albro, 2 Disuey (Ohio), 147; Ko-
maiue %, State, 7 lud. 63; Egglestou v.
Smiley^ 17 Johus. (N. Y.) 133; Caiu v.
Ingham, 7 Cow. (N. Y.) 478; Hayes v.
Thompson, 15 Al)b. Pr. (N. Y.) (x. s.)
220; Ftate v. Turuer, 6 La. Auu. 309;
McLe^ lau v. Croftou, 6 Me. 307 ; Tide-
water Canal Co. v. Archer, 9 Gill & J.
(Md.;^ 479; Com. v. Flanagan, 7 Watts
& S. (Pa.) 415; State v. Howard, 17
N. H 171, 198; State v. Stnuider, 11
W. ^ A. 71:5; Brill v. State, 1 Tex. App.
572; Orrae v. Pratt, 4 Cranch C.
C. (T. S.) 121; Maguess v. State, 2
Coldw. (Teun.) 309; Hardeuburgh r.
Cravy, 15 How. Pr. (N. Y.) 307, 309;
Bri^tow's Case, 15 Gratt. (Va.) G18;
Coin. V. Jones, 1 Leigh (Va.), 598;
Cu'-rau's Case, 7 Gratt. (Va.) G19;
Gn-euup v. Stoker, 8 111.202; Seymour
V. Deyo, 5 Cow. (N. Y.) 289; Heath v.
Com., 1 Eol). (Va.) 735; "Wickersham
V. People, 2 111, 129; Presbury v. Com.,
9 Dana (Ky.), 203.

^ Kamadge v. Ryan, 9 Biug. 333;
Davison v. People, 90 111. 221; State
V. Hayden, 51 Vt. 296; Mitchum r.
State, 11 Ga. 015; Anderson v. State,
14 Ga. 709; Eay r. State, 15 Ga. 223;



M^ercer 1), State, 17 Ga. 146; Curran's
Case, 7 Gratt. (Va.) 619; Ash v. State,
56 Ga. 683; Moughou v. State, 59 Ga.
308; Lovettr. State, 60 Ga. 257; Mor-
rison V. McKiuuon, 12 Fla. 652; Re
Bowman, 7 Mo. App. 668 ; Schmidt v.
Rose, 6 Mo. App. 587, 588; Meyer v.
State, 19 Ark. 156; Lawrence v. Col-
lier, 1 Cal. 37; People v. Plummer, 9
Cal. 298; State v. Shay, 30 La. Ann.
114; "Wallace v. Columbia, 48 Me. 436;
SteAvart v. State, 68 Ga. 577; Simms v.
State, 8 Tex. App. 230; Thrall v. Lin-
coln, 28 Vt. 356 ; Parkinson v. Parker,
48 Iowa, 667; Xadenbousch v. Sharer,
4 W. Va. 203; O'Shields v. State, 55
Ga. 696; Mitchell v. State, 22 Ga. 211;
Brinkley v. State, 58 Ga. 296 ; State v.
Dumphey, 4 Minn. 438; Stewart v.
Ewbauk, 3 Iowa, 191 ; State v. Pike, 20
,N. II. 344; State v. Ayer, 23 N. H.
301; Dole v. Erskine, 37 N. H. 317;
Dumas v. State, 63 Ga. 600. Thus,
where the juror has expressed the
opinion that the defendant killed the
deceased, and this indisputably ap-
pears, but self-defense was set up as a
justification, no injury was shown.
State V. Wells, 28 Kan. 321.

2 PerTilghman, C. J., in Moore v.
Philadelphia Bank, 5 Serg. & K. (Pa.)
41, 42.

3 Per Rogers, J., in Com, r. Flana-
gan, 7 Watts & S. (Pa.) 415, 422.



124



IMPANELING THE JURY.



[1 Thomp. Tr.,



not be disturbed on appeal.^ If such an objection assails the
impartiality of a juror, it is due to him and to justice that he be
furnished ^ith the charge, and that his affidavit be taken, deny-
ing it if he can ; ^ and althouo-h such affidavit be not taken, a new
trial will not necessarily follow, if the affidavit in support of the
objection conflicts with his testimony on the voir dire^ since it
will still be merely the case of oath against oath.^

§ 118. Question how viewed on Error or Appeal. — Here,
as in all other cases where the rulings of the trial court are ques-
tioned on error or appeal, those rulings are presumed to be cor-
rect until the contrary is sliow^i ; ^ it will, therefore, be presumed,
until the contrary appears by the record, that the jurors who



1 Miami Valley riirniture Co. v.
Wesler, 47 lud. (>5; Clem v. State, 33
lud. 418; Harding v. Whituey, 40
Ind. 879; Holloway ^7. State, 53 lud.
554; Romaiue v. State, 7 lud. 63;
State t\ Bancroft, 22 Kan. 170; Epps
V. State, 19 Ga. 102, 122; Costly v.
State, 19 Ga. 614; The Auarcliists'
Case, Spies v. People, 122 111. 1; s. c.
12 North East. Rep. 867, 992, 993;
Hughes V. People, 116 111. 331, 337; s.
c. 6 North East. Rep. 55; State v.
Brooks (Mo.), 5 S. W. Rep. 258, 271.

2 Anderson v. State, 14 Ga. 709 ; Tay-
lor v. Greely, 3 Me. 204; States. Kings-
bury, 58 Me. 238; Nash v. State, 2 Tex.
App. 362 ; Davison v. People, 90 111.
221; Columbus v. Goetchius, 7 Ga.
139; Re Bowman, 7 Mo. App. 568;
State V. McDonald, 9 W. Va. 456, 466;
Tenney v. Evans, 13 N. H. 462; Wood-
ward V. Leavitt, 107 Mass. 453; Ray v.
State, 15 Ga. 223; Moucrief v. State,
59Ga. 470; Brinkley v. State, 58 Ga.
296; State ?;. Dumphey, 4 Miun. 439;
State V. Ayer, 23 N. H. 301. Contra,
Vance v. Haslett, 4 Bibb (Ky.), 191.

^ Nash V. State, 2 Tex. App, 362;
State V. McDonald, 9 W. Va. 456;
Hudgins t'. State, 61 Ga. is2; AVest t;.
State (Ga.), 4 S. E. Rep. 325; Dumas



V. State, 63 Ga. 601 ; Com. v. Hughes,

11 Phila. 430. But see Reddle v. State,
3 Heisk. (Tenn.) 401; Henries. State,
41 Tex. 573; Fitzgerald v. People, 1
Colo. 56. In the Anarchists^ Case it is
said by the Supreme Court of Illinois :
" It is a dangerous practice to allow
verdicts to be set aside upon ex jparZe
affidavits as to what jurors are claimed
to have said before they were sum-
moned to act as jurymen. The par-
ties making such affidavits submit to
no cross-examination, and the correct-
ness of their statement is subject to no
test whatever." Spies v. People (111.),

12 North East. Rep. 867, 992, 993; s.
c. 122 111. 1; reaffirmed by the Su-
preme Court of Kansas in State v. Pe-
terson (Kan.), 16 Pac. Rep. 263.

4 Mansell v. Reg., 8 El. & Bl. 54;
s. c. Dears. «& B. 375; Strong v. Kean,

13 Irish L. 93; De Bardelabenu. State,
50 Ala. 179; State v. Monk, 3 Ala. 415,.
417; Chesapeake &c. R. Co. v, Pattou,
9 W. Va. 648; Campbell v. Strong,
Hemp. C. C. (U. S.) 265; Dutton v.
Tracy, 4 Conn. 93, 94; Clark v. Col-
lins, 15 N. J. L. 473; State v. Marshall,
36 Mo. 400; Potsdamcr v. State, 17
Fla, 895; Com. v. Stephen, 4 Leigh
(Va.), 679; Burfey v. State, 3 Tex.



Tit. I, Ch. IV.] CHALLENGING AND IMPANELING.



125



tried the case, were possessed of the qualifications required by
l:nv,^ The disallowance of a statutory or principal cause of
challenire is ground of a venire de novo, as contradistiniruished
from a new trial ; it is a denial of a legal right, and not the er-
roneous exercise of a discretion ; it is therefore subject to re-
view by writ of error, or upon a statutory appeal in the nature
of a writ of error ; ^ and so (under the old system) the refusal
to appoint triors,^ the rejection of competent evidence,* the ad-
mission of incompetent evidence,^ or a misdirection to the triors
in point of law,*' might be corrected, on error or statutory appeal,
l)y a bill of exceptions in the usual way. In the view of some
courts, where the trial of challenges is devolved by statute upon
the court, unless the statute so provides, the decision of the
court upon a challenge ^o the favor cannot be reviewed;^ but
other courts take the view that au appellate court ought to re-
view the action of the trial court on all questions touching the



App. 519; Pauska v. Daus, 31 Tex.
72; State r. Jones, f.I Mo. 232; Mont-
gomery V. State, 3 Kan. 2()o; Green
V. State, 17Fla. 6G9, GTU; Haudliue u.
State, 6 Tex. App. 3^7.

1 Mansell v. Reg., supra; Chesa-
peake &c. R. Co. V. Pattou, 9 W. Va.
Gt8; Shoemaker v. State, 12 Ohio, 43;
Ishamv. State, 1 Sueed (Tenu.), HI;
Turner v. State, 9 Humph. (Tenn.)
119; McClurer. State, 1 Yerg. (Tenn.)
215, pe?" Catron, J. ; Keenau v. State, 8
Wis. 132; State v. Roderigas, 7 Nev.
328. The bill of exceptions must con-
tain a statement of the facts upon
Tvhich the challenge disallowed is
based; otherwise it cannot be con-
sidered by au appellate court. State
v.. Shaw, 5 La. Ann. 342; State v.
Bruington, 22 La. Ann. 9; Ripley v.
Coolidge, Minor (Ala.), 11. This state-
ment must be ill itself sufficient to
support a challenge. State v. Millain,
3 Kev. 409.

2 Rex V. Edmunds, 4 Barn. & Aid.
i"^!, 473; Vicars v Laugham, Hob.



235; Knyastou v. Shrewsbury, An-
drews, 85, 89; Hesketh v. Braddock,
3 Burr. 1847; Reg. v. Gray, 6 Irish C.
L. 259, 2(;7; Huttonv. Hun, Cro. Eliz.
849; Ex parte Yermilyea, 6 Cow. (N.
Y.) 555; People V. Vermilyea, 7 Cow.
(X. Y.) 108; Mann v. Glover, 14 N. J.
L. 205; State v. Shaw, 3 Ired. L. (N.
C.) 532; State v. Davis, 80 N. C. 412,
414.

3 People V. Rathbun, 21 Wend. (N.
Y.) 509; People v. Bodlne, 1 Den.
(N. Y.) 281, 308; Baker t;. Harris, 1
Winst. (N, C.) 277.

■* Meclianics' Bank v. Smith, 19
Johns. (N". Y.) 115.

^ Sanchez v. People, 22 N. Y. 147,
151.

6 State V. Benton, 2 Dev. & Bat. (N.
C.) 196, 222; People v. Bodine, 1
Denio (N".' Y.),281, 308.

T Solander v. People, 2 Colo. 48, 62;
Jones r. People, 2 Colo. 351, Licett v.
State, 23 Ga. 57; Galloway w. State,
25 Ga. 596 ; Eberhart v. State, 47 Ga.
598.



126



IMPANELING THE JURY.



[1 Thomp. Tr.



competency of jurors.^ A statute which grants an exception
where the court disallows a challenge, does not authorize it
where the challenge is alloiued ; since the right of challenge, as
already seen,^ is the right to reject, and not the right to select,
and neither party has the right to have a particular juror sit
on the trial of the case.'^ As the question of the competency of
a juror is a mixed question oflaio and fact, ^ and as the reviewing
court has not the opportunity of observing the demeanor of the
venire-man who is challenged, or of the witnesses whose testi-
mony is weighed, it will defer to the decision of the trial court
and will exercise its power of setting aside that decision with
caution and hesitancy.^ In order to have the erroneous disal-
lowance of a challenge reviewed on error or appeal, the record
must not only distinctly set out the grounds of the challenge,'



1 Winnesheik Ins. Co. v. Schiieller,
GO III. -K;."); Montague v. Com., 10
Gratt. 7i!7; Holt v. People, 13 Mich.
224; Stevens V. People, 38 Mich. 739;
State V. Pike, 49 N. II. 399, 407. The
statute of Kentucky ijrovides that all
challenges are tried by the court, and
that its decision in no case is subject
to exceptions. Bullitt's Ky. Cr. Code,
§212; Terrell V. Com., 13 Bush, 246;
Rutherford v. Com., 13 Bush (Ky.),
608; Morgan V. Com., 14 Bush (Ky.),
lOG. A late statute of New York con-
tains a similar provision, but allows
an exception to the determination of
the challenge and a review by writ of
error or certiorari. Laws N. Y. 1873,
ch. 427; Thomas v. People, G7 N. Y.
218, 222, opinion by Earl, J. See also
Greenfield v. People, 74 N. Y. 277.

2 Ante, § 43.

3 People V. Murphy, 45 Cal. 137,
overruling People v. Stewart, 7 Cul.
140. See also State v. Larkin, 11 Nev.
314; Peoples. Brothertou, 43 Cal. 530;
People w. Colson, 49 Cal. G79; People
V. Atherton, 51 Cal. 495.

* McCarthy v. Railway Co. (Mo.), 4



S. W. Rep. 51 G. See also State?;,
Chatliam Nat. Bank, 80 Mo. G26 ; Mont-
gomery V. Railroad Co. (Mo.), 2 S. W.
Kep, 409.

5 People V. Stout, 4 Parker, Cr. (N.
Y.) 71, 124, opinion by E. Darwin
Smith, J. See also Thomas v. People,
67N. Y. 218, 222, per Earl, J.; The
State f. Tom, 8 Oregon, 177; Jordan
V. State, 22 Ga. 545; Bradford v. State,
15 Ind. 347; March w. Portsmouth &c.
R. Co., 19 N. H. 372; People v. Hen-
derson, 28 Cal. 4GG; Campbell v. Cora.,.
84 Pa. St. 187; May v. Elam, 27 Iowa,
3G5; Davenport Gas Co. r, Davenport,.
13 Iowa, 229 ; Coryell v. Stone, G2 Ind.
307; State V.Saunders (Ore.), 12 Pac.
Rep. 441; Reynolds v. United States,
98 U. S. 145. See also Trenor v. Cen-
tral Pacific R. Co., 50 Cal. 222; Swiss
V. Stockstill, 30 Ohio St. 418; Dew ??.
McDivitt, 31 Ohio St. 139; s.c. 17 Am.,
L. Reg. G23; State v. Dodson, IG S. C.
453. Contra, Montague v. Com., 10
Gratt. (Va.) 7'<w.

6 Ripley v. Coolidge, ]\Iinor (Ala.),
11 ; Rash v. State, 01 Ala. 89 ; Pillion v.
State, 5 Xeb. 351 ; State v. Bullock, 63



Tit. I, Ch. IV. 1 CHALLENGING AND niPANELING.



127



but also the testimony "whicli ^vas adduced for and against
it.i

§ 119. What the Record must show. — Here, as in other
cases of appellate procedure, and especially in criminal cases,
much attention nmst be given to the question, what errors or
irregularities must be affirnuitively exhibited by the record, in
order to be available for reversing the judgment. A general
statement of principle would be, that those steps in the procedure
which are matters of vital or constitutional right to the accused
in a criminal case, must affirmatively appear by the record,
though not necessarily in the form of specific recitals; and that,
in respect of matters of minor ini})ortance, the presumption
spoken of in the last section will su})})ort the judgment. In gen-
real, it nmst affirmatively appear from the record, that the jury
were sicorn ; ^ though, in those jurisdictions where the jury is not



N. C. 570; State v. Ellington, 7 Ircd.
L. (N. C.) 61; People v. Bodine, 1
Den. (N. Y.) 281, 308; Baker r. Harris,
1 Wiust. N. C. 277; State v. Benton, 2
Dev. & Bat. (N. C.) IDG, 217.

i State V. Tom, 8 Ore. 177; Ilaydcu
V. Long, 8 Ore. 2U; State v. Rigg, 10
Nev. 28i.

* Kitter v. Teople, 25 111. 42; Nels
V. State, 2 Tex. 280 ; Cannon v. State,
5 Tex. App. 34; Keunon v. State, 7
Tex. App. 326; State v. Gates, 9 La.
Ann. 94; State v. Donglass, 28 La,
Ann. 425; State v. King, 28 La. Ann.
425; State v. Phillips, 28 La. Ann. 387;
Botsford V. Yates, 25 Ark. 282; Lacey
V. State, 58 Ala. 385; Baird v. State,
38 Tex. 500 ; State v. Calvert, 32 La.
Ann. 224; State f. Keid, 28 La. Ann.
387. It is doubtless true that it
seldom happens, as a matter of fact,
that a jury is not sworn, although the
record omits to state the swearing.
An attempt was lately made in a
Louisiana case to break in upon the
well estal)lished iHile that the record
must show the fact of swearing. Al-



thougli unsuccessful, the result was a
divided court. Ludeling, C. J., ouo
of the dissenting judges, held that,
upon the principle that courts gener-
ally will not listen to objections to the
qualifications of jux'oi'S unless taken
at the proper time, before trial, a
prisoner sliould be presumed to have
waived sucli an informality if it actu-
ally occurred. But, said he: "It is
morally certain that the jury is sworn
in all cases. Tliis results from the
manner in which tlie jurors are se-
lected and sworn in courts, and I can-
not perceive how it is possible to fail
to swear a jury in any case." State
V. Kcid, 28 La. Ann. 387, 388. See
also Ilardenburgh v. Crary, 15 How.
Pr. 307, wliere a verdict rendered hj a
jury, one of the twelve being unsworn,
was upheld. Before a new trial will
be granted in such a case, it must be
demonstrated to the satisfaction of the
court, that tlie party com{)laiuing and
his attorneys were ignorant of the fact,
until after verdict, tliat the juror was
unswcrn. Scott v. Jloore, 41 Vt. 205-



128 IMPANELING THE JURY. [1 Thomp. Tl'.,

sworn in each case, but the entire panel is sworn at the begin-
ning of the term once for all, this recital is regarded as no essen-
tial part of the history of the case.^ But it is sufficient that this
appear by a fair interpretation of the record, although the fact
be not expressly stated.^ According to one conception, where
some of the jurors affirm, the record ought to show that they
were conscientiously scrupulous of taking an oath;^ but this
conclusion is doubtful,^ and by an English statute,^ it is unneces-
sary.

§ 120, No Vested Right in a Particular Juror. — As already
pointed out,*^ the right to reject is not a right to select. No party
can acquire a vested right to have a particular member of the
panel sit upon the trial of his cause until he has been accepted
and sAvorn.^ It is enough that it appear that his cause has been
tried by an impartial jury. It is no ground of exception that,
against his objection, a juror was rejected by the court upon in-
sufficient grounds, unless, through rejecting qualified persons, the
necessity of accepting others not qualilied has been purposely
created.^ Thus, in the process of impaneling, no party is en-
titled, as of right, to have the Jirst juror sit who has the statu-

1 Wacklell v. Magee, 53 Miss. GS7 ^ State ?;. Putnam, IN. J. L. 2G0;
(probably overruling Wolfe v. Martin, State v. Sharp, cited by Kinsey, C. J.,
I How. (Miss.) 30; Beall «. Campbell, in State v. RockafelloAV, 6 N. J. L.
1 How. (Miss.) 24; Irwin v. Jones, 1 332, 341. See also State v. Eox, 9 N.
How. (Miss.) 407) ; Clark v. Davis, 7 J. L. 244; State V.Harris, 7 N. J. L.
Tex. 6.36; Drake v. Brauder, 8 Tex. 3(;i.

351; Pierce v. Tate, 27 Miss. 283; Fur- " Clark v. Collins, 15 N. J. L. 473.

niss V. Mereditli, 43 Miss. 302; Ilewett ^ (5 mij 7 Vict., chap. 85, § 2.

V. Cobb, 40 Miss. CI. But see Buck v. e ^„/(,^ § 43,

Mallory, 24 Miss. 170. See also Goyne ' Mansell v. Keg., 8 El. & Bl. 54, 79.

V. HoAvell, Minor (Ala.), G2; Perdue v. ^ Tatum v. Young, 1 Poi'ter (Ala.),

Burnett, Minor (Ala.), 138. 298; Bibb i-. Eeid, 3 Ala. 88; People

2 Christ V. State, 21 Ala. 37. Por v. Arceo, 32 Cal. 40; Grand Eapids
example, see State v. Christian, 30 La, Booming Co. v. Jarvis, 30 Mich. 308;
Ann. 3G7. Por cases where the record Carpenter v. Dame, 10 Ind. 125; Heas-
•was held, on an interpretation, not to ton v. Cincinnati &c. R. Co., 16 Ind.
show the fact, see Bass v. State, 6 275, 279. Contra, Hildreth v. Troy,
Baxter (Tenn.), 679, 58fi; State v. 101 N. Y. 234; s. c. 54 Am. Rep.
Potter, 18 Conn, 16G, 175; Richi?. State, 68G.

1 Tex. App. 20G.



Tit. I. Ch. IV.] CHALLENGING AND IMPANELING.



129



tory qualifications ; ^ though there are authorities to the contrary,
chiefly based on exaggerated views of the rights of the accused
in criminal trials.^ But this is on principle quite untenable ; since,
if the prisoner has been tried by an impartial jury, it would be
nonsense to grant a new trial or a venire de novo upon this ground,
in order that he might be again tried by another impartial jury.-^
A consequence of this rule is, that when the name of a juror is
drawn and called in court, the accused in a criminal case cannot
demand that the juror shall be called at the door of the court
house, or that an attachment shall issue to bring him in, or that
an officer shall be dispatched for him ; * though, if ti juror ab-
sent himself after he has been sworn, the court may either com-
pel his attendance or dismiss the jury and impanel another.^
Finally, it is a rule of paramount importance that errors com-



1 People V. Arceo, 32 Cal. 40, 44 ;
State V, Pritchard, 15 Nev. 74; State v.
Arthur, 2 Dev. (N. C.) 217; State v.
Beutou, 2 Dt'v, & B. (N. C.) 196, 222;
Smith V. ChiTtou, 2'.) N. ,T. L. 357;
Phelps r. Hall, 2 Tyler (Vt.), 401;
Johu V. State, 16 Fla. 554; State v.
Marshall, 8 Ala. 302; Watson r. State,
C3Iiicl.548; Hurley v. State, 29 Ark.
17, 22; State v. Loveusteiu, 9 La. Aun.
313; State v. Wilson, 48 N. H. 398;
Foster's Case, 13 Abb. Pr. (x. s.) (N.
y.) 372, n. ; Silvis v. Ely, 3 Watts & S.
(Pa.) 420; Citizens' Bank t\ Strauss,
26 La. Aun. 736; State v. Lewis, 28
La. Ann. 84; Clifton v. State, 53 Ga.
241; Paunell v. State, 29 Ga. 681;
Henry r. State, 4 Humph. (Tenn.) 270;
State V. Shelledy, 8 Iowa, 477; O'Brien
r. Vulcan Iron Works, 7 Mo. App.
257.

2 Boles V. State, 13 Sraed. & M.
(Miss.) 3!»S; Williams w. State, 32 Miss.
390; Smith r. State, 55]\Iiss. 410; Finn
V. State, 5 lud. 400; Meyers v. State,
20 Ind. 511. (But see Coryell v. Stone,
62 Ind. 307.) Van Blaricura v. Peo-
ple, 16 111. 364; Greer v. Norvill, 3



Hill (S. C), 262. See also remarks of
Lord Tenterden, ante, § 250.

2 Henry v. State, 4 Humph. (Teun.)
270; Grissonw. State, 8 Tex. App. 386,
398; State v. Raymond, 11 Nev. 98;
Woodard v. State, 9 Tex. App. 412.
But, in the view of some courts, this
rule docs not permit the trial judge to
exclude competent jurors arbitrarily
and unreasonably; but an abuse of
discretion in this regard may be
ground of new trial.

* United States v. Byrne (U. S.
Cir. Ct. S. D. X. y., May, 1881), 7 Fed.
Rep. 435; AValler v. State, 40 Ala. 325;
Bill V. State, 29 Ala. 34; Stewart v.
State, 13 Ark. 721, 737; Hall v. State,
51 Ala. 9; People ^7. Larned, 7 IST. Y.
445; People?;. Vermilyea, 7 Cow. (N.
y.) 369, 382; Johnson v. State, 47 Ala.
9 ; State V. Lovensteiu, 9 La. Aun. 313;
Foster's Case, 13 Abb. Pr. (X. Y.) (n.
s.) 372, 11. ; Boles v. State, 24 Miss.
445; State v. Breaux, 32 La. Ann. 222;
State V. Belcher, 13 So. Car. 459. But
see Johnson v. State, 47 Ala. 9; State
V. Ross, 30 La. Ann. 1154.

5 Peuuell V. Percival, 13 Pa. St. 197.



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

mitted in overruling challenges for cause are not grounds of re-
versal, unless it be shown an objectionable juror was forced up-
on the challenging party after he had exhausted his peremptory
challenges ; ^ if his peremptory challenges remained unexhausted,
so that he might have excluded the objectionable juror by that
means, he has no ground of complaint.^

§ 121. Juror no Vested Right to Serve. — A single decision
is found upholding the idea that a citizen has a vested right to
serve as a juror when drawn ; ^ but the idea is too fantastic for
serious discussion.

1 The Anarchists' Case (Spies v. ^ United States v. Neverson, 1

People) (111.), 12 North East. Rep. Mackey (D. C), 152.
867, 989; s. c. 122 111. 1; Holt v. State, ^ Qj-ger v. Norvill, 3 Hill (S. C),

9 Tex. App. 571; Laggins v. State, 12 262.
Tex. App. 65. But see Wade v. State,
12 Tex. App. 358.



Tit. II, Ch. v.] CONTEMPTS IM FACIE CURIiE. 131



TITLE II.

CO:^TEOL AXD REGULATIO]S' OF THE TKIAL.



Chapter V. — Of the Preservation of Order and the Pun-
ishment OF Contempts.

Chapter VI. — Of Compulsory Process against Witnesses.

Chapter VII. — Enforcing the Stipulations and Adjiissions
of Counsel.

Chapter VIII. — Of Other Subjects of Judicial Conduct
AND Control.



CHAPTER V.

OF THE PRESERVATION OF ORDER AND THE PUNISHMENT OF CON-

TEIVIPTS.
Section

124. Extent of the Power to Punish Contempts.

125. Power of Legishiture to Limit this Power of Courts.

126. Statutory Affirmations of this Power.

127. Immaterial that the Offense is Indictable.

128. What are Superior Courts of Record.

129. Power of Inferior Courts to Punish Contempts.

130. [Continued.] Power of Referees, Court Commissioners, Notaries.

131. [Continued.] Power of .Justices of the Peace.

132. Power of all Courts to Protect their Proceedings from Interruption.

133. Of Direct Contempts or Contempts in Facie Curiae.

134r. Matters whicli have been lield not Contempts in Facie Curice.
135. What Acts are Punishable as Constructive Contempts.
13G. Contempts by Attorneys of the Court.

137. [Continued.] Punishment — Disbarment, Suspension.

138. Procedui-e in Cases of Contempts in Facie Curiae.



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