1 1 '«■■■« ,£--■ Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN HEnORY OF JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daughter ' A. M. BOARDMAN and ELLEN D. WILLIAMS Cornell University Library KF 8972.H66 A practical «'eatise on juries thljrp^^^ DATE p^ 1 ! n jpun ii Tha^nive rsity GAYLORD PRINTED IN U.SA The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924020115303 A PRACTICAL TREATISE ON JUEIES, THEIE POWEES, DUTIES, AHD USES, IN ALL ACTIONS AND PROCEEDINGS, BOTH qiVIL AND CRIMINAL, UNDER THE COMMON LAW, AND UNDER THE STATUTES OF THE UNITED STATES AND OF THE STATE OP NEW YORK. WITH F0BM8. HUGO aiRSH, 07 THE NEW TOBE BAB. NEW-YORK : GEORGE S. DIOSSY, PUBLISHER, 80 NASSAU STREET. 1879. COPYBIGHT, 1879, BY GEORGE S. DIOSST. TO THE HON. HENKY A. MOORE, county judge of kings county, n. y. Sir: In the dedication of this work to you, I am fully conscious that the book, more than yoursplf, will be honored by the association. The record which you have made as an eminent jurist, as an instinct- ive judge of human nature, and as a faithful public servant, consti- tutes a character of which any man might justly feel proud; and while these traits, which are a benefaction in common to the public, cannot be too highly extolled, there are others which shine less in the public eye, but are equally worthy of admiration and praise — I mean those qualities of the heart which have always put you in com- plete sympathy with th^ younger members of the bar. To such qualities I am indebted for good counsel, advice and encourage- ment, and for the interest you have manifested in this work. Hoping your life of usefulness may be spared, and your voice of encouragement for the youthful and struggling may be heard for many and many years to come. With profound respect, I am, your obliged friend, HUGO HIRSH. September, 1879. [iiil PREFACE. The original plan of this work was less compre- hensive than it is ; but when we entered into the labor of searching for authorities on the subject of which we desired to treat, we became sensible of the fact that there was a necessity for a work of this nature, not only for the citizen but also for the legal profession, who were laboring under the great disad- vantage of being deprived of the compilation of the jury law and all the matters incidental and relating to jurors. What was originally intended for the in- struction of the citizen alone, as to his duties as juror, and his rights and privileges as such, has therefore increased the bulk and the value of the volume, and will meet all the demands of the profession so far as the author is able to make it. No practical and thorough work of this kind has ever been published in this country ; and we feel that we can, with jus- tice, invoke for this volume the confidence of the citizen and the lawyer. The complaint is constantly made that the jury system is bad, and that it is time we had a change, &c. This complaint is ill-founded and misapplied. It is but necessary to notice the many years this sys- tem of trial has been in use, and the improvement in [V] VI PEEPACE. the laws and institutions of the countries which have adopted it, to be convinced that it should be con- tinued in full force and vigor ; that it should be im- proved as far as possible, hut not changed or abol- ished. The complaint, if any, should be made against the juror, not the system. The citizen should bear in mind that the duty of the juror appeals to his highest intellectual reasoning powers and faculties, and that, as juror, he has to deal with some of the most profound and important moral and economical problems of the social and business community. To the members of the legal profession we will but say, that if there were nothing in this volume but the compilation of the various statutes — with notes — relating to the many different kinds of jury which we have in this country, no apology for the publication of this work would be necessary ; but, as they will see, it contains considerably more than that to recom- mend it to a place in their libraries, being a practical work on the subject, containing the entire common law and the statutes of the State of New York and United States, including all amendments of 1879. The chapters on challenges and verdicts, new tri- als, &c., will certainly be of great assistance to them, as the authorities cited therein are very comprehen- sive, and include the latest on the subjects to date (1879). The chapter relating to trial by jury in special matters and proceedings will be found particularly valuable, as it contains a compilation of all the laws pertaining thereto, and the authorities upon those subjects. PREFACE. VU The Appendix of Forms attached will be a great accommodation to many ; for, judging from our own experience in the matter, the task of looking through many books and libraries, at times, to find a proper or convenient form required for a particular special proceeding, is a source of considerable trouble and annoyance. The attention of the profession is also called to the sections of the New Code of this State, as yet unadopted, and familiarly known as the Mne Chap- ters, which have been inserted by way of notes to those parts of this work to which they apply, thus showing the proposed changes in the law. For the accommodation of the presiding judges of criminal courts we have inserted the several statu- tory requirements relating to the charges to grand juries. Regarding the first chapter of this book, treat- ing of the " Origin and Progress of Trial by Jury," it may not be amiss for us to remark that it alone has caused much research and study. This subject was heretofore left enveloped in probabilities and obscu- rity ; as few authors had given it the attention it intrinsically deserved, or devoted to it the time and labor required to establish a clear, definite and satis- factory conclusion. During the preparation of this work we have fre- quently been asked our opinion of and upon our present jury system, and whether we could suggest anything that would tend to its improvement. In answer to these inquiries we can but say that we con- sider the jury system in this country unequaled in any other country in its rules, usages and safeguards. Vni PREFACE. We believe that the doctrine of unanimity is one of the fundamental safeguards of this system, and should be rigorously upheld. We believe, further- more, that our jury system is not in need of any improvement, but that the juror is. That this im- provement should consist of the education of those who will hereafter become jurors, in their duties, rights, &c., as such. With confidence that the bench and the bar will appreciate the utility of this volume, we submit it to them. H. H. Brooklyn, N. Y., September, 1879. TABLE OF CONTENTS. CHAPTER I. Origin akd Pbogress of Trial by Jury, . . . §§ 1 to 59. CHAPTER n. QrALTFICATIONS AND EXEMPTIONS OF TRIAL (OR PeTIT) JuRORS, •§§ 60 to 86. CHAPTER m. Mode of Selecting, Drawing, and Procuring the Attendance OF Trial (or Petit) Jurors. Penalties for Non-At- tbndancb. Formation of Juries, . . §§ 87 to 245. CHAPTER rv. Challenges to Jurors, §§ 346 to 510. CHAPTER V. Duties of Trial or Petit Jurors, . . , §§ 511 to 557, CHAPTER VI. The Verdict and its Incidents. Setting aside Verdict, §§ 558 to 705. CHAPTER VII. Mode of Selection, Duties, Qualificai:ions, and Charging op Grand Jurors §§ 706 to 774. [ix] X TABLE OP CONTENTS. CHAPTER Vm. JuROES IN United States Courts rcr Citil akd Cbiminai. Actions AND Peocbbdings, §§ 775 to 819. CHAPTER IX. Jtjbies in Justices' Couets and Coukts of Special Sessions, §§ 820 to 856. * CHAPTER X. Special Juries in Special Mattees and Peocbbdings (iNCLTXDiNa OOEONBE'S JUEY), §§ 857 to 973. FAGS Appendix of Poems 301 Index to Poems, 331 Table op Cases, 335 Index, 355 PEACTIOAL TREATISE ON JURIES. CHAPTEE I. Oeigin AMD Peogeess of Teial by Jttet. Section 1. Trial by jury is sometimes called trial jper pcds, that is, trial by the country. The law expression " may be inquired by the country " means that the case may be referred to a jury for their investigation and de- cision. The law expression " he puts himself upon the country " means that the plaintiff or defendant is willing to have the case tried by a jury. § 2. There are many, yet various opinions, concerning the precise date of the origin of trial by jury; and many learned authors have been unable to determine the exact time when it was first reduced to a definite form or system. Blackstone asserts with certainty that trial by jury was in use among the earliest Saxon colonies. Evi- dences of trial by jury, are found in the records of the nations which adopted the feudal system of government ; for their tribunals were usually composed of " twelve men good and true," chosen from the peers or equals of the parties, plaintifE and defendant, to the action. § 3. In the feudal nations there were two prominent courts ; namely, the King's court, and the LorWs court. 1 2 ORIGIN AND PEOGEESS OF TEIAL BT JUET. The lords, who were vassals of the king, were tried in the Kwig's court by a jury of Lords ; thus by a jury of their peers or equals. The vassals or subjects of these lords were tried in the Cov/rt of Lords by a jury of such subjects or tenants ; hence by a jury of thevr peers or equals. § 4. The preservation of such a system appears to be one of the main objects of Magna Charta, the great Charter of English rights and liberties, which was wrung from King John by his barons assembled in arms on the 19th of June, 1215 ; for the 29th chapter of that Charter re- quires that " No freeman shall be taken or imprisoned, or disseised, or outlawed, or banished, or any ways destroyed, nor will we pass upon him, nor will we send upon him unless by the lawful judgment of his peers, or by the law of the land." * § 5. According to Forsyth, who, many years ago, wrote an extensive work on the " History of Trial by Ju- ry," the English jury is of indigenous growth, and was not copied or borrowed from any of the tribunals that existed on the continent, but that the rise of the jury system may be traced as a gradual and natural sequence from the modes of trial in use amongst the Anglo-Saxons and Anglo-Normans before and after the Norman conquest. § 6. The jury was, originally, such that its verdict was nothing more than the conjoint testimony of a fixed number of persons testifying to facts within their own knowledge. The jurors, even to the reign of Elizabeth, were required to be of the neighborhood in which the cause of the trial originated; and. any juror not belong- ing to such locality or vicinage was liable to be challenged on that ground. § 7. In the Assize as established in the reign of Henry II. we first find the jury in its distinct form. The earliest record extant of a trial by a regularly con- * Nullus liber homo capiatur, vel imprisonetur, aut utlagetur, aut exeletur, aut aliquo mode destruatur; nee super eum ibimus, nee super eum mittimus, nisi per legale judicium parium morum vel per legem' terrse. ORIGIN AND PE0GEE8S OF TEIAL BY JUET. 3 stituted jurata (or jury) is that of an action of ejectment between Edward I. and the bishop of "Winchester in 1290, respecting the right to the custody of the Plospital of St. Julian at Southampton. The verdict was rendered for the king. The following are the names of the jurors in that case : Thomas Peveril, Henry Attecruche, John de Langell, John Pers, Thomas de Yyneter, Walter de Let- ford, Nicholas Gese, Adam le Horder, Hugh Sampson, Henry le Lung, John Wrangy, John Page. . § 8. Among the Anglo-Saxons and others from whom the inhabitants of the British island derived much infor- mation concerning laws, government, justice, trial, etc., it was customary to divide the people into gilds, hundreds, and shires or counties. The gilds, which were commonly called tithings, con- sisted of ten families whose members became responsible for the good conduct of one another. The head of this portion of the community was called " Teethings ealdor," and acted as arbitrator for the settlement of disputes re- lating to matters of a small or trifling nature. § 9. As no regularly organized police was employed, the gild, or the men of the gild, served to, some extent in the capacity of police ; they arrested the person accused of transgression and brought him to justice. If they believed him innocent they were to acquit him by their oaths, but if he was found guilty and then sentenced, they were to pay what was termed "wergeld," which was the allowance to the party injured, and " wite," which was compensation to the state as penalty for the violation of peace and law. § 10. The members of the gild, as well as the several gilds or tithings, were usually bound to one another by the " Peace-Pledge," or as some prefer, the " Frank-Pledge '' or " Free-Pledge," which was their mutual bail or guaran- ty for the preservation of peace, Icm, justice and concord. The members of the gild were entitled to compensation from the wrong-doer, or from the tithing to which he be- longed, for any injury inflicted on any member of their gild. The payment of these damages might be made in money or in cattle. If the transgressor refused to pay the 4 ORIGIN AND PEOGEESS OF TEIAL BY JtJET. legal compensation, which was generally regulated accord- ing to the nature of the offense, and the offender's wealth, he thus left himself liable to the vengeance or "feud" of the injured parties and their friends. " Buy off the spear or bear it," was the ordinary maxim for the deter- mination of this question. § 11. The division by hundreds consisted of ten gilds, or one hundred families, mutually bound to act in the same manner as the members of the tithing. The head man, called the " Hundreds ealdor," was the presid- ing officer of the Hundred-court, which was held once a month, and which had jurisdiction in civil and criminal questions. § 12. The " Scir " division comprised all the Hun- dreds within the limits of the Shire or County. The Shire court was held twice a year, and had jurisdiction in mat- ters affecting several of the Hundreds. The head man who convened and presided over this court was called " Ealdor-man," " Scir-gerefa," " Shire-reeve " or " Sheriff." According to Bouvier, a " reeve " was " a ministerial officer appointed to execute process, keep the King's peace, and put the laws in execution. He witnessed all contracts and bargains, brought offenders to justice and delivered them to punishment ; took bail for such as were to appear at the County court, and presided at the court of folcmote." § 13. Originally the whole of the free male adults of a district might attend and form the monthly or half-yearly court. In early times the jurors acted not only as witnesses, but as judges, and decided the case. Compurgators, usually twelve in number, were witnesses to prove the character of the person accused. The opposite party might summon compurgators to contradict those sworn on the other side. The first party might then call in more ; as many as a thousand were, on one trial, called by the opposing parties. Hallam says that " perjury was the dominant crime of the Middle Ages, encoui'aged by the preposterous rules of compurgation and by the multiplicity of oaths in the ecclesiastical law." ORIGIN AND PROGEESS OF TRIAL BY JURY. 6 § 14. According to some of the best authorities, the nations from which England may have received consider- able light on the question of jury trial were the Greeks, the Romans, the Normans, the Danes, the Lombards, the Franks, the Norwegians, the Swedes and the Scandi- navians. § 15. There are many points of similarity between the tribunals or systems of justice as found in those nations, and the tribunals of justice in England ; still these tribunals are not identical. Chief Justice ISTEiLsoiir, of the City Court of Brooklyn, and many others equally com- petent, maintain that trial by jury is to bo ascribed chiefly to the Romans who ruled Britain during a period of more than 400 years, from B. C. 55 to A. D. 410. § 16. The Romans usually established, as far as practi- cable, their own laws and customs among their subjects. The Normans ruled England from A. D. 1066 to 1115 — a period of less than one hundred years. Many of the laws which they brought were similar to those existing in England. No real progress was made "in the time of Wil- liam the Conqueror towards the institution of trial by jury ; although he separated the civil from the ecclesiastical courts. His successors, who continued in power about sixty-seven years, contributed but Uttle — some say nothing — to establish the jury system. § 17. The justices in eyre, or itinerant justices, when officially visiting the counties, caused to be summoned before them twelve knights, or other good and lawful men, for every hundred, and charged them upon their oaths to inquire respecting crimes and offenses committed within their respective hundreds, that they might be pre- pared to present to the court the suspected or accused per- sons at the time appointed. The Grand Inqusst, which consisted of these knights, or good and lawful men, au- thorized to make inquiry concerning every hundred in the county, was entered (or mentioned) for the first time in the " Liber Assisarum " in the forty-second year of the reign of Edward III. § 18. The presentments made by the knights, being 6 OEIGIBT AND PEOGKESS OF TEIAL BT JUBT. at first supplemental to those of the hundredors,- gradu- ally superseded the latter in jurisdiction and practice. From this grand inquest originated the present grand jury system. § 19. It has heen said of the coroners that they are of so great antiquity that their commencement is not known. The name coroner is found in a charter which was granted by the Anglo-Saxon king Athelston in 925. Coroners held certain pleas or powers, from the Crown, and could pass judgment in criminal cases; but this power was taken from them by chapter 17 of Magna Charta. The earliest statute defining the mode of taking a coro- ner's inquest is that entitled " De Ofl&cio Coronatoris," A. D. 1276. § 20. In the reign of George IV. it was enacted that jurors need be only good and lawful men of the body of the county. The jurors are now summoned from the body of the county, but cannot base their verdict upon any special knowledge which they may possess relating to the matter in dispute. * Jurors at the present time are to de- cide according to the evidence furnished by the persons who have the knowledge of the facts and who testify as witnesses on the trial. § 21. With regard to the trial of civil causes in Eng- land in those which are carried on in the superior courts at common law, questions of fact are to be determined by the verdict of a jury. And by a late statute, parties may, if they both choose, try issues of fact before a judge without a jury. The jury also assess the amount of damages where a wrong is proved or admitted. In courts of equity the judges sometimes direct a disputed question of fact to be tried by a jury. § 22. The practice in the Court of Chancery of send- ing questions of fact to be tried before a jury, existed as early as the year 1400. The right of the jury to judge of the motive or intent, as a question of fact, was not prac- tically settled until 1792, when Mr. Fox's libel bill was passed;' not fully perfected until 1843, when Lord Camp- bell's bill was adopted. OEiaiN AND PE0GEE8S OF TEIAL BY JTTET. 7 § 23. A prisoner, on trial for a capital offense, could not claim the aid of counsel or of witnesses to be examined on oath in his behalf before the reign of William and Mary. And it was not till 1836 that the bill was passed allow- ing counsel to prisoners in all criminal cases. § 24. Many were the struggles between the people and the crown in regard to jury trials. Some of the most not- able state trials were, Sir JSTicholas Throckmorton's in the year 1554 ; "William- Penn's and William Mead's in 1670 ; Alice Lisle's in 1685 ; Eichard Baxter's in 1C85, and the seven Protestant Bishops in 1688.* * Sir Nicolas Throckmorton was tried in the year 1554 on a charge of high treason. Sir Thomas Bromley was Lord Chief Jus- tice, and presided. Sergeant Stanford and the attorney-general were counsel for the Crown. Whetston was foreman of the jury. After hearing the case the jury acquitted the prisoner. The Chief Justice tried, by intimidation, to make the jurors change their ver- dict, but they remained firm, and the foreman answered : "We have found him Tiot guilty, agreeable to all our consciences." The court then sent the jurors to prison. Four of them, for the sake of being released, said they had done wrong ; they were discharged. The remaining eight were brought before the Star-Chamber and re- ceived harsh treatment. Three of them were condemned to pay a fine of £3,000 each ; the rest were obliged to pay a fine of £300 each, yet, through their firmness and conscientiousness the prisoner was acquitted. William Penn and William Mead were tried in the year 1670, on a charge of "having unlawfully and tumultuously assembled and con- gregated a great concourse and tumult of people, and having preached and spoken to those assembled in G-racechurch street, London." The mayor, recorder and aldermen conducted the trial. After two or three witnesses testified that William Penn did preach to the people, and that William Mead was with Penn at the preach- ing, the recorder submitted the case to the jury, who were com- manded to find a verdict of guilty. They disagreed ; four were against conviction, and eight were for conviction. The four who dissented were threatened by the court. The jury were then sent back to consider their verdict, and to find against the prisoners. They returned, however, with a verdict of " Guilty of speaking in Gracechurch street," which was no legal offense. They were again commanded to retire and consider their verdict. They took pen, ink and paper, and after a short consultation, returned with a writ- ten verdict acquitting William Mead, and finding William Pena 8 OEIGIN AND PE0GEES8 OF TEIAL BY JURY. § 25. The trial of the seven bishops, together with the whole Eevolution of 1688, in the reign of James II., served to sweep away the compulsion, fears, coercion and injustice "Guilty of speaking and preaching to an assembly met together in Gracechurch street." The court became furious, and commanded the Jury, for the fourth time, to retire and consider theii- verdict. The court then adjourned to the next day, Sunday, when they met and summoned the prisoners and jury to appear. The jury did not change their verdict. They were again commanded to retire and consider their verdict. They obeyed, but returned on the following day with a verdict acquitting both prisoners.- When the clerk asked the jury, "Is "William Penn guilty ?" they answered, "Not guilty ;" and when the clerk asked, "Is William Mead guilty ?" they answered "not guilty." The jury were then condemned by the court to pay a fine of forty marks each, and to imprisonment until the fine be paid. They were subsequently re- leased from custody on a writ of habeas corpus, and their imprison- ment was adjudged illegal. Mrs. Alice Lisle was tried in the year 1685 on a charge of high treason for having ailorded shelter to one Hicks, a dissenting minis- ter. Jeffreys, who was a leading agent of cruelty and injustice in the service of the King, James II., presided as judge at the trial of this lady, who was then past seventy years of age. JeSreys charged the jury to bring in a verdict of guilty. They brought in a verdict of " not guilty." The judge in a great fury sent them out again to consider their verdict. They again brought in a verdict of " Not guilty.'' Then the judge in a towering rage threatened the jury with attaint, and commanded them to retire again and consider their verdict. At length, over-awed by fear, they brought in a ver- dict of " Guilty." Mrs. Lisle was executed. In the following reign her attainder was reversed by an act reciting, ' ' that she had been convicted by a verdict injuriously extorted and procured by the menaces and violences, and other illegal practices of George JefEreys, Chief Justice of the King's Bench." Richard Baxter, a Nonconformist minister, was tried in 1685, on a charge of seditious libel, for having explained some passages of Scripture in a sense that was not favorable to Roman bishops and others. JefEreys presided as judge at this trial, and, after treating the prisoner and his counsel with much insolence, charged the jury to find a verdict of guilty. The jurors, who were subservient tools of the government, decided according to the unjust demands of JefEreys and James II. , rather than according to evidence, justice, and conscience, and brought in a verdict of guilty. Baxter, instead of being, as was first decided, whipped through the streets at the ORIGIN AND PEOGEESS OF TRIAL BY JDET. 9 which had been employed to force juries to decide unjust- ly, and served to give jurors the independence, liberty, au- thority and right which they now possess, and which enable tail of a cart, was copdemned to pay a fine of £500. His fine was subsequently remitted, and he was finally permitted to continue his preaching. The celebrated trial of the seven Protestant Bishops was held in the year 1688. They were charged with seditious libel. King James II. issued a Declaration Of Indulgence, and required the clergy to publish it in the churches on Sunday. The main object of this indulgence was to release many of his co-religionists — Roman Cath- olics — from certain tests and liabilities, that he might appoint them at his pleasure to public offices, to be instruments of injustice in his service. Many of the leading non-Catholic clergy clearly under- stood that by publishing this declaration they would be apparently sanctioning a prerogative which had been pronounced illegal, and that they would thereby become ridiculous and obnoxious in the eyes of the people who still continued loyal to the decisions of Par- liament, and who still desired the stability of the English govern- ment. The king virtually claimed for himself, in the exercise of such dispensing power, the absolute right and authority of chang- ing and repealing the laws of the land, and disregarding the acts of Parliament according to his own will, caprice, prejudice or pleasure. Such arbitrary power, if granted to the king, tended to a subversion of the government. Burnett, in his history of the reign of James II. , says that the king's power or prerogative of dispensing in such a manner ^^had often been deda/red illegal in Pa/rliament." Seven bishops presented a petition to the king in which they set forth their reasons for objecting to publish the Declaration of Indulgence. The following were the seven who drew up, signed and presented the petition : Sanckopt, Archbishop of Canterbury. Lloyd, Bishop of St. Asaph. Ken, Bishop of Bath and Wells. Tdrnek, Bishop of Ely. Lake, Bishop of Chichester. Whitb, Bishop of Peterborough. Tbelawnby, Bishop of Bristol. \ They declared that they could not, in honor, prudence, justice or conscience publish the Declaration. Macaulay, in his History of England, says: " That the Declara- tion of Indulgence was unconstitutional is a point on which both the great English parties have always been entirely agreed." "No 10 OEIGIK AND PE0GEES3 OF TEIAL BY JUET. them, if they desire, to decide justly, impartially, according to evidence and conscience. The Bill of Eights of that year, article I., section 11, expressly declares that jurors ought to be duly impanneled and returned, and jurors which pass upon men in trials for high treason ought to be freeholders. § 26. Lord Erskine says that " trial by jury is the best security of every order of the State." Lord Brougham makes the following statement con- cerning the jury system : " I certainly retain the opinion which I always had in common with all the profession, that the best tribunal for investigating contested facts is a jury of twelve men." constitutional question had ever been decided more deliberately, more clearly, or with more harmonious consent." "That he, James 11., could by one sweeping edict authorize all his subjects to disobey whole volumes of laws, no tribunal had ventured, in the face of the solemn parliamentary decision of 1673, to affirm." The seven bishops, however, were, by the king's command, first summoned to appear before the council or king's court, and were then imprisoned in the Tower. On the 39th of June they were tried in the court of King's Bench on the charge of "having written and published a false, malicious, and seditious libel." Westminster Hall, Old and New Palace Yard, and all the neighboring streets, to a great distance, were thronged with people. Such an auditory had never before, and has never since been assembled in the court of King's Bench. The audience listened with as much anxiety as if the fate of every one of them was to be decided by that verdict. The masses of the people, to the remotest parts of the land, were in sympathy with the prisoners. The foreman of the jury was Sir Roger Langley, a baronet of an honorable family. With him were associated, as jurors, a knight and ten esquires. One of the jurors, Michael Arnold, who was brewer to the king's palace, said: "I am sure to be half -ruined, whatever I do ; for if I say not guilty I shall brew no more for the king ; and if I say guilty, I shall brew no more for anybody else." Every eifort was made by the king's agents to have the prisoners convicted. The jury were obliged to remain out all night. Such was their extreme thirst that the water brought in the morning for them to wash with, was lapped up to the last drop. After long deliberation they brought in a verdict of " Not guilty." The joy of the people throughout the kingdom, on learning that the prisoners were acquitted, was beyond the power of description. ORIGIN AND PKOGEESS OF TEIAL BY JURY. 11 Cockbum, present Chief Justice, said, in "Winsor v. Queen (118 Mig. Com. L. ITO), "Our ancestors insisted on unanimity as of the essence of the verdict, but were un- scrupulous how that unanimity was obtained. "Whether the minority gave way to the majority or the reverse ap- peared to them a matter of indifference. It was a contest between the strong and the weak, the able-bodied and the infirm, as to who best could bear hunger and thirst, and all the discomforts incident to the confinement. In our day we look upon trial by jury, and the principle upon which jurors ought to find their verdicts, in a different way. "We desire unanimity, it is true, but the unanimity, n'ot of coer- cion, but of conviction." . § 27. The Scottish jury was feudal in its institution, having probably been directly imported from France, and its character as a testifying, rather than an adjudging body, lasted down to a comparatively late period. But the general spirit of the English system has had an influence over the tendency of its neighbor. § 28. In the reign of Charles II. the courts endeavored, in criminal cases, to take out of the hands of the jury the plain question of " guilty " or " not guilty," by settling be- forehand a train of facts whence guilt might be presumed, and requiring the jury to find whether these facts were or were not established. It was not until the trial of Carnegy of Finhaven for the murder of Lord Strathmore in 1728, that they re-established their privilege to give a general finding of guilty or not guilty. § 29. The class of persons of whom juries are to con- sist has varied at different periods, and the specific qual- ifications of the juryman is at present peculiar to each of the United Kingdoms. § 30. In Scotland there is no coroner's inquest. In or- dinary criminal prosecutions there ia no grand jury, and the ordinary jury or assize, consisting of fifteen, give their verdict by a simple majority. In questions of treason the English system was, much to the discontent of the country, introduced immediately after the Union. § 31. The Court of Session, consisting, like the penal 12 OEIGIN AND PEOGRESS OP TRIAL BY JURY. jury, of fifteen members, represented the old judicial com- mittees of parliament or the grand jury of the nation. Their methods of procedure had down to a very late period several elements of a popularly deliberative character, dis- tinguishing them in an emphatic manner from the rigid legal technicalities of the English common law courts. In the year 1815, it was determined that the English sys- tem of jury trial should be brought into Scotland, and a separate court of commissioners was appointed to carry it into effect. In 1830, after what was deemed a sufficient trial of the system in this separate foi-m, it was made a portion of the ordinary jurisdiction and procedure of the Court of Session. § 32. But jury trial in civil cases was inconsistent with the traditional spirit of the Scottish legal tribunals, and has, therefore, not been popular. A people not trained to a traditional veneration for every feature of the system could not see a logical conformity in making twelve men swear that they would do justice to their consciences, and then coercing them by confinement and starvation until they had agreed to be all of one mind. In 1854, the stringency of the rule of unanimity was accordingly relaxed by a provision, that after six hours' dehberation a verdict returned by nine of the twelve jurymen should be effectual (17 and 18 Vict. cap. 59). § 33. The arrangement for substituting the decision of a judge for the verdict of a jury in a civil action, when parties consent that an issue be so tried, was introduced by an act of 1850. § 34. In Ireland, trial by jury is substantiaEy the same as in England, and an act to consolidate and amend the laws relating to juries was passed in 1833 (4 WiU. TV.). § 35. In France, trial by jury owes its formation and establishment mainly to the Eevolution of 1789. Prior to that period, criminal charges were tried by judges who decided both law and fact ; the preliminary proceedings were conducted in secret. This system of secret procedure was borrowed from the Inquisition, and was acceptable to the judges and lawyers, who were, for the most part, OEIGIW AND PROGRESS OP TRIAL BY JURY. 13 ecclesiastics. The people, however, dreaded and detested this secret, inquisitorial system so much, that it did not become general throughout the nation before the year 1539, when it was finally established by a royal ordinance. This system, which was made an engine of grievous injus- tice and horrible torture, both moral and physical, con- tinued in force down to the year 1780. It was effectually overthrown, and trial by jury in criminal cases was estab- lished, by a law of the Constituent Assembly on Septem- ber 16, 1791. The jury of accusation, or grand juiy, which was then established, was abolished by the Code Napoleon, in 1,808. In relation to the trial by jury some modifications and changes took place in the Code IS'apoleon, from the time of its introduction in 1808, to the Revolution of 1848. § 36. A law of May, 1830, regulates the mode of vot- ing in coming to a conclusion as to verdict. Every juror receives a slip of paper, marked with the stamp of court, from the foreman^ and ort this he writes, v/ithout letting his colleagues know what he has written, his decision in the case ; he then hands that slip folded to the foreman, who is to deposit it and all the others, in a box kept for that purpose. The foreman then draws out the slips of paper and writes the result without stating the number of votes, except when there is a majority of only one for con- viction. These slips must then be burned in the presence of the jury. Since the year 1831, a majority of two-thirds is required to render a verdict. § 37. Trial by jury was introduced into Belgium, in 1830, at the time of the Revolution, when that country separated from Holland. It was received in the kingdom of Greece, in 1834, and is expressly retained by one of the articles of the New Constitution granted in 1843. § 38. It was partially adopted by Portugal in 1832, and more firmly estabUshed by a law of 1837. § 39. Trial by jury was established in Geiieva, by a law of January, 1844. The system there recognizes the distinction between a verdict of guilty under extenuatmg 14 ORIGIN AND PROGEiSSS OF TRIAL BY JURY. circumstances, and a verdict of guilty under very extenuat- mff circumstances. § 40. Trial by jury was adopted many years ago, by the government of Sardinia. § 41. On May 33, 1850, the Archbishop of Turin, M. Franzoni, was tried by a jury and found guilty of an offense against the laws of the State, for having published a circular in which he commanded the clergy not to recognize the jurisdiction of the sectilar tribunals. § 42. Trial by jury as a popular right and benefit, was one of the results of the great revolutions or convulsions which agitated the continent, during a period of more than haK a century, from 1Y89 to 1848. § 43. When the French, in 1789, became masters of the provinces bordering on the E.hine, they introduced trial by jury in criminal cases. The people having experi- enced the advantages of this system, were generally in favor of its continuation and extension. In many of the Rhine provinces, however, which were subsequently united to Prussia, and throughout Germany, so strong was the feeling of hostility to the French name, to French do- minion and institutions, that this tribunal was in danger of being swept away. Prussia, however, appointed a commission of five well-qualified persons to investigate the working of the jury system, and the wishes of the people on the subject in these provinces. The commissioners, after long and serious inquiry, reported unanimously in favor of its continuation. The Prussian government sub- mitted to that decision, and trial by jury was preserved. § 44. Ehenish Hesse and Bavaria retained the same mode of trial. § 45. In Prussia proper, the Constitution of December, 1848, guaranteed the introduction of trial by jury into the courts of criminal justice. This guarantee was redeemed by the government in January, 18'i9, by the promulgation of a law establishing and regulating this tribunal. Political offenses, however, were withdrawn from the cognizance of juries in the Prussian dominions by a law of April 15, 1851. ORIGIN AND PEOGKESS OF TRIAL BY JURY. 15 § 46. In Bavaria and Hesse the jury system in criminal cases was adopted in 1848. It was adopted in "Wnrtemburg and Baden in 1849. § 47. An imperial decree abolislied trial by jury throughout the Austrian Empire, January 15, 1852. § 48. Trial by jury began in Russia August 8, 1866.* § 49. After the settlement of the American Colonies, and among the first movements in the assertion of their * Previous to 1871, all the so-called political criminals in Eussia were tried by Senators — the Czar's representatives. In 1.869, a revolutionary society was discovered, and many ar- rests were made. The preliminary inquest lasted till April of 1871, when about eighty persons were submitted to trial by jury.r-the first public trial of political offenders in Russia. All the proceed- ings of the trial were published in the newspapers, and were read and discussed throughout the country. According to the verdict a few persons were sent to Siberia to hard labor, several were exiled, and some were condemned to brief imprisonment, but the large majority (over three-fourths) were found not guilty. The public were pleased with the new way of trial. But to the Czar its result was unsatisfactory, and in order to modify the mistake of the jury, a secret order was issued that denied those who had been acquitted not only the privilege of service in any public capacity, but of teaching in colleges and schools, private or official, and even of working in factories; and, furthermore, provided for their depor- tation to secluded hamlets in distant provinces, where they were kept under the surveillance of the police. In many ways the new form of trial by jury proved troublesome to the government, and how to make it satisfactory became a mo- mentous question. On several occasions, after the great trial of 1871, when prisoners were acquitted, they were rearrested by gen- darmes as they left the court, and sent to the "Unknown lands." This method of action was a failure in the case of Vera Zasulitch, for her friends had made preparations to thwart it. The govern- ment then resorted to other expedients, and sought to impannel such juries as could be trusted to give verdicts in its interest. Under this new arrangement, those charged with political heresy or with Nihilism in 1876 and 1877, in Odessa, Kiew, Kazan, Cliarkow, and other places, were tried or condemned; and thus the government found means to stifle the new way of trial without abolishing it. We may understand the operations of the Russian courts during the past three years by recalling the trials of 1877 in St. Peters- bvirg. 16 ORIGIW AND PROGRESS OP TRIAL BY JURY. rights as freeborn English subjects, the claim to common law rights soon became a topic of universal concern and national vindication. In October, 1765, a convention of delegates from nine colonies assembled at New York, and made and published a declaration of their rights, in which they insisted that the people of the colonies ■vfrere entitled to all the inherent rights and liberties of English subjects, of which the most essential were the exclusive power to tax themselves and trial iy jury. The memorable declaration of rights of the first Continental Congress in October, 1774, and in which was a representative of all the colonies except Georgia, it was explicitly adopted : " that the re- spective colonies were entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, ac- cording to the course of that law ; that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization, and which they had by ex- perience found to be applicable to their several local and other circumstances ; that they were likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws." § 50. Upon the formation of the several State constitu- tions after the colonies had become independent States, and at the time of their adoption they contained the same decla- rations in substance ; and where express constitutional pro- visions on this subject appeared to be wanting, the same principles are asserted by declaratory legislative acts, and Chancellor Kent says : " they must be regarded as funda- mental doctrines in every State government." The articles of confederation did not touch the sub- ject. § 51. In the ordinance of Congress of July, 1787, for the government of the territory of the United States, north- west of the river Ohio, out of which so many of the western States have since been formed, it was declared, among other .things, to be an unalterable article of compact between the original thirteen States and the people and States in the said ORIGIN AND PROGEBSS OF TRIAL BY JURY. 17 territory, that the inhabitants thereof should always be en- titled to the benefit of trial hyjii/ry.* % 52. Trial by jury, in both civil and criminal cases, is a right granted to the people of the United States by the Constitution, adopted in 1789. The Constitution, by section 2, article III., provides that " The trial of all crimes, except in cases of impeach- ment, shall be by jury ; and such trial shall be held in the State where said crime shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed." § 63. Article V. of the Amendments to the Constitu- * Judge Miller, associate justice of the United States Supreme Court, in his address before the Bar Association of the State of New York (as reported in the Albany Law .Journal, Novem- ber 28, 1878, vol. 18, p. 40), spoke upon the subject of trial by jury as follows: "No institution which we have inherited from our ancestors has been as little disturbed by legislative action as trial by jury ; and none seems so firmly jflxed in the aflEections of the people, with all its accessories." After saying that some of the incidents of the system are revolt- ing, he continues: "If a cultivated Oriental were told for the first time that a nation which claims to be in advance of all others in its love of justice and its methods of enforcing it, required as one of its fundamental principles oi jurisprudence that every controversy between individuals and every charge of crime against an offender should be submitted to twelve men, without learning in the law, often without any other learning, and that neither party to the contest could prevail, until all the twelve men were of one opinion in his favor, he would certainly be amazed at the proposition. . . . . Still it is probably wise that no man shall be convicted of an infamous crime until twelve fair-minded men are convinced of his guilt. I am also forced to admit, however, that even in civil cases my experience as a judge has been much more favorable to jury trials than it was as a practitioner. And I am bound to say that an intelligent and unprejudiced jury, when such can be ob- tained, who are instructed in the law with such clearness, precision and brevity as will present their duty in bold relief, are rarely mis- taken in regard to facts which they are called upon to find." After speaking of the origin of the system and the qualifications of jurors, he suggests that there is a fair field open for judicious legislation upon the question of unanimity in civil cases, as well as in the number of the jury, which he considers too large. , 18 ORIGIN AND PEOGRESS OF TRIAL BY JURY. tion provides that " No person shall be held to answer for a capital, or otherwise infamous crime, x^nless on present- ment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger ; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb ; nor shall he be compelled in any criminal case to be a witness against himself ; nor be deprived of life, liberty or property, without due process of law ; nor shall private property be taken for public use without just compensation." § 54. Article YI. of the Amendments provides that " In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascer- tained by law ; and to be informed of the nature and cause of the accusation ; to be confronted with the witnesses against him ; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense." § 55. Article YII. of the Amendments provides that " In suits at common law, where the value in controversy shall exceed twenty doUars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than accord- ing to the rules of the common law." (See Bankruptcy and Admiralty, post) § 66. Throughout the United States, in all trials by jury, the unanimity of the jurors as to their verdict is gen- erally considered essential. There are, however, some dif- ferences relative to juries in the States. The qualifications of jurors vary in the States. § 57. The persons who make up the jury-lists are called sheriffs in Louisiana and other States, select-men in the New England States, trustees in Ohio, supervisors in New York. § 58. In many countries, for a long time after the intro- duction of trial by jury, accusation was certain condemna- tion, especially when the prisoner was accused of any OEIGIN" AND PE0GRES8 OP TRIAL BY JURY. 19 wrong against the rulers or government. The members of the jury were frequently government oflSicials, and, as such, were often extremely servile and pliant agents of injustice. In some countries the prisoner was tortured and other- wise cruelly treated for the purpose of forcing him to crim- inate himself — to confess his guilt when he was reaUy inno^ cent ; and the jurors were, in many cases, imprisoned for acquitting the accused according to evidence and justice, and according to their own conscience. § 59. It may he a matter of surprise to some to learn the fact that jury trial is more prevalent in America than in England at the present time. For more than a century, in England, the practice of exposing persons charged with , minor offenses to trial and " summary conviction " by one or two justices of the peace has been growing more and more prevalent. The number of offenses which are now thus smnmarily triable in England, according to. Mr. Archi- bold, is no less than three hundred and sixty-three. 20 QtTALIFICATIONS AND EXEMPTIONS CHAPTEE II. QuALIFICATIOlfS ACTO EXEMPTIONS OF TeIAL JtTROES. PART I. General Provisions. Seotioit 60. In order to be qualified to serve as a trial juror in a court of record, a person must be : I. A male citizen of the United States, and a resident of the county. II. Not less than twenty-one, or more than sixty years of age. III. Assessed for personal property belonging to him, in his own right, to the amount of $250 ; or the owner of a freehold estate in real property, situated in the county, belonging to him in his own right, of the value of $150 ; or the husband of a woman who is the owner of a like freehold estate, belonging to her in her own right. IV. In the possession of his natural faculties and not infirm or decrepit. Y. Free from all legal exceptions ; of fair character ; of approved integrity; of sound judgment; and well- informed.* § 61. But a person who was assessed, on the last assess- ment-roU of the town, for land in his possession, held under a contract for the purchase thereof, upon which improvements, owned by him, have been made, to the value of $150, is qualified to serve as a trial juror, although he does not possess either of the qualifications specified in subdivision third of the last section, if he is qualified in every other respect.f * New Code, § 1037; 2 B. 8. 411, § 13 (2 Edm. 438). This and subsequent sections of the code relating to jurors are remodeled and their application enlarged, t N&wCode, § 1038; 3 B. 8. 411, § 14. OP TEIAL JFKOES. 21 § 62. Each of the foUbwing officers is disqualified to serve as a trial juror : I. The governor; the lieutenant-governor; the gover- nor's private secretary. II. The secretary of state ; the comptroller ; the state treasurer; the attorney-general; the state engineer and surveyor ; a canal commissioner ; an inspector of state- prisons ; a canal appraiser ; the superintendent of public instruction ; the superintendent of the bank department ; the superintendent of the insurance department ; and the deputy of each officer specified in this subdivision. III. A member of the legislature, during the session of the House of which he is a member. IV. A judge of a court of record, or a surrogate. V. A sheriff, under-sheriff, or deputy-sheriff. VI. The clerk or deputy-clerk of a court of record.* § 63. Each of the following persons, although quali- fied, is entitled to exemption from service, as a trial juror, upon his claiming exemption therefrom : I. A clergyman, or a minister of any religion officiating as such, and not following any other calling. II. A resident officer of, or an attendant, assistant, teacher, or other person, actually employed in a State asy- lum for lunatics, idiots, or habitual drunkards. III. The agent or warden of a State prison ; the keeper of a county jail ; or a person actually employed in a State prison or county jail. IV. A practicing physician or surgeon, having patients requiring his daily professional attention. V. An attorney or counselor at law, regularly engaged in the practice of the law as a means of livelihood. VI. A professor or teacher in a college or academy. VII. A person actually employed in a glass, cotton. It is not enough that a juror possesses the amount of personal prop- erty required by law ; he must le assessed for it. Valton v. N. L. F. Life Ins. Co., 17 Abb. Pr. 268. * NewCode, § 1029. This section is new and covers a number of cases which had .been unprovided for by previous statutes. 22 QUALIFICATIONS AND EXEMPTIONS linen, woolen, or iron manufacturing company, by the year, month, or season. VIII. A superintendent, engineer, or collector on a canal, authorized by the laws of the State, which is actually constructed and navigated. IX. A master, engineer, assistant engineer, or fireman, actually employed upon a steam vessel making regular trips. X. A superintendent, conductor, or engineer, employed by a railroad company, other than a street railroad com- pany ; or an operator or assistant operator, employed by a telegraph company, who is actually doing duty in an office or along the railroad or telegraph line of the company by which he is employed. XI. An officer, non-commissioned officer, musician, or private of the national guard of the State, performing military duty ; or a person who has been honorably dis- charged from the national guard, after five years' service, in either capacity. XII. A person who has been honorably discharged from the military forces of this State, after seven years' faithful service therein. But in order to entitle a person to exemption under this subdivision, his service must have been performed before the twenty-third day of April, eighteen hundred and sixty-two, either as general or staff- officer, or as an officer, non-commissioned officer, musician, or private, in a uniformed battalion, company, or troop of the militia of the State, and armed, uniformed and equip- ped, according to law ; or a portion thereof, during that period and in that capacity, and the remainder, since the twenty-third day of April, eighteen hundred and sixty-two, as a member of the national guard of the State. XIII. A member of a fire company, or fire depart- ment, duly organized according to the laws of the State, and performing his duties therein ; or a person who, af tei faithfully serving five successive years in such a fire com- pany, or fire department, has been honorably discharged therefrom. OF TRIAL JUEOES. 23 XIV. A person otherwise specially exempted by law."* § 64. The evidence of the right to exemption, as pre- scribed in the last section, is as follows : I. Under subdivision second thereof, the certificate of the superintendent or other principal officer of the asylum. II. Under subdivision third thereof, the certificate of the warden, or other principal officer of the State prison, or the sheriff of the county, as the ease requires. III. Under subdivision eleventh thereof, where the applicant is a non-commissioned officer, musician or private in a company or troop of the national guard, the certifi- cate of the commanding officer of the company or troop, accompanied with proof, by affidavit, of the genuineness of the signature thereto. IV. Under the last clause of subdivision eleventh, or under subdivision twelfth thereof, in the discretion of the court, the discharge of the person from military service, if it shows the facts entitling him to exemption. V. Under the first clause of subdivision thirteenth thereof, where the applicant is under the rank of foreman, the certificate of the foreman, or other chief officer of the company to which the applicant belongs, accompanied with proof, by affidavit, of the genuineness of the signature thereto. VI. Under the last clause of subdivision thirteenth * Sew Code, § 1030, as amended in 1879; 2 B. 8. 415, § 33, subd. 4 to 8, incl., and § 34, subd. 1 (2 Edm. 483), and Laws of 1861, c. 315 (3 Edm. 725), and special acta. Subdivision 7 of this section is limited to those who manufac- ture from the raw material, and a person employed in the manufac- ture of machinery from pig and old iron does not come within this exemption. People ex rel. Blake ». Holdridge, 4 Lana. 511. A partner interested in the profits of such business is exempt. Ih. A statute exempting members of a flre company from jury duty, in general does not operate to discharge them from service as tales- men. The object of the law is to afiord them leisure for the per- formance of their duty as firemen; and when their presence in court demonstrates that their services are not required in the line of their employment, the reason of their exemption ceases. State v. Wil- lard, 79 South Oarolina, 660. 24 QUALIFICATIONS AND EXEMPTIONS thereof, the certificate of the chief engineer of the fire department of the city or village where the service was per- formed, or of the mayor or president of the city or village. A certificate, specified in this section, must be dated within three months before the time of presenting it, and filed with the clerk of the court to which it is presented.* § 65. The court must discharge a person from serving as a trial juror in either of the following cases : I. Where it satisfactorily appears that he is not quali- fied. II. Where it satisfactorily appears that he is exempt, and he claims the benefit of the exemption. Where a person is discharged for either of the causes specified in this section, the clerk must destroy the ballot containing his name.f § 66. Upon satisfactory proof of the facts, a court, at the term to which a person is returned as a trial juror, must excuse him from serving during the whole, or a por- tion of the term, in either of the following cases : I. Where he is a justice of the peace, or executes any other civil office, the duties of which are, at the time, inconsistent with his attendance as a juror. II. Where he is a teacher in a school, actually employed and serving as such. III. Where, for any other reason, the interests of the public, or of the juror, will be materially injured by his attendance ; or his own health, or the health of a member of his family, requires his absence ; or he is temporarily incapacitated, for any reason, from properly discharging the duties of a juror. Where a person is excused, in either of the cases speci- fied in this section, the ballot containing his name must be returned to the box from which it was taken.:]: * Nm Code, % 1031; 2 R. S. 415, § 83, subd. 4 (3 Edm. 432) and special acts. t New Code, § 1032; 2 B. S. 415, § 33, subd. 1 to 3 incl., and §34. I New Code, § 1033; 2 B. 8. 415, § 34, with omissions and ad- ditions. OF TRIAL JUEOES. 35 § 6Y. Section ten hundred and twenty-nine (§ 62, cmte) of this act appKes throughout the State. The remainder of this article does not apply to the city and county of New York, or to the county of Kings.* PART n. Pkotisions Relating to Nkw Yokk County. § 68. In order to be qualified to serve as a trial juror, in a court in the city and county of New York, a person must be : I. A male citizen of the United States, and a resident of that city and county. II. Not less than twenty-one, nor more than seventy years of age. III. The owner, in his own right, of real or personal property of the value of $250 ; or 'the husband of a woman who is the owner in her own right of real or personal property of that value. IV. In the possession of his natural faculties, and not infirm or decrepit. V. Free from all legal exceptions, intelligent, of sound mind and good character, and able to read and write the English language understandingly.f § 69. A person dwelling or lodging in the city and county of New York for the greater part of the time between the first day of October and the thirtieth day of June next thereafter, is a resident of that city and county, for that jury year, within the meaning of the last section ; and it is not necessary that he should have been assessed or should have voted there.J * New Code, § 1034. t New Code, § 1079; Lama of 1870, c. 539, §§ 4 and 5, and part of § 6, amended ; and see § 60, ante, and § 79, post. X New Code, % 1080; Laws of 1870, c. 539, § 4; Lams of 1847, c. 495, § 1. 26 QUALIFICATIONS AND EXEMPTIONS § 70. Either of the following persons, although quali- fied, is entitled to an exemption from service as a trial jnror upon his claiming an exemption, as prescribed in this article : I. A clergyman or a minister of any religion, officiating as such, and not following any other calling. II. A practicing physician, surgeon, or surgeon-dentist, having patients requiring his daily professional attention, and not following any other calling. III. An attorney or counselor at law, regularly engaged in the practice of the law as a means of livelihood. IV. A professor or teacher in a college, academy, or public school, not following any other calling. Y. The holder of an office under the United States, o: the State, or the city or county of New York, whosf official duties at the time prevent his attendance as a juror. YI. A consul of a foreign nation. YII. A captain, engineer, or other officer actually em ployed upon a vessel making regular trips ; or a licensee pilot actually following that calling. YIII. A superintendent, conductor, or engineer, en ployed 'by a railroad company other than a street railroii company, or a telegraph operator, employed by a telegraph company, who is actually doing duty in an office or along the railroad or telegraph line of the company by which he is employed. IX. A grand juror, or a sheriff's juror for the year, selected pursuant to law. X. An officer, non-commissioned officer, musician or private actually serving in a brigade, regiment, battalion, company, or troop of the national guard of the State, uniformed and equipped according to law, and faithfully pertorming his duty, by making the parades and attending the drills, inspections and reviews required by law ; or a general or staff officer actually performing duty as such ; or a person who has been honorably discharged from the national guard after five years' service in either capacity. XI. A person who has been honorably discharged from the military forces of the State, after seven years' faithful OP TEIAL JURORS. 27 Bervice therein. But in order to entitle a person to exemp- tion under this subdivision his service must have been per- formed before the twenty-third day of April, eighteen him- dred and sixty-two, either as a general or stafi officer, or as an officer, non-commissioned officer, musician, or private in a uniformed battalion, company, or troop of the militia of the State, and armed, uniformed, and equipped accord- ing to law, or a portion thereof, during that period and in that capacity, and the remainder since the twenty-third day of April, eighteen hundred and sixty-two, as a member of the national guard of the State. XII. A person who, after faithfully performing the duties of a fireman, in a iire company or fire department duly organized according to the laws of the State, for five successive years, has been honorably discharged therefrom. XIII. A person who is physically incapable of perform- ing jury duty by reason of severe sickness, deafness, or other physical disorder. XIY. A person holding office under the fire or police department of the city, or otherwise specially exempted by law.* § Yl. The evidence of the right to exemption, as pre- scribed in the last section, is as follows : I. Under subdivision tenth thereof, where the appli- cant is a member of a company or troop, the certificate of the captain, or other commanding officer thereof, dated within three months of the time of presenting it, or the commissioner of jurors may, in his discretion, receive the certified list, specified in the next section, as sufficient evi- dence thereof. Where the applicant is a regimental officer or a staff officer, the evidence of the right to exemption is the certificate of the major-general, or other officer com- manding the first division. II. Under subdivision tenth thereof, where the appli- cant has been discharged, or under subdivision eleventh or twelfth, the certificate of discharge ; and where it does not * Nmo Code, % 1081, as amended in 1879 ; Laws of 1870, c. 533, § 6, as amended by Laws of 1873, c. 535, with special acts. See notes to § 63, ante. 28 QUALIFICATIONS AND EXEMPTIONS show all the facts, the aflSdavit of the applicant, or of another person acquainted with the facts. III. TJnder subdivision thirteenth thereof, the certificate of a reliable physician or the affidavit of the applicant, or both, or any other evidence satisfactory to the commis- sioner. lY. Under any other subdivision thereof, an affidavit of the applicant, or an affidavit satisfactory to the commis- sioner of another person in his behalf, stating the facts entitling the applicant to exemption. Each certificate specified in this section must be accompanied with satis- factory proof by affidavit, of the genuineness of the signa- ture thereto ; and each affidavit and certificate must be filed with the commissioner of jurors, and must be kept open by him at all reasonable times to public inspection.* § 72. The captain or other commanding officer of each company or troop in the first division of the national guard, must deliver to the commissioner of jurors, on or before the first day of July in each year, and at any other time when he may require it, a list certified by him, contain- ing the full name and residence of each member and officer of his company or troop, who is uniformed and equipped, and faithfully performs his duty as prescribed in subdivision tenth of the last section but one. No other name shall be inserted in the list. The list must be filed in the commissioner's office. The major-general or other officer commanding that division must, when necessary, issue orders to carry this section into effect. ^ He must also furnish to the commissioner of jurors when so re- quired, a list certified by him, containing the name and residence of each officer or other member of that division not comprised in the lists of the companies and troops. An officer who neglects or refuses to perform the duty specified in this section, or who includes in a list certified by him the name of a person who is not described in this section, or who gives a false certificate in a case specified *New Code, % 1082; Lama of 1870, c. 539, §§ 7 and 8 ; and additions. OF TEIAL JUEOES. 29 in the last section, forfeits the sum of fifty dollars for each offense.* § 73. The jury year in the city and county of New York commences on the first day of October . A person who, has actually served as a trial juror in a court of record of the State, within that city and county, twelve days within a jury year, is entitled to be discharged by the court, except that he shall not be discharged until the close of a trial, in which he is serving, when the twelve days expire. A per- son discharged, as prescribed in this section, is thereafter during the same jury year exempt from jury aervice in any county of the State. Where the certificates of one or more clerks of the courts, made as prescribed in section ten hun- dred and eighty-nine of this act, show that a person is entitled to a discharge, as prescribed in this section, the commissioner of jurors must, upon request, certify to the fact. A person cannot serve as a trial juror, in courts of record, at more than two terms in a jury year.f § 74. The judge holding a term, may in his discretion excuse a trial juror from service at that term for not more than three days at a time, where the exigencies of his business require his temporary exemption. The judge may also discharge for the term one or more jurors notified and attending, whose further attendance is not required for the trial of issues at that term. Or he may discharge, until a day certain, one or more jurors notified and attending, whose attendance will not be required for the trial of issues until that day ; each juror so discharged until a day certain must attend at the opening of the court on that day and thereafter, until he is discharged, without further notice. If he fails so to do, he is liable to the same punish- ment, and the same proceedings must be taken as if he had failed to attend at the time fixed in the notice given to him.;]: * New Code, % 1083; Imws of 1870, c. 539, § 31, amended; see § 151, fost, for provision relating to collecting penalty. t New Oode, § 1084 ; Lomb of 1870, c. 539, § 3, as amended by LoMsofli'i^,, c. 460. I New Oode, § 1085; Laws o/1870, c. 539, part of § 1 added to and amended. 30 QUALIFICATIONS AND EXEMPTIONS § 75. Except as prescribed in the last section, a court or a judge shall not excuse a person liable to serve as a trial juror and duly drawn and notified, unless it is shown by the oath of the juror, or if he is unable to attend, by the oath of another person acquainted with the facts, that he is thea necessarily absent from the city and will not return in time to serve, or that the interests of the public or of the juror will be materially injured by his attend- ance, or that he is physically unable to serve ; or that his wife or a near relative of himself or his wife has recently died or is dangerously sick. "Where a person liable to serve is excused in a case specified in this section, or where a person notified to attend a term as a trial juror is entitled 'to and claims an exemption, he can be excused only by the judge holding the term which he has been notified to attend. Such an excuse does not extend beyond that term.* § 76. A person who has been notified to attend as a trial juror, and who applies to be excused as prescribed in the last section, must bring the notice, if he has received it, into court and present it in open court to the judge, or if he cannot personally attend he must send it by a person capable of making the necessary proof in relation to his claim to be excused. A note of the excuse and of the reason therefor, attested by the judge, who must append his signature or his initials thereto, must also be made upon the notice to attend, or if the juror has not brought it into court, upon a separate piece of paper, which must be transmitted to the commissioner of jurors by the clerk, as part of the return, made as prescribed in section ten hun- dred and eighty-nine of this act.f § 77. A person serving as trial juror, elsewhere than in a court of record, is excused from jury duty in a ccurt of record only during the time of his actual service else- where.:]: * New Code, § 1086; Laws of 1870, c. 539, part of § 1 added to and amended. t New Code, § 1087; Lams o/1870, c. 539, § 33, amended. X New Oode, § 1088; Laws o/1870, c. 589, § 8. OB' TEIAL JUH0K8. 31 § 78. The clert of each court of record in the city and county of New York must, within ten days after the close of each term for which trial jurors have been drawn, or after the discharge of the trial jurors, if they are discharged before the close of the term, return to the commissioner of jurors the certified copy of the minute of the drawing of the jurors received from the sheriff, and the sheriff's return thereto, or a copy of each paper certified by the clerk, together with each notice or other paper attested by a judge, as prescribed in the last section but one. The clerk must also deliver to the commissioner therewith his certificate, specifying distinctly and in detail as follows : I. The name and residence of each juror who attended and served,- the number of days the juror attended for the purpose of serving, and the number of days he actually served. II. The name and residence of each juror who was excused or discharged, with the reason therefor. III. The name and residence of each person notified who did not attend or serve. ly. The name and residence of each person fined, and the date and amount of his fine, unless the fine has been remitted, as prescribed in section eleven hundred and nine of this act. The return and certificate must be filed in the commis- sioner's office, and shall not be altered or corrected, except in pursuance of an order of the court. If a clerk fails to make a complete return and certificate, as prescribed in this section, he is guilty of a contempt of the court ; and the commissioner of jurors must institute the appropriate pro- ceedings to punish him accordingly.* PART in. PROVISIONS BKLATING TO TKIAl JTJB0K8 IN THB COUNTT OP KINGS. § Y9. In order to be qualified to serve as a trial juror in a court of record in the county of Kings, a person must be : * New Oode, § 1089; Imws of 1870, c. 639, § 16, amended and remodeled. 32 QTTALIPICATIONS AND EXEMPTIOITS I. A male citizen of the United States, and a resident of that county. II. Not less than twenty-one, nor more than sixty years of age. III. The owner, in his own right, of real property of the value of one hundred and fifty dollars, or of personal property of the value of two hundred and fifty dollars ; or the husband of a woman who is the owner, iu her own right, of real or personal property of that value. IV. In the possession of his natural faculties, and not infirm or decrepit. V. Free from all legal exceptions ; intelligent, of sound mind and good character, and able to read and write the English language understandingly.* § 80. Either of the following persons, although quali- fied, is entitled to an exemption from service as a trial juror upon his claiming an exemption, as prescribed in this article : I. A clergyman, or a minister of any religion officiating as such and not following any other calling. II. A practicing physician, surgeon, or surgeon dentist, having patients requiring his daily professional attention and not following any other calhng. III. An attorney or counselor at law, regularly engaged in the practice of the law as a means of liveli- hood. IV. A professor or teacher in a college, academy, or public school, or in a private school for the instruction of pupils in the usual branches of education, not following any other calling. V. The holder of an office under the United States, or the State, or the county, or the city of Brooklyn, or a town of the county, whose official duties at the time prevent his attendance as a juror. VI. A captain, engineer, or other officer actually * Nm Code, § 1136; Imws of 1858, c. 333, part of § 7, and part of § 10 ; see also §§ 60 and 68, cmte. OF TUIAL JURORS. 33 employed upon a vessel making regular trips, or a licensed pilot, actually following that calling. VII. A superintendent, conductor or engineer employed by a railroad company other than a street railroad company, or a telegraph operator employed by a telegraph company, who is actually doing duty in an office or along the railroad or telegraph line of the company by which he is employed. VIII. An officer, non-commissioned officer, musician or private actually serving in a brigade, regiment, battalion, company, or troop of the national guard of the State, uni- formed and equipped according to law, and faithfully performing his duty by making the parades and attending the drills, inspections and reviews required by law ; or a general or staff officer, actually performing duty as such, or a person who has been honorably discharged from the national guard, after five years' service in either capacity. IX. A person who has been honorably discharged from the military forces of the State, after seven years' faithful service therein. But in order to entitle a person to exemp- tion under this subdivision, his service must have been performed before the twenty-third day of April, eighteen hundred and sixty-two, either as a general or staff officer, or as an officer, non-commissioned officer, musician, or pri- vate in a uniformed battalion, company or troop of the militia of the State, and armed, uniformed and equipped according to law, or a portion thereof, during that period and in that capacity, and the remainder since the twenty- third day of April, eighteen hundred and sixty-two, as a member of the national guard of the State. X. A person who, after faithfully performing the duties of a fireman in a fire company or fire department, duly organized according to the laws of the State, for five successive years, has been honorably discharged therefrom, or who is at the time an officer or member of a fire com- pany, duly organized according to the laws of the State and faithfully performing his duty therein. XI. A person who is physically incapable of pei'form- ing jury duty by reason of severe sickness, deafness, or other physical disorder. 3 34 QUALIFICATIONS AND EXEMPTIONS XII. A person belonging to the army or navy of the United States or to the police force or fire department of the city of Brooklyn. XIII. A person otherwise specially exempted by law.* § 81. The evidence of the right to exemption, as pre- scribed in the last section, is as follows : I. Under subdivision eight thereof, where the applicant is a member of the national guard below the rank of briga- dier-general, the certificate of the commanding officer of the brigade, regiment, battalion, company or troop, to which the applicant belongs, dated within three months of the time of presenting it. TI. Under subdivision eighth, ninth or tenth thereof, where the applicant has been discharged, the certificate of discharge, accompanied, where it does not show all the facts, with the affidavit of the applicant or of another per- son acquainted with the facts. III. Under subdivision tenth thereof, where the appli- cant is an officer or member of a fire company, the certifi- cate of the foreman or other chief officer of the company to which the applicant belongs, dated within three months of the time of presenting it. lY. Under any other subdivision thereof, an affidavit of the applicant, or an affidavit satisfactory to the commis- sioner of another person in his behalf, stating the facts entitling the applicant to exemption. Each certificate specified in this section must be accom- panied with satisfactory proof, by affidavit, of the genuine- ness of the signature thereto ; and each affidavit and certifi- cate must be filed with the commissioner of jurors, and must be kept open by him, at all reasonable times, to public inspection.-]- § 82. A person shall not be required to serve as a trial juror more than six days at any term for which his name is * New Code, % 1127, as amended in 1879; Laws of 1858, c. 333, § 10, amended to correspond with § 70, ante ; see notes to § 63, ante. + New Code, § 1128 ; Laws of 1858, c. 322, § 10, and Laws of 18G6, c. 831, § 1, amended to correspond with § 71, ante; see § 79, subd. 4, ante. OF TRIAL JFBOES. 35 drawn, as prescribed in this article, unless the court for good cause otherwise specially directs, except that he shall not be discharged until the close of a trial, in which he is serving at the time when the six days expire. A person shall not be required to serve as a trial juror except by the special order of the judge presiding at or holding the term, or as otherwise specially prescribed in this article, unless at least three days' previous notice to attend has been served upon him, as prescribed in section one thousand one hun- dred and forty-six of this act.* § 83. The judge presiding at or holding a term, may in his discretion excuse a trial juror attending thereat from service during the whole or a portion of that term in either of the following cases : I. Where he has actually served as a trial juror in a court of record in the county within six months before the commencement of the term and since the second Mon- day of August preceding the commencement thereof.* II. Where he has actually served in the county as a grand juror pursuant to law since the first Monday of Sep- tember preceding the commencement of the term. III. Where the interests of the public or of the juror will be materially injured by his attendance, or his own health or the health of a member of his family requires his absence, or his wife or a near relative of himself or his wife has recentty died.f § 84. The clerk of each court of record in the county of Kings must, within one week after the close of each term for which trial jurors have been drawn, or after the discharge of- the trial jurors, if they are discharged before the close of the term, return to the commissioner of jurors the panel of trial jurors, with the sheriff's return received from the sheriff, as prescribed in section one thousand one hundred and forty-eight of this act, or a copy of each of those papers certified by the clerk. The clerk must also * New Code, § 1139; Loms of 1858, c. 323, § 33. + Nm Code, \ 1130; La/wB of 1858, c. 333, § 11, amended. 36 QtrALIFICATIONS AND EXEMPTIONS OF JUEOES. deliver to the commissioner therewith, a certificate speci- fying distinctly and in detail as follows : I. The name and residence of each juror who attended and served, and the number of days he actually served. II. The name and residence of each juror who was excused or discharged, with reason therefor. III. The name and residence of each person notified who did not attend or serve. IV. The name and residence of each person fined, and the date and amount of his fine. The return and certificate must be filed in the office of the commissioner, who may also record therefrom upon the list originally made by him, the date and amount of service performed by each person as therein set forth.* § 85. Competency of jurors in actions for a/ad (igmnst counties : , On the trial of every action in which a county shall be interested, the electors and inhabitants of such county shall be competent witnesses and jurors.f § 86. CoTwpetency of jwrors in actions for a/nd against towns: On the trial of every action in which a town shall be a party or be interested, the electors and inhabitants of such town shall be competent witnesses and jurors, except that in suits and proceedings by and against towns, no inhabitant of either town shall be juror.;]; * New Code, § 1131; Laws of 1858, c. 332, § 26, remodeled; see § 78, ante. \ IB. 8. 6tli ed., § 4, p. 936. X XB. 8. eth ed., § 4, p. 848; Diveny v. Elmira, 51 N. T. 506. SELEOTIKa AND DBAWIIfG JUEOES. 87 CHAPTEE III. Mode of SiELECTiuG, Deawing, and PEOCTrEiNG THE At- tendance OE Teial Jtjeoes ; Penalties foe Non- ATTEinjANOE ; FOEMATION OF JtTEIES, &0. § 87. The supervisor, town clerk and assessors of each town must meet on the first Monday of July, in the year one thousand eight hundred and seventy-eight, and in each third year thereafter, at a place within the town appointed by the supervisor, or^ in case of his absence, or of a vacancy in his office, by the town clerk, for the purpose of making a list of persons to serve as trial jurors for the then ensuing three years. If they fail to meet on the day specified in this section, they must meet as soon thereafter as practi- cable.* § 88. At the meeting specified in the last section, the officers present must select from the last assessment-roll of the town, and make a list of the names of all persons whom they believe to be qualified to serve as trial jurors, as pre- scribed in the last article (see chapter II.).t § 89. Duplicate lists of the names of the persons so selected, showing the place of residence and other proper additions of each of them, as far as those particulars can be conveniently ascertained, must be made out and signed by the officers, or a majority of them. "Within ten days after the meeting, one of the lists must be transmitted by those officers to the coimty clerk, and filed by him ; and the other must be filed with the town clerk.:j: * Mio Oode, % 1035; 2 B. 8. 411, §§ 13 and 18 (3 Edm. 428). The statute respecting the selecting, drawing and summoning of jurors is intended to secure a due and uniform distribution of jury duty, and is merely directory (Triery «. People, 3 Alb. Ct. of App. Dee. 230). t Mw Code, § 1036; 2 B. 8. 411, first part of § 13. X Nm Code, § 1037; 2 R. 8. 413, § 15 (3 Edm. 429). 38 SELECTIKG AND DBA WING JLTKORS. § 90. On the first Monday of August, after tlie lists have been transmitted to him, the county clerk must pre- pare suitable ballots, by writing the name of each person thus selected, as contained in the lists, with his place of residence and other additions on a separate piece of paper. The ballots must be uniform, as nearly as may be, in appearance ; and the clerk must deposit them in the box kept for that purpose.* § 91. Before depositing the ballots, the county clerk must destroy each ballot remaining in either of the boxes kept by him, and containing the name of a resident of a town for which a new list has been transmitted. If, for any reason, the list from a town is not received by the clerk by the fii-st Monday of August, it or a new list, to be made as prescribed for making the original list, must be trans- mitted as soon thereafter as practicable ; and the county clerk must prepare new ballots, and destroy the old ballots containing the names of residents of that town, imme- diately after the receipt by him of the list therefrom.f § 92. Each person whose name is contained in a list so transmitted, must, unless he is excused or discharged, serve as a trial juror for three years from the first Monday of August of thai year, and thereafter until another list from his town is received and filed.:}: § 93. Each ward of the city of Albany, or TJtica, is considered a town, for the purposes of this article ; and the supervisor and assessor of that ward must execute the duties of the supervisor, town clerk and assessors of a town, as prescribed in the foregoing sections of this article ; except that a duplicate of the list of jurors, made by them, must be filed in the ofiice of the clerk of the city. In each of the other cities of the State, the like duties must be performed by the officers, and in the manner prescribed by law. A city wherein two or more assessors are elected for the entire city is considered a town for the purposes of this article, except where the officers, who are to perform + New Code, § 1038; % B. 8. 413, § 16 and part of § 20. t Neuo Code, § 1039; 3 R. 8. 412, §§ 30, 40. X New Code, § 1040; 2 B. 8. 412, § 17. SELECTING AND DBAWING JTTEOES. 39 the duties of the supervisor, town clerk or assessor, as pre- scribed in this article, are specially designated by law.* § 94. On a day designated by the county clerk, not less than fourteen, nor more than twenty days before the day appointed for holding each term of the circuit court ; or of the court of oyer and terminer, where a circuit court is not appointed to be held at the same time ; or of the county court, except a term designated for the hearing and decision of motions, and trial and other proceedings with- out a jury ; or of the court of sessions, where a term of the county court is not appointed to be held at the same time ; or of a mayor's or recorder's court, at which issues are triable by a jury ; or on the day to which the drawing is adjourned, as prescribed in section one thousand and forty-five of this act (§ 91,^ost), the clerk of the county in which the term is to be held must draw the names of thii-ty-six persons, and any additional number ordered according to law to serve as trial jurors at the term.f § 95. At least six days before the drawing, the county clerk must publish a notice thereof in a newspaper pub- lished in the county, if there is one ; or, if there is none, he must affix a notice thereof on the outer door of the building where the term for which the jurors are to be drawn is appointed to be held. He must also, at least three days before the time appointed for the drawing, cause notice thereof to be served upon the sheriff of the county, and upon the county judge, or, in case of his absence, upon the special county judge, or, in a county where there is no special county judge, upon a justice of sessions.:]: § 96. At the time so appointed, the sheriff of the county, or his under-sheriff and the county judge, or, if notice has been served upon another officer, in the absence of the latter, as prescribed in the last section, either the * Mw Code, § 1041 ; 2 B. 8. 413, § 23, with last two sentences added. t Mw Code, § 1043; 3 B. 8. 413, § 24, remodeled and amended. The drawing of a jury hy ude facto officer is regular (Carpenter ». People, 64 JS'. T. 483; Dolan v. People, Ih. 485). X New Code, § 1043; 3 B. 8. 412, § 25, amended and remodeled. 40 SELEOTIWG AND DRAWING JURORS. county judge or that oflScer, or both, must attend at the clerk's office of the county to witness the drawing of the jurors.* § 97. If the sheriff or under-sheriff, and either the county judge, or, in a case specified in the last section, an officer in place of the county judge, do not appear, the clerk must adjourn the drawing of the jurors to the next day. Thereupon, the clerk must forthwith cause to be served upon the absent sheriff or county judge, or two or more justices of the peace of the county, notice to attend the drawing on the adjourned day.f § 98. If the sheriff or under-sheriff and the county judge, or if the sheriff, under-sheriff or county judge, together with two justices of the peace of the county, appear at the adjourned day, but not otherwise, the clerk must proceed in the presence of the officers so appearing to draw the jurors.:]; § 99. The drawing must be conducted as follows : I. The clerk must shake the box containing the ballots so as thoroughly to mix them. II. He must then, without seeing the name contained in any ballot, publicly draw out of the box one ballot, and continue to draw, in like manner, one ballot at a time until the requisite number has been drawn. III. A minute of the drawing must be kept by one of the attending officers, in which must be entered the name contained in each ballot drawn before another ballot is drawn. lY. If, after drawing the requisite number, the name of a person has been drawn who is dead, or insane, or who ha^ permanently removed from the county to the knowledge of an attending officer, an entry of that fact must be made in the minute of the drawing, and the ballot containing that person's name must be destroyed, whereupon another ballot must be drawn in its place, and the name contained therein must be entered, in like manner, in the minute of the drawing. * New Code, § 1044; 3iJ. 8. 413, § 36, amended and remodeled. t New Code, § 1045 ; 3 ij. S. 413, § 37, amended and remodeled. X New Code, % 1048; 3 B. S. 413, § 38, amended and remodeled. SELECTIJSTG AND DEAWING JIJROKS. 41 ' V. The same proceedings must be had as often as necessary until the requisite number of jurors has been obtained. VI. The minute of the drawing must then be signed by the clerk and the other attending officers, and filed in the clerk's office. VII. A list of the names of the persons so drawn, showing the place of residence, and other proper additions of each of them, and specifying for what court and term they were drawn, must be made and certified by the clerk and the other attending officers, and delivered to the sheriff of the county.* § 100. The sheriff must, at least' six days before the day appointed for holding the term, serve uppn each person named in the list, personally, or by leaving it at his resi- dence with a person of proper age and discretion, a written notice to attend the term. He must file the Kst with the clerk of the court, at or before the opening of the term ; with a return indorsed thereupon, or annexed thereto under his hand, naming each person notified and specifying the manner in which he was notified.f § 101. The county clerk or the sheriff must furnish a copy of the list of trial jurors, drawn to attend a term, to any person applying to him therefor, and paying the fees allowed by law.:]: § 102. After the adjournment of the term at which trial jurors have been returned, as prescribed in the last section but one, the clerk must deposit the ballots, contain- ing the names of those who attended and served, in another box, kept by him. The ballots containing the names of those who did not appear and serve, which have not been destroyed, as prescribed in article first of this title, must be returned to the box from which they were taken .§ § 103. If, at the time of drawing trial jurors for a term, there is not a sufficient number of ballots remaining * New Code, § 1047; 2 B. 8. 413, § 39. t New Code, § 1048; 3 B. S. 413, § 30, amended. t New Code, § 1049; 3 S. S. 413, § 31. § New Code, § 1050; 3 B. S. 413, § 36. 42 SELEOTIN& AND DRAWING JTJEOES. in the first box, the clerk, after drawing all the ballots therein, must draw the necessary number from the second box, containing the names of those jurors who have before served, as prescribed in the last section ; and must continue to draw from that box until new lists of jurors are trans- mitted by the town officers.* § 104. The county clerk must keep, in addition to the two boxes specified in the last two sections, a third box, in which he must deposit duplicate ballots, containing the names, with the proper additions of aU persons selected and returned as trial jurors, who reside in the city or town, where a trial term of a court of record is appointed to be held pursuant to law.f § 105. The ballots kept in the third box must be destroyed by the clerk, and new ballots must be deposited therein by him at the same time, and under like circum- stances, as prescribed in this article with respect to the destruction of the old ballots and the depositing of new ballots in the first box.:]: § 106. If a suflicient number of trial jurors, duly drawn and notified, do not attend, or cannot be obtained to form a jury, the court may in its discretion direct the sheriff to draw from the third box, in the presence of the court, the names of as many persons as the court deems sufficient for that purpose.§ § lOY. The sheriff must forthwith notify each person so drawn and make a return, as prescribed in title fifth of this chapter, where talesmen are required to attend : and the provisions of that title apply to each person so notified. || § 108. A justice of the supreme court, appointed to hold a term of the circuit court, or to preside at a term of the court of oyer and terminer, may, by an order under his * New Code, § 1051; 3 B. 8. 412, § 39. t New Code, § 1053; Lawi of 1861, c. 310, § 1, amended (4 Edm. 649). } New Code, § 1053. This section is new, and provides for that which the act of 1861 omitted. § New Code, § 1054; Laws 0/I86I, c. 310, part of § 3. i Nm Code, § 1055 ; Laws of 1881, c. 310, § 8, and see § 303, post. SELECTING AND DRAWING JTJKOES. 43 hand, direct that such a number of jurors as he deems necessary, not exceeding twenty-four, be drawn for that term, in addition to the thirty-six jurors to be drawn, as prescribed in the foregoing sections of this article. A county judge may in like manner direct the drawing of a like additional number of jurors for a term of the county court, or of the court of sessions, to be held in his county.* § 109. An order, made as prescribed in the last sec- tion, must be delivered to the clerk of the county in which the term is to be held, at least twenty days before the day appointed for the commencement thereof ; and the clerk must forthwith file it. This article applies to the additional jurors so required to be drawn.f § 110. At a term of the circuit court, or court of oyer and terminer, or of the county court, or court of ses- sions, an order may be made by the court, requiring the clerk of the county to draw, and the sherifE to notify any number of trial jurors, specified in the order, which the court deems necessary to attend that term, or a term there- after to be held, either by original appointment or by adjournment, at the commencement thereof, or on a partic- ular day specified in the order.:]: § 111. The clerk must thereupon forthwith bring into court all the boxes, wherein ballots containing the names of trial jurors are deposited, as prescribed in this article ; and must, in the presence of the court, publicly draw from such box or boxes as the court directs, the number of trial jurors specified in the order. The clerk must make and certify two lists of the persons so drawn ; and must file one list in his office, and deliver the other to the sherifli. The sheriff must thereupon immediately notify each person so drawn to attend, as specified in the order.§ § 112. The county judge may, at the time of drawing * New Code, § 1056 ; % B. 8. 417, § 41 (3 Edm. 434) ; Laws of 1874, c. 53, § 1 (9 Edm. 856). t New Gode, § 1057 ; % B. 8. 417, § 43. \ New Code, % 1058; Laws of 1871, c. 16, part of § 1 (7 Edm. 733). § New Code, § 1059; iawso/1871, c. 16, § 1, amended. 44 PENALTIES FOE NON-ATTENDANCE. trial jurors to attend a term of the county court, or court of sessions, make an order designating a particular day during the term when the jurors must attend, or two or more particular days, upon each of which a portion of the jurors must attend. The sheriff must thereupon notify them to attend, as specified in the order.* § 113. The deputy county clerk possesses, in the absence of the county clerk from his office, or from the sitting of a term of the court, the powers conferred by this article upon the county clerk, f § 114. This article does not apply to the city and county of New York, or to the county of Kings.;]: Penalties for If on- Attendance. § 115. A person duly notified, as prescribed in this title, to attend a term of a court of record, as a trial juror, who, without reasonable cause neglects to attend, according to the notice, shall be fined, a sum not less than ten dollars, nor more than twenty-five dollars, for each day that he so neglects to attend.§ § 116. Where it appears, by the return of the sheriff, that the delinquent was personally notified to attend, the fine may be imposed by the court, at the term which he was required to attend. But where it appears by the return that he was notified by leaving the notice at his residence, the court must cause an order to be entered in its minutes, requiring him to show cause, on the first day of the next term of the court, why a fine should not be imposed upon him.| § IIY. If the order is made at a term of a circuit court, it may, in the discretion of the court, direct the * New Code, § 1060 ; Imws of 1861, c. 8, § 1 (4 Edm. 648), omit- ting § 3. t New Code, § 1061 ; this section is new. I Nem Code, § 1063; this section is new. § Nm Code, \ 1073; 3 B. 8. 415, § 33 (3 Edm. 433) amended. 1 New Code, § 1073; 3 B. 8. 483, § 16 (3 Edm. 505) revised. PENALTIES FOK NON-ATTENDANOE. 45 delinquent to show cause on the first day of the next term of the county court of the same county.* § 118. The clerk must immediately deliver two certi- fied copies of the order to the sheriff of the county, who must serve one copy on the delinquent personally, and return the other, with his proceedings thereon, to the term at which the delinquent is required to show cause.f § 119. If the sheriff returns the copy of the order as personally served, or if the delinquent attends, in obedience thereto, the court must, unless good cause is shown to the contrary, impose the proper fine ; otherwise it must make a further order, requiring the delinquent to show cause at the next term, why the fine should not be imposed. The proceedings tmder such an order are the same as under the first order. Similar orders must be made, from term to term, and similar proceedings taken until the delinquent is personally served or attends in obedience thereto.:]: § 120. But if it appears from the return of the sheriff, or from any other evidence, that the juror is dead, or insane, or has permanently removed from the county ; or if a satisfactory excuse is rendered by any person in his behalf for his default, the court may, in its discretion, dis- continue the proceedings.§ * New Oode, % 1074; 3 B. 8. 483, § 17. t Mio Oode, § 1075; 3 iJ. S. 483; §§ 18 & 19, amended. I New Code, § 1076; 3 iJ. 8. 483, § 30. § New Code, \ 1077; 3 iJ. 8. 483, § 31, substituting "county" for "State." Where a fine has been imposed by a court of record, upon a grand or trial juror, or upon any officer, or other person, without being accompanied with an order for the immediate commitment of the person so fined, until the fine is paid, the clerk of the court, immediately after the close of the term at which the fine was im- posed, must prepare a schedule, containing in separate columns, the following matters : 1. The name of each person fined. 3. His place of residence, where it appears, from the papers on file or before the court, to be within the county. 3. The amount of the fine imposed upon him. 4. The cause for which the fine was imposed. 46 PENALTIES FOE WOW-ATTENDANCE. § 121. This article does not apply to the city and county of New York, or to the county of Kings.* The clerk must subjoin to the schedule a certificate, to the effect that it contains a true abstract of the orders imposing fines, and must annex it to the warrant specified in the next section {New Code, § 2293). The clerk must immediately issue a warrant under the seal of the court, directed to the sheriff of the county, and commanding him to collect from each of the persons named in the schedule an- nexed to the warrant, the sum therein set opposite that person's name ; and to pay over the sum collected to the treasurer of the county. The warrant is the process of the court, by which the fines were imposed {New Code, § 2294). If a delinquent resides in another county, a separate warrant for the collection of the fine imposed upon him. with an appropriate schedule annexed thereto, must be issued, in like manner, to the sheriff of the county where he resides {New Code, § 2295). The sheriff to whom a warrant is issued must collect each fine out of the personal property of the person fined, as prescribed in chapter thirteenth of this act, for the collection, by levy upon and sale of personal property, of an execution issued out of a court of record; and he is entitled to like fees thereupon. If sufficient per- sonal property of a delinquent cannot be found, to pay the fine and the fees, the sheriff must arrest the delinquent, and detain him in custody until he pays the same, as upon an execution against the person, issued in an action out of the supreme court ; and he is entitled to like fees thereupon {New Code, § 2396). The sheriff must return the warrant, with his proceedings there- upon, at the term of the court ; or, where the fine was imposed, in any county except New York, by the supreme court, the circuit court, the court of oyer and terminer, or the court of sessions, at the term of the county court held next after the expiration of sixty days from the receipt thereof. If he fails so to do, the district attorney must take the same proceedings to compel a return as may be taken by a judgment creditor, where a sheriff omits to return an execution, issued out of the supreme court {New Code, § 2297). Where it appears, by the return, that a fine remains uncollected, and it does not appear that the sheriff has the delinquent in cus- tody, the district attorney mu^t, if he has good reason to believe that the sheriff might, with due diligence, have collected the fine, or arrested and detained the delinquent, commence an action against the sheriff, in the name of the people. Otherwise he must * New Code, § 1078. TEIAL JXTK0E8 IN NEW YORK COUNTY. 47 § 122. Trial jurors (in New Tork county) must be selected by the commissioner of jurors, who must alone decide upon their qualifications and exemptions, except as otherwise expressly prescribed in this article. But this section does not impair the right to challenge a particular juror at the trial. The commissioner may issue to a person entitled to an exemption a certificate of that fact, which exempts the person to whom it is granted from jury duty during the time limited therein. lie must keep a record of all proceedings before him or in his office. He is entitled to, and must collect, for the benefit of the city, for a copy of a paper' furnished by him, the same fees as the clerk of a court of record.* § 123. The commissioner of jurors may, from time to time, appoint and at pleasure remove one or more assist- ants, clerks in his office, and messengers, and may fix their direct the clerk to issue a new warrant, or to include the fine in the schedule annexed to the next warrant to be issued by him. A new warrant may, from time to time, be issued, or the fine may be ' included in the schedule annexed to a subseqilent warrant, until it is collected {New Code, § 3298). Where the clerk issues a warrant as prescribed in this title, he must include in the schedule thereto annexed the name of each person who has been fined, prior to the issuing thereof, and whose fine remains then wholly or partly unpaid, and not remitted by the court {New Code, § 2299). An action may be maintained, in behalf of the people, against a sherifl!, to whom a warrant is directed and delivered, as prescribed in this title, to recover damages for any omission of duty with respect to the same, in a case where a judgment creditor might maintain an action against a sherifl, to whom an execution issued out of the supreme court is directed and delivered. In such an action, the people are entitled to recover the same damages which a judgment creditor would be entitled to recover if the order im- posing the fine was a judgment of the supreme court {New Code, § 2300). This title does not apply to a case where special provision for the collection of a fine is otherwise made by law {New Code, §2301). [The sections contained in this note have not yet been adopted.] * New Code, § 1090; Laws 0/1870, c. 539, §§ 7 and 24, and Laws of 1847, c. 495, §§ 3 and 11, amended. 48 TEIAL JTTEOES IN NEW YORK COTJKTT. compensation. He may designate, in writing, an assistant, to attend, in his place, the drawing of jurors for a particu- lar term; the commissioner, or each assistant whom he designates for the purpose, by a certificate filed in the office of the county clerk, may administer an oath or affirmation in relation to any matter embraced within the provisions of this article.* § 124. The president and commissioners of the depart- ment of taxes and assessments, the police commissioners and all other public officers in the city of New York, must render to the commissioner of jurors all the assistance in their power to enable him to procure the names of persons liable to serve as trial jurors.f § 125. The board of aldermen of the city of New York miTst take care that suitable rooms and other accom- modations are provided for the use of the commissioner of jurors. If, by the first day of March in any year, suitable rooms have not been provided for his use for the year com- mencing on the first day of May next ensuing, he may lease suitable rooms for that year, and may pay the rent out of the money received by him for fines and penalties. But a lease so made shall not take effect until a majority of the members of the board specified in section eleven hundred and fourteen of this act (§ 146, post) indoi'se thereupon a certificate signed by them, to the effect that, in their opinion, such a lease is necessary, in consequence of the omission to make other suitable provision, as prescribed in this section ; that the rooms leased are required for the proper performance of the duties of the commissioner; that the rent payable therefor by the terms of the lease is, in their opinion, reasonable ; and that the lease is, in all other respects, fair, just, and proper. The proper and necessary expenses of the commissioner's office, including the reasonable compensation of his assistants, clerks and messengers, necessary printing and advertising, books, sta- * New Code, § 1091 ; Laws of 1870, c. 539, part of § 24, amended. t New Code, § 1093; Laws of 1870, c. 539, § 13, as amended by LoMs of 1873, c. 335, §§ 39 and 87. TEIAL JUEOES IN NEW YORK COITNTT. ' 49 tionery, and other articles required for the convenient discharge of his duties, may be paid by him out of the money received by him for fines and penalties. If there is a deficiency, the board of aldermen must provide for the payment thereof by the comptroller of the city of New York out of the city treasury.* § 126. The commissioner must commence the prepara- tion of lists of trial jurors in the month of May in each year. For that purpose, the names of the persons liable to serve as trial jurors must be entered in suitable books, alphabetically, with the occupation, place of business and residence of each, as far as those particulars can be conve- niently ascertained. After the first day of June, he must publish a notice, for at least ten days, in not less than six of the newsf)apers published in the city, that claims for exemptions will be heard by him. He may insert in, or append to the notice, copies of such portions of the statutes, relating to jurors, as he deems expedient. He must hear and determine all claims for exemption, and must keep a record of the persons exempted and of the period of time for which the exemption of each is allowed. f § 127. The commissioner may cause to be personally served on any person within the city a notice requiring him to attend at the commissioner's oflBce, at a specified time, not less than twenty-four hours after service of the notice, for the purpose of testifying concerning his own liability, or the liability of any other person to serve as a juror. A person so notified must attend and testify accoi-dingly. If he fails to attend, as specified in the notice, for any cause except physical inability, or if he refuses to be sworn, or to answer any legal and pertinent question put to him by the commissioner, he forfeits fifty dollars for each failure or refusal. One or more successive notices may be served upon the same person, where he fails to attend as required by a former notice, and he is liable to the same penalty for each failure so to attend. But the commissioner may, in * New Code, § 1093; Laws of 1870, c. 539, § 25, amended, t New Code, § 1094; Lams of 1870, c. 589, parts of §§ 7 and 9. 4 50 TRIAL JtTEOES IN NEW YORK COUNTY. Lis discretion, dispense with the personal attendance of a person so notified, where another person cognizant of the facts is produced and testifies in his stead ; and where a person has so attended twice, he cannot be required to attend again, in the same jury yf ar.* § 128. On or before the first day of October in each year, the commissioner must return to the clerk of the city and county of New York, to be filed in his office, certified copies of the lists, prepared by him, of the persons liable to serve as trial jurors in the courts of record for the ensning jury year. He may from time to time thereafter strike from the lists kept by him the name of a person who is found by him to be exempt or disqualified. In that case he must record the reason why the name is stricken off.f § 129. When the certified copies of the lists have been returned, as prescribed in the last section, the ballots for trial jurors used in the previous year must be returned by the county clerk to the commissioner, who must destroy those which are not required for the current jury year. The ballots for the current jury year must be prepared by the commissioner, who may use for that purpose so many of the ballots prepared for the previous year as he deems expedient. The ballots so prepared must be delivered by the commissioner to the county clerk, and deposited by the county clerk, or his deputy, in a box, as prescribed in arti- cle second of title third of this chapter. The commissioner may, from time to time thereafter, return certified copies of additional lists, containing the names of persons liable to serve as trial jurors, which were omitted from the former lists ; and ballots containing those names must be prepared in like manner, and used for the residue of the jury year.:]: § 130. The number of trial jurors to be drawn for each term, and each separate part of a term of a court of record in the city, at which issues of fact are triable by jury, must be fixed by a general order of the court, or, if it * Neuo Code, § 1095 ; Laws of 1870, c. 539, part of | 9, amended. t New Code, § 1096 ; Lam of 1847, c. 495, § 3, amended. X New Code, § 1097 ; Laws of 1847, c. 495, part'of § 3, amended. TRIAL JtJEORS IN NEW YORK COUNTY. 51 is not so fixed for a term, or a separate part of a term, by a written order of the judge appointed to hold the same. The order, or a certified copy thereof, must be filed in the office of the county clerk. If the number has not been fi:sed in either mode at the time of the drawing, one hundred trial jurors must be drawn for each term, or for each part, if the term consists of two or more separate parts.* § 131. On a day designated by the county clerk, not less than fourteen nor more than twenty days before the day appointed for holding in the city a term of a court of record, at which issues of fact are triable by jury, the com- missioner of jurors, in person, or by an assistant designated by him, the sheriff of the city and county of 'New York, in person, or by his under-sherifE, and one or more judges of courts of record residing in the city, must attend at the office of the county clerk, to witness and assist in the drawing of trial jurors for the term.f § 132. At least six days before the drawing, the county clerk must publish notice thereof in at least three newspa- pers published in the city. He must also cause written notice thereof to be served upon the sheriff, the commis- sioner of jurors, and at least three judges of one or more courts of record, residing in the city.:}: § 133. If at least one judge of a court of record, residing in the city, and also the commissioner of jurors and the sheriff in person, or represented, as prescribed in the last section but one, do not attend, the clerk, or in his absence the deputy-clerk, must adjourn the drawing to the next day. Thereupon the clerk must forthwith cause to be served upon the absent commissioner or sheriff, and upon at least three judges of one or more courts of record * MiB Code, § 1098; Laws of 1847, c. 495, substitute for § 9. t iV«w Code, § 1099. The matter contained in this and the next three sections is new, and corresponds with that in § 94 to § 98 (ante); the. proceedings mentioned in these sections were governed by Laws of 1847, c. 495, § 4 (2 iZ. S. 413, §§ 34 to 38; 3 Edm. 430). X New Code, § 1100; see note to last section. 52 TRIAL JUEOES IN NEW YORK COUNTY. residing in the city, written notice to attend the drawing upon the adjourned day.* § 134. If the officers specified in section ten hundred and ninety-nine of this act (§ 131, ante) attend upon the adjourned day, but not otherwise, the clerk, or, in his absence, the deputy-clerk, must proceed in their presence to draw the jurors.f § 135. The drawing nmst be conducted as follows : I. The county clerk, or his deputy, must shake the box containing the ballots so as thoroughly to mix them. II. He must then, without seeing the name contained in any ballot, publicly draw out of the box one ballot ; and continue to draw, in like manner, one ballot at a time until the requisite number has been drawn. III. A minute of the drawing must be kept by one of the attending ofliicers, in which must be entered the name con- tained in each ballot drawn, before another ballot is drawn. IV. After drawing the requisite number, the minute of the drawing containing the names of the persons drawn, with the proper additions of each, and specifying for what court and for what term they were drawn, must be signed by the clerk or his deputy and the attending officers, and filed in the clerk's office.^ § 136. If the the term consists of two or more separate parts, the trial jurors for each part must be drawn, and a minute of the drawing must be made, signed and filed, and the subsequent proceedings must be the same as if it was a distinct term.§ § 137. The commissioner may issue to a trial juror so drawn a printed notice, informing him that he has been drawn, and will be duly notified by the sheriff, and contain- ing copies of such portions of this article as the commis- sioner deems advisable.! * New Code, § 1101; see note to § 131, ante. t New Code, § 1102; see note to § 131, ante. % New Code, § 1103; 3 R. S., 414, § 39 (3 Edm. 431), remodeled and amended, omitting subdivisions 4 and 5. § New Code, § 1104; this section is new. II New Code, § 1105; Xawso/1870, c. 539, §14. TRIAL JUEOES IN NEW TOEK COUNTY. 53 § 138. The clerk must deliver to the sheriff a certified copy of the minute, or of each minute, if there are two or more. The sheriff must notify each juror named therein to attend the term or part for which he was drawn, by serving upon him, at least six days before the commencement thereof, a notice addressed to him, stating that he has been drawn as a trial juror for, and is requested to attend, the term or part specified in the notice. The notice may be Served personally or by leaving it at the juror's resi- dence or usual place of business, with a person of proper age and discretion. Before the commencement of the term or part, the sheriff must file with the clerk the certified copy of the minute, with a return, under his hand, indorsed thereupon or annexed thereto, naming each person notified, and specifying the manner in which he was notified.* § 139. The clerk of each court for a term of which trial jurors are notified to attend by the sheriff, must certify to the clerk of the board of aldermen each case where less than a majority of the persons named in a minute of a drawing are returned as personally served. The board of aldermen are prohibited from allowing or paying any fees or charges to the sheriff for notifying any of the per- sons named in that minute, or for making a return there- upon. A clerk of a court who omits to notify the clerk of the board of aldermen, as prescribed in this section, is liable to a penalty of one hundred dollars for each omission, to be recovered by any person suing therefor.f § 140. At any time during the sitting of a term of a court of record in the city, the court may direct an addi- tional number of trial jurors to be drawn for the term, or for the part at which the order is made. The order must specify the number to be drawn, and the time of drawing. The drawing may be made either in open court, under the direction of the judge, or in the ordinary manner, except that notice is not required. The sheriff must forthwith * N&w Code, § 1106; Laws o/1870, e. 539, § 16, remodeled, t New Code, § 1107; Laws of 1853, c. 498, § 9. 64 TEIAL JUEOES IN NEW YOEK COUNTT. notify the jurors drawn by such a notice as the court directs, to attend the term or part, at the time specified in the order.* § 141. Where a person duly drawn and notified to attend a term of a court of record as a trial juror, fails to attend at the time specified in the notice, or from day to day, the court at that term must impose upon him a fine of not less than fifty, nor more than two hundred and fifty dollars. A fine thus imposed may be wholly or partly re- mitted by direction of the judge, in open court, before the end of the same term, and upon good cause . shown ; other- wise it shall not be remitted, except as prescribed in sec- tions eleven hundi-ed and thirteen and eleven hundred and f om-teen (§§ 145 and 146, post) of this act. Each remission so made by the judge, with the reason therefor, must be entered in the minutes of the court. This section applies to a special juror, as well as to an ordinary trial juror.f § 142. Where a person, duly drawn and notified, fails to attend and serve at a term of a court of record, as re- quired by law, without having been excused, the court besides imposing a fine, as prescribed in the last section, may direct the sheriff to arrest him and bring him before the court, and when he has been so brought, it may, in its discretion, compel him to serve. :j: § 143. A list of trial jurors, for each of the district courts, must be selected by the commissioner of jurors, and must consist of not less than fifty, nor more than one hundred jurors. A person shall not be placed upon such a list who does not reside in the district in which the court is held. The judge of each district court must impose a fine of twenty-five dollars upon each person, duly drawn and notified to attend the court as a trial juror, who fails to attend as required by the notice. The clerk of the court * New Code, § 1108 ; this section is new and corresponds to § 175, post. t New Code, § 1109; Laws of 1870, c. 539, §§ 18 and 20, with amendment and addition. X New Code, § 1110; Lcma of 1870, c. 539, § 3, remodeled, but substantially the same. TRIAL JURORS IN NEW YORK OOTTNTT. 55 must, within ten days thereafter, transmit to the com- missioner of jurors a certilicate, showing that the fine has been so imposed, and stating how the notice to attend was served upon the delinquent, in order that the same proceed- ings may be had as in the case of a delinquent juror in a court of record. A judge or a clerk who violates this section forfeits one hundred and fifty dollars for each offense.* § 144. The board for the selection of grand jurors must, at the time when it selects the grand jurors for each jury year, also select from the lists of trial jurors for that year, the names of not less than one hundred and twenty, nor more than one hundred and fifty persons, to constitute the sheriff's jurors for that jury year. The commissioner of jurors must forthwith transmit to the sheriff of the city and county of New York a list certified by him, contain- ing the names of the persons so selected, with the proper additions of each, and showing that they have been selected as prescribed in this section. The sheriff must cause ballots to be prepared as prescribed in article second of title third of this chapter, and to be deposited in a proper box. Where the sheriff is authorized or required by law to impanel a jury for any purpose, the requisite number of ballots must be drawn from the box as prescribed in that article, by the sheriff,^ or by his under-sheriff, or depwty- sheriff. But the sheriff may in his discretion divide the names contained in the list into three panels each con- taining an equal number of names as nearly as may be. In that case he must designate the months in which each panel will be used, so that the jury duty shall be distributed equally, as nearly as may be, among the jurors ; and ballots shall be deposited in the box at the beginning of each month, containing the names of the jurors designated for that month.f § 145. The commissioner of jurors must cause a notice to be served upon each delinquent trial juror, returned as * New Code, § 1111; Laws of 1870, c. 539, §§ 39 and 30, amended. t New Code, § 1113; this section is new. 56 TEIAL JITBOKS IN NEW TOEK COUNTY. having been fined, stating the amount of tlie fine, and the term at which he was fined, and requiring him to attend be- fore the commissioner, on a specified day and hour, and show cause why the fine should be wholly or partly remitted, or payment of the fine should not be enforced. The notice must be served at least six days before the day therein speci- fied. If the sheriff's return shows that notice to attend, as a trial juror, was personally served upon the person fined, the notice to show cause, as prescribed in this section, may be • served upon him either personally, or by leaving it at his residence or usual place of business, with a person of suita- ble age and discretion ; otherwise it must be served upon him personally. If a person so notified fails to attend, the fine must be enforced. If he attends, he may demand a hearing before the board for the enforcement of jury tines, otherwise the commissioner must decide with respect to the remission of the whole or any part of the fine ; and the sufficiency of the cause shown, if any, and his decision is conclusive with respect to that fine, unless the person fined within ten days thereafter serves upon him a written de- mand of a hearing before such board. In that case the commissioner must appoint a time for the hearing ; and the person fined must then attend, without further notice.* § 146. The presiding justice of the supreme court in the first department, the chief judges of the common pleas, of the superior and of the marine courts, the mayor, the recorder, the city judge, the judge of the court of general sessions, and the commissioner of jurors, constitute the board for the enforcement of jury fines. The board must meet at the office of the commissioner of jurors, on the last Monday of October in each year, and on the ,last Monday of each month thereafter, until and including the following month of June, and as much oftener as the business before it requires. Three members of the board constitute a quorum. The board, either upon a hearing, * 2fetci Code, § 1113, as amended in 1879. This section and the next are substituted for part of § 19 of Act of 1870, c. 539; see also Laws of 1847, c. 495, §§ 5 and 6. TRIAL JURORS IN NEW YORK COUNTY. 57 or when acting upon the commissioner's decision, as the case requires, has exclusive power, except as in this article otherwise prescribed, to remit the whole or any part of a fine. The board or the commissioner may, in its or his dis- cretion, hear testimony or determine a case upon afii- davits, and may from time to time adjourn the hearing or final disposition of a particular case.* § 147. The board may compel the attendance of any person required to appear before it, as prescribed in the last section but one ; it may issue a warrant directed to the sheriff bf the city and county of New York, commanding him to arrest and bring before the board a person who fails to attend at the time appointed for hearing his case, or to pay a fine imposed upon him and not remitted by the board. If a delinquent trial juror, duly drawn and returned by the sheriff as personally notified to attend a term, or personally notified to attend before the commissioner, as prescribed in the last section but one, is, in the opinion of the board, able to pay his fine, the board may make an order directing the sheriff to arrest him, and imprison him in the county jail until the fine is paid, not exceeding thirty days. The sheriff must obey such an order. The board may make an order directing that a person paying a fine imposed upon him be excused from jury duty for a period not exceeding one year.f § 148.- After ten days have expired since the final decision of the board of enforcement with respect to a fine, as prescribed in the last section but one, if the fine has not been remitted or paid, the commissioner must issue a war- rant, under his hand, directed to the sheriff of the city and county of New York, reciting the facts, and commanding the sheriff to collect from each person named in the sched- ule annexed thereto the sum set opposite that person's name in the schedule, and to pay over the same to the commissioner. The schedule must contain the names of * New Code, § 1114; see note to last section, t New Code, § 1115; the remaining portion of § 19, Lems ofl%tO, c. 539. 58 TEIAL JUEOES IN KEW TOEK COUNTY. persons fined and notified to show cause, whose fines have not been wholly paid or remitted; it must show the amount of each fine remaining unremitted or unpaid ; and the residence or usual place of business of each person fined, as far as it can be conveniently ascertained. The sheriff must collect each fine by a levy upon and sale of the personal property of the person fined, as prescribed by law where an execution against property is issued upon a judg- ment rendered in a court of record. The sheriff is entitled in each case to the same fees as upon such an execution, to be collected in the same manner. He must return the warrant and schedule, with his proceedings thereupon, to the commissioner, within thirty days after the delivery thereof to him ; and must then pay over the money col- lected, less his fees. His return may be compelled by the supreme court, in the same manner as the return of an execution against property issued upon a judgment ren- dered in that court. For his failure to collect a fine an action may be maintained against him in a case where such a case may be maintained by a judgment creditor against a sheriff failing to coUect an execution against property, and with like effect. The provisions of section one thousand one hundred and nineteen of this act (§ 161, post) apply to such an action.* § 149. The commissioner must, within thirty days after return of the warrant to him, file with the clerk of the court by which such uncollected fine was imposed, a certificate to the effect that the warrant has been returned, and showing that fines remain uncollected. Thereupon the clerk must make in the docket-book of judgments kept by him, the same entries as nearly as may be with respect to each uncollected fine, as if it was a final judg- ment rendered in an action ; if the fine was imposed by a court other than the supreme court, the clerk thereof must immediately transmit a transcript of the entries to the clerk of the city and county of New York, who must file it and make the appropriate entries in his docket-book of * New Code, § 1116; Lcvwa of 1847, c, 495, § 6, with addition. TEIAL JUE0E8 IN NEW TOEK COUNTY. 59 judgments. The commissioner must pay the clerk's fees, at the rate allowed for similar services, with respect to judgments. When the entries have been made, the fine, with interest, becomes a lien upon the real property of the person fined, as if it was recovered by a judgment in the same court ; and an execution to collect it may be issued, directed to the sheriff of the city and county of New York, as upon such a judgment. The commissioner has, in relation to the execution and the satisfaction of the fine, all the powers of the attorney for a party recovering such a judgment, in relation to the judgment and the execution issued thereupon.* § 150. The commissioner of jurors must receive all moneys paid or collected for fines or penalties, as prescribed in this article ; and he may make all payments therefrom, which he is authorized by this article to make. He must give a receipt for any money paid to him for a fine or penalty ; he must keep a just and faithful account of all receipts and payments by items, showing the name of the person from whom each sum of money was received, and to whom each sum of money was paid, and must at all reasonable times keep his account open to public inspec- tion. At the end of each calendar year his account must be verified by his affidavit, to the effect that it is, in all respects, just and true, and that he has not received any sum of money during the year for which he has not charged himself in the account. The account thus verified, must be audited and certified by at least three other members of the board for the enforcement of jury fines ; and the commissioner must thereupon pay over, to the chamberlain of the city, the balance, if any, in his hands. The account thus audited and certified, must immediately be transmitted by the commissioner to the clerk of the board of aldermen, and must be published in the newspaper designated, as prescribed by law, for the publication of the official proceedings of city officers.f * N'm Code, § 1117; Lcms of 1810, c. 539; substitute for § 22. + Ifm Code, § 1118; laws of 1870, c. 539, § 21 ; amended. 60 TRIAL JUROES IN NEW YORK COUNTY. § 151. The corporation attorney of the city of JSTew York must, when required by the commissioner of jurors, prosecute in the proper court an action for the collection of each penalty incurred, as prescribed in this article, unless he is satisfied upon an examination of the case, that there is a defence to the action. The action must be maintained in the name of the mayor, aldermen and com- monalty of the city of New York, as plaintiffs. The commissioner, with the assent of the corporation attorney, may compromise, settle or discontinue an action so brought. From the proceeds of an action, prosecuted to judgment and execution, or compromised, as prescribed in this section, the corporation attorney may retain the taxable or taxed costs. He must pay over the remainder to the commissioner.* § 152. A physician who knowingly gives a false certi- ficate, or makes a false representation, for the purpose of enabling or assisting a person to be discharged, excused, or exempted from service as a trial juror, in the city and county of New York, is guilty of a misdemeanor. § 153. A person to whom application is made within the city of New York, by the commissioner of jurors or by his authority, for information as to a fact upon which the liability of himself or any other person to serve as a trial juror depends, and who refuses to give information relating thereto, which he can give, or knowingly gives false information relating thereto ; or a person who knowingly makes to the commissioner of jurors, or to a person acting by his authority, a false representation as to the identity, residence or any other matter relating to the liability of himself or any other person to serve as a trial juror, forfeits fifty dollars for each offence.:}: § 154. A person who gives, pays, promises, or offers money or any other thing to the commissioner of jurors, the sheriff, the county clerk, or other clerk of a court ; or to a * New Gode, % 1119; Lams o/1870, c. 539, §§ 9, 10, 31 and 81. t Nea Code, § 1120; Laws o/1870, c. 539, § 13, amended. X New Code, § 1131; Laws of 19,1% o. 539, § 10, amended. TRIAL JURORS IN NEW ifORK COUNTY. 61 deputy of, or a person employed by the county clerk or other clerk of a court, or to an officer, messenger, or other person employed by the sheriff or the commissioner of jurors, for the purpose of enabling or assisting himself or any other person named or drawn as a trial juror to evade or to be discharged, exempted or excused from service, or- wb« knowingly makes a false statement or representation to a judge, the commissioner of jurors, or a member of the board of enforcement of jury fines, for such purpose, or who knowingly retains, conceals, suppresses, or wilfully destroys a notice to attend before the commissioner of jurors, or at a term of a court, or any other paper relating to the liability to serve or service as a trial juror, left at the residence or place of business of another who has been named or drawn as a trial juror, is guilty of a misdemeanor. The district attorney must prosecute for each offence speci- fied in this or the next two sections which comes to his knowledge.* § 155. An officer or a person employed by the sheriff, by the commissioner, of jurors, or by the county clerk, or other clerk of a court, who takes money or any other thing as a gift, bribe, or payment for the purpose of enabling or assisting a person named or drawn as a trial juror, to evade or to be discharged, exempted, or excused from jury duty, or who wilfully and knowingly prevents or hinders the execution of any provision of this article, is guilty of a mis- demeanor.f § 156. A person named or drawn as a trial juror, to whom an offer or suggestion to procure his discharge, ex- emption, or excuse from jury duty, for or in consideration of a corrupt inducement or reward, is made by any person, and who fails within twenty-four hours thereafter to inform the commissioner of jurors thereof, is guilty pf a misdemeanor.:]: * New Code, § 1123; Laws of 1870, c. 539, part of § 11, amended. t New Code, § 1123; Loms o/1870, c. 589, part of § 11, amended and added to. X New Code, \ 1124; Laws of ISHO, c. 539, the remaining por- tion of § 11. 62 TEIAL JTJEOES IN KINGS COUNTY. § 157. A person who swears falsely in an affidavit, or testifies falsely upon an inquiry made as prescribed in this article, is guilty of perjury in a case where falsely swear- ing, in an affidavit used Tipon a motion, in a civil action, or falsely testifying upon the trial of an issue of fact, in such an action, would constitute that crime.* § 158. Trial jurors (in Kings county) must be selected by the commissioner of jurors, who may decide upon their qualifications and exemptions as prescribed in this article. The commissioner may from time to time appoint, and at pleasure remove, one assistant, and as many more assistants, clerks and messengers, as the board of super- visors directs. The commissioner, and each assistant whom he designates for the purpose, by a certificate filed in the office of the county clerk, may administer an oath or affirmation in relation to any matter embraced within the provisions of this article. The commissioner must keep a record of all proceedings before him, or in his office. t § 159. The commissioner is entitled to, and must col- lect for a copy of a paper furnished by him, the same fees as the clerk of a court of record ; he must furnish a copy of each paper filed, or proceedings taken in his office, to any person applying therefor and paying the fees. All the money received by him for fees or fines, collected from trial jurors, or otherwise, in the discharge of his duties as com- missioner, must be accounted for by him, and paid into the treasury of the county.:]: § 160. The board of supervisors of the coimty must provide suitable rooms, and other accommodations for the use of the commissioner of jurors, and also for the compen- sation of his assistants, clerks and messengers, and for neces- sary printing and advertising, books, stationery, and other articles required for the convenient discharge of his duties.§ * New Code, § 1125; this section is new. + New Code, § 1132: Laws of 1858, c. 322 ; parts of §§ 1 and 5 remodeled ; see §§ 123 and 133, ante. I New Code', § 1133; Laws of 1858, c. 333, § 39. § New Code. § 1134 '; Laws of 1858, c. 332, § 6; amended. TRIAL JURORS IN KINGS COUNTY. 63 § 161. The assessors in the city of Brooklyn, and of each town in the county of Kings, or a majority of them, must, after the first day of May, and on or before the iirst day of July in each year, return to the commissioner of jurors a written list, under his or their hands, containing the names of all persons in the city or town, as the case may be, who are liable to serve as trial jurors, and stating the occupation, place of business, and residence of each person, as far as those particulars can be conveniently ascertained. The omission to include the names of one or more persons so liable, or any other error or defect in a list, does not affect the validity of any proceeding pre- scribed in this article. The commissioner must within the same period select from the persons residing in the county, suitable persons to serve as trial jurors. In making the returns or selection, the assessors and the commissioner respectively, must take the names of those persons only whom they believe to be qualified to serve, and not ex- empt from service, as trial jurors. A list of the names so selected, must be made by the commissioner in a book specifying, as nearly as he has ascertained the facts, the occupation, the place of business, and the residence of each person, including the town, or, in the city of Brooklyn, the ward. In the list the towns must be arranged alphabeti- cally, and the wards numerically, and the names of the jurors must be arranged alphabetically, according to their surnames, each under the name of the town or ward where he resides.* § 162. As soon after the first day of June in each year as the commissioner has made the list, he must publish a notice, for at least ten days, in at least six daily newspapers, pubhshed in the county, to the effect that the list of trial jurors for the year is ready, at his office, for examination and correction. He must then receive evidence of dis- qualifications or exemptions, and must mark " not qualified" or " exempt" in the list opposite the name of each person * Nm Code, § 1135; Laws o/1858. c. 333, § 7; amended and re- modeled. 64 TRIAL JUEOES IN KINGS COUNTY. found to be disqualified to serve, or exempt from sernng as a trial juror, as the ease requires. He must also record therein the ground of each disqualification or exemption. * § 163. On the first Monday of August in each year, or earlier if the corrections can be earlier made, the commis- sioner must prepare the list of trial jurors for the year by copying, from his book, the names of all persons who appear therein to be Uable to serve as trial jurors, with the proper additions of each. The commissioner must file a transcript of the list, verified by his affidavit, in the office of the county clerk. f § 164. Supplemental lists, containing the names arid proper additions of persons subsequently ascertained to be liable to serve as trial jurors, may, from time to time there- after, be made, and transcripts thereof, verified as pre- scribed in the last section, must be filed in like manner by the commissioner. Ballots containing those names must be prepared, as prescribed in the next section, and used in like manner as the other ballots therein specified for the residue of the jury year.:]: § 165. The commissioner must prepare ballots, by writing the names contained in the list, a transcript of which was filed in the office of the county clerk, with the proper additions of each person on separate pieces of paper, which must be uniform, as nearly as may be, in appearance. On the second Monday of August in each year he must deposit the ballots in the box kept by him for that purpose, and must place his seal upon the box, whereupon all jury bal- lots, previously in use, must be destroyed. The box must be constructed with an aperture large enough only to con- veniently admit the hand of the person by whom the bal- lots are to be dra-noi ; and the aperture must be provided with a cover so arranged as to be conveniently sealed when closed.§ * Nm Code, § 1136; Laws o/1858, c. 332, § 8, amended and remodeled. t Nm GoAe, § 1137; Laws of 1%5%, c. 333, § 13. X New Code, § 1138; Lcms o/1858, c. 833, § 13, amended. § New Code, \ 1139; Zaws 0/1858, c. 333, § 14. TEIAL JUEOES IN KINGS COtTNTY. 65 § 166. The commissioner must seasonably notify the justices of the supreme court residing in the county, the judges of the city court of Brooklyn, the county judge, and the justices of sessions of the county, to attend at his office on a day designated by him, not less than fourteen nor more than twenty days before the day appointed for holding a term of a court of record in the county at which issues of fact are triable by jury, in order to witness and assist in the drawing of trial jurors for that term. The number of trial jurors to be drawn for each term may be fixed by the judge who is to preside at or hold the term, by an order under his hand, delivered to the commissioner. If the number has not been so fixed at the time of the drawing, one hundred and thirty-two trial jurors must be drawn for the term.* § 167. If two or more of the judges specified in the last section attend with or without one or more justices of sessions, the commissioner must break the seal of the box containing the ballots, open it, and exhibit the ballots for their inspection, together with his original and each supple- mental list of trial jurors, and also the verified transcripts thereof, filed in the county clerk's office. The ballots con- taining the names of trial jurors excused from service for the whole or a portion of a previous term of a court of record in the county, which have not already been replaced in the box to be re -drawn, must then be replaced therein, and the judges attending the drawing must take care, when the seal is broken, that they are so replaced. If a supple- mental list has been made, and a transcript filed since the last drawing, ballots containing the names appearing therein must at the same time be placed in the box. The judges and the commissioner, or a majority of them, must appoint one of the attending officers to draw the ballots from the box, and another to checkmark the drawing as it proceeds upon a copy of the lists, transcripts of which have been filed with the county clerk.f * New Code, § 1140; Lomb of 1858, c. 323, § 15, as amended by Laws of 1866, c. 831, § 7, and remodeled. t New Code, § 1141, as amended in 1879; Lcmsof 1858, c. 333, § 16, amended ; see § 17, as amended by Laws of 1863, c. 506. 5 66 TEIAL JTJKOES IN KINGS COtTNTT. § 168. The commissioner must then shake the box containing the ballots so as thoroughly to mix them. The person appointed for that purpose must then, without see- ing the name contained in any ballot, publicly draw one ballot from the box and read aloud the contents thereof. If the drawing is for trial jurors to serve in the city court of Brooklyn, and the person drawn does not reside in that city, the ballot must be returned to the box ; but if he resides in that city, or if the drawing is for trial jurors to serve in another court, the person appointed to checkmark the drawing must place opposite the name of the person drawn, upon the copy of the hsts, the figure one. The ballot must then be deposited in a second box provided for that purpose, and constructed like the first box. Another ballot must then be drawn in like manner from the first box, and the same process must be repeated until the requisite num- ber has been drawn, except that each name must be check-' marked in its numerical order.* § 169. Wben the drawing is completed, the commis- sioner and the judges by whom it was conducted must sigQi a minute at the end of the copy of the lists upon which the checkmarks have been made, setting forth that the trial jurors whose names are contained therein were duly di*awn by them for the court and the term therein specified, in the order denoted by the figures. The judges must then close each box and place upon the cover thereof their seals, which must not be broken except when necessary for a subsequent drawing, f § 170. The proceedings upon each subsequent drawing are the same, but the list must be checkmarked with num- bers, commencing with the number next in order after the last number used at the preceding drawing.;]: § 171. After all the ballots have been drawn from the first box and deposited in the second box, the commissioner must make a new list, by copying the list used upon the * New Code, § 1143; Laws of 1858, o. 333, § 17, remodeled and condensed. + New Oode, § 1143; Lwws of 1858, c. 823, § 18. X Nm Code, § 1144; Lama of 1858, c. 333, § 19. TRIAL JURORS IN KINGS OOTJNTT. 67 preceding drawings, omitting the checkmarks. He must then correct it hj properly indicating each person who has been found to be disqualified, exempt, dead, or not resident within the county ; and each person who has been excused, and for what time. Thereafter, when trial jurors are drawn, the ballots must be drawn from the second box, the names must be checkmarked on the corrected list, and the ballots not used must be deposited in the first box, except that where a ballot is drawn containing the name of a per- son indicated on the corrected list as disqualified, exempt, dead, or non-resident, it must be destroyed, and a ballot containing the name of a person who has been excused for a period then unexpired, must be returned to the box from which it was drawn, without cheekmarking.* § 1Y2. Immediately after each drawing of trial jurors, the commissioner must prepare a panel, verified by his' affidavit, containing the names of the jurors drawn, with the proper additions of each, and stating for what court and for what term they were drawn. He must transmit the panel to the sherifE of the county, who must keep it on file in his office for public inspection. The sheriff must forth- with notify each juror named therein to attend the term for which he was drawn, by serving upon him a notice to that effect, addressed to him. The notice may be served personally or by leaving it at the juror's residence or usual place of business, with a person of proper age and discre- tion. It must specify the days during which the juror is required to be present, and it may contain copies of such portions of this article as the sheriff deems proper.f § 173. The thirty-six trial jurors first drawn for a term, or such other number as the judge appointed to hold or preside at the term directs, must be notified to be present during the first six days of the term, and the thirty-six trial jurors next drawn, or such other number as the judge directs, must be notified to be present during the next six days of the term, and a like number during each succeed- * Mw Code, § 1145 ; Imibs of 1858, c. 333, § 30. t Mw Code, § 1146; Lams of 1858, c. 333, § 31, as amended by Lms of 1878, c. 166. 68 TRIAL JUEOES IN KINGS COTTNTY. ing six days. The judge holding or presiding at the term, may, in his discretion, on the application of a trial juror, excuse him from the whole or a part of the time of service required of him. The judge may also change the time of service of a juror to a later day, during the same or a sub- sequent term of the court. Each juror whose time of ser- vice is changed to a day certain must attend at the opening of court on that day, and thereafter until discharged, with- out further notice. If he fails so to do he is liable to the same punishment as if he had been personally notified by the sheriff to attend the term and to be present on that day. The clerk of the court must enter in a book kept for that purpose the name of each juror who is so excused, or whose time of service is changed.* § 174. Before the commencement of each term of a court, for which trial jurors have been drawn, as prescribed in this article, the sheriff must file with the clerk the panel or a copy of the panel, with a return under his hand, endorsed thereupon or annexed thereto, showing the name' and additions of each juror notified, the days during which he was notified to attend, and the manner in which he was notified.f § 175. At any time during the sitting of a term of a court of record in the county, the court may direct an additional number of trial jurors to be drawn for that -term. The order must specify the number to be drawn and the time of drawing. The drawing must be conducted as prescribed in sections eleven hundred and forty-one, eleven hundred and forty-two, and eleven hundred and forty three of this act (§§ 167, 168, and 169, cmte), ex- cept that notice is not required. The sheriff must forth- with notify each juror drawn, by such a notice as the court directs, to attend the term at the time specified in the order.:]; * New Code, % 1147; Lwuos of 1858, c. 333, § 33, as amended by Lams of 1866, c. 831, § 3. t New Code, % 1148; Loms of 1858, c. 323, § 34, amended (see Lams of 1873, c. 166). X New Code, § 1149; Laws of 1853, c. 336, § 5. TRIAL JTTEOES IN KINGS COTTNTT. 69 § 176. In a special proceeding pending before the county judge of Kings county, in which a trial jury is necessary, the judge may impanel a jury from the trial jurors who are serving at the time in the court of sessions of the county. In a special proceeding pending before a judge of the city court of Brooklyn, in which a trial jury is necessary, the judge may impanel a jury from the trial jurors who are serving at the time in that court. If there are no jurors serving in the court of sessions or in the city court, as the case may be, the judge may make an order requiring the commissioner of jurors to draw the number of trial jurors designated therein, whereupon the commis- sioner must draw the requisite number, and the sheriff must notify them, as prescribed in this article for drawing and notifying other trial jurors.* § 177. The board of supervisors of the county must allow to each judge, including each justice of the supreme court, for the services performed by him, as prescribed in this article, such compensation as the board deems reason- able and proper.f § 178. Where a person duly drawn and notified to attend a term of a court of record as a trial juror fails to attend at the time specified in the notice, or from day to day, the court at that term must impose upon him a fine of twenty-five dollars for each day that he fails so to attend. This section applies to a special juror as well as to an ordi- nary trial juror.J § 179. Where a person duly drawn and notified fails to attend and serve at a term of a court of record, as required by law, without having been excused, the court, besides imposing a fine, as prescribed in the last section, may direct the sheriff to arrest him and bring him before the court ; and, when he has been so brought, it may in its discretion compel him to serve. § * New Code, § 1150; Laws of 1866, c. 821, § 10. t New Code, § 1151; Laws of 1866, c. 831, § 9. I New Code, §1153; Lams of 1858, c. 333, § 25, amended (see § 180, post). § New Code, % 1153; this section is new (see § 143, ante). 70 TKIAL JUKOES IN KIKG8 COUNTY. § 180. The commissioner of jm-ors must cause a notice to be served upon each delinquent trial juror returned as having been fined, stating the sum in which, and the term at which he was fined, and requiring him to show cause, if he has any, before the board specified in this section, at the commissioner's office, on a day not less than three days thereafter, and at an hour specified in the notice, why the fine should be remitted. The commissioner must notify the justices of the supreme court residing in the county, the county judge, and the chief judge of the city court of Brook- lyn, to attend at the same time and place and act with him as a board for the remission and enforcement of jury fines. It is their duty to attend and act accordingly. The com- missioner and two of those justices or judges constitute a quorum. The board may, in its discretion, hear testimony, and it may from time to time adjourn the meeting, or the hearing, or final disposition of a particular case. It may remit the whole or any part of a fine ; but a fine shall not be remitted or reduced, unless the person upon whom it has been imposed, or, if a reason satisfactory to the board is given why his affidavit cannot be furnished, another per- son in his behalf, makes and files with the commissioner an affidavit stating the grounds upon which a remission or reduction is claimed. Each affidavit so filed must be kept open to public inspection.* § 181. The commissioner of jurors must receive each fine paid or collected, as prescribed in this article. When ten days have expired since the final disposition of a case by the board, the commissioner must file in the office of the clerk of the court a return containing the name of each juror fined, whose fine remains unpaid, and a statement of the sum remaining unpaid. The clerk must thereupon issue to the commissioner a precept, under the seal of the court, specifying the name of each person fined and the amount of his fine remaining unpaid, and commanding the commissioner to levy and enforce collection of each fine, and * Nm Cods, § 1154; Laws of 1858, c. 322, § 27, as amended by Lms 0/1866, c. 821, § 3; Laws of 1871, c. 744, § 1. TEIAL JUKOES IN KINGS OOtTNTY. 71 to return tlie precept witli his doings thereupon, within ninety days after the receipt thereof. For the purpose of collecting a fine, the commissioner must levy upon and sell the personal property of a person fined, with like effect and subject to the same provisions of law as where a sherifE levies upon and sells personal property by virtue of an execution issued upon a judgment of a court of record.* § 182. The commissioner must return the precept, according to its command, to the clerk of the court issuing it. If he, fails so to do, the court may enforce the return by attachment for contempt. When the precept is returned the clerk must make in the docket of judgments kept by him the same entries, as nearly as may be, with respect to each uncollected fine, as if it was a final judgment rendered in an action. If the fine was imposed at a term of the city *ourt of Brooklyn, the clerk thereof must immediately transmit a transcript of the entries to the clerk of the county of Kings ; who must file it, and make the appro- priate entries in his docket of judgments. When the entries have been made, the fine, with interest, becomes a lien upon the real property of the person fined, as if it was recovered by a judgment in the same court, and an execu- tion to collect it may be issued, directed to the sheriff of the county of Kings, as upon a judgment. The commis- sioner has, in relation to the execution and the satisfaction of the fine, all the powers of the attorney for a party recovering such a judgment in relation to the judgment and the execution issued thereupon.f § 183. The lien created by such a docket must be dis- charged by the county clerk on filing with him the com- missioner's certificate of payment.;]: § 184. If the commissioner of jurors or either of his assistants, or a clerk or other person employed by him, cor- ruptly and without sufficient cause, omits the name of a * Nm Oode, § 1155; Lcms of 1858, c. 323, § 29, as amended by same acts as last section, §§ 4 and 2, respectively. t New Code, § 1156; Imws of 1658, c. 333, § 29, adding § 6 of Laws of 1866. t New Code, § 1157; Xa«jso/1866, c. 821, § 5. 72 TRIAL JUEOBS IN KIKGS COUNTY. person duly drawn from a panel of trial jurors, or the bal- lot, containing the name of such a person, from either of the boxes prescribed in this article, or, directly or indi- rectly, receives a fee, reward, compensation, or advantage in consideration of, or as an inducement to such an omis- sion, he is guilty of a felony, and shall, on conviction, be punished by imprisonment in a State prison for a term not less than two nor more than five years.* § 185. A wiUful omission by the commissioner, of a duty required of him by this article, other than that speci- fied in the last section, is a misdemeanor.f § 186. A person to whom application is made within the county of Kings by an assessor, or by the commissioner of jurors, or either of his assistants, for information ae to a fact upon which the liability of himself or any other per- son to serve as a trial juror depends, and who refuses to give information relating thereto, which he can give, or knowingly gives false information relating thereto, or a person who knowingly makes to an assessor or to the com- missioner of jurors or a person acting by his authority, a false representation as to the identity, residence, or any other matter relating to a juror duly drawn and placed on a panel to be notified, or who knowingly retains, conceals, suppresses, or willfully destroys a notice to attend left at the residence or place of business of another who has been drawn as trial juror, is guilty of a misdemeanor.:]: § 187. A physician who knowingly gives a false certifi- cate' or makes a false representation for the purpose of enabling or assisting a person to be discharged, excused, or exempted from service as a trial juror in the county of Kings, is guilty of a misdemeanor.§ § 188. The commissioner of jurors must make a yearly report to the board of supervisors of all proceedings had before him or by him in the discharge of his duties, and he * NeiB Code, § 1158; Laws o/1862, c. 378, § 4, amended. t New Oode, § 1159; LawsofX^QQ, c. 831, § 8. X Nm Code, § 1160; ia«!So/1858, c. 333, § 9. § New Code, § 1161; this section is new, corresponding to § 13, Lams of 1870, c. 539 (see § 153, ante). TRIAL JUEOES IN BUFFALO. 73 must pay over to the county treasurer, at least once in each three months, all money in his hands which he has received as commissioner.* § 189. The assessors of the city of BufEalo must, in the month of May in each year, make out, return, and file with the clerk of the court, a hst of not less than six hundred residents of that city not exempt from jury duty, qualified to serve as trial jurors in the court. For that purpose, the assessors may, in their discretion, associate the clerk of the court with them. The court at any term thereof may, from time to time, make an order directing the assessors to make out and file, within ia time specified in the order, a new list of jurors, or a list of any number of additional jurors ; and it may punish an omission to obey such an order as a cpn- temptf § 190. At least fourteen days before the time appointed for holding a term of the court, where issues, of fact in civil or criminal causes are triable, the clerk of the court, in the presence of a judge thereof, must draw from the list so returned by the assessors the names of thirty-six persons, or such other number as the court, at any term thereof, directs, to serve as trial jurors. The drawing must be con- ducted as described by law for the drawing of trial jurors by a county clerk, except that notice thereof is not neces- sary. A Hst of the names of the persons drawn must be certified by the clerk and attending judge, and delivered to the sheriff of Erie county. | § 191. The sheriff must thereupon notify each of the persons so drawn, as prescribed by law for notifying a Juror drawn to attend a term of the circuit court. Before the first day of the term, the sheriff must file the list with the clerk, accompanied with his return, specifying who were * STew Code, § 1163; Lcms of 1858, c. 322, §40. t Mw Code, § 303; Zawsof 185i, c. 96, § 28; Lawsof 1857, c. 361, I 7; Laws o/1870, c. 313; 3 B. S. 6 ed. 270, § 36. The appUcation of this and the next three sections extended to certain criminal cases. I Mw Code, § 304 ; Lcma of 1854, c. 96, § 29 ; Lmoa of 1857, c. 361 , § 8 ; 3 2?. S. 6 ed. 370, § 37. See note to last section ; see next two sections. 74 POEMATION OF THE JURY. notified, and the manner in which each person was notified. The clerk must make the same disposition of the ballots, containing the names of the jurors who have served, of those who did not appear, and of those who were dis- charged, as prescribed by law with respect to the circuit court. Each juror attending a term of the coui-t must be paid, by the county of Erie, the same compensation as a juror attending the circuit court.* § 192. At a term where issues of fact in civil or crimi- nal causes are triable, the court may, in its discretion, direct additional jurors to be drawn from any list returned by the assessors, and require the sheriff or a policeman in attend- ance upon the term, forthwith to notify them to attend ; and if a person so drawn cannot be found, the court may cause his name to be returned to the box.f § 193. Jurors for the terms of the county court, at which issues of fact are triable by jury, and of the court of sessions, must be drawn and notified in the same manner as for a term of the circuit court.:J: Format/ion of the Jwnj. § 194. At the opening of a term of a court of record, at which issues of fact are to be tried by jury, the clerk must cause ballots, uniform as nearly as may be in appear- ance, to be prepared, by writing the name of each person returned to the term as a trial jm'or, with his proper addi- tions on a separate piece of paper. He must roll up or fold each ballot, in the same manner, as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a sufficient box, from which they must be drawn, as prescribed in this article.§ * Neu> Code, § 305 ; see note to last two sections, t Mw Code, § 306. X Nm Code, § 357; OU Code, § 33 ; Laws of 1877, c. 371. This section applies to every county in the State. § Nm Code, § 1163; 3 B. S. 430, § 59 (3 Mdm. 438). This statute is merely directory (Cole v. Berry, 6 Cow. 584). FORMATION OF THE JTTET. 75 § 195. "When an issue of fact, to be tried by a jury, is brought to trial, the clerk, under the direction of the court, must openly draw, out of the box, as many of the ballots, one after another, as are sufficient to form a jury.* § 196. Before the first ballot is drawn, the box must be closed and well shaken, so as thoroughly to mix the bal- lots ; and the clerk must draw each ballot, without seeing the name written on any of them, through an aperture made in the lid of the box large enough only to admit his hand conveniently.f § 197. The first twelve persons who appear as their names are drawn and called, and are approved as indiffer- ent between the ' parties, and not discharged or excused, must be sworn and constitute the jury to try the issue.:]: * New Code, % 1164; 2 B. 8. 430, § 60. + New Code, § 1165; 3 R. 8. 430, § 66. \ New Code, § 1166; 3 B. 8. 430, § 61; People v. Larned, "^ N. Y. 451; and as to administering general oath, see People v. Albany C. P., 6 Wend. 548. An irregularity in the impaneling of a jury is no ground of error, if it does not prejudice or injure the defendant (People «. Cum- mings, 3 Parh. 343). If a juror do not answer to his name when called, though he after- wards appears before the jury is full, he may be refused a place in the jury-box (People v. Vermilyea, 7 Oow. 369). After the names of the jurors in the ballot-box have been called and exhausted, absent jurors may be called ; and if one of them sup- posed to be absent happens to be present, he may be sworn on the panel (People «. Rogers, 13 Alb. Pr. N. 8. 370). If the name of a juror be called, and he do not appear in court, his name must then be returned to the ballot-box with the undrawn ballots ; and if he tlien come into court' he cannot be required to take his seat in the jury-box (People ». Larned, 7 N. T. 445). In an action for waste, it is not necessary, either upon the execu- tion of a writ of inquiry, or upon the trial of an issue of fact, that the jury, the judge, or the referee, should view the property ; where the trial is by a referee, or by the court without a jury, the referee or the judge may, in his discretion, view the property, and direct the attorneys for the parties to attend accordingly. In any other case, the court may, in its discretion, by order, direct a view by the jury {New Code, § 1659 ; the section contained in this note has not yet been adopted). 76 FORMATION OP JURIES. § 198. The ballots containing the names of the jurors, so sworn, must be then deposited in another box, and there kept apart from the other ballots until that jury is dis- charged.* § 199. After that jury is discharged, the ballots con- taining their names must be again rolled up or folded, as prescribed in section eleven hundred and sixty-three of this act (§ 194, omte), and returned to the box from which they were first taken, and the same course must be pur- sued as often as an issue is brought to trial by a jury.f § 200. The ballot containing the name of a juror, who is absent w;hen his name is drawn or called, or is set aside or excused from serving on that trial, must be. again rolled up or folded in the same manner as before, and returned to the box containing the undrawn ballots, as soon as the jury is sworn. :|: § 201. If an issue is brought to trial by a jury while a jury is impaneled in another cause at the same term, and not then discharged, the court may order a jury for the trial of that issue to be drawn out of the box containing the ballots then undrawn ; but in any other case, the ballots containing the names of all the trial jurors returned at, and attending the term, must be placed together in the same box, before a jury is drawn therefrom.§ § 202. If a sufficient number of jurors, duly drawn and notified, do not attend, or cannot be obtained to form a trial jury, the court may, in any county except "West- chester, direct the sheriff to require the attendance of such a number of talesmen from the bystanders, or from the county at large, qualified to serve as trial jurors, as it deems sufficient for the purpose. In Westchester county the court must direct the sherift to draw a sufficient num- ber of ballots from the first box, specified in section 1038 (§ 90, ante) of this act, if there is not a sufficient number of ballots remaining therein, to draw the residue from the second box, specified in section 1051 (§ 103, ante) of this * New Code, § 1167. % New Code, § 1169. t Nmo Code, § 1168. § New Code, % 1170. FORMATION OP JURIES. 77 act. In any other county, except New York and Kings, it may, in its discretion, instead of directing him to require talesmen to attend, direct him to draw a sufficient number of ballots from the third box, specified in section 1052 (§ 104, a/nts) of this act. In either case, the sheriff must notify the persons thus drawn to attend forthwith, or upon a day fixed by the court. If, for any reason, a sufficient number of jurors to try the issue is not obtained from the persons notified under an order made as prescribed in this section, the court may make another order or successive orders until a sufficient number is obtained, and in making each order, the court may exercise the same discretion as in making the first order.* § 203. In any county except New Tork, Kings or Westchester, the court may also direct the sheriff to require the attendance of such a number of qualified talesmen for the trial of an issue of fact as it deems sufficient, where, by reason of one or more juries being impaneled, or for any other reason, no ballot remains undrawn, or where, in consequence of jurors being set aside, a juror cannot be obtained for the trial of that issue from the list of those returned.f § 204. If in a case specified in the last two sections the sheriff is a party to the issue, the court must appoint a disinterested person to act in place of the sheriff. For that purpose, the person so appointed possesses all the powers and is subject to all the duties and liabilities of the sheriff, with respept to the matters specified in those sections.;]: § 205. The sheriff, or person appointed by the court, must notify the requisite number of persons to attend and make return thereof, as prescribed in section ten hundred and forty-eight of this act (§ 100, amti) ; except that each person must be required to attend forthwith. Each person SO notified must attend forthwith, and unless excused by * New Code, § 1171, as am'd in 1879. The summoning of tales- men is only for a single trial (Shields v. N. S. Bank, 3 Hun, 477). t New Code, § 1173; 2 B. 8. 420, part of § 65. As to what the record must show, see Cooper v. Bissell, 16 Johns. 146. I New Code, § 1173; 2 B. ,8. 420, § 65. 78 MISCELLANEOUS PEOVISIONS. the court or* set aside must serve as a juror upon the trial. For a neglect or refusal so to do, he may be fined in the same manner as a trial juror regularly drawn and notified as prescribed in this chapter ; and he is subject to the same exceptions and challenges as any other trial juror.* § 206. A general, special, or trial term of a court of record may be adjourned from day to day, or to a specified future day, by an entry in the minutes. Jurors may be drawn for and notified to attend a term so adjourned, and causes may be noticed for trial thereat, as if it was held by original appointment. Any judge of the court may so adjourn a term thereof, in the absence of a suflBcient num- ber of judges to hold the term.f § 207. "Where the trial or hearing of an issue of fact, joined in an action or special proceeding, civil or criminal, has been commenced at a term of a court of record, it may, notwithstanding the expiration of the time appointed for the term to continue, be continued to the completion thereof ; including, if the cause is tried by a jury, all proceedings taken therein until the actual discharge of the jury ; or if it is tried by the court without a jury, until it is finally sub^ mitted for a decision upon the merits. ;]: Miscellcmeous Provisions, imcl/udmg those relating to Mnbraoery, and other act of Miscoroduot. § 208. A trial by a jury, of an issue of fact, joined in a civil action in a court of record, must be had as prescribed in this chapter ; except in a case where it is otherwise spe- cially prescribed bylaw. An alien is not entitled to a jury composed in parts of aliens, or strangers, in an action or special proceeding, civil or criminal.§ * New Code, § 1174; 3 i?. S. 430, § 55. As to challenges, see post, § 339, etc. t New Code, § 34; Old Code, % 34 (see Fisher v. Hepburn, 48 N. Y. 41). X New Code, § 45. § New Code, § 1190; 3 B. 8. 419, § 53 (3 Edm. 487), remodeled; see also § 137, post. This is known in some of the States as a jury " . Petry & Mulligan, 2 Hilton, 525 ; People «. Wilkes, 5 Sow. Pr. 105. I 3 iJ. . McClear, 11 Nee. 89; se&post, § 451, &c. CHALLENGES TO JUEOES. 95 I. Comse of vnca^aciiy arising from a want of statutory qualifications. II. Arising from partiality on account of mere relation- ship. III. Arising from an interest in the result of the trial. lY. Arising from conscientious scruples about finding a verdict of conviction in a capital case. Y. Arising from declarations of opinions or wishes as to the result of the trial. YI. Arising from the declaration of opinion formed and expressed as to the guilt or innocence of one accused of crime. Practice as to Challenges. § 254. In American practice, generally, the two prin- cipal kinds of challenge are : first, to the array ; by which is meant the whole jury as it stands a/rra/yed m /pa/nel ;* and to the polls — by which is meant the several jpersons or heads in the wrray. The Practice in Federal Cov/rts. § 255. The act of Congress passed on the 20th of July, 1840, confers upon the courts of the United States the power to make all necessary rules and regulations for conforming the impaneling of juries to the laws and usages in force in the States.f § 256. This power includes that of regulating the challenges of jurors, whether peremptory or for cause, and in cases both civil and criminal; with the exception in criminal cases of treason or other crimes of which the punishment is declared to be death. But this act does not * Panel meant a little square pane of parchment on which the jurors' names were written. t 5 Stat, at Large, 394; United States v. Shakkleford, 18 Sow. 688; see Chap. Vni., post. 96 CHALLENGE TO THE AKEAT. confer in misdemeanors the right of a peremptory challenge in the circuit courts.* Challenge to the Array. § 25Y. Challenge to the array is based upon the partiality or default of the sheriff, coroner or other officer that made the return ; it should be made before challenges to the poll, and it must be made in writing.f § 258. Principal challenges to the array are such as these : I. If the sheriff is the actual prosecutor or the party aggrieved. II. If he is of actual affinity to either of the parties, and if the relationship exists at the time of the return. III. If he returns any individual at the request of the prosecutor or the defendant. lY. If he returns any person who is in his judgment more favorable to one side than to the other. Y. If he belongs or belonged to an association for the prosecution of offenders, of whom the defendant was claimed to be one. YI. If an action of battery is pending between the sheriff and the defendant, or if the latter has an action of debt against the former. YII. If the statutory requisitions are not complied with. § 259. In each of these cases, on the presumption of partiality in making up the return, the array will be quashed.:!: § 260. Principal challenge to the array, if made good, is cause for exemption without resort to triers. § 261. An irregularity in the drawing of the jury * United States v. Devlin, 6 Blatchf. 71 ; United States v. Johns, 1 U. 0. 0. 363 ; see § 800, post. t People «. Doe, 1 Mann. Mich. 451. X Bac. Abr. Juries E. 1; Bich. Sess. 183, 184; E. v. Dolby, 3 B. & 0. 104; State v. Darocha, W La. Ann. 356; State «. Gut, 13 Minn. 341; see §§ 268 and 269, post. CHALLENGE TO THE AERAT. 97 which does not affect either the rights of the prisoner or the composition of the jury, is not a ground of challenge to the array.* § 262. Challenges to the array /br fa/oor not being a principal challenge, are left to the discretion of the triers. Challenges of this class are based on the supposed partiality of the sheriff, when such partiality is not sufficiently distinct to make it the subject of a principal challenge. Thus, when the defendant is the sheriff's tenant, or where there is affinity, but no relationship, between the sheriff and one of the parties, or where they are united in the same office ; in these cases there may be a challenge to the Sixvskjforfcmor. \ § 263. If the array is challenged, it is in the discre- tion of the court to say how it shall be tried ; sometimes it is tried by two coroners, and sometimes by two of the jury, with this difference, that if the challenge is for kindred in the sheriff, it is to be tried by two of the jurors returned; but if the challenge is found in favor of par- tiality, then by any other two assigned thereunto by the coart.:j: § 264. On challenging the array, the opposite party may either plead to it or demur to its sufficiency in law.§ If he pleads, then the triers are sworn and charged to inquire " whether it be ah impartial array or a favorable one." If they affirm it, the clerk enters under it the word " affirmatitr", but if they find it to be partial, the clerk enters the words " caVu,mm,ia vera " on the record. || § 265. The court may either decide the demurrer at once, or adjourn its consideration to a future period. T[ * Ferris v. People, 35 i7. T. 135; Friery v. People, 3 Eeyes, 434. t BxJKNS, J., Jurors, 8; Dyer, 367, a; Bac. Air. J. B. 1; Oo. Litt. 156, a; Pringle ii. Huse, 1 Cow. 436, note 1. X 3 Hale P. 0. 375; R. ■». Savage, 1 Mood. 0. 0. 51. § See Forms, 10 Wenlm. 474. 1 4 Black. Oom. 353, n. 8; Bacon^ Ah". Juries E.1%; 1 Gh. 0. L. 549. IT lUd. 1 98 CHALLENGE TO THE AEEAT. Where the judges, upon hearing the arguments, overruled the challenge, the decision is entered on the original record, and Sktnisiprius appears on ihepostea; but if it is overruled without demurrer on being debated, the objections may afterwards be made the subject of a bill of exceptions.* § 266. Should the challenge be admitted and the array be quashed, a new venire is awarded the coroners or elisors, in the same manner as if it had been prayed by one of the parties to be so directed, to prevent the delay at an earlier stage of the proceedings.f § 267. But where parties proceed to trial before a jury, without objection to the manner in which the jury was summoned or impaneled, it is too late after the ren- dition of the verdict to raise such objection. J § 268. It is not a good cause of challenge to the panel or array of trial jurors, in an action in a court of record, that the officer who drew them is a party to, or interested in the action, or counsel or attorney for, or related to a party.§ § 269. It is not a good cause of challenge to the panel or array of trial jurors in an action in a court of record, that they were notified to attend by an officer, who is a party to or interested in the action, or related to a party, unless it is alleged in the challenge, and is established, that one or more of the jurors drawn were not notified ; and that the omission was intentional. | § 270. In a penal action in a court of record, or not of record, to recover a sum of money, it is not a good cause of challenge to a trial juror or to an officer who notified the trial jurors, that the juror or the officer is liable to pay * 1 Ch. 0. L. 549; BamCs Abr. Juries E. 13; and see § 271, post. t Go. JUtt. 158, a. I Dayharsh v. Bnos, 5 iV. T. 531 ; Mayor, &c. of New York v. Mason, 1 Abk 344-353: B.C., 4 E. D. Smith, 143; Hardenburg «. Crary, 15 How. 307; Co. Litt. 158, a. § New Code, § 1177; 3 B. S. 430, § 56 (3 Edm. -437). II New Oode, § 1178; % B. 8. 430, § 57. CHALLENGE TO THE ARRAY. 99 taxes in a city, town, or county, which may be benefited by the recovery.* § 271. An objection to the qualifications of a juror is available only upon a challenge. A challenge of a juror, or a challenge to the panel or array of jurors, must be ti-ied and determined by the court only. Either party may except to the determination, and it may be reviewed upon a question of fact, or a question of law, or both, as where an issue of fact presented by the pleadings is tried by the court ; except that where one or more exceptions are taken to the rulings of the court made after the jury is im- paneled, an exception to the determination of a challenge must be heard at the same time, and the case must contain the matters necessary to present it upon the facts, or the law, or both.f Orovmds of Challenge. § 272. It is a good ground of challenge to the array if * New Code,. % 1179; 3 M. 8. 430, § 58; also 3 R. 8. 551, § 3 (3 Edm. 571). t New Code, § 1180 ; Laws of 1873, c. 437, § 1 (9 Edm. 609, amended) ; Thomas v. People, 67 N. T. 318. On a writ of error, an objection, that jurors were accepted, whose examination disclosed the fact that they were disqualified by reason of opinion, will not be considered where no exception to the accept- ance of such jurors was taken at the trial, and the question is first raised on appeal from a conviction (Bronson «. People, 33 Mioh. 34). On the trial of a person indicted for murder, the prosecution challenged a juror for implied bias. The challenge was sustained, and the defendant excepted, on the ground that the juror was im- properly excluded. The defendant was convicted of murder in the second degree. It was held that the decision sustaining the chal- lenge was not the subject of exception under section 1170, subd. 1 of the Penal Code of CaKfornia (People i>. Colson, 49 Oal. 679 ; People V. Murphy, 45 Id. 137). The decision on a question of fact raised on a challenge for actual bias is final, and cannot be reviewed on appeal (People v. Vasquez, 42 Oal. 560 ; People «. Cotta, Id. 167). 100 CHALLENGE TO THE AEEAT. the sheriff (in the TJ. S. courts the marshal) who served the writ or summons is a party to the cause.* § 273. It is a good ground of challenge, if some of the jurors had not been duly summoned, but that their names had been placed upon the list by the clerk of the court, by their own request, f § 274. A challenge to the array is waived if not made before the jurors are sworn.ij: § 275. The district attorney need not verify his an- swer to a challenge to the array.§ § 276. If the circuit clerk is an attorney for plaintiff or defendant, even if he was attorney at the time of the drawing, making, or arraying the panel, that is not ground of principal challenge to the array. || § 277. It is not a valid objection to a jury procured as prescribed in the last four sections (§§ 202, 203, 204, and 205, a/rvte), that it contains none of the jurors originally returned to the term, or is only partially composed of such jurors.Tf § 278. That the panel was certified by the deputy clerk instead of his principal, is not ground of challenge to the array.** § 279. That two sets of jurors were drawn at the same time from the jury box for two distinct courts, is not ground of challenge, if these two sets of jurors be kept entirely separate, and if a distinct panel of each be given to the sheriff.ff § 280. It is not ground of challenge, that the jurors * Woods V. Rowan, 5 Johns. 133. Contra, §§ 368 and 269, ante. t McCloskey v. People, 6 Parh. 155. X New York ii. Mason, 4 E. D. Smith, 143; S. C, 1 AVb. Pr. 344. § Gardner ». People, 6 Park. 155. 1 "Wakeman v. Sprague, 7 Cow. 730 ; and see § 268, ante. IT New Code, § 1175 ; 2 B. 8. 430; remaining portion of § 65 extended. ** People ». Fuller, 3 Parh. 16. tt Crane v. Deygert, 4 Wend. 675. CHALLENGE TO THE AEEAT. 101 were drawn more ttan fourteen days before the sitting of the court.* § 281. Where a special term of the court of oyer and terminer is appointed by the governor in pursuance of chapter 408, section 14, Lams of 1870, the names of the jurors must be drawn fourteen days before the holding of the court, and a challenge to the array for a failure so to do is proper, and should be sustained.f § 282. A challenge to the array of petit jurors at a court of general sessions for the city and county of New York, alleged that the jurors were not selected by the commissioner of jurors of said county, and that neither he nor any one on his behalf attended the drawing, but that the jurors were selected by one appointed by the mayor as commissioner, and that the statute under which the mayor acted was unconstitutional. Held, that the challenge showed upon its face that the jury were selected by an officer de facto, whose acts in the exercise of the functions of the office were valid as to the public, and whose appoint- ment could not be questioned collaterally, and that there- fore a demurrer to the challenge was properly sustained.:]: § 283. Talesmen are not to be summoned for the whole term of the court, but only for a single cause, ready and moved for trial — simply to fill up a panel ; and a chal- lenge to the jurors (talesmen) so summoned is valid. § § 284. The power of the mayor of the city of New York to appoint, in pursuance of an act of the legislature, a commissioner of jurors, to prepare the lists from which the names of the persons to serve as petit jurors are to be * Ibid. t Powell®. People, 5 Hun, 169; affi'd 63 N. T. 88. X Carpenter v. People, 64 N. T. 483; Dolan v. People, Id. 485. § Shields 11. Niagara Savings Bank, 3 Sun, 477 ; and see How v. Brundage, 1 Supm. Ot. {T. & C.) 439, and §§ 203, 308 and 305, ante. Where a sufficient number of jurors cannot Ije obtained from a special struck jury, the court has the power to order the summon- ing of talesmen for the purpose of filling up the jury (People v. Tweed, 11 Em, 197; S. C, 50 How. Pr. 286). 102 CHALLENGE TO THE AEEAY. taken, cannot be tried on a challenge to the array of the jurors so drawn.* § 285. In 'New York, since the statute authorizing the clerk to array the jury, a challenge to the array lies for partiality or default in the clerk in the same manner as it formerly lay against the sheriff, f § 286. A challenge to the array will not be allowed on the ground that all persons of a particular fraternity have been excluded from the jury, if those who are re- turned possess the requisite qualifications.:]: § 287. In Pennsylvania, under the acts of assembly relating to the summoning of jurors, it was held no cause of challenge to the array that the sheriff was not present the whole time during which the selection of jurors was made; or that the sheriff and commissioner took up be- tween two and three weeks in making the selection, and putting the names of the jurors into the wheels ; or that it did not appear that the sheriff and commissioner wrote the names of the jurors selected by them, and put the same into the wheels, this duty having been performed by a clerk in their presence and by their order; or that the pieces of paper on which the names were written were not safely kept between the time of writing and putting them into the wheel, the same having been put into a box where they were kept until the selection was completed, when they were put into the wheels ; or that the names which were remaining in the wheels at the end of the year were taken out before the names selected for the new year were put in.§ § 288. The person challenging the array must be strictly prepared to prove the cause. || § 289. If he omits to challenge, he cannot take ad- vantage of the alleged defect afterwards. Tf * Dolan «. People, 6 Hun, 493. t Pringlei). Huse, 1 Cow. 435, 436 ; Gardner ». TuTner, 9 Johns. 263. t People ». Jewett, 3 Wend. 314. § Com. ». Lippan, 6 8erg. & B. 395. 1 K. i>. Savage, 1 Mood. 0. 0. 51. IT B. V. Sutton, 8 B. & C. 417 ; 2 M. S S. 406. A person on trial for a felony, not capital (burglary), who re- CHALLENGES TO FAVOK. 103 § 290. When the action of the court, as in cases of challenges to the array and peremptory challenges, is placed on record, and there is a regular issue and joinder, and judgment on this issue, then error lies to this at common law * " Challenges to Famor. § 291. A challenge for favor or bias must specify the specific reasons of objection. It is not enough to challenge for " bias." The hmd of bias must be stated.f § 292. But the specific cause need not be assigned before the trial of such a challenge.:]: How Challenges are to le Tried. % 293. In many States challenges are tried exclusively by the court. Chapter 427 of Laws of New York of 1873, providing that all challenges of juror, both in civil and criminal cases, shall be tried and determined by the court alone, is constitutional. § § 294. In United States courts all challenges, whether to the array or panel, or to individual jurors for cause or favor, shall be tried by the court without the aid of triors. || fuses to pass on jurors who have been accepted by the State.and put upon him in a body, and demands that the jury be impaneled as in capital cases, cannot complain on error that this was refused him, when it appears that the opportunity to examine each juror separ- ately, as to qualifications and cause of challenge, was granted him, but of which he failed to avail himself (Sellers ». State, 53 Ala. 368). * Gray «. R., 1 Gla. & Fin. 427; Mansell ». R, 8 ^. & B. 54; Dea/ra & B. 375 ; -O'Connell «. R., 11 Ola. & Fin. 155; see also § 371, ante. t People «. Renfrou, 41 Oal. 37; Peoples. McGungill, Id. 439. But a party cannot sustain a challenge to the favor by proof that the " bias " is in his own favor (People v. Mather, 4 Wend. 339). I Lowenberg v. People, 5 Parh. 414. § Weston «. People, 6 Hun, 140 ; People ex rel. Tweed v. Lis- comb, 3 Id. 760; reversed in 60 N. T. 559, but not on this point; see § 371, ante. I Act of March 3, 1865, § 3; 13 Stat. 500; see § 800, post. 104 CHALLENGES TO FAVOE. § 295. The trial of challenges in Pennsylvania is by statute assigned to the court.* § 296. In Ohio, by the Code of Criminal Procedure, all challenges for cause shall be tried by the court on the oath of the person challenged, or on other evidence, and such challenge shall be made before the Jury is sworn, and not afterward. § 297. In other States statutory provisions exist allow- ing triers. § 298. Triers are persons appointed according to law to try whether a person challenged to the f amor is qualified or not to serve on the jury. The number of triers is two, unless the plaintiff and defendant or the attorneys consent to a different number, or unless some special cause or reason is mentioned or alleged by one of them, or unless one, and only one, juror has been sworn, and two triers are appointed with him.f Method of Seleabmg Triers. % 299. When a challenge is made to the first juror the court appoints two indifferent and impartial jurors to be triers. If the juror challenged is found by these two triers to be indifferent and impartial, he shall then be sworn and shall join these two triers in determining the next challenge. When two jurors have been found im- partial and have been sworn, then the office and duty of triers shall cease, and the jurymen shall decide or deter- mine every subsequent challenge. When more than two jurors have been sworn, then the court may assign or appoint any two of those jurors thus sworn to determine the challenges.^ § 300. The oath of the triers, as given in the lYth edition of Archibold's Criminal Pleadings, published in 1871, is " You shall well and truly try whether A. B., one of * Rev. Act Bill, II. § 39. t 1 Go. lAtt. 158, a; Bacon Ahr. Juries E. 13. \ Thorn's Case, 4 0. H. Sec. 81 ; Bomiefs Law Die. vol. 3. CHALLENGES TO FAVOE. 105 the jurors, stands indifferently to try the prisoner at the bar, and a true verdict give according to the evidence. So help you God." "Where the judge is substituted for the triers, he is not to be sworn, but he should decide upon the same principle as the triers. § 301. It has been ruled in 'New York to be error to swear the triers simply to find whether the juror is in- different upon the issue joined.* § 302. From the necessities of the case no challenge of triers is admissible, f § 303. The form of oath to be administered to a wit- ness sworn to give evidence before the triers is as follows : "The evidence which you shall give to the court and triers upon this inquest shall be the truth, the whole truth and nothing but the truth, So help you God." § 304. "When the facts on which a challenge rests are disputed the proper course is to submit the question to triers, but if neither of the parties ask for triers to settle the issue of the fact and submit their evidence, whether consisting of the jurors voir dire or of extraneous evi- dence, to the judge, and take his determination thereon, they cannot afterwards object to his competence to decide that issue.:]: § 305. The triers examine the juryman challenged, and decide upon his fitness.§ § 306. If a juror has mistaken a question put to him, the challenge may be retried after he has been received and sworn on the jury.|| § 307. The decision of the triers is final ; but the triers are liable to punishment for misconduct in office.T[ * Freeman v. People, 4 Den. 9. t ArcMboWs G. P. 17 ed. 154, 5. I People V. Kathbun, 21 Wend. 509 ; People v. Mather, 4 Id. 329 ; People v. Doe, 1 Mann. Mich. 451 ; Stewart v. State, 8 Mng. (13 Ark.) 720. § Thompsons. People, 3 Park. Cr. 467; People «. T)oe, 1 Mich. 451. II People V. Wilson, 8 Pa/rh. Or. 199. IT People V. Rathbun, 31 Wend. 509; Irick v. Black, 3 Grem. K J. 195. 106 CHALLENGES TO EAVOE. § 308. Where, on a trial for murder, a juror was chal- lenged for' favor, and the first two jurors sworn having been appointed triers, sworn as such, and on hearing the evidence, arguments, and charge, could not agree, it was held that the next two (the third and fourth) should be selected to rehear the matter as triers, and they were sworn.* § 309. The production of evidence to the judge, with- out asking for triers, will be considered as the substitution of him in the place of triers, and his decision will be treated in like manner as would be the decision of triers ; and therefore, although the determination of the judge should be against the weight of evidence, a new trial will not be granted for that cause when the defendant is acquitted ; in analogy to the principle that if on a main question in a criminal case the defendant was found not guilty, there cannot be a new trial.f § 310. It is a ground of challenge to the favor in an action for libel on the manager of aa opera and involving an examination of the conduct of the manager, that a juror declares himself opposed to theatrical representations or performances.:]: § 311. A juror challenged for favor should be rejected unless the triers find that he stands impartial and in- difEerent.§ § 312. If there is a doubt concerning his indifEerence he should be rejected.! * People ». Dewick, 3 Pa/rlc. Or. 230. t People V. Mather, 4 Wend. 229. If, on the trial of the validity of a challenge, other than for prin- cipal cause, it appears that the juror has formed an opinion in rela- tion to a portion of the facts embraced in the issue, but not upon the whole issue, and otherwise stands indifferent between the par- ties, the allowance or refusal of the challenge is within the discre- tion of the court (Dew v. McDevitt, 17 Am. L. Beg. {N. B.l 621). X Maretzek«. Cauldwell, 5 Rob. 660; S. C, 3 Abb. Pr. {N. 8.) 407. § Smiths. Floyd, 18 Barb. 533; Maretzek v. Cauldwell, 3 Abb. Pr. {N. S.) 407. II Smith V. Floyd, 18 Ba/rb. 533; Thorn's Case, 4 CityS. Sec. 81; Freeman v. People, 4 Ben. 35. CHALLENGES TO FAVOE. 107 § 313. Where it appears that a juror and the plaintiff are married to iirst cousins, it is good cause of challenge to favor. And if the fact of this relationship is not dis- covered until after the case has been tried, it is good cause for granting a new trial.* § 314. It is a ground of challenge to the favor, if the juror is bail for the defendant.f § 315. It is a ground of challenge to the favor, if the juror is a tenant of one party or the other, of either plaint; iff or defendant.:!: § 316. Upon the trial of a challenge for favor it is erroneous to reject all evidence except such as goes to establish a fixed and absolute opinion touching the guilt or innocence of the prisoner. A fixed opinion of the guilt or innocence of the prisoner, though it may be necessary to sustain a challenge for principal cause, need not be proved where the challenge is for favor. A less decided opinion may be shown and exhibited to the triers, who must deter- mine upon its effect. Thus, when the question is submitted to the triers, a juror challenged for favor, if examined, may be questioned whether he ever thought the prisoner guilty, or what impressions statements which he had heard or read respecting the evidence had made upon his mind ; and on the same reasoning, an opinion imperfectly formed, or one based on the supposition that facts are as they have been represented, may be proved before the triers upon such a challenge.! § 317. A person called as a juror upon the trial of an indictment for murder, being challenged, testified that he had heard the killing talked about, had expressed an opin- ion, and then had an impression or opinion, depending upon the truth of what he had heard ; that he thought it would take evidence to remove that impression ; but that * Miley v. Lebanon Nat. Bank, 1 Penn. (Pearson) 541 ; People v, Thompson, 41 iV. F. 1 ; 3 Black Com. 363. t People V. McCollister, 1 Wh. Or. Cos. 891. \ Hathaway «. Helmer, 35 Bari. 29. § People V. Fuller, 3 Parh Or. 16. 108 CHALLENGES TO FAVOR. he would decide the ease on the evidence, and believed that he could render an impartial verdict upon the evi- dence, unbiased by such opinion ; held, that the trial court was justified in holding the juror indifferent.* § 318. On a trial for murder two jurymen were chal- lenged, one for principal cause and for favor, and the other for favor. Each stated that he had formed an impression as to the prisoner's guilt, from reading the published testi- mony for the prosecution on a former trial. One stated that it would take evidence to remove the impression, but each stated that he would give his verdict upon the evi- dence. Held, that the challenge for favor should have been sustained. f § 319. The question is to be submitted as a question of fact upon all the evidence to the conscience and discretion of the triers, whether the juror is indifferent or not, and any fact or circumstance from which bias, or prejudice may justly be inferred, although weak in degree, is admissible evidence.:]: § 320. And as to the mode of proving a challenge, the law of evidence is the same as in other cases. Proof may be made by records, papers^ or witnesses, either to support the challenge or to disprove it. The juror himself may be * Thomas v. People, 67 If. T. 218. t Greenfield ■». People, decided in N. Y. Court of Appeals, September 17, 1878, iV. 7. Weekly Digest, vol. 7, p. 345 ; 6 Abb. New Cas. 1; distinguishing Thomas v. People, 67 iV! F. 318, § 317, ante; Staup V. Com., 74 Pa. St. 458; and see Frazier v. State, 28 Ohio St. 551. " How can it be determined or assumed," said the court, "that the mind which has already yielded to the force of facts presented to it, through the medium of sworn witnesses, and has formed an opinion thereon, will, on a second hearing of the same facts through a like medium, come to a different conclusion, or even so far com- mand itself as to calmly and judicially weigh them again in the balance of a fresh and unbiased judgment ? Can that mind be unbiased in the second pondering of testimony which has already caused it to preponderate and settle to or towards a conclusion ? We think not" (Greenfield v. People, GAbh. New Gas. 13). t People 7). Bodine, 1 Den. 381. CHALLENGES TO FAVOR. 109' examined as to his statutory qualifications, or to any other matter not going to his dishonor or discredit. He may be questioned as to the character and extent of his supposed bias, and whether he thinks it would influence him after hearing the evidence, and whether he has formed an opinion of the merits of the case.* § 321. Though it is not a good ground of challenge to a juror for principal cause, that he has an impression as to defendant's guilt or innocence, yet upon a challenge for favor, evidence as to such impression is admissible, and is to be judged of by the triers ; but the juror should not be set aside unless the triers find that he has formed a settled opinion. It is not sufficient to justify triers in setting aside a juror in a criminal case as not being indifEerent, that he has formed an unfavorable opinion of the accused.f § 322. Since the passage of the act of 1873, by which challenges both for principal cause and for favor are to be tried by the court in place of the triers at common law, it is not necessary to reiterate, upon the challenge for favor, the evidence taken upon a challenge for principal cause on the same ground ; but the court is to decide upon the testimony given on both challenges. And in reviewing the decision of a trial court upon a challenge to the favor, the appellate court has the power by statute, and it is its duty, to pass upon the facts de novo, from the evidence adduced before the court below.:]: § 323. "Where, upon a challenge for favor, it appeared that the person challenged had a preconceived opinion or impression as to the guilt, of the accused, based upon an in- complete report of testimony which he had read in an * People ». Knickerbocker, 1 Pofrlc. 302; People ». Hettrick, 1 Wh. Cr. Gas. 399; People*. Melvin, %Id. 363; Mechanics' & Farm- ers' Bank «. Smith, 19 Johns. 115. t People V. Honeyman, 3 Den. 131; People «. Lohman, 3 Barb. 216. X Greenfield v. People, 13 Hun, 243. Affirmed on this point, in Court of Appeals, September 17, 1878; N. Y. Weekly Digest, vol. 7, p. 345; S. C, Q All. New Cos. 1; Thomas v. People, 67 JST. Y. S18; see §271, ante. 110 CHALLENGE FOE PKINCIPAL CAUSE. account of a former trial, whicli report might or might not be supported by the evidence, but he believed he could, if sitting as a juror, render a fair and impartial verdict on the evidence, notwithstanding such impression, he was held not to be a competent juror.* § 324. The provision of the act of 1872 (chap. 475, L. 1872), providing that a present opinion or impression in reference to the guilt or innocence of a prisoner, or the ex- pression of such an opinion, shall not, in the cases specified, be a sufficient ground of challenge for principal cause, does not interfere with or affect the challenge for f avor.f § 325. Where a challenge for principal cause is over- ruled by the court, and the juror is then challenged for favor, it is erroneous to instruct the triers that the latter challenge is in the nature of an appeal from the judgment of the court upon the facts.:]: § 326. The decision of the judge acting as trier upon a challenge to the favor is final.§ § 327. The mere fact of a juror freeing himself from disqualification on his voir dire does not preclude the party questioning him from challenging him for favor, and producing evidence before the court or the triers, as the practice may be, to disprove the testimony. Otherwise, an incompetent juror could qualify himself by adduig perjury to his other disqualifications.] Challenge for Princijpal Cause. § 328. The distinction between challenges for favor and those for principal cause is so fine, that it is practically * Greenfield «. People, 6 AE). New Oas. 1 ; reversing, on this point, S. C, 13 Hun, 342; but see O'Mara v. Com., 75 Pa. St. 424; State ». Huzel, 27 La. Ann. 375; Hall v. State, 51 Ala. 9. t Thomas «. People, 67 If. Y. 218. I Freeman v. People, 4 Den. 9. § Sanches v. People, 23 N. Y. 147 ; R. i). Edmunds, 4 5. c6 Aid. 471; Costly ». State, 19 Ga. 614; Buchannan v. State, 24: lU. 283; Heath v. Com., 1 Boi. 735; Contra, New Oode, § 1180, § 271, ante. II Carnal «. People, 1 Parh. Gr. 273; Freeman d. People, ^ Den. 9 ; People ii. Bodine, 1 Id. 381 ; Com. v. Heath, 1 Bob. 735. CHALLENGE FOE PRIlSrCIPAL CAUSE. Ill disregarded; consequently, what will be said under the head of challenges for principal cause is to be examined as connected with challenges for favor. The fact that in some jurisdictions, all challenges are decided by the coiirt without the intervention of triers, does not, however, do away with the distinction between the two classes.* § 329. The question in such case is whether the jury- man is altogether indifferent as he stands unsworn. f § 330. To be a suflScient ground for disqualifying a juror from sitting in the trial of a criminal prosecution, the opinion formed by him must be fixed and unconditional.:]: § 331. Or of such a nature as to require affirmative evidence to remove it.§ § 332. It is not sufficient ground of challenge for principal cause, that a juror had formed an opinion that the prisoner had killed the person for whose murder he was indicted ; killing being only one element of the crime, that fact may exist consistently with the prisoner's vhtw- cence of the murder. || § 333. The same was held in lowa.T" § 334. In New Hampshire, where jurors have heard the prisoner tried upon another indictment, before another jury, and found guilty, and answered upon inquiry that they had formed an opinion of his guilt upon the second indictment, which was pending at the same time, from the evidence which they had heard on the other trial, they were held to be incompetent.** But hearing, without opinion, does not incapacitate.ff § 335. A juror, on being examined, testified that he * State V. Howard, \1 N. H. 171; Greenfield v. People, 6 AW. Nevi Cos. 4, and note thereto. t People «. Horton, 13 Wend. 8 ; People v. Allen, 43 N. T. 28, 84. X State V. Kingsbury, 58 Me. 339. § Cancemi ». People, 16 N. T. 501; Applbton, Ch. J., 1871. 1 Lowenberg v. People, 27 N. T. 336. IT State «. Thompson, 9 Iowa, 188 ; State v. Ostrander, 18 lA. 434 ; Contra, State v. Brown, 15 Kans. 400. ** State B. Webster, 13 N. H. 491. tt State «. Howard, 17 N. H. 171 ; Com. ■». Thrasher, 11 Gray, 57. 112 CnALLENQ-E FOB PEINCIPAL CATTSE. had asked one of the defendants if he had an action in court, brought for the possession of real property. That the defendant answered in the affirmative, but did not con- verse much about it. The juror further stated, that he had formed and expressed an opinion upon the merits of the case ; but that he believed that such opinion would readily yield to the evidence presented on the trial, and that he could hear and decide the case as impartially as if he had not previously formed and expressed an opinion. He was held to be competent.* § 336. A declaration of opinion, to disqualify a juror, must be such as implies malice or ill-will against the prisoner, thereby showing that the person challenged does not stand indifferent between the State and him. This is the uniform language of the books and cases which are of authority under our constitution, as well as of the English courts, up to the present time. Mere opinions thrown out as a jest, or to avoid being impaneled, wiU not per se operate as a disqualification. And so of a general bias and prejudice against crime.f § 337. In 1 854, Tanet, Ch. J., laid down the following test in a criminal trial in Baltimore: "If the juror has formed an opinion that the prisoners are guilty, and enter- tains that opinion now, without waiting to hear the testi- mony, then he is incompetent. But if, from reading the ' newspaper or hearing reports, he has an impression on his mind unfavorable to the prisoner, but has no opinion or prejudice which will prevent him from doing impartial justice when he hears the testimony, then he is competent." The same view has been expressed in the United States circuit court in New York.:]: § 338. In Maine, in a criminal trial, thirty-six jurors were called ; to each one the oath was administered to make true answers to such questions as should be asked by the court, or by their order. The questions which the pris- * Scrantoa v. Stewart, 53 Ind. 68. t John v. State, 16 Geo. 300; Williams v. State, 3 Kelley, 453. t United States v. McHenry, 6 Blatch. 503. CHALLENGE FOB PRINCIPAL CAUSE, 113 oners' couBsel put to tlie most of them were, in substance, whether they had formed or expressed any opinion as to the innocence or guilt of the prisoners, and whether they were conscious of any bias or prejudice against them ? The inquiries then made by the counsel for the State, were sub- stantially whether the juror had any conscientious scruples which would prevent him from returning a verdict against the prisoners if the proof should show them to be guilty ; and whether he was related to either of the prisoners? It was permitted to both parties to ask, in various forms of language, whether the juror was conscious of any such bias or preference as to prevent his acting with impartiality, and whether he had heard, read, or conversed upon the subject ? together with such connected questions as should elicit the views and feelings of the juror upon the subject matter.* § 339. In Yermont, the prior expression of an opinion disqualified, notwithstanding the juror declares when chal- lenged that he has no opinion, and could try the case im- partially.f § 340. In Massachusetts, a juror having said upon the voir di/re that he had formed an opinion from what he had heard, but that he did not know how much he might be influenced by it, was allowed to be challenged for cause.:]: § 341. A juror, however, it is said, cannot be asked whether he considers that the facts set forth in the indict- ment constitute a proper subject for punishment. The shaping and propounding of the interrogatories are cer- tainly within the discretion of the court.§ § 342. A person indicted is not entitled to have the jury asked, before they are impaneled, whether they have formed or expressed an opinion as to the credibility of a witness whose testimony is to be relied on in support of this indictment, and who testified, and whose credibility * State v. Jewell, 33 Me. (3 Beding) 583. t State V. Clark, 43 Vt. 639. t Com. «. Knapp, 9 Piclc. 496. § Com. V. Buzzell, 16 Pick 153 ; Com. «. Gee, 6 Oush. 177. 8 114 CHALLEN'GE FOR PRINCIPAL CAUSE. was in question, in anotlier case before them. Nor can the defendant be allowed to prove on the trial of this indict- ment that the jury have declared that they would believe this witness.* § 343. The judgp presiding at a criminal trial may exclude from the panel jurors who state, in answer to his questions, that they have formed and hold such an opinion of the constitutionality of the statute on which the prose- cution is founded, that if persisted in they cannot convict the defendant, whatever the evidence may be.f § 344. A juror having convicted the defendant of a similar offense at the same term, is thereby incapacitated.:!: § 345. A juror challenged by the accused, stated that he had formed an opinion, in part from rumor, and part from reading the newspaper account of the evidence taken before the coroner, but that his opinion was not fixed, and that he could hear and determine the case upon the evidence to be adduced on the trial, uninfluenced by the previous opinion or impression ; held competent.! § 346. In Connecticut, while the jury were being im- paneled for the trial of an indictment for murder, A. was called as a talesman, and being inquired of whether he had formed any opinion as to the prisoner's guilt, said that soon after the prisoner's arrest he read certain newspaper accounts of what purported to be his confessions, and upon reading them he was of opinion that if those accounts were true, a horrid murder had been committed, but he had formed no opinion as to the truth or falsity of them ; and remarked to his family while reading the accounts, that the case on the trial would probably turn out to be a very different affair. He added that he had not any settled opinion on the subject, and felt that he could render an impartial verdict ; it was held that he was not disqualified by bias to sit as a juror in the cause. | * Com. v. Porter, 1 Chay (Mass.) 433. t Com. V. Austin, 7 Ch'ay, 51. X Com. V. Hill, 4 AlUn, 591. § Artwein v. Com., 76 Pa. 8t. 414. II State V. Potter, 18 Conn. 166. CHALLEN&E FOR PRIWCIPAL CAUSE. 115 § 347. In ]S"ew York, it has been laid down that the law attaches the disqualification to the fact of forming and expressing an opinion, and does not look beyond to examine the occasion or weigh the evidence on which that opinion was founded.* § 348. There is no distinction, it was said, as to the grounds of the opinion formed by the juror of the guilt of the accused, whether it be founded on being an eye- witness, or on hearing the testimony of those who were present at the transaction, or whether it is based on rumors, reports, and newspaper publications. In either case, it is a good cause of chaUenge.f § 349. A juror's examination disclosed the fact that he had read the newspaper account of the alleged burglary for which the defendant was on trial ; he also stated that he had a prejudice against the accused, and did not think he could give him an impartial trial. But on further examination, he stated that such prejudice arose princi- pally from newspapers, and not from any personal un- friendliness or animosity to the accused. He was held to be a competent juror.:|: § 350. And in an action for libel for publishing an address which was adopted at a political meeting, one who was present and acted at such meeting was held not to be a competent juror. § § 351. So, a challenge to a juror for principal cause was sustained where the juror had said that he believed the defendant was guilty, although he testified that he had no fixed opinion upon the subject of the defendant's guilt ; that he only entertained impressions derived from * People «. Mather, 4 Wmd. 229; People ». Bodine, 1 Den. 281; Blake v. Millspaugh, 1 Johns. 316 ; Pringle v. Huse, 1 Cow. 432. t People V. Mather, 4 Wend. 229 ; and see Greenfield v. People, 6 All. New Oas. 1. X Jones 11. People, 2 Col. T. 351 ; but see Eayp. Vermilyea, 6 Cow. 555, in which it was declared that an expression of opinion against the party by a juror, though from his knowledge of the cause and not from any favor or ill-will, was a principal cause for challenge. § Lewis V. Pew, Anth. N. P. 102. 116 CHALLENGE FOR PRINCIPAL CAUSE. history and common reports, meaning thereby printed statements in papers and reports in conversations ; that he had never heard witnesses to the transactions testify or say anything on the subject in question. If the evidence sup- ported the circumstances he had heard, he had a fixed belief respecting the guilt of the defendant ; if these cir- cumstances should be done away by evidence, he should not consider him guilty.* § 352. So it was held no ground of principal challenge that the juror had formed an opinion that a crime had been committed by somebody, but had not formed an opinion as to the guilt or innocence of the prisoner.f § 353. The forming of an opinion without its expres- sion was considered a sufficient ground of exclusion.:|: § 354. An impression, however, does not disqualify, nor does a hypothetical opinion disqualify.§ § 355. In North Carolina, the rule is, that an opinion fully made up/ and expressed against either party on the subject matter of the issue to be tried is good cause of prin- cipal challenge ; but an opinion imperfectly formed, or one merely hypothetical, that is, founded on the supposition that facts are as they have been represented or assumed to be, does not constitute a cause of principal challenge, but may be urged by way of challenge to the favor, which is to be allowed or disallowed, as the triers may find the fact of favor or indifEerence.] § 356. In the same State, on a challenge for cause, the * People ». Mather, 4 Wend. 239; People v. Bodine, 1 Den. 381; Freeman v. People, 4 Id. 31 ; O'Brien «. People, 36 N. T. 376. t Friery v. People, '2, Keys, 434; S. C, 3 AU. Court of App. Dec. 315, and 54 Barl. 319. I People v. Eathbun, 31 Wend. 509 ; Armstead ». Com., 11 Leigh. 657; Heath*. Com., 1 iJoJ. 735. § People V. Honeyman, 3 Den. 131 ; People v. Hayes, 1 Edm. Sel. Cas. 583; O'Briens. People, 36 JTI T. 376; S. C, '48 Barh. 374 ; People V. Fuller, 3 Pari. Or. 16 ; Stout ii. People, 4 Id. 71 ; Mc- Gregg ». State, 4 BlacJcf. 106 ; Rice v. State, 7 Ind. 336 ; Cherry v. State, 5 Mb. 413. II State «. Benton, 3 Devereaiue & Bat. 196 ; State «. Bone, 7 Jmes, 131 ; State ®. Cockman, 1 Wins. N. 0. No. 2-95. CHALLENGE FOR PRINCIPAL CATTSE. 117 juror stated that he had formed and expressed an opinion adverse to the prisoner upon rumors which he had heard, but that he had not heard a full statement of the case, and that his mind was not so made up as to prevent the doing of impartial justice to the prisoner. The court found the juror indifEerent, and the supreme court refused to reverse the decision.* § 357. In Mississippi, the rule is that while it is not necessary to exclude a juror that he should have formed and expressed his opinion against the accused with malice or ill-will, a mere hypothetical opinion, from rumor only, and subject to be changed bv testimony, does not dis- qualify.f § 358. A juror, on his examination in chief, testified that when the homicide was committed he was a telegraph operator, and had learned some of the facts of the case from dispatches sent through the office, and others from a witness of the prosecution. That upon these facts he had formed a " fixed opinion," which it would take evidence to remove. On cross-examination (by the prosecution), he testified that the opinion he had formed depended on the truth or falsity of the facts which had come to his knowl- edge ; that " if it turns out that what I have heard is not true, then I will have no opinion in the matter." Held, that the juror had not a mere "hypothetical opinion" or a " mere impression," and the challenge of the juror for im- plied bias on behalf of the accused should have been sus- tained.:]: § 359. In Missouri, opinion formed only on rumors, and producing no bias, does not disqualify. § § 360. In Tennessee, it has been declared that loose impressions and conversations of a juror as to the prisoner's * State i>. ElliDgton, 7 Ired. 61. t Ogle V. State, 33 Miss. 383; Noe v. State, 4 Eow. (Jfrn.) 880; Lee V. State, 45 Miss. 114. X People V. Johnston, 46 Oal. 78; State «. Johnson, 1 Walk. 392; State v. Flower, Id. 318. § State V. Rose, 83 Mo. 560; State v. Burnside, 37 Id. 343; State V. Davis, 39 Id. 891. 118 CHALLENGE FOE PRINCIPAL CAUSE. guilt or innocence, founded upon rumor, would not, if dis- closed by others to the court on selection of' the jury, have effect to set him aside as incompetent, nor if disclosed after verdict, be a cause of new trial.* § 361. But an emphatic opinion of guilt excludes. Thus, when a juror said on the morning of the trial, " I have formed my opinion as to that case ; I believe he ought to be hung." Again, " Damn him, he ought to be hung;" it was held on error, that he should have been rejected as incompetent.f § 362. The formation of an opinion by one who had heard all the testimony is a disqualification, while one who has formed a hypothetical opinion from rumor, and who at the same time declares he could render an impartial verdict, will be a competent juror ; between these ex- tremes, the qualification or disqualification must depend on the circumstances of each case ; absolute freedom from pre- conceived opinion should be required where it can be had, yet where, from the notoriety of the transaction or other cause, that cannot be obtained, as near an approximation to it as possible should be had.:]: § 363. In Louisianaj opinion based on common rumor, such opinion being without any prejudice or bias against the accused, does not disqualify.§ § 364. In Kansas and Florida, a mere hypothetical opinion does not exclude.! § 365. An opinion founded on mere rmnor ought prvma facie to be regarded as a mere hypothetical opinion, forming no ground for challenge, unless it appear that the * Howerton ». State, Meigs, 363; Alfred ®. State, 3 Swan, 581; Mayor v. State, 4 Sneed. 597; Moses v. State, 11 Humph. 333; Mc- Gowan «. State, 9 Terg. 184. t Brakefield v. State, 1 Sneed, {Term.), 315; Ogle v. State, 33 Miss. 383; Wiggin*. Plumer, 11 FosUr {N.E.) 351. X Sam 11. State, 13 Smeeds & Marshall, 189; Staup ». Com., 74 Pa. St. 458. § State V. Caulfield, 23 La. An. 148; State v. Ward, 14 i3. 673. II Roy v. State, 2 Earn. 405; O'Connor v. State, 9 Fhr. 215. CHALLENGE EOE PRIITCIPAL CAUSE. 119 opinion formed is a decided one, likely to influence the juror in his decision.* § 366. That a juror has expressed a hypothetical opinion in the defendant's case is ground of challenge to the favor, though not an objection to his competency.f § 367. To constitute good cause of challenge to a juror, on the ground of preconceived opinion of the case formed by him, it was said it must appear that siich pre- conceived opinion was a decided one, and not hypothetical.:}: § 368. In an action by a woman against a brewer for selling lager bier to her husband, a juror testified that he considered the business of manufacturing and selling lager bier a nuisance and a low business, and that no man should be allowed to make or sell it ; and in answer to a question by the court whether he had a leaning in favor of either party to the action, said : " Well, my feeling on that is, to have the thing stopped — that is what I feel." He was held to be incompetent.! Bat a juror who testified that it was the traffic and not the persons engaged in it, against whom he had the feeling, was held competent. || § 369. Where the proposed juror in a capital case stated upon principal challenge, that he had read accounts and formed an opinion as to the prisoner's guilt or inno- cence, which was unaltered, and which it would require evidence to remove, and that he could not sit exactly indifferent from the facts which he had heard ; and after- wards, when cross-examined, stated that if sworn he would try to be governed by the evidence, but would have a * Armstead's Case, 11 Leigh, 657 ; Epp's Case, 5 Qrat. 681 ; Wonnley v. Com., 10 Id^ 658. t Durrell v. Mosher, 8 Johm.- 445; Riley's Case, 1 0. H. Bee. 23; MUligan's Case, Q Id. 69; People v. Jolmson, 3 Wh. Or. Gas. 361; People v. Fuller, i Park. Cr. 16; Stout «. People, 4: Id. 71; Freeman v. People, 4 Dm. 9 ; People v. Mallon, 3 Lans. 234. I Osiander v. Com., 3 Leigh, 780; Sprouce ®. Com., 3 Virg. Gas. 375; Heath v. Com., 1 Sob. 785; Pollard ». Com., 5 Sand. 659. § Albrecht i>. Walker, 73 III. 69. II Kroer v. People, 78 III. 294. 120 CHAILENGE POE PEINOIPAL CAUSE. little prejudice ; and again, that he meant by his answer that he had read the evidence given in newspapers, and assuming the statements to be true he had formed an opinion, but that it would not affect his mind in determin- ing on evidence. It was ruled that it was inferable that the juror had formed an opinion of which he had not been able to divest himself, that the prisoner was entitled to the benefit of a doubt ; and that the acceptance of the juror was error, for which upon writ of error a new trial would be granted.* § 370. A juror on his examination by the court stated that shortly after the killing, and while he was looking at the body of the deceased, he inquired of the bystanders how the killing occurred ; being told that it was done without provocation, he said that the prisoner ought to be hung. But he also stated that he had no opinion now. The court held him competent. The prisoner excepted. It was held that, without some explanation of his change of mind, the juror was incompetent, and a new trial was ordered.-]- § 371. By an act passed by the legislature of New York in 1872 (c. 475, vol. 2, p. 1135), the previous forma- tion or expression of an opinion or impression in reference to circumstances upon which any criminal action of law is based, or in reference to the guilt or innocence of the prisoner, or a present opinion or impression in reference thereto, shall not be sufficient ground of challenge for the principal cause to any person who is otherwise legally qualified to serve as a juror upon a trial of such action, provided the person proposed as a juror, who may have formed or expressed, or has such opinion or impression as aforesaid, shall declare on oath that he verily believes that he can render an impartial verdict according to the evi- dence submitted to the jury on such trial, and that such previously-formed opinion or impression will not bias or influence his verdict, and provided the court shall be satis- * People v. Mallon, 3 Laiis. 225; Black «. State, 42 Tex. 377. t Norfleet v. State, 4 Sneed {Tenn.), 340. ClIALLEWaE FOR PRINCIPAL CAFSE. 131 fied that the person so proposed as a juror does not enter- tain such a present opinion as would influence his verdict as a juror.* § 3'72. In Pennsylvania, if a juror forms an opinion without waiting to hear the testimony, he is incompetent. But an impression from reading a newspaper, or hearing reports, without any opinion or prejudice which will pre- vent him from doing impartial justice when he hears the testimony, will not disqualify.f § 3T3. In Delaware, the test adopted by Maeshall, Ch. J., in Burr's case, appears to have been received.:]: § 374. In Virginia, it is said that upon a question whether one called as a juror in a case of felony, and chal- lenged for cause, stands indifferent or not, the general rule is that one who has formed a decided opinion that the prisoner is guilty or innocent, whether that opinion be formed on evidence of witnesses whose testimony he has heard on a former trial, in conversation with witnesses, or common report, is not an indifferent juror, and that it is immaterial whether such opinion has been expressed or not. If the person called as a juror, it was urged, has been so inconsiderate and unjust as upon insufficient or no evi- * 3 5. S. 6 ed. § 41, p. 1033; People v. Stokes, 53 iV. Y. 173; Phelps V. People, 6 Sun, 401 ; affirmed in Court of Appeals, 73 N'. Y. 335; People exrel. Tweed ■». Liscomb, 3 Hun, 760. L-i-ii^i ^T^ t Irvine v. Kearn, 14 8erg. & R. 393 ; Com. •«. Lenox, 8 Brewster, 349; Com. ». Flanagan, T W. & 8. 415; Com. ■». Gross, 1 Ashm. 381; Com. ■». Work, 4 Orumrim, 493; Staup ». Com., 74 Pa. St. 458. t This test was as follows : "Light impressions, which may fairly be supposed to yield to the testimony that may be offered, which may leave the mind open to a fair consideration of that testimony, constitute no sufficient objection to a juror; but that those strong and deep impressions which will close the mind against the testimony that may be offered in opposition to them, which will combat that testimony and resist its force, do constitute a sufficient objection to him '' (Burr's Trial, vol. 1, p. 416 ; State v. Bonwell, 3 Harrington, 539 ; State «. Ander- son, 5 Id. 493). 122 CHALLENGE FOR PEINCIPAL CAUSE. dence to have prejudged the prisoner's cause, much more is he unfit to be trusted with it as a juror.* § 375. Where one of the grand jury which found the indictment is one of the juiy which is to try the prisoner for felony, the prisoner, if he is guilty of no laches in making the discovery, may object to the juror at any time before the evidence is introduced.f § 376. In Ohio, the following shall be good cause for challenge to any person called as a juror on any indict- ment : 1. That he was a member of the grand jury which found the indictment. 2. That he has formed or expressed an opinion as to the guilt or innocence of the accused.:]: § 377. This statute was held constitutional, and ap- plied in practiee.§ § 378. Under the statute of Alabama of 1831, which provides that if a juror in a capital case has formed and expressed an opinion founded upon rumor, he shall be sworn in chief, it must appear that such opinion was founded upon mere rumor. Where it appears that the opinion was founded upon facts well authenticated by per- sons in whom the juror had confidence, it is good ground for challenge for cause. || § 379. In Illinois, the courts have united in the opinion that a juror is disqualified if he has formed or expressed a decided opinion upon the merits of the case.^ § 330. If without any qualification whatever a juror says the defendant is guilty, or the like, or that the plaintiff ought to recover in the action, or that the verdict ought to be against the plaintiff, he would be disqualified as not standing impartial between the parties.** * Armstead «. Com., 11 Leigh, 357; Heath.*. Com., 1 Bob. 735. t Bristow ®. Com., 15 Orat. 634. X Code of Grim,. Pro. § 134; WarrerCs Cr. Law, 1870. § Cooper ». State, 16 Ohio, 338. II Queseabury ». State, 3 8tew. & Port. 308 ; Ned ». State, 7 Port. 187. t Gates V. People, 14.111. 483; Gray v. People, 26 Id. 344; Neeley ». People, 13 Id. 685. ** Smith V. Eames, 3 80am. 78; Gardiner «. People, Id. 88; Sel- lers V. People, Id. 414. CHALLENGE FOE PEINOIPAL CAUSE. 123 § 381. If, on the contrary, he says he has no prejudice or bias of any kind for, or against either party ; that he has heard rumors in relation to the case, but has no personal knowledge of the facts, and from the rumors has formed and expressed an opinion in a particular way if they are true, without expressing any belief in their truth, he would not be disqualified.* § 382. And the same ruling was had with another who declared that he would not convict even if convinced of the prisoner's guilt.f § 383. In Arkansas, if a juror in a criminal case states upon his voir dire that he has formed an opinion as to the guilt or innocence of the prisoner from rumor, he shotild be required to state also that the opinion was not such as to bias or prejudice his mind, in order to render him com- petent ; and if he states that he has conversed with persons about the case, and formed his opinions from such conver- sation, he should be required to state further that such per- sons did not profess to have a personal knowledge of the matters stated by them ; but it is not necessary that he should know, or be able to state whether such persons were witnesses in the case.ij: § 384. In Georgia, it is said that a juror who states that he has formed and expi-essed an opinion in a particu- lar case upon the guilt or innocence of the prisoner, is not competent to sit in such case.§ § 385. And that while the opinion of the juror which disqualifies depends upon the nature and strength of the opinion, and not upon its source or origin, yet the mere formation of an opinion by a juror from rumor, without having expressed that opinion, or expressed it otherwise than jocularly, is not good cause of challenge.! * Smith V. Eames, 3 Scam. 78 ; Thompson v. People, 24 III. 60 ; Baxter ». People, 3 Gilman, 386; Leach v. People, 53 III. 811. t Gates ». People, 14 III. 433. X Meyer v. State, 19 ArJc. 156. § Reynolds v. State, 1 Eelley, 233 ; Anderson v. State, 14 Oa. 709. II Boon «. State, 1 Kdley, 631 ; John «. State, 16 Qa. 300; Baker 124 CHALLENGE FOR PEIIfCIPAL CAUSE. § 386. The opinion must ie settled cmcl abiding* § 387. lu Iowa, an unqualified opinion as to the guilt or innocence of the prisoner, formed from rumor, is suffi- cient to exclude a juror.f § 388. But the opinion must be absolute, and not such as in the judgment of the juror would leave him without bias in the case.:]: § 389. In Michigan, an opinion, partial but not posi- tive, does not disqualify.! § 390. Hence it is no cause for challenge that the juror believed that the crime with which the defendant was charged was committed by some one.\\ § 891. In California, having formed and expressed an opinion from report, does not disqualify a person to sit as a juror if he declares he can sit on the jury without bias ; that evidence can change his opinion, and that he will be governed by the evidence.Tf § 392. It is otherwise when the opinion is unquali- fied.** ' § 393. Under the criminal code of that State a chal- lenge for implied bias can be taken only where the juror has formed and expressed an unqualified opinion or belief that the prisoner is guilty of the offense charged, ff § 394. It is not material that the juror did not state whether his opinion was for or against the prisoner ; the courts would not allow the juror to be questioned on that point. :}::t § 395. The opinion, to disqualify, must go to the whoh V. State, 15 Id. 498; Herdgins v. State, 3 Kelley, 173; Griffln v. State, 15 Ga. 476 ; Anderson v. State, 14 Id. 709. * Wright v. State, 18 Qa. 383. t Waw-koa-chaw-nee-kaw «. United States, 1 Morris, 333 ; State V. Shelledy, 8 Iowa, 477. I State V. Sater, 8 Iowa, 430. § Holt V. People, 13 Mich. 334. * II Holt V. People, 13 Mich. 334; Stewart v. People, 33 Id. 63. IF People V. Malioney, 18 Oal. 180. ** People V. Edwards, 41 Cal. 640. tt People V. Macauley, 1 Cal. 379; but see § 358, ante. tt People V. Williams, 6 Oal. 306. CHALLENGE FOE PEINCIPAL CAUSE. 125 ease. If it touches merely portions, it is inoperative as a ground for challenge. Thus, if a juror believes that if cer- tain facts be true, the defendant is guilty.* § 396. Or because he has drawn an inference from a single inculpatory fact.f § 397. Or because he even holds that the fact of homicide, though not its malice, is to be traced to defend- ant, the issue being on malice.;]: § 398. Neither does the formation of opinion as to the general character of the prisoner disqualify a ]uror.§ § 399. A juror is bound to answer under oath any question asked him with regard to his competency as a juror, providing such questions do not tend to degrade him or make him infamous. || § 400. It seems he will not be excused from stat- ing whether he has any prejudice against a religious sect, on the ground that the answer would tend to disgrace him.T * Lee v. state, 45 Miss. 114. An opinion on a part of the facts of a case upon which a verdict depends may disqualify a juror. Thus, in an action for damages incurred by reason of the communication of disease to plaintiff's cattle, from cattle brought by the defendant to this State (Illinois) from Texas, in contravention of the Statute of 1867, a juror testify- ing as to his competency, said that he believed Texas cattle would communicate disease, whether themselves diseased or not. The challenge was overruled. Held, error, as it appeared that the Texas cattle had passed along the road and by the place where plaintiff's cattle were (Davis v. Walker, 60 III. 453). t Loyd v. State, 45 Oa. 57. t Lowenberg «. People, 27 TIT. T. 336; S. C, 5 Parh. Or. iU\ Wright «. State, 18 Oa. 383; State ». Thompson, 9 Iowa, 188; State «. Ostrander, 18 Id. 434. § People 11. Allen, 43 N. T. 38; reversing S. C, 57 Bari. 338. {Bane's Abridgement, 334; Edwards' Jurymen's Guide, 85; State V. Benton, 1 Dev. & Bat. 196; Mayor b. Blache, 3 La. 619; Pringle ». Huse, 1 Cow. 433; Hudson v. State, 1 Blaekf. (Ind.) 319; State V. Bonwell, 3 Ha/rrington, 539; States. Crank, 'i, Bailey, 66; Fletcher ». State, 6 Humph. 349 ; Mechanics' & Farmers' Bank v. Smith, 19 Johns. 115. IT People «. Christie, 3 Pasrh. Or. 579. 126 CHALLENGE FOR PRINCIPAL CAUSE. § 401. The juror may be examined under oath as to his qualifications ; though it is said that he is not to be so exam- ined when the question touches his dishonor or discredit. He is, of course, subject to cross-examination by the party opposing the challenge.* § 402. The form of oath to the juror on the voir dire is as follows : You shall true answers make to all such questions as shall be put to you touching your competency to serve as juror in the case of the people (Commonwealth or State) against the prisoner, So help you God. § 403. The court, of its own motion, without sugges- tion of either party, may examine upon oath all who have been summoned to serve upon the jury touching any dis- ability created by statute, such as infancy, want of freehold or property qualifications, or, in a capital case, conscientious scruples on the subject of capital punishment ; and upon any such disability being thus made to appear, or if it be shown that any one summoned has been convicted of per- jury, the court may and should set aside any such juror of its own action without objection made by either party. f § 404. And the court, of its own motion, without the suggestion or consent of either party, may excuse or set aside a juror who, though in all other respects competent, is disabled physically or mentally by disease, domestic affliction, ignorance of. vernacular tongue, loss of hearing, or other like cause, from properly performing the duties of a juror.:]: § 405. But the erroneous exercise of this power is a matter of exception by the prisoner, for which, in an extreme ease of abuse, the judgment of the court may be * Heath ». Com., 1 Bob. 735; People v. Bodine, 1 Ben. 281; People «. Knickerbocker, 1 Parle. Or. 303; Howzer «. Com., 1 P. F. Smith, 333. t McCarty «. State, 26 MUs. 299;' State d. Howard, 17 N. H. 171; People «. Christie, %ParTc. Cr. 579; United States ii. Blodgett, 35 Oa. 336. I Montague v. Com., 10 Chat. 767; Jesse v. State, 20 Ga. 156; Breeding ». State, 11 Texas, 257; State v. Marshall, 8 Ala. 302; Com. v. Hayden, 4 Gray, 18 ; Stewart v. State, 1 Ohw, 66. CHALLENGE FOR PEINCIPAL CAUSE. 127 reversed. But the case to reverse must be one of oppres- sion to the defendant.* § 406. In Massachusetts, the right of propounding questions is for the court exclusively, and not for parties.-t- § 407. As it is the duty of the court to impanel for the trial of each case a competent and impartial jury, the court may propound to the jurors returned, other interrog- atories than those which they are required to put by the statute.:]; § 408. A challenge of a juror, because of his having formed and expressed an opinion on the question to be tried, can be made only by the party against whom it was so formed and expressed. It seems that the other cannot interfere.? Questions which home teen Allowed ly the Courts. § 409. The following questions, in the several cases in which they occur, were adopted, as determining the com- petency of the juror : I. " Have you formed and expressed an opinion about the guilt of Col. Burr?"|| II. " Have you formed and delivered an opinion on the subject matter of this indictment ?"T III. "Have you heard anything of this case so as to make up your mind ? Do you feel any bias or prejudice for or against the prisoner at the bar?"** * State V. Ostrander, 18 Iowa, 435 ; People v. Lee, 17 Cal. 76. t Com. V. Gee, 6 Oush. 177. I Pierce v. State, 13 N. H. 536; Com. ». Gee, 6 Cmh. 177; Mon- tague V. Com., 10 Qrat. 767; see People v. Jones, 1 Edm. Sel. Oas. {Circuit, 1845). § State V. Benton, 2 Dot. <6 Bat. 196. I Mabshall, Ch. J., 1 Burr's Trial, 367. IF Chase, J., in United States «. Callender, Gallender's Trial, pamphlet, 19, 21. , ** Pakker, J., SefridgeH Trial, pamphlet, 9. 128 CHALLENGE TOE PKINCIPAL CAUSE. IV. " Have you formed and expressed an opinion of the guilt or innocence of the prisoner ?"* V. " Have you formed and expressed an opinion as to the general guilt or innocence of all concerned in the com- mission of the ofEense ?" (Yiz., the burning of the convent in Charlestown, Mass.)f VI. " Have you made up your mind as to which of the two parties was in the wrong in the Kensington riots 1"^ VII. " Have you at any time formed or expressed an opinion, or even entertained an impression which may iniiuence your conduct as a juror ?" VIII. " Have you any bias or prejudice on your mind for or against the prisoner ?"§ IX. " If upon hearing the evidence you should find it evenly balanced, which way would you be inclined to decide the case?"! X. "Have you any bias or prejudice against Eoman Catholics?"! XI. " Notwithstanding the opinion that you have formed, can you enter the jury-box and decide the guilt or innocence of the defendant upon the evidence which may be submitted to you, and upon that alone, uninfluenced by * Marshall, Ch. J., in United States 11. Hare, &c., United States Circuit Court for Baltimore, May T., 1818, pamphlet. t Supreme Court of Massachusetts on Trial of the Charlestown Rioters, Com. v. Buzzell, 16 PicJc. 153. I RoGBES, J., Supreme Court of Pennsylvania, April 39, 1'845, in Com. v. Sherry (MSS.). § Ogdbn, J., on a homicide trial; People ®. Johnson, 3 Wheel. C. C. 367. II Bkbbsb, J., in Chicago, &c. R. R. Co. v. Buttolf, 66 111. 347. But in an action by a woman, for damages for the death of her husband, alleged to have been caused by the negligence of the de- fendant, by whom he had been employed, several jurors were asked, if.the testimony was evenly balanced, they would not incline to the plaintiff's side ? and they replied that they would ; it was held that such questions were improper (Keegnan ®. Kavanagh, 63 Mo. 330.) IT Peoples. Christie, 3 Park. Or. 579; S. C, 3 Ahb. Pr. 536. Trial of an indictment for riot arising out of prejudices existing between Roman Catholics and others. CHALLENGE FOE PBINCIPAL CATTSE. 129 the impression or opinion which you say you have formed of the guilt or innocence of the defendant ?"* XII. On the trial of a person indicted for selling intox- icating liquor to a person who was in the habit of getting drunk, the following questions to a juror were held to be proper to enable the defendant to exercise his right of peremptory challenge : " Are you a member of a temperance society ?" " Are you connected with any society or league organ- ized for the purpose of prosecuting a certain class of peo- ple, under what is called the new temperance law of the State, or have yoa ever contributed any funds for such a purpose ?"f XIII. A juror, having stated before the triers that he has formed no opinion, and had no impressions as to the guilt of the prisoner, but that it had been, and still was his impression, that the general character of the prisoner was bad ; the following question was then put to the juror : " Would you disregard what you have heard and read, and render your verdict according to the evidence ?" It was held that the question, though iTiartificially put, sub- stantially called for the consciousness of the juror as to his ability to try the case impartially, and that it was therefore properly allowed.:]: § 410. The bias, however, must go to the particular issue ; and the question is not opinion as to guilt, but gen- eral bias for or against the prisoner.§ § 411. And jurors, who have tried and decided a criminal ease, are not competent to act as jurors on a second trial of the same case ; the act of 1872, c. 4Y5, of Laws of N. T. (§ 371, cmte), does not apply to such a case.|| * Allison, P. J., in trial of Probst for murder of Bearing, Official Report, 8. t Lavin u. People, 69 III. 803 ; and see Chicago, &c. R. R. Co. ®. Buttolf, 66 Id. 347. t Lohman «. People, 1 Cormt. 379. § Josephine v. State, 39 Mm. 613. II Barclay «. People, 5 Leg. Oats. 278; S. C, 8 .455. L. J. 104. 9 130 CHALLENGE FOE PBINCIPAL CAUSE. Pecunia/ry Tnt&rest in the Besult. § 412. If this be merely as a member of the town or county to whose treasury a fine is to be paid, such interest does not incapacitate at common law.* It is otherwise, however, when the juror has an in- dividual claim to a fine or forfeiture which a conviction would produce. § 413. It is a good ground of challenge by a person suing a city for damages for an injury caused by a defect- ive condition of a sidewalk alleged to have been improp- erly constructed, and negligently allowed to remain out of repair, that the juror challenged is a citizen and tax-payer of the city sued.-j- § 414. A resident and taxpayer of a city is not com- petent to serve as a juror in an action wherein the city is interested, except in a suit for a penalty or forfeiture, unless such disqualification or incompetency be removed by the charter of the city.:]: § 415. It is a ground of challenge that a juror is an inhabitant of the town, where the moiety or portion of the penalty in the case goes to the poor of that town.§ § 416. Where a juror said when on a jury that he "was a Tom Paine man, and would as lief swear on a * Middletown v. Ames, 7 Vt. 166; see §§ 85, 86 and 370, anU. t Heam v. City of Greensburgh, 51 Ind. 119; Cramer «. City of Burlington, 43 Iowa, 315. In an action against a turnpike company's toll-gatherer, a chal- lenge for principal cause against a stockholder of the company -will not be allowed, if the company would not be liable for the recovery in case it cannot be collected from the defendant (Williams v. Smith, 6 Cow. 106). And the fact that a juror is a stockholder in a gravel road com- pany, does not disqualify him, in an action brought by another gravel road company against a stockholder, for his subscription (Millers. "Wild Cat, &c. Co., 53 Ind. 51). X Diveny 1>. Elmira, 51 N. Y. 506; §§ 86 and 370, . Despard, 3 Man. & B. 406; State V. Nolan, 18 La. Ann. 376; Lane®. Scoville, 16 .SbsTis. 403; Brown v. State, 53 Ala. 345 ; and see § 371, ante. CHALLENGE FOB PRINCIPAL CAUSE. 135 § 437. After a juror has been sworn in chief and taken his seat, if it be discovered that he is incompetent to serve, he may, in the exercise of sound discretion, be set aside by the court at any time before evidence is given, and this may be done even in a capital case, and as well for cause existing before, as after, the juror was sworn.* § 438. As a general rale, it is too late after the jury is empaneled to inquire into the impartiality of a juror.f § 439. But it is not too late after he is sworn and not yet impaneled.:]: § 440. An objection to a juror must be made when he is called upon the panel, otherwise it is waived.§ § 441. The correct practice is, immediately after the juror is challenged to swear him on his voir dire.\ § 442. It is no waiver of the right to challenge for the defendant to pass the juror over to the court, or to the opposite side for examination.^ Nor does a hasty expression of satisfaction with a juror necessarily render it error to allow a subsequent challenge to him.** § 443. A challenge which has been overruled is not waived by asking the parties if they have any objections to the jurors who have been drawn, if the parties reply in the negative.ff But a challenge which has been sustained cannot be withdrawn.:]::!: * People ». Damon, 13 Werod. 351; Tooll v. Com., 11 Leigh, 714; Com. 1]. McPadden, 11 Harris, 13; United States v. Morris, 1 Cur- tis 0. 0. 23 ; People v. Bodine, 1 Bdm. Sd. Gas. 36 ; McGuire ». State, 87 Miss. 369. t Com. ». Enapp, 10 Pick. 477; "Ward v. State, 1 JSwmph. 353. X Com. V. Twombly, 10 PicTc. 480. § Seacore «. Burling, 1 How. Pr. 175. II Kings. State, 5 How. {Miss.) 780; State «. Fowler, 1 Walker, 818; Com. v. Jones, 1 Leigh. 598; 8. C, 13 East. 381. t MoPadden v. Com., 33 Pernn. St. (11 Haarris) 13; Hendrick v. Com., 5 Leigh. 708. ** Adams ». Olive, 48 Ala. 551. +t Hathaway «. Helmer, 35 Ba/rb. 39. \\ State ». Lautenschlager, 33 Minn. 514. 136 PEEEMPTOET CHALLENGES. § 4M. If the accused waives his right to challenge a juror, the public prosecutor cannot insist on having him excluded under an agreement that all should be considered as challenged by both parties.* § 445. The right to challenge a juror is a right to reject, not to select, and therefore neither of two defend- ants in an indictment on a joint trial has cause to com- plain of a challenge by the other.f § 446. If a juror be challenged on one side and be found indifferent, he may still be challenged on the other side.:]: § 447. In a justice's court it is a ground of challenge to a juror that he is not a freeholder of that town.§ § 448. In a justice's court it is a ground of challenge to a juror that he is an alien, though he be a freeholder, and an inhabitant of the town.|| § 449. It is a ground of challenge to a juror that he has not the property qualification at the time of the trial ; it is not sufficient that he had the property qualifica- tion when he was placed on the jury list.T § 450. A juror who is not a freeholder, and who is not assessed for any personal estate, should be set aside, though it appears that he is worth over $250 in personal property.** Peremptory ChaUenges.\\ § 451. Every person arraigned and put on his trial for * People V. Mather, 4 We/nd. 239. t State V. Smith, 3 Ired. 403; United States ». Marchant, 4 Mason, 160; S. C, 13 Wheat. 480. X Co. Litt. 158, a; Boo. Ah: Juries B. 16; 1 Oha/p. 0. L. 545. § Streeter «. Hearsay, 11 Johm. 168; Fenwick «. Parker, 3 Code B. 254. II Borst V. Beecker, 6 Johns. 333. f Kelly V. People, 55 N. T. 565. ** Valton ». National Loan Fund Life Insurance Company, 17 All. Pr. 368; see § 61, ante; see also Armsby v. People, 3 S. C. 157. ft Peremptory challenges should not be used until the full num- ber of jurors has been obtained and been passed upon, on chal- lenges to the favor and for cause. Then, a party to the issue (first, PEREMPTORY CHALLENGES. 137 any offence punishable with death or with imprisonment in a State prison ten years or any longer time, shall be en- titled peremptorily to challenge twenty of the persons drawn as jurors for such trial, and no more.* § 452. Where a person charged with murder in the iirst degree is convicted of murder in the second degree, the legal effect is an acquittal of the original charge ; therefore, if a new trial is granted him, he is entitled to but ten peremptory challenges instead of twenty, as on his first trial.f § 453. Where two or more defendants are tried together, no more than twenty peremptory challenges for all are allowed.:]: § 454. On any trial for any offence 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 usually, the party having the afiSrmative) may challenge perempto- rily, one juror at a time. After each peremptory challenge and be- fore the second is interposed, another juror should be called to fill the place made vacant by the first; and such juror may be chal- lenged by each party for cause and to the favor, and not until the whole number is full again should another peremptory challenge be interposed. When the usages of courts differ upon this point leave " to reserve the peremptory challenges should be asked. Where a prisoner was compelled to exercise his right of peremp- tory challenge before the panel was full, his conviction was reversed on tliis ground (Cooley v. State, 38 Tex. 636) ; and see Taylor ®. Western P. R. R. Co., 45 Cal. 33, laying down the same rule in civil cases. A different opinion was held in the case of Tatum «. Preston (53 Miss. 654). The right of peremptory challenge is absolute and continues till the juror is sworn (Lindsley v. People, 6 Parh. Or. 233; Drake ®. State, 51 Ala. 30; Peoples. McCarty, 48 Cal. 557; Murray d. State, 48 Ala. 675 ; Lamb v. State, 36 Wis. 434 ; Contra, Stewart v. State, 50 Mus. 587; Hoobach ». State, 43 Tex. 343). * 3 B. S. & ed. § 9, p. 1038; Freeman v. People, i Den. 31-83; Dull v. People, Id. 93; People «. Bodine, 1 Id. 309; People v. Hen- ries, 1 Parh. Cr. 579; Lindsley v. People, 6 Id. 333; People v. Bodine, 1 Edm. Bel. Cos. 78; President of the W. W. Turnpikes. People, 9 Bari. 161 ; Dent v. People, 1 JST. T. S. C. {T. & C.) 656. t Ray ■». State, 4 Texas Court of App. 444. X People ». Thayer, 1 Pan-h. Cr. 595. 138 PEEEMPTOKT CHALLENGES. peremptorily to challenge five of the persons drawn as jurors for such trial, and no more ; and in the trial of an indictment for any offence 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.* § 455. The people and the accused in all capital cases shall also be entitled to thirty peremptory challenges.f § 456. Every person arraigned and put on trial for any offence not punishable with death or with imprisonment in a State prison ten years or for a longer time, shall be en- titled peremptorily to challenge iive 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.:]: § 457. On the 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 defence.§ § 458. Every such person, and every person indicted for any offence, shall be entitled to the same challenges as are allowed in civil cases, either to the array of jurors, or to individual jixrors.] § 459. The attorney general or district attorney prose- cuting for the people of this State, shall be entitled to the same challenges in behalf of this State, either to the array or to individual jurors, as are allowed to parties in civil cases, and the same proceeding shall be had thereon as in civil actions.*! *Z S. S. 6 ed. § 39, p. 1033; Walter v. People, 32 N. Y. 159; People v. Walters, 18 Abb. Pr. 148. t 3 -B. & 6 ed. § 13, p. 1039. 13 B. S. Q ed. § 10, p. 1028; President, &c. of the W. W. Tui-n- pike V. People, 9 Sarb. 161; People v. Henries, 1 Park. Or. 579; People ex rel. Livermore ». Hamilton, Jr., 39 N. T. 109; Lindsley v. People, 6 Pari Cr. 340. § 3 fi. /S. 6 ed. § 14, p. 1039. 1 8 iJ. 5. 6 ed. § 15, p. 1039; People ». Bodine, 1 Edm. 8el. Gas. 78; S. C, 1 Ben. 309. IT 3 .B. & 6 ed. § 16, p. 1039; Peoples. Henries, 1 Park. Cr. 579; PEREMPTORY CHALLENGES. , 139 § 460. Persons of any religious denomination whose opinions are such as to preclude them fi'om finding any de- fendant guilty of an offence punishable with death, shall not be compelled or allowed to serve as jurors on the trial of an indictment for any offence punishable with death.* § 461. Upon the trial of an issue of fact joined in a civil action in a court of record or not of record, each party may peremptorily challenge not more than two of the persons drawn as jurors for the trial.f § 462. The statute providing for peremptory chal- lenges by the people is constitutional.:]: § 463. On the preliminary trial of a prisoner's insanity, before the trial of the indictment against him, he has not the privilege of peremptory challenges, but he may chal- lenge for cause.§ § 464. "Where a statute gives the right of peremptory challenge to a prisoner on trial " for an offence punishable with death or imprisonment in a State prison ten years or any longer time," a person indicted for burglary in the second degree, which is punishable by imprisonment in a State prison for a term npt more than ten years nor less than five years, is entitled to peremptory challenges.! § 465. Under the Pennsylvania revised statutes, if the commonwealth waives the right to a challenge, and the de- fendant exhausts his challenges, the commonwealth cannot resume its rights.!" People V. Masters, 3 Id. 517; People v. Van Home, 8 Barb. 158; People V. Aichinson, 7 How. Pr. 343. * 3 J?. -S. 6 ed. § 17, p. 1039; People v. Damon, 13 Wend. 351; Walter ». People, 33 2^. T. 147. t New Code, § 1176; Laws of 1847, c. 134, § 1 (4 Edm. 648). Summary proceedings to dispossess tenants are not "civil actions," and this section does not authorize peremptory challenges jn such proceedings (People «. Hamilton, 39 N. T. 107). In England, there are no challenges in civil cases but for cause (Marsh «. Coppuck, 9 C. <& P. 480). I Walter v. People, 33 K Y. 147. § Freeman «. People, 4 Ben. 9. II Dull ». People, 4 Ben. 91 ; Granger ». State, 5 Teirg. 459. IT Com. V. Frazier, 3 Brewst. 490. 140 PEREMPTORY CHALLENGES. § 466. It has been said that the defendant's right to a peremptory challenge is waived when the juror is passed over to the court or the prosecution.* § 467. This opinion cannot be absolutely maintained, as, on due cause being shown, the court will at any moment before the case is opened permit the challenge.f § 468. After eleven jurors were impaneled, counsel for the /prosecution privately stated to the court that they had received information relating to one of the jurors who had been accepted and sworn, which justified them in applying to the court for leave to interpose a peremptory challenge. The question of the power of the coui-t to grant such leave at this stage of the proceedings was opposed, and Judge Datis, after reserving his decision for further consideration, held that the challenge might be allowed in the sound discretion of the court. That the court could exercise such discretion withoiit requiring Gounsei. publicly to disclose their reasons for interposing it, the court being itself satisfied that substantial reasons existed rendering it improper that the juror proposed to be challenged should be allowed to sit in the case ; and that the challenge might be so allowed at any time before the actual commencement of the trial, the people not having exhausted their challenges.:}: § 469. It is clear that the right ceases when the panel is completed and accepted.§ § 470. Peremptory challenges are not allowable on the trial of any collateral issue. || § 471. Peremptory challenges are not allow.ed at common law in trials for misdemeanors. 1" * Com. V. Rogers, 7 Mete. 500 ; TJnited States d. Hanway, U. S. Circuit Court, Phila. 1863; State ». Potter, 18 Conn. 166. t Wyatt V. Noble, 8 Blaekf. 507; Hendricks «. Com., 5 Leigh, 108; McFadden ». Com., 23 Penn. (11 Harris) 12. X People V. Tweed, 13 All. Pr. N. 8. 371 ; United States v. Morris, 1 CuH. 0. Ct. 23; People ». Damon, 13 Wend. 351. § State V. Cameron, 2 Chandler (Wis.) 172. II Bums'' Justice, Jurors, 8 ; Freeman v. People, 4 Den. 9. IT Beading's Case, 7 HowelVs State Trials, 265 ; Dates' Case, 10 Id, PEREMPTORY CHALLENGES. 141 § 472. In summary proceedings to remove tenant, the law does not authorize either party peremptorily to chal- lenge a juror.* § 473. A prisoner, who, in case of felony, has chal- lenged twenty jurors peremptorily, cannot ordinarily with- draw one of those challenges to challenge another juror in- stead of one whom he had previously challenged.f § 474. Nor for the pui-pose of challenging for cause. But in ease of innocent mistake made in challenging, per- mission should be given to rectify. The right of peremp- tory challenge is a right not to select, but to Teject.\ § 475. At common law the government has no peremptory challenges.! § 476. But the government, unlike the defendant, is not required to show cause until after the panel is ex- hausted, having the power of setting aside individual jurors till that period, when, if the jury box be not then filled, the jurors who have been set aside will be severally called, and unless adequate cause is shown against them, will be chosen. II § 477. Such is still the practice in the federal courts, and in such of the States as have not in this respect super- seded the common law by statutes.^" 1079; i Blaeh Gom. 353, note by Mr. Christian; United States «. Devlin, 6 Slatchf. 71 ; Freeman v. People, 4 Den. 9. * People ®. Hamilton, 39 !{. T. 107 ; see Summary Proceedings, §§ 914-921, post; see note to § 461, ante. t R. V. Parry, 1 O. & P. 836. I United States v. Marchant, 4 Mcum, 160; S. C, 13 Wheat. 480; States. Smith, 2, Ired. 402; People «. Bodine, 1 Dm. 281; States. Wise, 7 RUhard, 412. §Pi. ®. Frost, 9 C. c6 P. 136; Henries ®. People, 1 Parle. Cr. 579; People ». Aichinson, 7 Sow. Pr. 241. 1 Mansellt). R. (in error), 8 El. & Bl. 54; R. v. Parry, 1 0. &P. 836; Lord Grey's Case, 3 Harg. St. Tr. 519; S. C, Q ffowelVs St. Tr. 127; Peter Cook's Case, 4 Sarg. St. Tr. 740; S. C, 13 Howell's St. Tr. 311; 2 Sale P. G. 371; Bac. Abr. Juries £?. 10; 2 Hawk, c. 43, § 3. IT United States v. Wilson, 1 Bald. 81 ; State e. Arthur, 2 Dev. 217; States. Craton, 6 Ired. 164; State v. Stallmaker, 3 Brevard, 142 PEREMPTORY CHALLENGES. § 478. The right may be exercised by the prosecutor at any period before the jury is elected, and it was held no error where the commonwealth, from excessive caution, set aside a juror who had been before ineffectually challenged by the prisoner.* § 479. The practice of permitting the prosecutor to defer showing cause of challenge until the panel be gone through, it was said, in a case in North Carolina, must be exercised under the supervision of the court, who will restrain it if applied to an unreasonable number ; and in Georgia since, the adoption of the penal code it is rejected altogether.f § 480. In Pennsylvania, by the revised acts of 1860, the commonwealth shall have the right in all cases to challenge peremptorily four persons, and every peremptory chal- lenge beyond the number allowed by law in any of the_ said cases shall be entirely void, and the trial of such person shall proceed as if no such challenge had been made. § 481. In general, the prisoner has the right of jjeremptory challenge to a juror after he has made such answers on the voir dvre as do not authorize a challenge for cause.:]: § 482. But the right to a peremptory challenge, it is said, in Massachusetts, must be exercised, if at all, before the jurors are interrogated by the court concerning their bias and opinions.§ § 483. It has been said that the defendant must per- sonally, and not through counsel, make such challenges as are peremptory.! 1; Rob. Dig. 338; Jewell v. Com., 10 Harris, 94; Com. o. JollifEe, 7 Watts, 585; Wormley «. Com., 10 Qrat. 658. * Wormley v. Com., 10 Grat. 658. + Sealey v. State, 1 Kelley, 313; Reynolds e. State, Id. 322; State ». Benton, 3 Bev. & Bat. 196. I 4 Black. Com. 363; 3 SawJc, c. 43, § 10; Bac. Air. Juries B. 11 ; Hooker v. State, 4 Ohio, 350 ; People v. Bodine, 1 Den. 381. § Com. V. Rogers, 7 Mete. 500 ; Com. ». Knapp, 9 Pick. 496. II State 11. Price, 10 Rich. Law, 351. PEEEMPTOET CHALLENGES. 143 § 484. This, however, is a mere arbitrary and forced extension of the fiction of the jurymen and prisoner look- ing on each other to see if there is any personal reminis- cence which would touch the question of indifEerence. The usual practice is for this kind of challenge, as is the case for all others, to be made by counsel. Recall/mg Peremptory Challenges. § 485. It is said that the court in its discretion will not permit a peremptory challenge to be recalled after the juryman is set aside, in order merely to admit a challenge for cause. But in case of surprise, such discretion may be properly invoked.* § 486. In Virginia, where a person called to serve as a juror in a criminal case was elected by the prisoner, but before he was sworn, the prisoner retracted his election, and asked that he might be permitted to challenge him peremptorily, but the court refused to permit such per- emptory challenge, and the juror was sworn and served on the jury ; it was held this was error, the prisoner having an absolute right to challenge any juror peremptorily at any time before he is swom.-t" § 487. In Connecticut, however, B., having been called as a talesman, and examined as to his bias, and no reason to except to him appearing, the counsel for the prisoner were informed by the court that they could then challenge B. peremptorily if they desired to do so. They declined to exercise the right at that time as the panel was not then full, and B. was directed to take his seat as one of the jurors. After the panel was full, and but six per- emptory challenges had been made, the prisoner's counsel claimed the right to challenge B. peremptorily. It was held that in the absence of any reason for a peremptory challenge then which did not exist iefore, when the exercise * State V. Price, 10 Rich. Law, 351 ; R. ■». Parry, 1 0. &P. 836. t Hendrick v. Com., 5 Letgh, 708. 144 PBEEMPTORT CHALLENGES. of the right was declined, it was too late to challenge B. peremptorily.* § 488. In Alabama, in a capital case, it is not ground of peremptory challenge of a juror, that upon common report he has formed and expressed an opinion of the guilt of the prisoner, if the juror believes that such an opinion would have no influence in the formation of his verdict should the evidence on the trial be different from the report of the facts.f § 489. A peremptory challenge to a juror after a principal challenge to him has been overruled, is a waiver of the challenge for cause.:]: §490. Under the act of Congress, July 20, 1825 (5 Stat, at Large, 394), the courts of the United States have the power to adopt the statutes of the several States respecting the impaneling, &e., of jurors ; and the right of challenge, &c., except in respect to treason and other crimes specified in section 30, act of 1Y90 (1 Stat, at Large, 119); and where these statutes have been adopted, the right of peremptory challenge either by the prisoner or government must depend on them.§ § 491. By the act of March 3, 1865, when the offence charged be treason or a capital offence, the defendant shall be entitled to twenty, and the United States to five per- emptory challenges. On a trial for any other offence in which the right of peremptory challenge now exists, the defendant shall be entitled to ten, and the United States to two peremptory challenges.! § 492. Can a defendant, if he has not exhausted his peremptory challenges, object in error to the action of the court below in deciding against him a challenge for the favor? There is good authority for holding that in * State V. Potter, 18 Conn. 166. t State 1). Williams, 3 8Uw. 454; State v. Morea, 3 Ala. 275. t Friary J). People, 2 Keyes, 424; S. C, 2 Abb. Bee. 215; S. C, 54 Bwrb. 319; Conway «. Clinton, 1 Utah T. 315. § United States ». Shackleford, 18 How. V. S. 588; see chap. Vni, post. I See note to last section. CHALLENGES TO GRAND JUKOES. 145 ordinary cases he cannot. He is bound, it is argued, if he objects to the juror, and his objection is overruled by the court, to challenge such juror peremptorily, supposing the case ultimately shows that he has challenges to spare. * § 493. But if it appears that the defendant was misled by the action pf the court, or that he was in any way excluded from making a peremptory challenge of the juror in question, then he should be allowed to review the decision in error. f Challenges to Grcmd Jurors. § 494. By the revised statutes of the State of New York, a person held to answer to any criminal charge may object to the competency of any one summoned to serve as grand juror, iefore he is sworn, on the ground that he is the prosecutor or complainant upon any charge against such person, or that he is a witness on the part of the prosecution, and has been subpoenaed or been bound in a recognizance as such ; and if such objection be established, the person so summoned shall be set aside.:}: § 495. But no challenge to the array, nor to any person summoned to serve as grand juror shall be allowed, except as above stated.§ § 496. It is no grotind of challenge that a certain class were excluded in the selection of grand jurors, if those who are returned be unexceptionable.! * State V. Benton, 3 Den. & B. 196; People v. Knickerbocker, 1 Pan-h. Or. 303; McGowan ®. State, 9 Yerg. 184; Norfleet ®. State, 4 Sneed, 340; People?). Stonecifer, 6 Cal. 405; People v. McGungill, 41 Id. 439; State «. McQuaige, 5 S. C. {Bidha/rdmn), 439. tLithgow i>. Com., 3 Va. Cos. 397; Baxters. People, 3 Gilm. 868; People v. Bodine, 1 Ben. 383; People ». Freeman, Id. 9; Birdsong v. State, 47 Ala. 68 ; and see § 371, ante. X See § 754, post; Dawson «. People, 35 N. Y. 405; People ». Jewett, 3 Wend. 314; S. C, 6 Id. 386; McNevins «. People, 61 Barb. 308 ; contra, People v. Wintermute, 1 Dakota (Bennett), 63. § Carpenter v. People, 64 JV. Y. 483. II People V. Jewett, 3 Wend. 314. 10 146 CHALLENGES TO GEAWD JUEOES. § 497. It is no ground of challenge to a grand juror that he belongs to an association for the prosecution of crime.* § 498. It is a good cause of exception to a grand juror that he has formed and expressed an opinion as to the guilt of the party; it is also good ground of exception that he has shown or expressed hostile feelings to the party ; but these objections must be made before the indictment be found, and will not afterwards be heard.-f; § 499. Challenges to the grand jury may also be made in the form of a plea in abatement. Under the provisions of 3 Revised Statutes (5 ed.), section 37, page 701, requiring the names of the persons appearing on the lists prepared, and filed, as required by sections 35 and 36, to be placed in a box, and the names of the persons to act as grand jurors to be drawn therefrom, there is no authority for the officer drawing the grand jurors, or the court before which they may be summoned, to go behind the proceeding of the board by which the list was prepared, for the purpose of nullifying the action of the grand jury after its formal organization. A plea in abatement on this ground will fail.:]: § 500. A plea in abatement to an indictment found in a court of general sessions in the city of New York, alleging that the annual grand jury list was not whoUy selected as required by statute [Lams of 1853, c. 498), from the petit jury lists made out by the commissioner of jurors, without any averments of fraud or design, is not good. The fact that a few names not appearing on the petit jury Ksts are accidentally put upon the grand jury list does not vitiate the whole list, and that it was by acci- dent or oversight is to be presumed, in the absence of fraud or design. § * Musiok v. People, 40 lU. 268. t People V. Jewett, 3 Wend. 314; United States «. White, 5 Oraneh 0. Ot. 457 ; State v. Gillick, 7 Iowa, 287 ; State i>. Quimby, 51 Me. 395; People «. Monahan, 33 Gal. 68. I Dolan 11. People, 64 N. T. 485 ; see §§ 733 and 738, post. I Dolan V. People, 64 JV. Y. 485. CHALLENGES TO GRAND JURORS. 147 § 501. Nor is it a good plea that some one of the fifty selected as the special panel of grand jurors {Zaws of 1870, c. 589, § 28) was not upon the petit jury lists, in the absence of an allegation that the persons actually sworn and impaneled were not upon that list. It is necessary also, in such a plea, to give the names of the persons alleged to have been selected and drawn who were not upon the petit jury lists.* § 502. ■ It is not a good plea that the commissioner of jurors was prevented by duress from attending upon or supervising the grand jury. In the absence of allegations as to how the grand jury was drawn, and by whom, it is to be presumed that the drawing was made by some other person claiming the office, acting as de facto commissioner, and recognized as such by all the oflicers having relations with him or his work ; and a jury drawn by a de facto commissione:r' is regular. f § 503. In New Jersey, it is said that it is not a good plea in abatement, that a member or members of the grand jury were interested in the conviction of the defendant, and had prejudged his case.;]: § 504. In Alabama, it was held that a plea in abate- ment to an indictment preferred by a grand jury, one of whom was an alien, was a proper mode of objection. § § 505. In the United States circuit court in Minne- sota, it was held that the mere fact that a prosecutor was a member of the grand jury, was no ground for a plea in abatement.! § 506. In Mississippi, the present practice is, that for exceptions to organization, a plea in abatement is too late.l § 507. In "Virginia, it was ruled that where a bill of indictment is found by a grand jury, one of whom is an * Dolan «. People, 64 S. 7. 485. Mm. I State ». Rickey, 5 Hahtead {N. J.), 83. § State v. Middleton, 5 Porter, 484. 1 United States v. Williams, 1 Dill. 485. IT James v. State; 45 Miss. 573. 148 CHALLENGES TO GKAND JUEOES. alien, or otherwise disqualified by law, the bill or present- ment maybe avoided by plea.* § 508. In Ohio, an indictment found by a grand jury composed of less than fifteen persons, having the qualifications required by statute, is not sTifficient to put the accused on trial, and a plea to the indictment that one of the grand jurors had not the requisite statutory qualifi- cations, is a good plea in bar.f § 509. In Maine, Tennessee, Alabama and Texas, it has been determined that the disqualifications of any one or more of the grand jurors finding an indictment must be taken advantage of by motion to quash, or plea in abate- ment, before the general issue is pleaded.:}: § 510. It may be stated as a general rule, that where the statute has abolished challenges to the array of grand jurors, a plea in abatement can be interposed to an indict- ment setting forth that the finding of the indictment was by an illegal body. Such a plea must set forth the ground of objection specifically, and show that the jurors were legally incompetent.§ * Com. V. Clurey, 2 Virg. C. 20. t Doyle ». State, 17 Ohio, 223. I State «. Duncan and Trott, 7 Yerg. 271; State «. Bryant, 10 Id. 537; State v. Brooks, ^ Ala. 10; Barney v. State, 13 S. & M. 68; McQuillan v. State, 8 Id. 587; Rawle v. State, Id. 599; State v. Symonds, 36 Me. 138; Vancock ». State, 12 Tex. 469; Jackson ®. State, 11 Id. 261 ; State «. Carver, 49 Me. 588 ; State ». Wright, 53 Id. 328. § People t. Jewett, 6 W&nd. 385; Areh. Or. PI. (ed. 1860), 336; Co%'« Cr. Proc. 285; People ». Allen, 43 N. T. 33. DUTIES OP JUEOKS. 149 OHAPTEE V. Of the Duties of Teiai oe Petit Juroes. This chapter consists of four parts, namely : 1st. Duties before trial. 2d. Duties during trial. 3d. Duties after trial. 4tli. Charge to trial (or petit) jurors. PART I. Of Duties bbfokb Tbial. § 511. After a juror has received a notice requiring him to attend at any particular court, and in response to such notice does attend, his duty as juror begins at the time he enters the court-room. § 512. He should first ascertain the particular court- room to which he has been summoned ; and he should do this before the expiration of the time mentioned in the notice which has called him to appear in court. After en- tering the proper court-room, he should take a seat, if possible, and listen attentively to the calling of the names of jurors by the clerk, which is prefaced by the following expression: "Jurors will please answer to their names when called, and save your fines," and when his name is called, should answer " here " or " present " in a loud, clear tone of voice, so that the clerk may hear him and enter his name accordingly. § 513. By paying particular attention to answer clearly and distinctly to the call, the juror would thereby save the court and clerk considerable trouble and annoy- ance, and thus avoid receiving a reprimand for either real or apparent inattention or neglect, as well as a fine by 150 DUTIES OF JUEOES. reason of Ms name being entered or marked "absent" instead of "present" by the clerk, who did not hear the juror's answer. § 514. Should a juror wish to be excused, he will have an opportunity of stating his excuse to the court imme- diately after the clerk has concluded the calling of the jurors' names. It is entirely within the discretion of the judge holding the term — or presiding judge — to excuse a juror, unless the juror has legal grounds for being excused. Where the jm-or has no legal excuse, but still presents such reasons as should relieve him at that time from serving, the judge has the power in some counties to " set over " the juror to some other time, at which adjourned time the juror must attend without further notice.* § 515. There are cases in which a juryman may be privileged from serving, but in which the privilege must be set up by himself, or the court, and cannot be technically regarded as a ground of challenge. Thus, a juror may be excused from serving on the ground of old age.f And on the ground of deafness or other infirmity inca- pacitating him from proper discharge of duty.;}: And on the ground of holding excusatory offices.§ And the excusing of the juror for reasons of this class is always within the discretion of the court, irrespective of the statutes relating to challenges.! § 516. Many persons who, on being dravm for the first time as jurors, think that the only thing necessary for them to say to the judge is, that their business will not allow them to attend, and upon this statement they suppose they have the right to be excused as jurors. It is time that business men should have a more reasonable and enlightened view on this subject, and that they should con- sider jury duty not an onerous, but an honorable one. § 517. If a person summoned as juror cannot attend * See §§ 74, 75, 83, and 173, ante. t Davis V. People, 19 III. 74; Breeding v. State, 11 Tex. 357. I Jesse «. State, 20 Ga. 156. § State V. Quimby, 51 Me. 395. II State v. Marshall, 8 Ala. 802. DUTIES OF JUEOES. 151 personally, he should send some one to answer for him, and state the excuse for such non-attendance ; and if a person so summoned is sick, he should send proof from a physician of such sickness.* § 518. After the confusion that usually attends the calling of names and the excusing of jurors has subsided, the juror should attentively listen while the clerk calls twelve names of jurors to try a case ; and should, on hear- ing his name called, answer in a clear voice "here," or " present," and should then take his place in the jury- box. § 519. A person summoned as juror, but not impan- eled for the trial of any case, should take great care to avoid conversing with any person about the merits of a case to be tried at that term of the court, either before a jury is impaneled, or whilst he is awaiting the trial of another case after his return from the jury-room, or at any time when he is present in court on jury duty, though not actually engaged in the trial of any case. § 520. Should any person approach a juror in a manner, which, in his judgment, is intended to influence his verdict in any case for which he has been or may be impaneled, he should at once notify the judge of the court of such conduct.f § 521. If a juror who is called into the trial of a case is intimately acquainted with the litigants, or is well- informed as to the merits of the case, or is biased or preju- diced either for or against either party, or has had a case of a similar nature wherein he was personally interested, and is therefore biased or prejudiced for or against an action of that kind, he should decline to serve on such jury in such ease, and then and there should state to the court his reasons for so doing, though he be neither questioned nor challenged before the beginning of the trial. § 522. When a jury has been impaneled ' to try a case, and when, owing to a pressure of business, a second or third * See § 75, anU. t S?e §§ 156 and 213, ante. 152 DUTIES OF JUKOES. jury is likely to be impaneled, or when the fii-st or second jury is deliberating in the jury-room, the remaining jurors should not leave the court-room, unless leave is given them by the judge, for they may be needed to constitute the second or third jury. PABT II. DOTIBS DURING TeIAL. § 523. "When a juror has been called into the trial of a case, and has taken his place in the jury-box, he should pay particular attention to the oath administered to him, and especially to that part which speaks of " trying the issues according to the evidence." In some courts, how- ever, a general oath is administered to all the jurors at the opening of the term. § 524. Some jurors forget that part of their oath when they see that either of the parties to the action is their friend or acquaintance, or a personal, political, or social enemy, and think that by their position as jurors they have a good opportunity of conferring a favor, or of wiping out or settling up "old scores." Again, it often happens that lawyers are retained in cases on the day of trial, or but a short time prior to that day, who have either a very large clientage, or have occupied an important public position, such as judge, district attorney, sheriff's counsel, &c., and who are therefore supposed to be personally acquainted with the jurors, or with some of them, who have been sum- moned to attend at that term of court. § 525. It frequently occurs that parties to actions bring into court, for the purpose of infliiencing one or more of the jurors, persons who appear to take great inter- est in either side of the controversy, who have resided a long time in the place where the case is to be tried, and therefore have an influential or extensive acquaintance. This improper course is more frequently employed in Sriminal than in civil trials, for the purpose of compelling, DUTIES OF JUEOES. 153 if possible, a jury to render a verdict for a less crime than that of which the prisoner is really guilty, or to make them disagree. For these and similar reasons the juror is there- fore required to pay attention, and remember the impor- tance, sacredness, and responsibility contained in his oath, " to render a verdict according to the evidence." And to the honest, faithful, conscientious, and fearless juror this expression means according to all the evidence', not according to the evidence as adduced on the side on which a good-looking woman, or one dressed in mourning, or one who shed tears, testified ; not according to the evidence as adduced on the part of a lodge-brother or a person engaged .in the same business or profession as the juror; not accord- ing to the sympathy that may have been aroused, but sim- ply, solely, and only according to all the evidence im the case. % 526. The juror should bear in mind that the very essence, foundation and stability of the tribunal of which he is an honored and trusted member, are truth, justice and impartiality. % 627. After taking his seat in the jury-box, the juror should pay due and close attention to all that is said and done in the case. Should a witness speak in so low a tone of voice that the juror could not hear him, it is the duty of the juror to state that fact to the court. The juror has a right to put questions to the judge and witnesses relating to the case on trial, and has a right to receive answers, if his questions be legal and proper. The juror should note the appearance of the witnesses on the stand, their manner of giving testimony, and their willingness or unwillingness to testify. But the juror should never render a verdict upon the mere appearance, whether favorable or otherwise, of the witness. He should listen to the opening speech of counsel, and should be extremely careful to avoid the con- fusing or confounding the evidence as given on the trial by the witnesses, &c., with the statement which counsel in his opening speech makes in relation to evidence that he " ex- pects to produce," but which he fails to produce. The intelligent juror will at once see the vast difEerence there is 154 DUTIES OP JUEOES. between the evidence actually produced in many cases and Biich statement.* § 528. He should also remember that the evidence which the court has ruled out during the progress of the * In the trial of Louis F. Therasson, a lawyer, for obtaining the signature of a Mrs. Zabriskie tea "satisfaction-piece" of a mort- gage by false pretenses, which was had at the December term (1878) of the court of oyer and terminer in New York city, Mr. William A. Beach, counsel for the accused, in his summing up to the jury, reminded them in an eloquent manner of the responsibility resting upon them: "I speak," said he, in an almost tender voice, " for a lawyer, for a friend of mine, who for thirty years has been known for his probity. I cannot overlook the possibilities in this case. I do not fear them. This I know — that the judgment of men • is often merciless and unjust. It is difficult for men, called, as you gentlemen, from the walks of life, to sit as judges on your fellow- men. You are empowered to return a verdict which will restore my client to honor. Did you ever reflect on the power which is given you by the people to decide upon these questions which cluster around human life? Sometimes gentlemen come into this box, thinking it is their duty to deal harshly, cruelly, and condemn. They forget the humanity and charity of the law. I look into your eyes, and believe that you will render your verdict impartially. This morning my friend stepped into the glad sunshine of the bright day from his happy home ; a woman's affection cheered him, and his child bade him its tenderest farewell. Strong in that faith and devotion, he is here before you — to-night, by your verdict, you may send him to a prison cell. The interest of the public, the law, the family, all find their representative in you. There is no crime under heaven that does not come before you. If this man has violated his duty, I ask no pity for him. Let the law take its course. I do ask for him a fair consideration of the evidence before you, how- ever. Just, noble as his Honor the judge is, he could not but see during the progress of the trial, the great personal interests involved. For fifteen years the prosecutor has confided all her troubles to my client. They were schoolmates together. She was familiar with his home— loved them all. Suddenly all this associ- ation changes ; her love has turned to hate. He has been unable to meet her accusations except by his own testimony. It is wonderful to see how soon over this scene of mutual respect and good-will a shadow was thrown. A celebrated jurist of her own land has written that a jury should not allow itself to he swayed hy appeals of revenge made to it. So long as this palladium remains sacred, it will he an honored institution." DUTIES OF JUEOES. 155 case must not be considered by him while deliberating upon his verdict. The judge has the exclusive right of ruling as to the admissibility and competency of the evidence on trials by jury ; and the jury are obliged to accept his ruling as j&nal and binding ; and the evidence so rejected must be to the jurors as though it had never been given, no matter how great a bearing, according to thevr opinion, it might seem to have upon the case. § 529. The jurors must listen to the closing arguments of counsel, and note the various lights in which the evi- dence and witnesses are placed ; and they should do this simply for the piirpose of enabling themselves to arrive at a correct conclusion on the whole case as represented, but not for the purpose of being edified or amused by the eloquence or wit of counsel. There have been jurors who have paid very little attention to the evidence in the case as it progressed, but who relied upon the possibility of finding out all about it in the summing up of counsel. It is, perhaps, needless to say that such conduct is reprehen- sible, and cannot be too strongly condemned. § 530. Particular attention should be paid to the charge of the judge, as it is from him the jury must receive the law, and instructions as to the application of the law on the points in question. And they are bound to act in accordance with his charge, regardless of the conse- quences. § 531. At the conclusion of the charge, or, in some courts before the charge, the attorneys of the respective parties may request the judge to charge the jury on specific matters ; and to these matters, if the judge charges on them as requested, the jury must pay particular attention. § 532. If any papers, maps, or diagrams have been received in evidence, and if the jury consider it necessary to take these into the jury-room, they should ask permission of the judge to do so, as it is entirely within his discretion to grant or refuse such permission. 156 DUTIES OF JUEOES. PART III. Duties aftbk Trial. § 533. On arriving in the jury-room, the jurors may facilitate their labors, and more readily and conveniently reach a just conclusion by acting as an organized asso- ciation ; they should therefore immediately nominate and elect a foreman to act as chairman. The duties of the foreman are : first, to keep order, second, to put questions to a vote, and third, to announce the verdict agreed upon by the jury. The jurors should also select some one of their number to act as secretary, who should immediately upon entering on his duties, take down the names of all the jurors in the case ; subsequently he should take notes of the motions as made, whether carried or lost, and thereby show how each juror voted. These proceedings must take but few minutes, and the deliberations should then begin and pro- ceed without delay. § 534. The reason why the proceedings in the jury- room should be regular and systematic is, that the jurors continue and carry out the proceedings in court, which are, as the jurors may see on the trial, conducted according to legal rule and system. § 535. If the jury are deliberating upon a criminal case, the first motion should be, " Mr. Foreman, I move that we take a vote as to the guilt or innocence of the prisoner." If they are deliberating on a civil case, and if there is no dispute as to the amount sued for, the first motion should be, " Mr. Foreman, I move that we render a verdict for the plaintiff " (or " for the defendant," at the pleasure of the mover). If the motion has been seconded, the foreman puts the question, and if it is unanimously carried, the jury return to the court-room, where the fore- man announces the verdict ; and here the jurors' duty in that case is at an end. When, however, as it sometimes happens, the vote of the jurors is not unanimous as regards DUTIES OF JURORS. 157 "plaintiff," "defendant," "guilty," or "not guilty," but there are votes on both sides of the question, then the foreman should direct the secretary to call out the names of the jurors, and as each name is called, the juror should answer and state how he voted, whether for "'plaintiff," "defendant," "guilty," or "not guilty," and the secretary should take down on his minutes the votes as thus given. In this way, the jurors may become aware of the opinions of one another, and their duty then is to harmonize these opinions. With this purpose in view, the next motion should be, "I move that we now consider the testimony of the plaintiff," or, in a criminal case, " the testimony of the prosecuting witness" (or the testimony of any other witness which has an important bearing on the case). If the motion is carried, the mover should first state how he formerly voted, whether for " plaintiff," " defendant," " guilty," or " not guilty," and then state how he under- stands the testimony of the witness now to be considered, and what bearing it had upon the vote he gave. Thus, each juror should be allowed, in a brief and orderly manner, to state his understanding of the testimony. § 536. In this respect, the attention of the juror is called particularly to the fact, that in speaking of the evidence, lie must only speak of that which was submitted to the jury in open court. Should any one of their number know anything about the facts in the case, outside of the knowledge which he gained on the trial, he must not communicate such information to the others ; neither are the others allowed to be influenced by any such com- munication if made by him, unless he was sworn on the trial as a witness in the case. The intent of the law is to prevent the jury from receiving and using any evidence that does not rest on oath, and has not been duly submitted to examination in court. Any departure from, or going beyond this rule by the jury, is a violation of their solemn duty, responsibility, and oath as jurors. § 537. After the jurors have severally had an oppor- tunity of expressing their understanding of the testimony under consideration, they may readily and quickly discover 158 DUTIES or JUKOES. whether their difference of opinion is a trifling or a vital one. If this difference is a trifling one, a motion for a vote on the main question, "plaintiff," "defendant," " guilty," or " not guilty," should again be taken ; and if this vote is unanimous either way, they should report to the court ; but if not unanimous, they should take a recess for a few minutes, that they may converse privately con- cerning this difference. § 538. If, again, this difference is a trifling one, and one or more jurors hold out and decline to vote with the majority, and yet refuse to state their reasons for so doing, the duty of that jury is thus terminated, for they evidently may never agree. An honest juror should always be willing to state his reasons in the jury-room for his vote, and should always be willing to listen to the reasons and arguments of the others ; and if he does this, and is con- scientious in his voting, and if the case is one in which the evidence would uphold his opinion and vote, he has a right to adhere to his opinion, even if opposed by the remaining eleven jurors. § 539. If, on the other hand, this difference is a vital one ; if, for instance, half the jury believe that the witness testified to one thing, and the remaining half believe differently ; or if it is the charge of the judge which is under consideration, and if there is contrariety of under- standing as to its meaning and application ; or if this dif- ference relates to the proof or anything else regarding the trial ; and if this difference can be removed by further in- structions from the court, or by the reading of the stenog- rapher's minutes of the testimony upon which there is a dispute, it is then the duty of the jury to return to the court-room, and obtain the instructions and information which they deem necessary. Having received the desired instruction, &c., they should immediately return to the jury-room and continue their deliberations in an orderly and proper manner, until they reach a unanimous conclu- sion, if possible. § 540. In a criminal case, the jui'y's duty is at an end when they have decided upon a verdict of either "guilty" DUTIES OP JUROBS. 159 or " not guilty." But in a civil case, as, for instance, in an action on contract, or for damages for injuries, death, libel, slander, false imprisonment, &c., &e., there is still another and a very important question for them to settle after they conclude to find a verdict for the plaintiff, namely, the amount of damages. § 541. If the action is one known as an action on con- tract, such, for example, as on a promissory note, an account stated, goods sold and delivered, money loaned or advanced, work, labor and services, or any other matter in which the amount of damages is actually determinable by the evi- dence adduced, without compelling or necessitating the juror to form his individual opinion as to what the amount of damages should be, his duty will be comparatively light, for by strict and close scrutiny of the evidence it may not take him long to see whether the plaintiff has established the whole or only a part of his claim ; in fact, it will be a matter simply of fair calculation and adjustment. Or if it is an action in which the defendant has set up a counter- claim — which means that besides denying that he is in any way indebted to the plaintiff, he asserts that the plaintiff is indebted to him — and has asked for judgment against the plaintiff for a certain sum on contract, as above explained, the jury will have no difficulty in reaching a conclusion aa to the amount of the counter-claim, after they have con- cluded to find for the defendant. § 542. But when the action is one in which the amount of damages is not actually determinable by the evidence given on the trial, or when the determination of the amount is left entirely to the judgment of the jury, as, for example, in actions for injuries or death against rail- road or steamboat companies or others, or for libel, slander, false imprisonment, malicious prosecution, breach of prom- ise of marriage, or other actions of a similar nature, then the jury may find some difficulty in arriving at a correct conclusion. In this connection the jury are again reminded of the attention which they should give to the charge ol the judge, who has exclusively the power and right to instruct the jury whether the case on trial is one in which 160 DtTTIES OF JUEOKS. tliey may find nominal damages only, or actual damages, or actual and exemplary or punitive damages, and the jury must find in accordance with these instructions. Nominal damages are six cents ; actual (or compensatory) damages mean the amount which the plaintiff actually proves he has sustained ; exemplary, punitive, or vindictive damages, mean the sum which the jury may find for the purpose of punishing the defendant for malice, &c. § 543. It often happens that in the class of actions last mentioned, the jury arrive at the amount of damages by writing severally on a slip of paper the amount they think ought to be awarded, and then, after adding the several amounts so written on the twelve slips of paper, dividing that sum by twelve. This manner of reaching a conclusion is illegal and unjust, and cannot be reconciled with their oath as jurors, and is greatly to be deprecated and deplored ; and a verdict thus rendered, if brought to the knowledge of the court, would be set aside {see post, § 679). § 544:. If, for instance, one juror writes on his slip of paper the sum of $10,000, and if another writes on his slip the sum of $150, and if another writes on his slip six cents, and so on to the last juror, and if they then di\'ide the entire sum by twelve and take the quotient obtained by this division as the sum of damages which they wish to award, thus merging the three kinds of damages mentioned above in one conclusion or verdict, they certainly do not act in the case either according to law or justice ; neither do they by that method render a verdict according to the evidence, hut according to chance. § 545. To obviate, or, if possible, abolish this practice, which is too frequently employed by juries, they will find a simpler, and certainly a just and true method of arriving at a conclusion, by taking a vote, after they have decided to find for the plaintiff, by a motion in the following man- ner : " I now move that we render a verdict for nominal, actual, or exemplary damages." This motion, like those above mentioned, may be briefly argued by the jurors ; in this manner the jurors may, perhaps, be reminded of evi- DUTIES OF JXJR0K9. 161 dence they may have forgotten, or may see the case in a different light ; then if, on taking a vote, they agree to render a verdict for nominal damages only, their duty ter- minates. If they agree to render a verdict for actual dam- ages only, their duty will not be more difficult than it would be in an action on contract, as the only question remaining is, ""What damages has the plaintiff proved?" If they agree to render a verdict for exemplary or punitive damages, they may take another vote as to the amount, and a motion to the following effect may be made: "I move that we render a verdict for $1,000," or any other sum which the mover thinks the plaintiff is entitled to receive ; thus, by argument, reason and vote, they may come to a conclusion that will be proper and legal. § 546. Then again, there are occasions in which juries are called upon, under the direction of the judge, to decide specific questions of fact, which are submitted to them in writing. As, for instance, in actions for absolute divorce, questions like the following are submitted to the jury : " Was the plaintiff married to the defendant, as mentioned in the complaint ?" " Did the defendant commit adultery with one , at ?" Upon these questions it is the duty of the jury to find either affirmatively or negatively. And they may pursue the same course, as to argument and vote, relative to their agreement upon these specific questions as they do in the actions hereinbefore mentioned. A jury may also be requested to bring in what is called a sealed verdict (for definition, see § 561, post), which should be in the following form : Doe V. KOE. Verdioi of Jury. We, the jurors impaneled in the above-entitled action, find a verdict (for $1,000) in favor of the plaintiff (or, in fa/oor of the defemdomt; or, if the action is one where the 11 162 DUTIES OF JUEOBS. value of property shoiild be assessed, cmd assess the value of the property [takeTi] at the sum of% \cmdjmd the sum of % damages far the detention thereof '\, or where the defendant has proven a counter-claim against the plaintiff, in f amor of the defendant against the plaintiff for the sum of % ), and so saj we all. Attach signatu/res of all the jurors. § 547. There is a reprehensible course, which is often taken by jurors who are in a hurry to leave for home, or for the purpose of attending to their own business, namely, the unconscientious desire or willingness to agree to a/ny- thing for the purpose of getting away. There have been cases in which ten jurors have voted with the remaining two, not because these two had convinced the ten that their opinion or understanding was correct, but simply because the ten feared that the judge might compel them to remain in the jury-room for hours, perhaps, during the night. A gentleman, now a judge, v/ho had, before his elevation to the bench, been a lawyer of extensive practice, particularly in criminal cases, informed us of a case in which he had defended a man charged with murder, and in which the evidence, if it was not sufScient to establish a reasonable doubt as to the guilt of the prisoner, was at least such as tended to lessen the grade of the crime with which the prisoner had been charged. The jury remained out for a long time, and then brought in a verdict of "guilty of murder in the first degree," and the prisoner was sentenced to be himg. Subsequently one of the jurors, on being questioned as to his reasons for rendering such a verdict, replied that he did not believe the prisoner guilty of mur- der in the first degree, and that there were two jurors besides who did not believe the prisoner guilty to that degree, but they agreed to that verdict because they were anxious and impatient to go home, as the night was near at hand, and as they thought they could not agree on a dif- ferent verdict, and feared that they might be retained in the jury-room until morning. To denounce such conduct as unjust would convey but a very faint impression of the DUTIES OF JFROES. 163 enonnityof their action in the case; such conduct should be characterized as murderous. We repeat what we stated before, namely, that the hoilest and conscientious opinion of orm juror, founded upon evidence in the case and sup- ported thereby, is worthy of as much consideration and respect as the opinion of the eleven jurors who are opposed to him.* § 548. Jurors should also be careful not to couple their verdict in a criminal case with a recommendation to mercy, unless the circumstances of the case admit of such recommendation. This is frequently done for the purpose of compromising with a few jurors, who would otherwise not agree upon a verdict. But this manner of compromis- ing is wrong, and should be discountenanced ; and at times the rendering of such a verdict places the jury in a some- what questionable position. For instance, where a man stands charged with the crime of " indecent exposure of person," a verdict of guilty, with a recommendation to mercy, would be, to say the least, inconsistent. For a recommendation to mercy means that though the prisoner is guilty, yet there are mitigating circumstances which should recommend him to the mercy of the court ; in the case instanced above there can be no mitigating circum- stances ; if the prisoner is guilty at all, he must stand con- * The moral responsibility of juries in criminal cases is very great. They have the power to acquit the accused, without regard to the evidence or the judge's charge, and the only restraints upon such a verdict in the United States are their own feelings, and a regard for public opinion, and a proper sense of the general welfare and safety of the community. That well-known constitutional pro- vision founded by the common law, that "no person shall be sub- ject for the same offence to be twice put in jeopardy of life or limb,'' prevents another trial, or any review by writ of error or otherwise, of the act of a court or jury, when a person is tried for a crime and found "not guilty.'' If he is found guilty, he can have a review of the proceedings, but the State has no right to have a review of a verdict of "not guilty." Such verdict of a jury is supreme and final as to the offence for which the accused was tried (People V. Coming, 3 JT". F. 9; 4 Black. Com. 361 ; Guernsey's Juries and Physudam on Insanity, 10). 164 DUTIES OF JURORS. victed of having committed the act deliheratehj. Where mitigating circumstances, such as youth, temporary in- sanity, seduction, self-defence, persuasions of stronger minds, and the like exist, and the evidence tending to establish them or any of them is not strong enough to justify the jury in acquitting the prisoner, they may rec- ommend him to the mercy of the court. § 549. The attention of the jurors is called to the following rules of evidence, which they should bear in mind : namely, if they come to the conclusion that a witness has testified falsely in any one thing, they may reject the whole of his testimony ; in case of a conflict of evidence, they ought to be guided by that which is evidently more truthful, than by that which is clearly exaggerated or colored ; they are to be guided by their reason and common sense in judging of the competepcy, credibility, and intelligence of the witnesses ; the truth, and the side on which it lies, and not the numher of witnesses that testify on either side, ought to be taken into consideration by them. In criminal cases, the jury should bear in mind and keep in view this rule, that the evidence against the accused should be such as to exclude, to a moral certainty, every reasonahle hypothesis hut that of his guilt of the offence imputed to him, before they can convict ; or, in other words, it is not enough that the evidence goes to show his guilt, hut it must he inconsistent with the reasonahle supposition of his innocence. If the jury have a reasonable doubt of the guilt of the accused, they must acquit him. It is proper here, however, to add, that to justify an acquittal, the doubt must not be a figment of the imagination, and must be more tham, plausible — ^it must be reasonable, and nvust arise from the evidence itself. § 550. Jurors should also remember that in civil cases it is but diprohaUty for them to render a correct decision ; their duty is to arrive at a just decision. The minds of some men are so constituted that they are unwilling to decide when tliej^ entertain a doubt as to the correctness of the decision ; this frequently contributes to the failure of juries to agree, and is unreasonable. AU that is required DUTIES OP JTJEOES. 165 and can be, expected from jurors is, that they should be satisfied, in every civil case, that the preponderance of proof justifies the decision; and when so satisfied, they should not suffer a doubt to prevent the decision from being made. § 551. The jury, after being impaneled, is under the control of the court, and it is usual for the judge to caution its members to hold no conversation, and receive no information with regard to the case on trial. Any mis- conduct in the presence of the court will be immediately corrected, and, if necessary, punished by the court, which possesses plenary powers for such a purpose. § 552. In concluding the first three parts of this chapter, we now briefly sum up their contents : Before Trial, be sure to enter the proper court-room ; be attentive to the calling of the jurors' names by the clerk ; converse with no one about the merits of an action to be tried. During Trial, pay attention to your oath ; also to the evidence ; to the witnesses ; to the arguments of counsel ; to the charge of the judge. After Trial, remem- ber your oath ; agree on a verdict, if possible ; let the con- clusion you reach in the case be based upon the evidence submitted in court, and let your deliberations be governed by a sense of consoientiotjsness, ebason, ajsd justice. PAKT IV. Charge to Triai (ok Petit) Jtjbors. § 553. A charge should be a clear and explicit state- ment of the law applicable to the condition of the facts. It frequently and usually includes a summing ujp of the evidence given, to show the application of the principles in- volved ; and in English practice, the term " summing up " is used instead of charge. § 554. Unless there are prohibitory statutory pro- visions, the judge is entitled to give his opinion on the evi- dence, commenting as much thereon as he deems con- 166 DUTIES OF JUEOES. ducive to the ends of justice, and as may be necessary to explain its application.* § 555. He may also comment upon the presumptions of law to which the evidence gave rise ; and it is for him to determine the due degree of weight to be given to such presumptions.f § 556. In the trial of actions for the recovery of dam- ages for injuries done to the person or property, it is the duty of the judge to charge the jury whether the case is one in which they should find a verdict for nominal dam- ages only, or for actual or compensatory damages, or for exemplary, punitive, or vindictive damages. And if it is an action in which the jury would be at liberty to find any of the three kinds of damages above mentioned, it is the duty of the judge to charge them in virhat view of the evi- dence adduced in that particular case they should find nominal damages only, or actual or compensatory damages only, or the latter, including exemplary, punitive, or vin- dictive damages.^ * Am. Law Beg., Jan., 1853; Com. v. Child, 10 Pick. 352; State B. Smith, 10 Rich. 341. t Attorney-General «. Good, McGlel. & Y. 386 ; People v. Genung, 11 Wend. 18; Watson «. People, 64 £a?-6. 130. X The propriety of allowing damages to be given by way of punishment under any circumstances has been strenuously denied in many of the cases, and the question has given rise to extensive dis- cussion ; but the weight of authority is decidedly that such allow- ance, in a suitable case, is proper. Actions of libel, slander, assault and battery, seduction, false imprisonment, and the like, are those in which this principle is most frequently invoked. Those wishing to trace the discussion of this subject may consult Donnell 11. Jones et al, 13 Ala. iV. 8. 490; Roberts v. Heim, 27 Id. 678; Hair et al. v. Little et al, 28 Id. 336; Clarks v. Bates, 15 ArJs. 453; Edwards « § 567. Where a jury is impaneled to try an issue, to make an inquiry, or to assess damages in an action in a court of record or not of record, or in a special proceeding before an officer, if the jurors cannot agree, after being kept together for such a time as is deemed reasonable by the court before which, or the officer before whom they were impaneled, the court or officer may discharge them, and issue a precept for a new jury, or order another jury to be drawn, as the case requires; and the same proceedings *Blackley ». Sheldon, 7 Johns. 33; Wells «. Cox, 1 Daly, 515; Moss ». Priest, 19 All. 314; S. C, 1 Mob. 683. After the jury have rendered a verdict, and are discharged, the court lias no power to recall them to amend their verdict (Levells -0. State, 33 Arle. 585). t Nem Code, § 6; 3 5. S. 375, § 7; 3 if. S. 6 ed. 438, § 31. \ Dalrymple s. Williams, 63 JV. F. 361. § IhiA ; Cogan ». Ebden, 1 Burr, 383 ; Sargent o. Dunnison (defendant's name not mentioned in reports), 5 Gow. 106 ; Jackson B. Dickenson, 15 J. B. 309; Roberts ». Hughes, 7 Jf. & W. 399; Prussel t). Knowles, 4 How. {Miss.) 90. 170 VERDICT AND ITS INCIDENTS. must be had before the new jury, as if it was the jury first impaneled.* § 568. It is not necessary, in an action in a court of record, to call the plaintiff, when the jurors are about to deliver their verdict ; and the plaintiff in such an action cannot submit to a nonsuit after the cause has been com- mitted to the jury to consider of the verdict.f § 569. In an action to recover a sum of money only, if a verdict is found, either in favor of the plaintiff, or in favor of a defendant who has set up a counter-claim for a sum of money, the jury must assess the amount of damages. The jury may also, under the direction of the court, assess the amount of the damages where the court directs judg- ment for the plaintiff on the pleadings.:|: § 570. Where double, treble, or other increased damages are given by statute, single damages only are to be found by the jury, except in a case where the statute prescribes a different rule. The sum so found must be * New Code, § 1181; 3 B. S. 554, § 36 (3 Mm. 575), amended. Where there is a defect in plaiutiflE's proof, or where there is mistake or surprise, even where defendant has not willfully misled him, the court may allow the plaintiff to withdraw a juror (People ex rel. Perkins v. Judges, &o., 8 Oow. 137). A judge has no right to threaten or intimidate a jury in order to affect their deliberations ; they should be left to feel that they act with entire freedom in their deliberations ; that, should they continue to disagree, they are not to be exposed to unreasonable in- convenience, nor to receive the animadversion of the court (Green V. Telfair, 11 How. 363). The court has no right to inquire into the deliberations of the jury, or to examine any member of that body in regard to the foundation of their finding (Norton & Co. ». Breitenbach, 1 Perm. [Pearson], 467). t New Code, § 1183; S. C. Rule 38, made general in its applica- tion. X New Code, § 1183; part of § 363, Old Code. In an action where the amount in controversy is admitted, and a special verdict establishes the fact that the defendant is liable, there is no necessity to have an assessment of the amount due by the jury (Bulkley ». Marks, 15 All. Pr. 454). VEEDICT AND ITS INCIDENTS. 171 increased by the court, and judgment rendered accord- ingly.* § 671. Where, upon the trial of an issue by a jury, the case presents only questions of law, the judge may direct the jury to render a verdict subject to the opinion of the court.i- Notwithstanding that such a verdict has been rendered, the judge holding the trial term may at the same term set aside the verdict, and direct judgment to be entered for either pai-ty, with like effect, and in like man- ner, as if such a direction had been given at the trial. The exception to such a direction may be taken as prescribed in section 994 of this act. § 572. A general verdict is one by which the jury pronounces generally, upon all or any of thp issues, in favor either of the plaintiff or of the defendant. A special ver- dict is one by which the jury finds the facts only, leaving the court to determine which party is entitled to judgment thereupon.:]: * Wew Code, § 1184. As rule in Newcomb ®. Butterfleld, 8 Johns. 364; King ». Havens, 25 Wend. 420. As to damages, see Livingston V. Plainer, 1 Cow. 175; Dubois -o. Beaver, 25 N. T. 133. + Neil) Code, § 1185, as amended in 1879; part of § 265, Old Code. See Mallory ». Wood, 6 Duer, 657; S. C, 3 All. Pr. 369; 14 How. 67. The proper mode of review of decision of judge on cause tried by him without a jury is by appeal under section 348 of Code {Id.). The facts must be undisputed to permit a direction of a verdict suDJect to opinion of court (Partridge v. Norton, 9 Hun, 583; "Wilcox v. Hoch, 63 Barb. 509; Gilbei-t «. Beach, 16 N. T. 608; Sackett a. Spencer, 39 Barb. 180; Dickerson «. Watson, 48 Bwrb. 413). XNew Code, § 1186 ; Old Code, § 360, amended ; Austin v. Ahearne, 61 N. F. 6; Jones ». Brooklyn Life Ins. Co., Id. 79. The effect of a general verdict is to settle every question of fact which has been litigated, in favor of the prevailing party (Wolf v. Goodhue Fire Ins. Co., 43 Bwrb. 400; Murphy «. Lippe, 35 N. Y. 8. C. 542). For definition of special verdict, see Carr ». Carr, 52 SF. T. 256. A special verdict should find all the facts, and should state the facts proved, not the evidence (Eiseman «. Swan, 6 Bosw. 669; Birckhead ii. Brown, 5 Hill, 635). The rendering of a general verdict by the jury, and its reception 172 VERDICT AND ITS INCIDENTS. § 573. In an action to recover a sum of money only, or real property, or a chattel, the jury may render a general or a special verdict, in its discretion. In any other action, except where one or more specific questions of fact, stated under the direction of the court, are tried by a jury, the court may direct the jury to find a special verdict upon all or any of the issues. Where the jury finds a general ver- dict, the court may instruct it to find also specially upon one or more questions of fact stated in vrriting. The special verdict or special finding must be in writing; it must be filed with the clerk and entered in the minutes.* § 5T4. In Indiana the jury have the right to deter- mine, in their verdict, that a defendant, whom they have convicted of murder in the first degree, shall be punished by death ; but the statute alone prescribes the mode in which the penalty shall be inflicted.'!' § 575. "Where a special finding is inconsistent with a by the court without objection either by the judge or the parties, is good, notwithstanding the failure of such jury to find upon cer- tain special questions of fact upon which the court directed them to find (Moss V. Priest, 1 Moi. 632; S. C, 19 Aih. 314). * Mw Code, § 1187; part of § 261, Old Code, remodeled. As to se\rering damages where there are several defendants, see Beal V. Pinch, 11 Jf. T. 128; O'Shea «. Kirker, 8 AVb. Pr. 69; Mitchell i>. Milbank, 6 T. B. 199. The court has no right to require a jury to find a special verdict in an action to recover specific real property ; it is their right to find either a general or special verdict (Griswold b. Dexter, 63 Barh. 648). As to irregular verdicts, see Carr ». Carr, 52 N. Y. 251 ; Manning V. Monaghan, 33 Id. 539 ; Parker v. Laney, 58 Id. 469. In an action for personal property, the jury should not find general verdict for damages, but should assess value of property and find damages for' detention (Philips v. Melville, 10 Hun, 211; Glann ii. Younglove, 27 Barb. 480). Interest is always allowed by way of damages ; and on promis- sory notes, goods sold, or money loaned on specified time (Dox v. Dey, 3 Wend. 356; Amory v. McGregor, 15 Johns. 34, 38; Dana v. Fielder, 13 iV. T. 40). t Greenley ». State, 60 Ind. 141. VERDICT AND ITS INCIDENTS. 173 general verdict, the former controk the latter, and the court must render judgment accordingly.* § 576. When the jury renders a verdict or finds upon one or more specific questions of fact, stated under the direction of the court, the clerk must make an entry in his minutes, specifying the time and place of the trial, the names of the jurors and witnesses, the verdict, or the ques- tions and findings thereupon, as the case requires ; and the direction, if any, which the court gives with respect to the subsequent proceedings ; upon the application of the party in whose favor a general verdict is rendered, the clerk must enter judgment in conformity to the verdict, unless a difEerent direction is given by the court, or it is other- wise specially prescribed by law.f JVew Trial — Setting aside Verdict. § 577. A new trial is a re-hearing of the legal rights of the parties upon disputed facts before another jury, granted by the court on motion of the party dissatisfied with the result of the previous trial, upon a proper case being presented for the purpose. It is either upon the same or different or additional evidence, before a new jury, and probably, but not necessarily, before a difEerent judge.;]: * New Code, § 1188; Old Code, § 363; Franchieras v. Henriques, 6 Abb. Pr. N. S. 351; Dalrymple «. Williams, 63 i^. T. 361; Collins 1). Hasbrouck, 56 Id. 157, rev'g 1 S. 0. {T. & 0.) 86. On the trial, the judge has no power to change the verdict from one party to the other on the ground that the general verdict is in- consistent with the special finding (U. S. Trust Co. i>. Harris, 3 Bosw. 75; see also Baker v. Rand, 13 Barb. 153; Dalrymple v. Williams, 63 iV. Y. 361; Franchieras v. Henriques, 6 Abb. Pr. JV. S. 351). t New Code, § 1189; part of § 364, Old Code, amended. When it appears to the court that the verdict of the jury (before it is recorded) is a "mistaken one, it may send them back to recon- sider it (Hegeman i>. Cantrell, 40 N. T. 8. C. 381 ; see also Warner V. N. Y. Central R. R. Co., 53 N. T. 437). X 4 OTiitty, Genl. Bract. 30. 174 VEEDICT AND ITS INCIDENTS. § 5Y8. The origin of the practice of granting new trials is of extremely ancient date, and consequently in- volved in some obscurity. Blackstone gives the most connected and satisfactory account of it of any writer.* § 579. Courts have in general a discretionary power to grant or refuse new trials according to the exigency of each particular case, either on motion to set aside the verdict, or on appeal, upon principles of substantial justice and equity. The reasons which will induce them to exer- cise this power are as follow : I. Insufficient notice of time and place of trial. II. Mistake or omissions in summoning, drawing, excusing or discharging jurors. III. Disqualifications of jurors. IV. Tricks practiced or attempts made to prejudice the jury. V. Misconduct of jury. VI. Error of judge. VII. Surprise. VIII. ISTewly discovered evidence. IX. Excessive damages. X. Verdict against the law. XI. Verdict against the evidence. XII. Obscure or uncertain verdict. § 580. The granting of new trials is not limited to civil cases. "Where a defendant in a criminal case is convicted, a new trial may be granted him at his solicita- tion. § 581. The only reasons for granting new trials which will be considered in this treatise, are those above men- tioned, particularly relating to jurors and juries.f § 582. It is well settled that if a jury, after they are sworn in a case and before rendition of verdict, hear other testimony than that rendered in the case, or converse * 3 Black. Comm. 387 &c. t An order denying a new trial on account of the alleged mis- conduct of a juror cannot be reviewed in the court of appeals (Gale «. N. Y. C. & H. R. B. R., 8 N. T. Weekly Digest, 245. VERDICT AND ITS INCIDENTS. 175 with strangers on the subject of the case, it will vitiate the whole procedure.* § 583. Thus, where one of the jurors separated from the rest, and obtained from a broker information as to the price of certificates at a particular period, and communi- cated the same to his fellows, the verdict was set aside on motion. f § 584. In an action for damages caused by the poison- ing of a brook by defendant, out of which plaintiff's cattle drank, where a juror, while the case was on trial, visited the location and investigated matters about which there was conflicting testimony, and imparted his supposed knowledge to his fellow jurors, it was held ground for a new trial. Jurors must decide cases upon such evidence as is brought before them by the parties to the litigation.:]: § 585. But where the jury had retired to consider on their verdict, and afterwards came into court to hear expla- nations from a witness who stated an additional and impor- tant fact, not before stated by him, but which fact the court immediately told the jury they were to disregard, it was held that the affidavit of a juror, stating that he founded his verdict entirely upon this additional fact, would not authorize a nev/ trial. § § 586. Where a medical witness for the common- wealth, being accidentally present at the hotel when the jury were brought there by the sheriff to be lodged for the night, invited the jury, in the presence of the sheriff, to drink with him, and some of them accepted the invita- tion, it was ruled that, as this act was inadvertent, but intended only as an act of courtesy, and as it was all in the * Hudson i>. State, 9 Terg. 408 ; Perkins v. Knight, ^ N. H. 474; Bennett v. Howard, 3 Day, 333 ; Knight v. Freeport, 13 Masa. 318; States. Tilghman, Wired. 513. As to English practice, see R. v. Martin, Law Rep., 1 C. (7. 378. t Brunson u. Graham, 2 YeaUi, 166. \ Heflron ». Gallupe, 55 Me. 563; Bowler v. Washington, 63 Id. 313; Winslow ». Morrill, mid. 363. § Hudson ». State, 9 Yerg. 408; see State «. Noblett, 3 Jonei Law- {N. 0.), 418. 176 VEEDICT AND ITS INCIDENTS. presence of the sheriff, it waS not sufficient to set aside the verdict.* § 587. Nor is it any ground for a new trial that the jury passed through crowds of people going to the hotel where they dined, or that they dined at the public table at the hotel iinder the charge of their officer, no one speaking to or tampering with them.f § 588. Nor does the visiting of the jury by a stranger with reasonable refreshments, under the supervision of the officer in charge, vitiate the verdict — no conversation as to the case having taken place.J § 589. But the mere presence of a party to the cause exercises such undue influence as to vitiate the procedure. Thus, where it appeared that the prosecutor had been in the room with the jury during their deliberations, it was held ground for a new trial, though he was acting officially as. high sheriff, and though there was no misconduct shown. § § 590. If any testimony material to the issue be acted on by the jury, without having been previously submitted in evidence, but be communicated to the jury by one of their number, it will avoid the verdict, if such testimony thus submitted were operative.! * Thompson's Case, 8 Qratt. 638. tEowe D. State, 11 Humph. 491; Adams «. People, ^1 111. 376; Browning ». State, 33 Miss. 47 ; Jumpertz v. People, 31 III. 375 ; see also Gale v. N. Y. C. & H. R. R. R., 13 Eun, 1. X Com. V. Roby, 12 Pieh. 496. § McElrath v. State, 3 8wan, 378. It is the duty of the courts to enforce a rigid observance of the provisions of the statutes designed to preserve inviolate the right of trial by jury ; and the presence of an unauthorized person during the deliberation of the jury, vpithout any explanation by the State that the rights of the prisoner were not prejudiced thereby, is suffi- cient ground for setting aside the verdict and granting a new trial (State «. Snyder, 20 Kans. 806). A communication by a sherifE to a sheriff's jury vitiates the ver- dict (Read v. Cambridge, 134 Mass. 567; S. C, 36 Am. Sep. 690). I Sam V. State, 1 Swan {Term.), 61. VEEDICT AND ITS INCIDENTS. 177 § 591. And so, where an unsworn bystander during the trial stated to one of the jury that the testimony of a wit- ness under examination was true.* § 592. And so, where the sheriff handed to the jury, while deliberating, loose papers, purporting to be the evi- dence in the case, not knowing what the papers consisted of.t § 593. But it does not follow that a new trial will be ordered because the jury take into consideration general knowledge of the character of the transaction. Thus, in an indictment for a seditious libel tending to excite public outrages, they referred to the personal knowledge of the jury for proof of the fact that serious riots had for some time back been occurring in the particular neighborhood, and it was held that such a reference was right, such riot forming part of the history of the country.:]: § 594. Where one of the jury communicated to his fellows mere opinions as to witnesses in the case, this has been ruled to be no ground for a new trial.§ § 595. But the case is different where the issue is affected by the irregular submission by one juror to the others of material facts connected with the merits.] § 596. Thus, where one juror stated to his fellows after they had retired, that he had heard a witness whose . credibility was attacked at the trial sworn before the grand jury, and that his statement was the same as he had made on the trial, and it appeared that this statement had much influence in producing the verdict of guilty, it was held that this proceeding was illegal and vitiated the verdict. Tf § 597. If a juror improperly converses with persons about the case, concerning the character or conduct of * Dempsey ». People, 47 Til. 333. t Pound V. State, 43 Ga. 88; People «. Carnal, 1 Pa/rJc. Or. 256. I R. 1). Sutton, AM. <& S. 532. § Nolen V. State, 2 Head. 530 ; Purrinton i>. Humphreys, 6 Oreerd. 379; Price «. Warren, 1 Hm. & Munf. 385. II Martin ii. State, 35 Oa. 494 ; Talmadge v. Northrup, 1 Boot, 523 ; State v. Andrews, 29 Conn. 100. IT Donston ». State, 6 Humph. 375. 13 178 VERDICT AND ITS INCIDENTS. either of the parties to the action, it is good ground to set aside the verdict and grant a new trial.* § 598. Where, after a jury has been impaneled and a witness sworn, one of the defendants demands and is granted a separate trial, the jury and witnesses must be re-sworn. To swear the jury and witnesses in a case against two defendants, when only one was on trial, is a mis-trial, and a new trial should follow. f § 599. Visiting the scene of the res gestae by a part of a jury under an officer's charge after the case is submitted to them is ground for a new trial.:|: § 600. The accidental intrusion of a stranger, unless an improper commimication is made, will not exact a new trial. Thus, in a Tennessee case, after the jury had retired to a room in the care of an officer to consider their verdict, a person, during the temporary absence of the officer, entered the room, and was seated by invitation from the jury, but no other communication was had with him, and the officer upon his return removed him. A new trial upon that ground was refused, it not appearing that there was any improper motive for the intrusion, or that he made any effort to confer with the jury.§ § 601. A fortiori is this the case when the " visitor " is a qualified officer present for a moment, though spe- cially unsworn, no interference being proved. || § 602. After a verdict of guilty had been returned by a jury against an accused, for the offense of obtaining, by false pretenses, the signature of a firm to a check of $850, and in support of a motion for a new trial affida- vits were filed, proving that the bailiff who had the jury in charge, and who had testified on the trial, on the part of * Sparks ». Wakely, 7 N. Y. Weekly Dig. 80 ; but see Shomo «. Zeigler, 10 PUla. Rep. 611. t Babcock n. People, 15 Hun, 347. X Eastwood V. People, 3 Parle. Cr. 25; Eulofi v. People, 18iV. T. (4 K D. Smith), 179. § Luster v. State, 11 Humph. 169; see Hilliard on New Trials (1873), 206. 1 Trim ». Com., 18 Oratt. 983. VERDICT AND ITS INCIDENTS. 179 the prosecution, to material facts against the prisoner, was with the jury in their room the greater part of the time while they were deliberating on their verdict, and no ex- planation was made of the presence of the officer with the jury in their consultations together, and the State made no showing that the rights of the prisoner were not prejudiced by the acts and conduct of such officer and witness : Held, that the verdict should have been set aside, and a new trial granted.* § 603. The mere casual exhibition of evidence is not fatal. Thus, where burglar's tools found on the defendant were, during a recess of the court while the cause was on trial, exhibited, and their use explained in the presence of one of the jurors, with the knowledge of the defendant and his counsel, and no objection is made until after verdict, it was held that the objection was to be regarded as waived. f § 604. Even where, during the trial and before ver- dict, inadvertent remarks to the prejudice of the defendant are made by strangers in the hearing of jurymen, this will not operate to disturb the verdict, if it be shown that such remarks were not promoted by the prosecution or volun- tarily entertained and weighed by the jurymen.:]; § 605. In Connecticut, on the trial of an indictment for an assault with intent to kill, a similar distinction was accepted. E.emarks, conveying information disparaging to the defendant, were inadvertently made by a stranger in a stage-coach, in the presence of two of the jurors, while the trial was in progress. This was held to be no reason for new trial, on the ground that the remarks were not invited by the jurors, nor intended to influence them, nor listened to with attention. But it was held to be otherwise as to the same kind of remarks made confiden- tially by a juror for the term, who was not impaneled in the case, to a juror impaneled, which remarks the latter * State V. Snyder, Sup. Ct. Kansas, June 19, 1878, Ccntl. L. J. S. C, 20 Kan. 306. t State ». Rand, 33 N. E. 316. X State i>. Ayer, 3 Foster (JV. H.), 301; State ». Circuit, 2 Vroom, 249; Hall's Case, 6 Leigh, 615. 180 VERDICT AND ITS INCIDENTS. entertained and discussed. A new trial was held to be necessitated by this discussion, since it exhibited a condi- tion of mind on the juror's part inconsistent with an un- biased consideration of the ease.* § 606. And there is sound reason for this distinction. If jurors are allowed voluntarily to receive and weigh evidence not rendered on trial, no case could be decided fairly. On the other hand, if casual remarks as to the case, made in the presence of a juror, should require a new trial, no case would be decided at all, for there is no case in which one of the parties could not manage to have such remarks made, and thus vitiate the whole proceeding. § 607. It is also clear, that as a general rule, the acci- dental approach of strangers and trivial conversation, unless improper conversation as to the case is entertained, will not avoid the verdict. f § 608. Handing five dollars casually to a juror in pay- ment of a debt, by a bystander, without any reference or connection with the case under trial, is no ground for a new trial.ij: § 609. The presumption of law, however, when an outside communication is proved, is against the privity of the verdict ; but this presumption may be overcome by positive evidence.! § 610. The court will not permit affidavits to be read imputing improper motives to the jury or tending to im- peach their integrity.] § 611. Affidavits of third persons as to loose talk of *' State V. Andrews, 39 Conn. 100. t Rowe V. State, 11 Humph. 491 ; Stanton v. State, (8 Mig.) 13 Arl. 317; Coker v. State, 30 Ari. 53; McCann ®. State, 9 S. <& M. 465; State®. Tilghman, 11 Ired. 513; Ned ». State, 33 Mss. 364; State D. Baker, 63 iV. 0. 376; Eilliard on New Triah (1873), 313; Eppes V. State, 19 Ga. 103. X Martin v. State, 54 III 335. § Pope ». State, 36 Miss. 133 ; People v. Hartung, 4 Pa/rk. tir. 356 ; State v. Anderson, 4 Nev. 365. II Hartwright «. Badham, 11 Price^ 383; Cook «. Green, Id. 736; Onions v. Naisli, 7 Id. 303 ; People «. Carnal, 1 Park. Or. 356. VERDICT AND ITS INCIDENTS. 181 the jurors respecting their verdict cannot be admitted to impeach the verdict.* § 612. It is held, that where a juror has denied on oath before the triers that he formed and expressed an opinion in a criminal case, the affidavit of a single witness to the contrary will not impeach the verdict. f § 613. Any misconduct by the prevailing party, in- tended to afEect the jury, and tending so to affect them, will be cause for a new trial. J § 614. An acquittal obtained by fraud or embracery will be no bar to a subsequent indictment.§ § 615. It is not necessary that such conduct should be traced directly to the prevailing party. Any perversion by means outside of the trial, against which ordinary care could not guard, will justify the court in setting the ver- dict aside. II § 616. Evidence that the prosecutor, by exhibiting papers at places where the jury boarded, had been attempt- ing to bias and influence them, will be sufficient to sustain a motion for a new trial.Tf § 617. Where papers not in evidence are surrepti- tiously handed to the jury the verdict will be avoided.** § 618. A new trial will be granted when it appears that any unfair trick or artifice had been employed, re- sulting in a verdict in favor of the party using it.ff * Drummond ». Lessie, 5 Blachf. 453. t Epp's Case, 19 Oa. 103. X S Hale P. 0. 308; State v. Hascall, Q N. E. 352; Knight «. Inhabitants, &c., 13 Mass. 218; Bennett ii. Howard, 3 Bay, 338; Jeffries ». Eandall, 14 Mass. 205 ; Amherst ». Hadley, 1 Pick. 38-43 ; Cottle ». Cottle, 6 Greenl. 140 ; Ritchie ®. Holbrook, 7 Berg. & Ii. 458; Blaine «. Chambers, 1 Id. 169. § Hilliard v. Nichols, 2 Moot, 176. II Willis J). People, 33 JST. T. 715. 1 State 41. Marshall, 6 If. K 352 ; Coster v. Merset, 8 Brod. c6 Bing. 373 : Spinely v. De Willott, 7 Sast. 108. •** Graves i>. Short, Oro. Eliz. 616. tt Anderson ®. George, 1 Burr, 333 ; Boddington .«. Harris, 1 Bing. 187; Jackson ». Warford,, 7 Wend. 63; Hilliard u. Nichols, 3 Boot, 176; Trubody o. Brain, 9 Price, 76; Niles v. Brackett, 15 Mass. 878. 182 VEEDICT AND ITS INCIDENTS. § 619. For third parties to commTinicate with a jury when engaged in its deliberations is an indictable offence, when such communications touch the subject-matter of the trial. In August, 18Y2, congress passed a stringent act to prevent the continuance of this pernicious practice, as well as to prevent any attempt to influence the adminis- tration of justice corruptly, or by the intimidation of jurors. It is entitled "An act to prevent and punish obstruction of the administration of justice in the courts of, the United States." § 620. A person may be examined as a witness in a cause on which he is sitting as a juror.* § 621. A witness whose credibility is impeached is still competent ; the jury may disregard his testimony, but are not bound to do so.f § 622. The affidavits of jurors are not admissible to impeach their verdict for mistake or error in respect to the merits of the case, or for their own misconduct or that of their fellows.:]; § 623. So held, on a motion for a new trial made upon affidavits, among them affidavits of jurors, upon the ground of misconduct of the defendant and others interested with him, in conversing with the jurors, of misconduct of the juro^rs, and of the constable having them in charge.§ § 624. Jurors cannot be received to qualify by parol testimony matters of record ; nor can they be permitted to state matters concerning their deliberations which may be proved {aliunde) in another way. From necessity, however, when gross injustice has been wrought from misconduct or misapprehension in their deliberations, they are to be per- mitted to prove such misconduct or misapprehension. Thus, they are permitted to prove that the case was decided by lot. They may prove that the instructions of the court *Manley «. Shaw, 1 Car. & M. 361. ^' ' ■'' Xt )"- -^*7<^' t Lee V. Schadsey, 3 Keyes, 543; S. C, 3 Id. 233. I Green v. Bliss, 13 How. 438; Thomas v. Chapman, 45 Barb. 98; People ®. Carnal, 1 Parh. Or. 356. § "Williams v. Montgomery, 60 i?". T. 648 ; Coster v. Merset, 3 Brod. & Bing. 373; Glum v. Smith, 5 Hill, 560. VEEDICT AND ITS INCIDENTS. 183 were misunderstood. They may prove that the verdict was agreed to on the representation that the governor would grant a pardon on the jury's recommendation. It is commonly held that a juror, though he cannot be admitted to stultify his own action, may be permitted to prove gross misconduct in Iiis fellows. As a rule, in the United States, an affidavit of the juror cannot be admitted to free his con- duct from the imputation of impropriety.* § 625. It is not an error for the court to permit the jury when they retire for deliberation to take with them documents and papers read on the trial. f § 626. Improper interference with the jury by either party will vitiate the verdict.:]: Polling the Jury. § 627. It is the absolute right of a party against whom a verdict is declared, to have the jury polled at any time before the verdict is entered. In polling the jury the inquiry is, " Is this your verdict?" And the court cannot be required to direct the question to be put, " Is this your verdict against each and both the defendants ?"§ § 628. Even when a sealed verdict is rendered the jury may be polled. || § 629. In Massachusetts, it has been held that the polling of the jury is not a matter of right-Tf * Organ v. State, 26 Mi»s. 78 ; Ray ». State, 15 Ga. 323 ; McGuffie'B. Stkte, 17 Ga. 497; Sheldoiu). Perkins, 32 F«. 550; Thomas ». Chapman, 45 Barb. 98 ; People v. Hughes, 29 Cal. 257 ; "Wright ». 111. Tel. Co., 20 Iowa., 19; Packard ». United States, 1 Iowa., 235 Crawford v. State, 3 Yerg. 60; Aylett «. Jewell, ^ W. & Bl. 1299 Deacon?). Shreve, 2 .ZaJ. N. J. 176; United States a.'Eeid, 13 5om!. 361 French -o. Smith, 4 Vt. 363 ; People v. Backus, 5 Cal. 375. t Howland v. Willets, 9 N. T. 170 ; Shappener v. Second Ave. R. R. Co., 55 Barl. 497. \ Reynolds v. Champlain Transportation Co., 9 How. 7; Dorlon V. Lewis, Id. 1; Nesmith v. Clinton Fire Ins. Co., 8 All. Pr. 141. § John 11. State, 8 Ired. 330 ; Labar ». Koplin, 4 N. Y. (4 Comst.) 547. I Stewart «. People, 23 Mich. 63. IT Com. V. Roby, 12 Pick. 496; and see Wise ». State, 7 JJic^. 412. 184 VERDICT AND ITS IJSTCIDENTS. § 630. If each juror, on being polled, does not say" the verdict is his, the counsel for the unsuccessful party should call the attention of the court to the fact, otherwise he would lose the right to raise the objection.* § 631. The right to have a jury polled is recognized in civil as well as criminal cases, and the refusal of the court to allow a jury to be polled, upon the request of one of the parties to the litigation, is error, for which a new trial will be granted.f § 632. Either party may require that the jury be polled, and any juror may then dissent from the verdict.:]: § 633. If, on polling the jury, any juror dissents from the verdict, the jury may be sent out again for further deliberations.? Sepa/ration of Jurors. § 634. The general rule is, that the verdict will not be set aside on account of inadvertent irregularity in a jury, even in a capital case, unless it be such as might affect their impartiality, or disqualify them for the proper exercise of their functions. || § 635. The separation of the jury without leave is not per se a ground for a new trial.^ § 636. The doctrine that mere separation should be * Green v. Bliss, 13 How. 428. t James ». State, 55 Miss. 57. X Blackley ». Sheldon, 7 Johns. 32 ; Pox d. Smith, 3 Cow. 23. § 2 Hale P. O. 399; Douglass «. Tousey, 2 Wend. 352; Burns ®. Hoyt, 3 Johns. 255; EiUia/rd on New Trials (1873), 243. II Com. V. Ruby, 12 P«c^. 496-519; People o. Douglass, 4 Cow. 26 ; State v. Babcock, 1 Cmn. 401 ; State v. Prescott, 7 N. H. 290 ; Bebee ». People, 5 SiU, 32; Tooel i>. Com., 11 Leigh, 714; Martin V. Com., 2 Id. 745; McCarter i). Com., 11 Id. 633; R. v. Woolf, 1 Ohitty, 401 ; Stone v. State, 4 Humph. 27 ; Whitney v. State, 8 Mo. 165 ; State ii. Pox, Ga. Decis. part 1, 35 ; State «. Peter, Id. 46 ; State V. Barton, 19 Mo. {i Bennett), 337; State v. Igo, 21 Mo. (6 Ben- nett), 459. H Anthony v. Smith, 4 Bosw. 503. VERDICT AND ITS INCIDENTS. 185 ground for new trial, was pressed with great vigor by the early common-law authorities in all cases, both civil and criminal ; it being agreed that by the law of England, " a jury, after the evidence given upon the issue, ought to be kept together in some convenient place, without meat or drink, lire or candle, which some books call an imprison- ment, and without speech with any, unless it be the bailiff, and with him only if they be agreed."* § 637. A more humane system has since been organ- ized : and in all cases not capital (and in some States even in capital cases) it appears that juries are permitted to sep- arate whenever, in the discretion of the court, it seems proper, t § 638. In a capital case before the supreme court of Pennsylvania in 1851, it appeared by the record that " on the 15th of March, 1851, after the jury were sworn, it was agreed by the counsel of the commonwealth and the coun- sel of the defendant, and agreed by the court, that the jurors sworn in this case be permitted to separate and return to their respective homes, and return to the jury- box on Tuesday morning next, March 18th," when they all attended, and a verdict of murder in the first degree was rendered. The judgment was reversed, and the prisoner ordered back for another trial.:]; § 639. In Virginia the weight of authority is that in cases of felony it is not necessary, in order to set aside the verdict, to show actual tampering or conversation on the subject of a trial with a juryman, but that the mere fact of the separation from the custody of the officer is jprima facie sufficient. § § 640. In Tennessee, it has been determined that where there is an unauthorized separation of a jury for fifteen or twenty minutes, it is not necessary for the pris- oner to prove that they were tampered with during their * Go. Litt. 227; Bac. Ab. Verdicts, pi. 19; Com. Dig., Inquest F. \ 1 Oh. C. L. 664. X PeifEer v. Com., 3 Harris, 471. § Phillips B. Com., 19 Gratt. 485. 186 VEEDICT ANB ITS INCIDENTS. absence ; it is sufficient if they might have been. When, however, it was affirmatively shown that no communication with other persons was had, a new trial was refused. In felonies, however, a separation from day to day, even with the prisoner's consent, vitiates the verdict.* § 641. During a recess of the court, the jury, without consent of the parties, returned their verdict to the clerk, and then separated for a short time and discussed the ver- dict with strangers ; after recess, the jury was recalled, and in response to the question by the court, stated that they had agreed upon a verdict, which was then handed to the court. Held, that such conduct on the part of the jurors did not vitiate the verdict.f § 642. Four jurors, having been accepted by both par- ties, were allowed to separate before the whole jury was completed. Held, that when jurors are accepted, they are impaneled, though not sworn ; and the separation of such accepted jurors is error, for which a new trial will be granted.:]: § 643. In Louisiana, it is said that in all criminal cases, the separation of the jury, though by leave of the court, and with the consent of the accused and his counsel, will vitiate the verdict if such separation take place after the evidence had been closed and the charge given.§ § 644. In Minnesota, when the court, after charging the jury, gave them a recess of five minutes, in which they were allowed to leave the court-room and go at large with- out being in charge of an officer, and without objection from either side, this was held to be ground for a new trial. II § 645. In New York, mere separation without per- mission appears formerly to have been considered j^rima *McLain v. State, 10 Yerg. 241; Jainagin «. State, U. 529; Stone V. State, 4 Rumph. 27 ; Hines v. State, 8 Id. 597 ; Wiley v. State, 1 Swan {Tenn.), 256. t James v. State, 55 Miss. 57. I Grisson V. State, 4 Tex. Ct. of App. 374. § State V. Populus, 12 La. Ann. 710; State v. Evaas, 21 Id. 321. I State V. Parrant, 16 Minn. 178. VEEDICT AND ITS INCIDENTS. 187 fade evidence of misbehavior ; but tlie better opinion now is, that to vitiate the verdict, reasonable suspicion of abuse must exist. " The conclusion from these cases," said Stjtheeland, J., in the ease of People v. Ransom (T Wend. 423), " appears to me to be this, that any mere informality or mistake of an officer in drawing a jury, or any irregular- ity or misconduct in the jury themselves, will not be a sufficient ground for setting aside a verdict, either in a criminal or civil case, where the court are satisfied that the party complaining has not and could not have sustained any injury from it." But where a jury impaneled to try a prisoner upon an indictment for murder were allowed to leave the court-house during the trial, under the charge of two sworn constables, and having left the court-house, two of them separated from their fellows, went to their lodg- ings, a distance of thirty rods, ate cakes, took some with them on their return, and drank spirituous liquor, though not enough to affect them in the least, and one of them conversed with strangers on the subject of the trial, it was held that though the mere separation was not in itself fatal, the drinking of spirituous liquor, and the conversing on the case were sufficient reasons for a new trial.* § 646. After the evidence in a trial for murder had all been submitted, slk of the jury, leaving their fellows, went under the charge of an officer on a walk for exercise, in the course of which they visited and viewed the premises where the homicide was alleged to have been committed, and returned after an absence of an hour. No person had been permitted to speak to them, and no improper conduct had taken place. But after conviction and sentence, this was ruled to be good ground for a new trial.f § 647. In New Hampshire, Connecticut, North Caro- lina, Indiana and Missouri, something beyond mere separa- tion must be shown to set aside a verdict.:}: * See Spenceb, Ch. J., 18 Johnt. 318; People v. Douglass, 4 Cow. 26; Horton ». Hortou, 2 TA. 589; Oliver v. Trustees, 5 Id. 284; People ®. Ransom, 7 Wend. 423; People x>. Bebee, 5 ESI, 32. + Eastwood V. People, 3 Parh. Or. 25. X State V. Prescott, 7 N. H. 390 ; State ». Babcock, 1 Conn. 401 ; 188 VEEDICT AND ITS INCIDENTS. § 648. In South Carolina, the jniy, it is said, are not required to remain together, even after they are charged, though the case be capital ; and it is ruled that it is within the sound discretion of the presiding judge to allow a juror to leave the jury-box for a brief time, even during the trial of a capital case.* § 649. In Mississippi, the tendency of authority is to set aside a verdict after separation, unless it affirmatively appear there was nothing communicated to the jury on the subject of the trial.f § 650. In Ohio, by the Code of Criminal Procedure, sections 164^165, " in the trial of felonies, the jury shall not be permitted to separate, after being sworn, until discharged by the court. In the trial of misdemeanors, they shall not be permitted to separate after receiving the charge of the court until discharged.":|: § 651. In Indiana, a statute exists permitting separa- tion during trial, and before submission of the case.§ § 652. In Illinois an^ Arkansas, in case of separation, the burden is said to be on the prosecution to show that the defendant was not prejudiced by the separation.] § 653. In California, it was decided that separation without permission does not vitiate a verdict, if it be shown that no injury resulted thereby to the defendant.^ § 654. In Georgia, the keeping of the jury in five dif- ferent rooms in a hotel (that being the most suitable and convenient place which could be provided for them) after State V. Miller, 1 Dev. & Bat. 500; Wyatt v. State, 1 BUckf. 357; Porter v. State, 3 Carter, 435 ; State i>. Brannon, 45 Mo. 339 ; Creek 1). State, 34 Ind. 151. * State B. McKee, 1 Bailey, 651 ; State ». McMmurray, 3 Strobh. 38. t McCann ii. State, ^ S. & M. 465; Neltns i: State, 13 Id. 500; Boles B. State, Id. 398; Hare ». State, i Bow. 194; Browning v. State, 33 Miss. 48. I Davis ». State, 15 Ohio, 72 ; Hurley v. State, 6 Id. 399 ; Poage ». State, 3 0/iio St. 339 ; Dobbins i). State, 14 Id. 493. §, Evans -o. State, 7 Ind. 371. I Jumperty ». State, 31 III. 375; Russell v. People, 44 Id. 508; Adams v. People, 47 Id. 376; Cornelius v. State, 7 Mng. {Ark.) 783. IT People ». Symonds, 33 Gal. 348. VEKDICT AND ITS INCIDENTS. 189 adjournment of court, during the trial of a case which lasted several days, it was held was not such a separation as would entitle the prisoner to a new trial.* § 655. Separation before case is opened or any evi- dence given, is always pennissible.f § 656. In misdemeanors, it is the general practice to permit the jury to separate during the trial.:]: § 65Y. Even in felonies less than capital, the jury are generally pej-mitted to separate at the adjournments of the court until the period when, at the close of the trial, the case is finally committed to their charge.§ § 658. Separation after the jury are sworn, and the ease opened, has in capital eases been considered a ground for new trial, even without any evidence that the jury were communicated with concerning the case. And if the object is to exclude tampering, such a precaution is as neces- sary 'before as after the final committal of the case. Yet lately a laxer practice has arisen, based on the difficulty of keeping juries together without sickness or great business inconvenience during protracted trials ; and cases are not unfrequent in which, even on capital issues, juries have been permitted to separate at the adjournments of the court down to the period in which the case is finally com- mitted to their deliberation. ISTor can it be denied that there is a growing reason for the acceptance of this view. No juries composed of right materials can be kept to- gether day and night during the trial of a case which lasts for days, if not for weeks, without great discomfort and risk to themselves, and positive damage to the business community. We have therefore to decide between one of * Roberts v. State, 14 Oa. 8 ; Burtine v. State, 18 Id. 534 ; Bpps v. State, 19 Id. 102. tMcFadden v. Com., 11 Harris, 13; Martin v. Com., 2 Leigh, 745; Cohion ». State, 20 Ga. 752; State v. Cuouel, 2 Vroom, 249. I R. «. Woolf, 1 cutty, 401; State v. McKee, 1 Bailey, 651; WyattB. State, 1 Blachf. 157; State «. Miller, 1 Dev. & Bat. 500; Ex parte Hill, 3 Cow. 355; State v. Carstaplien, 3 H(»yw. 238; State v. Bonwell, 2 Harrington, 529. § McCreary v. Com., 29 Penn. St. 333. 190 VERDICT AND ITS INCIDENTS. three courses. We must go on with the case, according to the old English fashion, day and night until its termination, or we must make up our juries from idlers, if not vagrants, whose seclusion will be no public loss, and perhaps not much inconvenience to themselves ; or if we summon business and family men charged with other duties, and thus competent to decide dilEcult issues, we must permit such adjournments and separation during trial as will pre- serve the health and protect the business relations of the jurors. Of course, stringent charge should be made in the latter case to the jurors to listen to nothing out of court on the subject of the case ; and these admonitions should be followed not only by new trials, but by severe punishment of the offending jurors if the injunction be not obeyed.* § 659. The weight of authority is that the defendant, even in capital cases, can legalize the separation of the jury during the recesses of the court, down to the period when the case is given to them for deliberation by the charge of the court. But such consent does not, it has been Jield, operate to legalize a trial by eleven instead of twelve jurors in criminal cases. And supposing it to be a funda- mental principle of the common law that a jury, when its deliberations once commence, mus^ be kept together in seclusion until they terminate, it must on like reasoning be held that consent would not validate or legalize a separa- tion of the jury between the charge of the court and the verdict.f § 660. During a trial of a civil action, the court hav- ing adjourned, one of the jurors, who lived twelve miles * PeifEer «. Com., 3 Harris, 471; Westley ». State, 11 Humph, 503; Quinn ». State, 14 Ind. 589; Woods v. State, 43 Miss. 364; Jumpertz u. People, 21 III. 375; McLean v. State, 8 Mo. 153; State V. Frank, 23 La. Ann. 213; Poage v. State, 3 Ohio St. 229; State v. Felton, 25 Iowa, 67 ; State v. Anderson, 2 Baile^j, 565 ; State v. Mc- Kee, 1 Id. 651; State v. Ryan, 13 Minn. 370; State ». Baboock, 1 Conn. 401 ; Eastwood v. People, 3 Park. Cr. 25 ; Stephens v. Peo- ple, 19 N. T. 549; States. McElmurray, 3 8trdbh. 33; Johnson ». State. 32 ArTc. 309. t Stephens -o. People, 19 N. Y. 549; RulofE v. People, 18 /d 1/9 ; Walrath -o. State, 8 Neb. {Brown), 81. VERDICT AND ITS INCIDENTS. 191 from the court-house, asked the plaintiff to let him ride home with him. The plaintiff assented, and the juror rode with him about ten miles in a three-seated sleigh, plaintiff and the driver on the front seat, two other persons on the middle seat, and the juror and another person on the back seat. Nothing was said about the trial. Subsequently, and before the testimony had been closed, the defendant's counsel became acquainted with these facts, whereupon plaintiff's counsel offered to allow this juror to be excused if defendant's counsel so desired. Defendant's counsel stated he was willing to leave it to the juror's sense of pro- priety whether he should or should not remain in the jury- box. Held, that even if the irregularity would in any event have justified the setting a^Ide of the verdict, the acts and statements of the defendant's counsel constituted a waiver thereof.* § 661. There are, however, irregularities other than that of separation, which are considered grounds for new trial. Thus, if the jury receive papers or articles not sub- mitted in evidence, or imperfectly submitted, the verdict will be set aside in civil cases, if resulting from the party concerned in the irregularity ; and in all criminal cases, it would seem, if there be a conviction, unless it appear that the error was the result of the misconduct of the defendant himself, t § 662. After the jury had been chai"ged and the court adjourned for the day, the jury, occupying the court-room, found the minutes of the trial of the judge holding the court, which were read and commented upon by some of the jurors. These minutes did not contain all the testi- mony taken on the trial ; neither did counsel consent that * Gale v. N. Y. Central & H. E. E. E. Co., 13 Em, 1. t E. «. Sutton, 4 Maule & 8el. 532 ; 3 Hah P. G. 306 ; Whitney v. ■Whitman, 3 Mass. 405; Co. lAtt. 3B7; Purinton v. Humphreys, 6 Cheenl. 379; Benson ». Fish, Id. 141; Talmage v. Northnip, 1 Boot, 533 ; Price i>. Warren, 1 Hm. & Mmf. 385 ; Thompson 'n. Mallet, 2 Say, 94; Jessup «. Eldridge, Goxe, 401; Atkins v. State, 16 Arh. 568; People v. Page, 1 Idaho, 114; Yates v. People, 38 111. 537; Com. i>. Edgerly, 10 Allen, 363. 193 VERDICT AND ITS liSTCIDEWTS. they should be used ; it was held that the verdict subse- quently arrived at by this jury was properly set aside on account of this irregularity.* § 663. It was held, however, that where the paper was taken out by the jury through accident, and it was shown that it was not opened, this of itself did not vitiate the ver- dict ; but where it was delivered by design, or where, being opened, it made for the prevailing party, the case was otherwise.f In ITew York and Pennsylvania the same distinction has been followed; and such may be considered settled law.:]: § 664. The prevailing doctrine is that the whole ques- tion of the submission of books and papers is for the dis- cretion of the court.§ § 665. In case of sickness or temporary incapacities as do not permanently touch the competency of the jury, the court may adjourn the jury from daj' to day until the inca- pacity is removed.! § 666. During the progress of a trial for murder, one of the jurors, while one of the counsel for the prisoner was addressing the jury, had a chill, and was by order of the court placed upon a pallet ; during a part of the time he was in a slumber, and did not fully comprehend the whole of the argument, though he had understood the whole of the evidence and all that had been said by coun- sel previously. The fact that he was asleep was known to the prisoner at the time, but the attention of no one was called to it. It was held that this was not sufficient cause for setting aside the verdict. ^^ * Mitchell V. Carter ei al., 14 Hun, 448. t Hix v. Drury, 5 Pick. 396. JHackley ii. Hastie, 3 Johns. 253; Slieaff». Gray, 3 Teates, 273; Vioary i). Farthing, Oro. Eliz. 411; Lonsdale v. Brown, 4 Wash. G. 0. B. 148 ; Alexander v. Jamieson, 5 Binney, 238 ; State v. Tin- dall, 10 Bieh. Law {S. C), 212; Hilliard on New Trials (1873), 218. § HiUia/rd on New Trials (1873), 217. 1 United States v. Coolidge, 2 QalUson, 364. f Baxter «. People, 3 Qilman, 368; 8. P., United States «. Boy den, 1 LowelVs Dec. 266. VEEDICT AND ITS INCIDENTS. 193 § 667. By the constitution of the State of Texas (art. 6, § 13), it is declared that " when pending the trial of any case, one or more Jurors, not exceeding three, may die or be disabled from sitting, the remainder of the jury shall have the power to render the verdict. But when the verdict shall be rendered by less than the whole number, it shaU be signed by every member concurring in it." Ac- cordingly, held that where a juror became sick so as to be unable to sit longer, and was discharged by the court, and the defendant objected to being tried by eleven men, that such objection was properly overruled, and a new trial properly refused.* § 668. Cases may occur in which a juror, by his con- tumacious disregard of the directions of the court, may make a new trial necessary. This was ruled to be the case in Indiana, where a juror, in disobedience to the repeated directions of the court, took notes of the evidence, which notes he retained.f InUmMaticm of Juror. In ITew York, N"ew Hampshire, Indiana, and Iowa, verdicts have been set aside because spirituous liquor was given to the jury during their deliberations.^ § 670. In New York, however, the contrary doctrine is now accepted.! § 671. And it was declared by Judge Stoet, in a cap- ital case, not to be sufficient to avoid the verdict to show that some of the jurors drank ardent spirits during the trial when the prisoner's counsel consented in open court to this indulgence to those whose health might require it, *Kay«. State, 4 Tex. Gt. of App. 450. t Cheek t>. State, 35 Ind. 492. X Denison v. Collins, 1 Cow. Ill ; Rose v. Smith, 4 Id. 17; Brant v. Fowler, 7 Id. 563; State v. Bullard, 16 N. H 139; State v. Baldy, 17 Iowa, 39 ; Ryan ii. Harrow, 37 Id. 494 ; Davis v. State, 35 Ind. 496. § Wilson V. Abrahams, 1 Hill, 307. 13 194 TEEDICT ATSTD IXS IWCIDEKTS. unless it was also shown that the indnlgence was grossly abused and operated injuriously to the prisoner.* § 672. In Yirginia, it is not misbehavior in a juror, between adjournment of the court in the evening and its meeting next morning, to drink spirituous liquors in mod- eration.f § 673. In Tennessee, where spirituous liquors were furnished by the officer to the jury, during the trial, of which they drank, but not to excess, or so as to disqualify them from an intelligent performance of their duty, it was held no ground for a new trial.:j: § 674. And in Pennsylvania, New Jersey, Indiana, E"evada, Mississippi, Louisiana, Illinois and Missouri, the same opinion has recently been held.§ § 675. Though in capital cases it seems otherwise in Texas. || § 676. Clearly, however, intoxication by any of the jury during their deliberations is ground for setting aside the verdict. T" § 677. And so it has been properly held in Ohio, that the separation of a juror from his fellows, after the case has been finally submitted, and before they have agreed upon a verdict, for the purpose of obtaining and drinking intoxicating liquors, when not explained or shown to be excusable, is such misconduct of the juror as will entitle the prisoner to a new trial.** § 678. If a juror, during the progress of a trial for * Coleman o. Moody, i H. & M. 1 ; United States ®. Gilbert etdl., 2 Sumner, 31; Stone v. State, 4 Humph. 27; Com. v. Eoby, 13 Pick. 496. t Thompson's Case, 8 Gratt. 638. I Rows v. State, 11 Humph. 491. § Pope i>. State, 36 Miss. 121; State ». Upton, 20 Mo. 397; State V. Cucuel, 2 Vroom, N. J. 349; Creek v. State, 24/?mZ. 151; Richard- son 11. Jones, 1 ife). 403; State v. Caulfleld, 33 La. Aral. 140; Davis d. People, 19 III. 74 ; Com. v. Beale, Phila. 1854. II Jones ». State, 13 Tex. 168. IT Hogshead v. State, 6 Humph, 59 ; Pelham v. Page, 1 Eng. {ArTe.) 535. ** Weis «. State, 33 Olio 8t. 486. VERDICT AND ITS INCIDENTS. 195 homicide, should drink iTitoxieating liquor, with other curar tive agents, as a medicine, without medical advice, he does not {hereby vitiate the verdict when there is nothing to show that the effects of the liquor which he drank were intoxicating, or when there is nothing to show that he drank the liquor without the knowledge of the prisoner or his counsel.* Casting Lots wnd Other Irregulwrities. % 679. "Where the jury have cast lots, or resorted to chance in any way whatever to determine their verdict, a new trial will be ordered. f § 680. Where each of the jurors made an estimate of what he thought proper as damages, and an average was struck between the whole, which they had agreed upon beforehand to adopt, and did ultimately render as their verdict, the court held the result as void.:]: § 681. Where, however, such a method of arriving at an estimate is taken, without any previous agreement by which the jurors bind themselves individually to adopt the quotient, but where each juror reserves to himseK the right of dissenting, and where all after consideration elect the result as a reasonable measure of damages, this is no objec- tion to the verdict.§ § 682. The same distinction will apply to cases where the indictment covers several degrees, and where, if the result be produced by lot, the verdict will be set aside ; but where the result is a compromise, e. g., where murder * State V. Murphy, 33 Iowa, 270. t Hale «. Cove, 1 Strange, 643 ; Parr b. Seames, Barnes, 438 Mellish V. Arnold, Buvh. 51; Crabtree ii. State, 3 Sneed (Tenn.), 303 Birchard v. Booth, 4 Wis. 67 ; see also Monroe v. State, 5 Ga. 85 mUiard on New Trials (1873), 160. I Smith «. Cheethaln, 3 Caines, 57; Roberts v. Failis, 1 Omff. 338; Harvey t). Rickett, 15 JoJms. 87; Warner v. Robinson, 1 Boot, 194. § Dana v. Tucker, 4 Johns. 487 ; Shobe ii. Bell, 1 Randolph, 89 ; Grinnell v. Phillips, 1 Mass. 541 ; Cowperthwaite «. Jones, 3 Dallas, 55; Dooley ». State, 38 Ind. 339. 196 VEKDICT AND ITS INCIDENTS. in the second degree is found as a mean between murder in the first degree and manslaughter, the finding will rarely be disturbed.* § 683. And where one of the jury through a mistaken sense of duty thought he ought to assent to the views of a majority, and thereby concurred in a verdict of murder, such mistake was held no ground for a new trial.f § 684. And so where the jury concurred in opinion as to the guilt of the prisoner, but differed as to the length of the time for which he should be sentenced to the peniten- tiary ; and they agreed that each one should state the time for which he would send him to the penitentiary, and that the aggregate of these periods divided by twelve should be the verdict. After it was done, they struck off the odd months, and all agreed to the verdict, understanding what it was. It was held that this was not misbehavior in the jury for which the verdict would be set aside and a new trial awarded.:|: § 685. Where, however, a juror was not satisfied of the guilt of the prisoner, but assented to a verdict of guilty under an impression (suggested by his fellow-jurors) that the governor would pardon the defendant if the jury by their verdict recommended it ; it was held in Tennessee that this was sufficient cause to set aside the verdict.§ § 686. In the same State, where great levity was ex- hibited by the jury in their deliberations, and where the result, though not produced by lot, was reached by a course of frivolous experiments having but an imperfect bearing on the issue, the verdict was set aside. || § 687. And so a juror's affidavit that he believed the prisoner was innocent, and that he assented to a verdict of guilty under the belief induced by the assertions of his * Dooley«. State, 28 Ind. 339; Milliard on New Trials (1873), 161. t Com. ». Drew, 4 Mass. 891 ; Galvin v. State, 6 Cold. {Term.) 283. I Thompson's Case, 8 Oratt. 638. § Crawford v. State, 3 Terg. 60. 1 Jim «. State, 4 Humph. 389. VERDICT AND ITS INCIDENTS. 197 fellow-jurors that there were fatal defects in the proceed- ings which would prevent the prisoner from being sent to the penitentiary, and that the governor would pardon the defendant if recommended to mercy in the verdict, was held in the same State sufficient to set aside the verdict.* § 688. And so, where the juror's affidavit was that he yielded against his judgment and conscience, because a great majority of the jury favored the verdict.f § 689. Collateral levity on the part of the jury will be no ground to set aside a verdict, unless it appeared that such levity interfered with their deliberations.:]: Pre-adjud/ication. § 690. When it appears, after trial, that a juror had beforehand prejudged the case, but had omitted to avow such conclusion before the trial, or when asked as to opinion on voir dire had given false answers, and such formation of opinion was unknown to the party at the time, a new trial will be granted.§ § 691 . Thus, it was held a sufficient reason for a new trial that one of the jurors, some time before the trial, had * Cochran v. State, 7 Humph. 544 ; approving Crawford v. State, 2 Terg. 60. t Galvin ®. State, 6 Cold. {Term.) 383. t Com. ■». Beale, Phila. 1854. § Dent «. Hundred, &c. , 3 8alk. 645 ; People v. Bodine, 1 Den. 381 ; United States v. Fries, 1 Whart. St. Tr. 606; People v. Vermilyea, 7 Cow. 108; Com. «. Jones, 1 Ldgli, 598; Presburg v. Com., 9 Dana, 203; State v. Hopkins, 1 Bay, 373; Busick v. State, 19 OTiio, 198; Wade «. State, 12 Qa. 35; Eay s. State, 15 Id. 323; State v. Pat- rick, 3 Jonei Law {N. C), 443; Com. s. Gallagher, 4 Perera. Law Jour. 512; Parks ®. State, 4 Ohio {N. 8.), 334; Keener «. State, 18 Qa. 194; Heath v. Com., 1 SoUn. 735; State v. Gillick, 7 OlarJs {Iowa), 389; Norfleet v. State, 4 Sneed, 340; Brakefield v. State, 1 Id. 315; Sellers v. People, 3 Scam. 413; Cody ». State, 3 Bow. {Miss.) 27; State ». Burnside, 37 Mo. 343; Hanks «. State, 31 Tex. 526; HilliardmNew Trials (1873), 174-5. 198 VEEDICT AND ITS INCIDENTS. declared " sueli a man as Fries (the defendant) ought to be hung, who brings on such a disturbance."* § 692. The same ruling took place where the foreman had declared that the plaintiff should never have a verdict, whatever witnesses he produced.f § 693. And where a juror had stated, on the morning of the trial, that he had come from home for the purpose of hanging every counterfeiting rascal, and that he was deter- mined to hang the prisoner at all events.:]: § 694. A qualified opinion, however, dependent on a particular state of facts, will be no ground for new trial ; and thus, where a juror stated that if it was true the prisoner had made the attempt to commit the crime charged upon him, he would go to the penitentiary, it was held not suffi- cient ground for a new trial.§ § 695. A new trial wiU not be granted because of vague opinions against the prisoner, existing in the minds of several of the jury, in particular. || § 696. Neither will a new trial be granted because a general excitement exists against the prisoner in the com- munity at large at the time of triaL^f § 697: Though, if such excitement pervade the jury- box and work an unjust result, the verdict should be set aside.** * United States v. Pries, 1 Wha/rt. St. Tr. 606. t Dent «. Hundred, &c., 3 SalJc. 645. I State V, Hopkins, 1 Bay, 373. § Kennedy v. Com., 3 Virg. Cos. 510; Com. v. Hughes, 5 Sand. 655; Brown v. Com., 3 Virg. Cos. 516; Poore v. Com., Id. 474 Mitchum v. State, 11 Ga. 616; State v. Ayer, 8 Foster (JVI H.), 301 Anderson v. State, 14 Ga. 709; Howerton v. State, 1 Meigs, 363 Jim». State, 15 &a. 535; Thompson v. State, 34 Id. 297; States. Davis, 39 Mo. 391; State v. Ward, 14 La. Ann. 673; Com. ■». Flana- gan, 7 Watts <& Serg. 431. II Poore V. Com., 3 Virg. Cas. 474; Com. ». Flanagan, 7 Watts & Serg. 423; State v. Howard, 17 N. H. 171; State «. Fox, 1 Dutch. 566; People ». King, 27 Gal. 507; "Wright v. State, 18 Ga. 383; Rice V. State, 7 Ind. 333. IT Com. V. Flanagan, 7 Watts & Serg. 422. ** People V. Acosta, 10 Gal 195. VEEDICT AND ITS IWCIBENTS. 199 § 698. That a petit juror in a trial for assault and battery had been a member of the grand jury which returned a true bill against the defendant for the same assault and battery, if a sufficient objection, should have been urged when the jury was impaneled, or the respond- ent should have presented his affidavit that the fact was not then known to him.* § 699. It is now well settled that a new trial will not be granted on the ground that the juror was liable to be challenged, if the party had had an opportunity of mak- ing his challenge, and knew the facts beforehand.f § 700. So where after verdict it was discovered that one of the jurors was an alien, and therefore totally dis- qualified, it has been held that this is no cause for a new trial. But this question depends chiefly upon statute laws.:}: § 701. Although prejudice, interest, or relationship is good cause for challenge, yet if the party is aware of this, and does not except when the jury is impaneled, he is deemed to have waived his challenge ; and if he learns before the rendering of the verdict that one of the jury had declared that he had made up his mind against him before he was impaneled, he must object at once without waiting for the verdict. After verdict, however, this objection may be taken, if accompanied by affidavit of the party that the fact was not known before the trial.§ *McGehee«. Shafer, 9 Tex. 20; State s. Madoil, 13 FU. 151. tR. «. Sutton, 8 5. & C. 417; George «. State, 39 Mm. 570; Givens n. State, 6 Tex. 344; McAllister ®. State, 17 Ala. 434; EilUwrd on l>(ew Trials (1873), 163 ; Tomer v. Dinsmore, 8 Neb. {Brown\ 384. X State «. Quarrel, 2 Bay, 150; Chase ». People, 40 III. 353; Brown «. La Crosse, 21 Wis. 51; Hill v. People, 16 Mich. 351, oontra; HUMa/rd on New Trials (1873), 167. § Lisle «. State, 6 Mo. 436; State ». Patrick, 3 Jonas' Lam (N. C), 443; Keener ». State, 18 Oa. 194; Parks b. State, 4 Ohio {N. S.) 234; Romaine v. State, 7 Ind. 63; Burroughs «. State, 33 Ga. 403 State t). Parks, 21 La. Ann. 251 ; MeCorkle v. Binns, 5 Sinn. 340 McKinley «. Smith, Hardin, 167; Pierce v. Bush, 3 BiJib, 347 Duning ». Hurlbut, 3 Ohip. 45; Herndon «. Bradshaw, 4 SiJJ, 45 200 VERDICT AND ITS INCIDENTS. Irregula/rities in ImpaneUng. % 702. It is a good ground of objection at common law to the jury that they have been improperly chosen, or chosen by an unauthorized officer, or that the officer in attendance had permitted irregularities. Where one who had been on the principal panel was afterwards sworn in under another name as talesman ; and where talesmen were summoned, and returned, and placed on the trial, who were incompetent, or who had not been drawn according to the statute, a new trial was ordered.* If the party, however, is aware of the objections to a juror or talesman and neglects his challenge, no new trial will be granted, as the objection that the juror had not been drawn and returned according to law comes too late after the verdict. Thus, where one of the jury had been drawn more than twenty days before the time when the vewi/re was made returnable, exception not having been made till after verdict, a new trial was refused.f § 703. And a new trial will not be granted because the clerk, in calling over the jury, pursued the order in which they were impaneled, instead of that in which their names appeared in the V6nire.\ § 704. Nor is it ground for new trial that jurors and witnesses in a criminal case are sworn by an acting deputy clerk, who has not been appointed regularly or sworn in.§ Craig ». Elliott, Id. 273; "Wade v. State, 13 Ga. 35; Mley b. Leb- anon Nat. Bank, 1 Perm. {Pearson), 541, § 313 ante. * Parker «. Thornton, 3 Ld. Baym. 1410 ; R. «. Hunt, 4 5. <6 A. 430; R. V. Tremaine, 7 D. d: S. 684; Kennedy v. Williams, 3 Mtt & McOord, 79; Com. ». Gallagher, 4 Pa. Law Jour. 530. t State «. Hascall, 6 N. M. 353 ; R. -o. Sullivan, IP. <£ D. 96 ; Jordan v. Meredith, 3 Teates, 318; Howland v. GifEord, 1 Pick. 43; State V. Quarrel, 3 Bay, 150 ; Amherst v. Hadley, 1 Pick. 38. I State V. Slack, 1 Bailey, 330. § Mobley v. State, 46 Miss. 501. VERDICT AND ITS INCIDENTS. 201 § 705. The setting aside of a verdict on the ground that, from a similarity of names, the wrong juror was served and acted innocently in the matter, rests in the dis- cretion of the court.* * Boyer v. Philadelphia & Reading R. R. Co., 6 K T. WeehlyDig. 295. 202 GEAND JTJEOES. CHAPTEH YII. Mode of Selection, Duties, Qualifications, aiid Chaeg- iNG of Geand JmsoES. Section 706. It is absolutely necessary that the per- sons summoned to serve as grand jurors attend promptly at the time mentioned in the notice which they receive requiring them to appear in court, so that the court may, at the earliest possible moment, ascertain whether the number required by statute, which is twenty-three, are present. "When, in response to this notice, they have entered the proper court-room, they should be seated, if possible, and be attentive while the clerk calls the names of the jurors. § 707. In courts where grand and petit (or trial) jurors are attending the names of the grand jurors are usually called before those of the petit (or trial) jurors. Every grand juror should, on hearing his name called by the clerk, answer " here " or " present " in a loud voice, then take the seat which will be pointed out to him by one of the officers of the court, that he may be impaneled with the other grand jurors. § 708. Every grand juror who may desire to be excused from serving, will have the opportunity of stating his reasons therefor to the court before he is sworn. It is entirely within the discretion of the presiding judge to ex- cuse the juror or not, unless he presents a legal excuse to the court. It is, however, within the discretion of the fore- man of the grand jury to excuse members thereof after the jurors have been sworn and impaneled, at any time while they are attending to their duties ; but in exercising this privilege or authority, he must be careful not to reduce the remaining number below sixteen.* * See § 713, post. GEAWP JUEOES 203 Y09. , After the jurors have been assembled, the court selects one of them to act as foreman, if no challenges are made or exceptions taken. This is the practice in the United States courts, in New York, in Pennsylvania, and in most of the remaining States (see § 753, jpost). In l^ew England, however, the members of the grand jury select their own foreman. The clerk of the court then administers the usual oath to the foreman, which is substantially the same in most of the States. After the foreman has been sworn, the other grand jurors are sworn (for form of oath, see Appendix). The presiding judge then delivers his charge, to which every member of the jury should pay particular attention ; they should rise and remain standing during the charge. They then retire to the grand jury room. § YIO. Upon arriving in their jury-room the foreman calls them to order, and they should immediately proceed to select a clerk or secretary, in accordance with the requirements of the statute (see § ^57,jpost). The person so selected should be a correct, ready, and rapid penman. It is his duty to keep the minutes of their proceedings ; he is to record the testimony as given by the witnesses ; he is to enter the full description and value of the articles or property alleged to have been stolen ; he is also to mention the exact time, place and date of the commission of the crime; besides every other particular that he may be advised by the district attorney to record, a* being neces- sary for the drawing of an indictment.^ § 711. These particulars are essential, because it very frequently happens that a person arrested for the commis- sion of a crime, and brought before a justice of the peace, waives egoammaUon, as it is called ; the effect of this waiving is, that the justice, without examining any wit- nesses or taking any proof, holds the prisoner to await the action of the grand jury. In such cases, the only records * Indictment is an accusation by a grand jury to a court having jurisdiction to take proceedings for the arrest and punishment of the offender (People v. Quigg, 59 N. T. 86, Allbn, J.). 204 GEAND JUEOES. upon which the district attorney can prepare a proper indictment are the minutes of the grand jury. For that reason, therefore, if for no other, the clerk or secretary should be particular and careful in writing the minutes. § 712. In the State of New York, the foreman of every grand jury is, from the time of his appointment to his discharge, authorized to administer the oath to any wit- ness who appears before such grand jury for the purpose of giving evidence in any matter cognizable by them (see § 756, post). In some States, any member of the grand jury has the power to administer such oath ; but in other States the oath is administered by a magistrate. § 713. Sixteen grand jurors must be present to form a quorum for the transaction of business ; no business can be transacted by them when there is a smaller number than this present. § 714. To find a bill of indictment, it is necessary that at least twelve of the grand jurors should agree or concur in such finding, otherwise the bill is not found or presented, but is ignored (see § 763, post). § 715. They are authorized to examine evidence for the purpose of determining whether a bill of indictment should be found or ignored ; and they are the exclusive judges o'f the weight and force of the evidence before them. § 716, Their duty is neither to try a case or to render a verdict In considering the evidence while deliberating upon the finding of an indictment, they should ask them- selves this question : " If we were sitting as a trial or petit jury for the trial of the person here accused, and if the evidence low before us were presented there,- and if it remainea uncontradicted, would it be sufiicient to con- vict ?" If they can answer this question in the affirmative, they should find a bill of indictment, otherwise they should ignore the bill and not present it. § 717. It is usual for the officer of the government, who is called in some States " Prosecuting Attorney," and in others "District Attorney," to bring before the grand jury a case of supposed wrong, with the evidence pertain- &EAND JUEOES. 205 ing thereto,wliich evidence they consider, without, however, hearing the person or persons accused. If they deem the evidence sufficient, the prosecuting officer prepares a bill of indictment according to their direction. It is his duty, when the grand jury require it, to advise them upon all questions of law which arise during the examination of witnesses, or during their deliberations. And it is usual for him to examine the witnesses, though the foreman may discharge this duty, and any juror may question the wit- nesses (see § 759, post). § Y18. The statute of the State of New York gives the district attorney the right at all times to be present with the grand jury, and give them instructions and informa- tion relative to any matter cognizable by them ; except when they are expressing an opinion or taking a vote upon any matter before them, at which time neither district attorney, constable, or any other person is permitted to be present. In some States, the district attorney or prosecuting officer may be present, even when they are discussing the propriety of iinding an indictment, or when voting upon it ; but he must not participate in either the finding or voting. The grand jury should not be controlled by this officer, but should act according to their own judgment and reason ; moreover, they have the right to refuse such officer's advice, and if in their opinion he is guilty of wrong, they may indict him. § 719. The attention of every grand juror is here particularly called to the important parts of the oath which he took, namely : " Ycni will diligently vnquire and true presentment make of such matters, die., as shall he given you in cha/rge." This does not mean that they should find an indictment liecause a great hue and cry have been raised in the newspapers about the commission of some crime, and there is clamor for the indictment of some one; but it means that the grand jurors, every one of them, should diligently inquire into the circumstances of every com- plaint, the credibility of the witnesses who support it, and thereby judge whether the person accused ought to be put on trial or not." This also means that their investigations 206 GEAWD JtfRORS. sliottld be limited to such matters as may be submitted by the court, or to such as may be left tO' their consideration by the district attorney or prosecuting officer, or such as may come to their knowledge either from their investiga- tions or from their own observations. Bat they should not allow private prosecutors in their presence for the pur- pose of prosecuting accusations. They should particularly scrutinize the evidence submitted to them, charging a per- son with fraud or false pretences, as the presentment of such charges is frequently used by persons to collect a debt. The criminal law should not be invoked for the collection of debts, and grand jurors should be careful that, by a fail- ure to carefully examine the evidence, they may become parties to such action. § 720. They are bound to take the best legal proof of which the case admits, and not to find an indictment upon rumors, reports, probabilities or inferences ; and it is the duty of the prosecuting officer to prevent them from receiving any evidence which would not be admissible on the trial. Grand jurors should bear in mind that, though a person against whom they find an indictment is not neces- sarily guilty, and has an opportunity of proving his inno- cence before a trial jury, yet, even if he is acquitted at trial, the disgrace of having had an indictment found against him, and of having been compelled to defend himself, will rest upon him. Therefore, the grand jury are again reminded of the words in their oath, to '^diligently inquire." § 721. The next part of the oath demanding their attention is, " The counsel of the people {or commonwealth), your fellows and your own, you shall keep secret." The obligation imposed upon grand jurors by this, the most important part of their oath, is frequently misunderstood by them. There are many important considerations which require the proceedings of the grand jury to be entirely secret. One object is to prevent the testimony produced before them from being contradicted by subornation of perjury on the part of the persons against whom the bills of indictment were found. Grand jurors may be required &EAND JTTEOES. 207 to testify whether the testimony of a witness examined before them is consistent with or different from the evi- dence given by such witness on the trial of the accused ; and they may also be required to disclose the testimony given before tliem by any person, upon a complaint against such person for perjury, or upon his trial for such offence. In some instances the individual against whom the accusa- tion is made may have great power and influence in the community, and it might be injurious, or even dangerous, to make known the names of those whose arguments or votes, in the secret recess of the grand-jury room, caused that body to agree in finding the bill against him. Besides, such disclosure might expose those who, from a sense of duty and the obligations of conscience, have been compelled to decide against him, to inconveniences, perhaps oppres- sions and dangers, from which it is intended by this part of their oath surely and effectually to secure every mem- ber of that body. Some grand jurors might, through fear of such consequences, be deterred from taking an inde- pendent and conscientious course in the discharge of their duty, if the proceedings in their room were not secret, and if that secrecy were not secured by oath ; and thus the greatest offenders might, in some instances, escape the punishment which they in justice should receive. § 722. By law, it is a misdemeanor for a grand juror to divulge or disclose the finding of any indictment for a felony (see § 765, jposf). A felony is an offense for which a person convicted may be sentenced to a State prison. But it is the safest course, and one more in accordance with the oath of the grand juror, not to divulge the finding of any indictment ; because it may be of as much importance that a person guilty of a misdemeanor be arrested and punished as one guilty of a felony. Another important consideration is to prevent escapes. In many instances, complaints are preferred to the grand jury without any previous proceedings before a magistrate, and before the person against whom complaint is made is in custody. In such case a disclosure of the proceedings in the grand jury room might give the person against whom a biU is found a 208 GRAND JtlROES. chance to escape, and thereby avoid punishment. And in this connection the attention of the grand jurors is called to another reason for secrecy, namely : that where a com- plaint has been made to them, and the testimony was insufficient to warrant the finding of an indictment, the reputation of the accused ought not to suffer by making known that he had been under suspicion. This injunction of secrecy is not confined to any particular length of time, but is perpetual ; neither is it confined to a prohibition of a general account of a transaction, or whether a bill is or is not found against a particular individual, but it precludes them from disclosing anything respecting their finding . § 723. The meaning of the last part of their oath is obvious: '■'■You shall present no one from envy, hatred or malice, neither shall you leave any one unpresented fm^ fear, favor, affection, reward, hope of reward or gain ; hut shall present all things truly as they come to your Jcnowledge, according to the iest of your understanding P And in connection with this part of their oath, it is but necessary to remark, that the juror, while deliberating upon the finding of an indictment, should examine himself closely, to see whether there is not lurking in the deep recesses of his mind a feeling of enmity, malice, hate, spite, or prejudice, or friendship, love, sympathy, or com- passion, which clouds his sense of right and justice, and prevents the honorable discharge of his duty ; and if, while thus closely scrutinizing and examining himself he finds that any of these elements are present in his mind, he should at once proceed to divest himself of the same ; yet, if this feeling that is present within him is so strong that he is unable to rid himself of it, he should not vote on the question at all. § T24. In their deliberations, &c., grand jurors may facilitate their labors by acting in accordance with the instructions herein given to trial jurors (see §§ 533, &c., a/nte). They must be orderly, willing to listen to reason and argument, and willing also to give the same; they must not make long speeches, but in their argument must be brief and pointed. GRAND JURORS. 209 § 725. "When the grand jury approve or find a bill of indictment, the foreman writes on the back of the bill these words, " A true bill," the date of the finding, and his signa- ture ;* when the grand jury " ignore" a bill of indictment, by which is meant that they fail or refuse to find a bill, then the foreman writes on the back of it " "We ignore," or " Not a true bill," or the word " Ignoramus," or " Not found," and the date of the ignoring, with his signature. After these indorsements have been made on the bills, the grand jury bring them publicly into court, and the clerk of the court calls all the jurymen by name, who severally answer ; then the clerk asks them whether they have agreed upon any bills, and requests them to present the same to the court, thereupon the foreman of the jury hands the indictments to the clerk. In addition to bills of indictment and specific offences, the grand jury have the right to present to the court such publio wroTigs as in their judgment should be brought to the notice of the court. § 726. The substance of the foregoing may be stated In few words, namely : d'iUgently inquire amd deliberate ; prosecute the guilty, protect the innocent. If the evidence is satisfactory, prosecute ; if the complaint is urged through * In the case of Brotherton v. People, decided in the New York court of appeals, November 13, 1878, it appeared that the copy of the indictment in the record did not contain the indorsed certificate of the foreman of the grand jury that it was "a true bill," and it was claimed that this might be availed of to prove that there was no certificate. No such point was made on the trial, and the record states that the grand jury appeared in open court, and duly pre- sented the indictment, a copy of which is set forth. It was held that it must be assumed that the indictment was presented according to law ; that the certificate of the foreman is no part of the indict- ment, but is a statutory mode of authenticating it, and the record furnishes evidence that it was so authenticated (7 N. Y. 'Weekly Digest, 445 ; see, to the same efEect, State ». Freeman, \Z N. H. 488; State i>. Cox, 6 Ired. 440; Com. v. Walters, 6 Dana, 290; State V. Creighton, 1 N. & McG. 256; McGuffle v. State, 17 Ga. 497; Cherry v. State, 6 Fla. 679; States. Calhoun, 1 i>e». & Bat. 374; gtate ». Collins, 3 Devereaux, 117; contra, Com. v. Sargent, Thach. Crim. Cos. 116). 14 210 GEAND JTTEOES. improper or malicious motives, or -without sufficient evi- dence, reject the accusation. The jury should remember that the main object of their organization is to have an intelligent and impartial tribunal, inaccessible to any improper influence, to determine the propriety of public prosecutions. They should, therefore, honestly, faithfully, and conscientiously discharge the duties intrusted to them. The following are the Statutes of the State of New York relating to the Grand Jury. § 727. No person can be held to answer for a capital or otherwise infamous crime (except in eases of impeach- ment, and in case of the militia when in actual service, and of the land and naval forces in time of war, or which this State may keep, with the consent of congress, in time of peace ; and in cases of petit larceny under the reg\ilation of the legislature), unless on presentment or indictment of a grand jury ; and in every trial on impeachment or indict- ment, the party accused is to be allowed counsel, as in civil actions, or he may appear and defend in person.* § 728. The supervisors of the several counties of this State, except the city and county of jSTew, York, at their annual meetings in each year shall prepare a list of the names of three hundred persons to serve as grand jurors at the courts of oyer and terminer and courts of sessions, to be held in their respective counties during the then ensuing year, and imtil new lists shall be returned.f § 729. The mayor, recorder, and aldermen of the city of New York shall meet on the second Monday of July in each year, as a board of supervisors of that city and county, and shall prepare a list of the names of six hundred persons to serve as grand jurors at the different courts of oyer and terminer and general sessions, to be held in that city during the then ensuing year, and until new lists shall be returned.:]: * 1 iJ. 5. 6 ed. § 12, p. 376; Const, art. 7, § 7. t 3 J?. /S. 6 ed. § 1, p. 1015; People v. Harriott, 3 Parh. Or. 112. t 3 if. /S. 6 ed. § 3, p. 1015. GEAND JTXEOKS. 211 § 730. In preparing such lists, tlie said boards of super- visors shall select such persons only as they know or have good reason to believe are possessed of the qualifications by law required of persons to serve as jurors for the trial of issues of fact, and are of approved integrity, fair character, sound judgment, and well informed.* § 731. Persons exempt by law from serving as jurors for the trial of issues of fact shall not be placed on any lists of grand jurors required by the preceding pro- visions.f § 732. The lists so made out by the said boards of supervisors shall contain the christian and surnames at length of the persons named therein, their respective places of residence, and their several occupations ; it shall be cer- tified by the clerk of the board of supervisors, and shall be filed in the office of the clerk of the county within ten days after' the first day of the meeting at which the same is herein directed to be made.:]: § 733. On receiving such list, the county clerk shall write the names of the persons contained therein, with their additions and places of residence, on separate pieces of paper, and shall roll up or fold such pieces of paper, each in the same manner, as near as may be, so that the name written thereon shall not be visible ; and shall deposit such pieces of paper in a sufficient box, from which they shall be drawn, as hereinafter provided. § § 734. If any justice of the supreme court elected for the district, the mayor and recorder of the city of l^ew York, or any two of them, shall at any time be of opinion that a greater number of persons than that herein required should be returned to serve as grand jurors, they may, by an order under their hands, direct such number to be increased, but such increase shall not exceed one-half the *S M.S. 6 ed. § 3, p. 1015 ; People i>. Jewett, 6 Wend. 386 ; see §§ 60 to 86, ante. fSS.3.6 ed. § 4, p. 1015; see §§ 60 to 86, ante. t 3 iJ. S. 6 ed. § 5, p. 1016; Watkins v. Wilcox, 6 N. T. 8. 0. {T. & 0.) 544. § 3 .B. /S. 6 ed. § 6, p. 1016. 212 GRAND JUEOES. number herein required to be selected for that city and county.* § 735. If the county judge of any other county of this State shall at any time be of opinion that a greater number of persons than that herein required should be returned to serve as grand jurors in their county, he may, by au order under his hands, direct such number to be increased ; bat such increase shall not exceed one-half the number herein required to be selected for such county, f § 736. Upon any order which is authorized by the two last sections being served upoa the board of supervisors, they shall, at their next annual meeting, increase the num- ber of persons returned by them to serve as grand jurors pursuant to such order. :]: § 737. At the time of drawing the names of jurors for the trial of issues of fact in any court of oyer and ter- miner, and at the time of drawing such jurors for the general sessions in the city of JSTew York, or for any term of the county court in any county at which a sessions may be held by law, the county clerk, in the presence and with the assistance of the sheriff or imder-sheriff, and of a county judge or justice of the peace, or two county judges or jus- tices of the peace, who shall have attended for the purpose of drawing the petit jury for such court, shall proceed and draw in and for the city of New York the names of thirty- six persons, and in every other county the names of twenty-four persons, from the box in which the pieces of paper shall have been deposited for that purpose, to serve as grand jurors at such court of oyer and terminer or general sessions, or sessions, as the case may be.§ § 738. Such drawing shall be conducted, in all respects, in the manner prescribed by law for drawing petit jurors ; a minute of such drawing shall be kept, signed, and filed in the like manner ; and a list of the persons so drawn, with * ZR S.6 ed. § 7, p. 1016. + 3 iJ. & 6 ed. § 8, p. 1016. X 3S. S.G ed. § 9, p. 1016. § 3 iJ. . People, 61 Barb. 308; Dawson «. People, 25 N. T. 305; People ®. Jewett, 3 Wend. 314; S. C, 6 Wend. 386. Every grand juror who, with knowledge that a challenge, inter- posed against him by a defendant, has been allowed, is present at or takes part, or attempts to take part, in the consideration of the charge against the defendant who interposed the challenge, or the deliberations of the grand jury thereon, is guilty of a misdemeanor {Penal Code, N. Y. [not yet adopted] § 203). t 3 iJ. A 6 ed. § 28, p. 1019. § 3 iJ. ?. 6 ed. p. 415, § 104. t Laws o/ises, c. 692, § 9; 3 iJ. ;». 6 ed. p. 425, § 156. After an issue of fact has been joined, and at any time before the justice proceeds to an investigation of the merits of the action, by swearing a witness, or receiving evidence, either party, or his attorney, may demand a trial by jury {New Code, § 2990). Where a trial by jury is duly demanded, the justice must issue a 244 JURIES IN COUETS OF SPifiCIAL SESSION'S. PART II. JtmiBS DT COTTRTS OF SPECIAL SESSIONS. § 850. The court of sessions was first created by the colonial legislature, in the year 1744. It, therefore, existed venire, directed geuei'ally to any constable of the county wherein the action is to be tried, commanding him to notify twelve men of the town or city where the justice resides, qualified to serve, and not exempt from serving, as trial jurors in courts of record ; not of kin to the plaintiff or defendant, and not interested in the action, to appear before the justice, at a time and place specified therein, to form a jury for the trial of the action. But if the parties agree upon a number of jurors, less than six, to try the action, the venire must direct the constable to notify twice the number so agreed upon {New Code, § 3991). Where the action is between two towns or cities, or between a town and a city, the venire must direct the constable to notify twelve men of the county, who are qualified and not exempt, as prescribed in the last section, and who are not interested in the matter at issue, to form a jury for the trial of the action (JTew Code, § 3993). The justice must deliver the venire, or cause it to be delivered, to a constable of the county, disinterested between the parties, who has not acted, or been employed to act, as the attorney or agent of either party, with respect to any claim or matter in controversy in the action, and to whom neither party offers any other reasonable objection. The constable shall not notify any person whom he has reason to believe to be biased or prejudiced, in favor of or against either party ; and he must, in all other respects, execute the venire fairly and impartially. He must notify the jurors personally, and indorse upon or annex to the venire, and deliver to the justice, a return under his hand, containing a list of the persons notified {Wew Code, § 3993). For the purpose of procuring a jury to try the action, the justice must prepare, or cause to be prepared, ballots, uniform, as nearly as may be, in appearance, by writing the name of each person returned, who appears, on a separate piece of paper ; the constable, in the presence of the justice, must roll up or fold each ballot, in the same manner as nearly as may be, so as to resemble the others, and so that the name is not visible. The ballots must be deposited in a box, or other convenient receptacle {New Code, § 3994). The justice must then openly draw out, one after another, six of JTJEIES IN COtTETS OF SPECIAL SESSIONS. 245 prior to the first Constitution of this State, which was adopted in the year 1777, and has, ever since, with various the ballots, or such smaller number thereof as the parties have agreed upon. If a person, whose name is drawn, is challenged and set aside, or is excused, another ballot must be drawn ; and so on successively until the required number of persons is obtained. Those persons constitute the jury to try the action {New Code, § 2995.). If a sufficient number of competent j^irors is not drawn, the jus- tice may, in his discretion, either issue a new venire, or direct the constable to require the attendance of such a number of talesmen from the bystanders, or others, duly qualified, and against whom no cause of challenge appears, as the justice deems sufficient for the purpose (Neii Code, § 2996). If the constable, to whom the venire is delivered, does not return it as required thereby, or if a full jury is not obtained in the manner prescribed in the foregoing sections of this title, the justice must issue a new venire (New Code, § 2997). The justice must administer an oath or affirmation to each juror, well and truly to try the matter in diflEerence between , plaintiff, and , defendant, and, unless discharged by the justice, a true verdict to give, according to the evidence (New Code, § 2998.) After the jurors have been duly sworn, they must sit together and hear the allegations and proofs of the parties, which must be made publicly, in their presence (New Code, § 2999). After hearing the allegations and proofs, the jury must be kept together in a private and convenient place, under the charge of a constable, until they all agree upon their verdict ; and, for that purpose, the justice shall administer to the constable the following oath : "You swear, in the presence of Almighty God, that you will, to the utmost of your ability, keep the persons sworn as jurors upon this trial together, in a private and convenient place, without any meat or drink, except such as shall be ordered by me ; that you will not suffer any comrauhication to be made to them, orally or other- wise ; that you will not communicate with them yourself,' orally or otherwise, unless by my order, or to ask them whether they have agreed upon their verdict, until they are discharged ; and that yovi will not, before they render their verdict, communicate to any per- son the state of their deliberations, or the verdict they have agreed upon" (New Code, § 3006). When the jurors have agreed upon their verdict, they must pub- licly deliver it to the justice, who must enter it in his docket-book. It is not necessary to call the plaintiff before receiving the verdict, 246 JURIES IN COUETS OF SPECIAL SESSIONS. changes and modifications made by the legislature, existed in this State. § 851. Trial by jury was wholly unknown in that court until it was created, sub modo, by the act of 1824. The common-law jury, however, has never existed in that tribunal.* § 852. If a person arrested upon any charge which may be tried before a court of special sessions, shall elect to be tried by a jury, the justice composing the court shall issue a venire, directed to any constable of the county or marshal of the city where the offence is to be tried, com- manding him to summon twelve good and lawful men, ^nd the plaintiflE cannot submit to a nonsuit or withdraw the action, after the cause has been committed to the jury {New Oode, § 3007). When the justice is satisfied that the jurors cannot agree upon a verdict, after having been out a reasonable time, he may discharge .them, and issue a new venire, returnable within forty-eight hours ; unless the parties consent, and their consent is entered in the jus- tice's docket-book, that the justice may render judgment upon the evidence already before him, which he may do in that case {Ne/w Code, % 3008). A person duly notified to attend as a juror, and who fails to attend, or, attending, refuses to serve, without a reasonable excuse, proved by his oath, or the oath of another person, is liable to the same fine, to be imposed and collected, with costs, in like manner, and applied to the same use, as is prescribed in article second of title fourth of this chapter, with respect to a person subpoenaed as a witness, and not attending, or attending and refusing to testify {New Code, % 3009). In an action m a justice's court, of the city of Brooklyn, a trial by jury is waived, unless a party demands it at the time when an issue of fact is joined, and at the same time deposits, with the clerk, one dollar and fifty cents, for the juror's fees, and also one dollar and twenty-five cents for the officer's fees, for notifying the jurors and taking charge of the jury. Where a jury trial is so demanded, the trial may be adjourned until a time fixed for the return of the mnire {New Code, § 8137). [The sections in this note have not yet been adopted.] * Matter of Sweatman, 1 Gow. 144, 151, note e; Murphy «. Peo- ple, 3 Id, 815, 818, note J ; People ». Biley, 5 Parh. Cr. 401 ; People ex rel. Walker o. Special Sessions, 4 Hun, 443. JURIES IN COURTS OF SPECIAL SESSIONS. 247 qualified to serve as jurors, and not exempt from such ser- vice by law, and who shall be in nowise of kin either to the complainant or defendant, to be and appear before such court, at a time no more than three days from the date of the venire, and at a place to be named therein, to make a jury for the trial of such offence. The officer to whom such venire shall be delivered shall execute the same fairly and impartially, and shall not summon any person whom he shall suspect to be biased or prejudiced for or against the defendant. He shall summon the jurors personally, and shall make a list of the persons summoned, which he shall certify and annex to the venire, and return with it to the court.* § 853. The names of the persons so returned shall be respectively written upon several and distinct pieces of paper, as nearly of one size as may be, and the officer by whom the venire was served, in the presence of the court, shall roll up or fold such pieces of paper, as nearly as may be in the same manner, and put them together in a box, or other convenient thing. The court shall then draw six of such papers, one after another, and if any of the persons whose names shall be so drawn shall not appear, or, appear- ing, shall be challenged and set aside, then such further number shall be drawn as will be sufficient to make up the number of six, after all legal causes of challenge shall have been allowed. After the jury shall be sworn, they shaU sit together and hear the proofs and allegations in the case, which shall be delivered in public, and in the presence of the defendant.f § 854. If a sufficient number of competent jurors shall not be drawn, the court may supply the deficiency by directing the constable to summon any of the bystanders or others who may be competent, and against whom no cause of challenge shall appear, to act as jurors in the cause. If the officer to whom the venire shall have been delivered * See note to § 855, post ; as to challenges, see § 456, ante. t See note to § 855, fost. For form of oath, see forms, Appen- dix, post. 248 JURIES IK COURTS OF SPECIAL SESSIONS. shall not return the same as thereby required, the court shall issue a new venire, upon which the same proceedings ehall be had as upon the first veni/re* § 855. After hearing the proofs and allegations, the jury shall be kept together in some convenient place, until they agree upon a verdict or are discharged by the court, and a constable or marshal shall be sworn, to attend upon the jury, in like manner as upon trials in justices' courts. When the jurors have agreed on their verdict, they shall deliver the same to the court publicly, who shall enter it in the minutes of their proceedings, to be kept by them.f § 856. Whenever a magistrate or jury, before whom a criminal cause shall be tried, as aforesaid, shall be satisfied from the evidence and proceedings had before them that the person or persons so charged and tried were complained of and proceeded against without probable cause, and with malicious intent to injure or harass, they may render a verdict for costs against the complainant : whereupon the magistrate shall enter judgment for the amount of such costs, upon which an execution may issue against the property or person of such complainant, in the same man- ner as upon a judgment rendered for tort by a justice of the peace.:]: No fees shall be allowed to or taken by any juror or witness for any services under this title.§ * See note to next section. is M. 8. 6 ed. p. 1007, §§ 9, 10, 11, 13, 13, 14, 16, 17 and 18; Vanderwerker «. People, 5 Wend. 530 ; People ex rel. Murray v. Jus- tice of Special Sessions, 13 Hun, 533. I SB. 8. 6 ed. p. 1008, § 33. § 3 i?. /S. 6 ed. p. 1013, § 49; Laws of 1834, p. 367, § 50. JUEIES IN EQUITY CASES. 249 CHAPTER X. Speciajl Jtjeies in Special Mattees and Peoceedings. (Inoludistg Coeonbes' Juries.)* I. Juries in Equity Cases — Waiver of Jury, n. Coroner's Jury. in. Struck Jury. IV. Juries in Surrogates' Courts. V. SherifEs' (or Constables') Jury to Try Title to Personal Property taken under Execution or Attachment. YI. Jury to Inquire into Insanity of Person in Confinement under Criminal or Civil Process. Vn. Jury to Inquire into Insanity of Convict after Sentence of Death. Vill. Jury to Inquire into Pregnancy of Female Convict. IX. Jury to Appraise Value of Property held under Homestead Exemption Law. X. Jury in Proceedings De iMnatico Inquirendo. XI. Juries in Cases of Forcible Entry and Detainer. XII. Jury in Summary Proceedings to Dispossess Tenant. XIII. Jury in Proceedings to Lay Out Roads and Highways. XIV. Jury to Assess Damages when Highways are Laid Out through Uninclosed Lands. XV. Juries in Plank Road and Turnpike Cases. XVI. Juries in Ad Quod Damnum Proceedings. XVII. Juries in Highway Encroachment Proceedings. XVIII. Juries in Insolvent Debtors' Proceedings. XIX. Juries in Creditors' Proceedings to Compel Assignments by Imprisoned Debtors. XX. Juries in Habitual Drunkard Proceedings, instituted by the Overseers of the Poor. XXI. Juries to Investigate the Origin of Fires. XXn. Jury of Inquiry to Assess Damages on Defaults. Juries m Equity Cases — Waimer of Jury. § 857. In each of the following actions an issue of fact * See § 141, ante, as to fine for special jurors failing to attend. 250 JURIES IN EQUITY CASES. must be tried by a jury, unless a jury trial is waived, or a reference is directed : 1. An action in which the complaint demands judg- ment for a sum of money only. 2. An action of ejectment ; for dower ; for waste ; for a nuisance ; or to recover a chattel.* § 858. Feigned issues have been abolished. In a case where neither party can, as of right, require a trial by jury of an issue of fact arising upon the pleadings, or where a question of fact, not in issue upon the pleadings, is to be tried, an order for the trial thereof by a jury may be made, stating distinctly and plainly the questions of fact to be tried. Such an order is the only authority necessary for the trial. f § 859. Where a party is entitled by the Constitution, or by express provision of law, to a trial by a jury, of one or more issues of fact in an action not specified in section 968 of this act (§ 857, ante), he may apply upon notice to the court for an order, directing all the questions arising upon those issues to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application, the court must cause the issues, to the trial of which by a jury the party is entitled, to be distinctly and plainly stated. The subsequent proceedings are the same as where ques- tions arising upon the issues are stated for trial by a jury, in a case where neither party can as of right require such a trial ; except that the finding of the jury, upon each ques- tion so stated, is conclusive in the action, unless the verdict is set aside or a new trial is granted. :]: * Mw Code, § 968; Old Code, §§ 353, 354; Vermilyea v. Palmer, 52 m T. 471; People v. Northern R. R. Co., 43 N. T. 317; Parker V. Laney, 58 N. T. 469; Hewlett ». "Wood, 63 N. T. 75. + JSfew Code, § 833 ; Old Code, § 73 ; Brinkley ». Brinkley, 56 JV. Y. 193; Vermilyea «. Palmer, 53 K Y. 471; as to former practice, see Snell V. Louckes, 13 Barh. 385. I Mw Code, § 970; Old Code, § 354. The provision of the Constitution of the United States which guarantees trials by jury has no application to trials in State courts (Joseph V. Bodwell, 38 La. Ann. 383; S. C, 36 J.W. Bep. 103). A proceeding in the nature of a quo warranto is a civil action, JUKIES IN EQUITY CASES. 251 § 860. The joinder of equitable with legal causes of action does not deprive the defendant of the right of trial ^7 jury.* § 861. In an action triable by a jury, if the parties waive the trial, by a jury, of the issues of fact, the action must be tried by the court without a jury ; unless a refer- ence is directed, in a case prescribed by law. But such an action, other than to recover damages for breach of a con- tract, cannot be tried by the court, without a jury, unless the judge, presiding at the term where it is brought on for trial, assents to such a trial. His refusal so to assent annuls a waiver, made as prescribed in subdivision second, third, or fourth of the next section.^ § 862. A party may waive his right to the trial of the issue of fact, by a jury, in any of the following modes : 1. By failing to appear at the trial. 2. By filing with the clerk a written waiver, signed by the attorney for the party. 3. By an oral consent in open court, entered in the minutes. 4. By moving the trial of the action, without a jury ; or, if the adverse party so moves it, by failing to claim a and either party thereto is entitled to a trial by jury; and a refusal of a court to grant such a trial to a party entitled thereto and demanding it (notwithstanding the fact that it appears by the record that substantial justice has been done), is error for which a new trial will be granted (Reynolds ». State, 61 Ind. 393, and cases there cited). An action by a receiver to set aside a judgment as fraudulent is for equitable relief and properly tried by the court. But if a trial by jury was the right of either party, it is waived by not being demanded at the proper time (Whittlesey i>. Delaney, 73 N. T. 571). * Wheelock v. Lee, N. Y. Ct. of App., decided October 4, 1878; 7 N. r. WeeUy Dig. 323; S. C, 5 Abb. New Cos. 72. t New Code, § 1008; Old Code, §§ 253, 254 and 266 ; the sentence in italics is new. It is doubtful whether a jury trial can be waived in any other manner than by either entirely failing to object, or as prescribed by this and the next section (Wheelock v. Lee, 5 AVh. New Cas. 72). The judge has the right to refuse to try an equity case without a jury (Parker 1). Laney, 58 N. T. 469; rev'g 1 8. C. [T. & (7.], 590). 252 JURIES IN EQUITY CASES. trial by a jury, before the production of any evidence upon the trial.* § 883. The bringing of an action of a distinctly equi- table character is a waiver, as far as the plaintiff is con- cerned, of the right of trial by jury, although upon the facts he may be entitled to either legal or equitable relief ; and in determining the mode of trial, the court may, as to him, be governed by the nature of the action as Stated in the complaint. But it seems that the rule as to the defend- ant is difEerent; that he cannot be deprived of a jury trial, in a proper court, because the plaintifE has demanded equitable, instead of legal relief.f § 864. In cases where the trial of issues of fact is not provided for in section 968 of the Code (§ 857, ante), if either party shall desire a trial by jury, such party shall, within ten days after issue joined, give notice of a special motion to be made upon the pleadings, that the whole issue, or any specific question of fact involved therein, be tried by a jury. With the notice of motion shall be served a copy of the questions of fact proposed to be submitted to the jury for trial, and in proper form to be incorporated in the order ; and the court or judge may settle the issues, or may refer it to a referee to settle the issues. Such issues must be settled in the form prescribed in sections 823 and 970 of the Code of Civil Procedure (§§ 858 and 859, ante). * Wew Code, § 1009; Old Code, § 366; subdivision four is new. Where a defendant fails to appear wlien the case is reached in its order, and the issue is one of fact only, such failure may be treated as a waiver of jury trial (Giberton v. Fleischel, 5 Vuer, 653 ; Kassing 1). Qriflath et al., 86 III. 365). In what cases trial by jury has been considered as waived (see Greason ii. Kettletas, 17 K T. 491 ; Black v. White, 37 If. T. S. 0. 330; Dayharsh v. Enos, 5 JT. T. 531; People v. Albany & S. R. R. Co., 5 Lans. 35; S. C, 7 Abb. New Cos. 365; 1 Lans. 308; 55 Barb. 344; 38 How. 338; Moffat b. Mofiat, 10 N. T. 468; 8. C, 17 Abb. 4; and see Gage v. Comml. Nat. Bank of Chicago, 86 III. 371, in which it was held error to refuse trial by jury where the issues were changed after a jury had been waived. t Davison v. Associates of the Jersey Company, 71 N. T. 388; JURIES IN EQUITT CASES. 253 In all actions for divorce where issue is joined by the pleadings, upon the question of adultery, such issue shall not be tried by a jury until the issue to be tried shall be settled in like manner as in other actions where issues arising out of the pleadings are required to be settled. "When any speciiic questions of fact involved in an action, or any question of fact not put in issue, is ordered to be tried by a jury as a substitute for a feigned issue, and has been tried, or a reference other than of the whole issue has been ordered under the Code, and a trial had, if either party shall desire to apply for a new trial on- the ground of any error of the judge or referee, or on the ground that the verdict or report is against evidence (except when the judge directs such motion to be made upon his minutes, at the same term or court at which the issues are tried), a case or exceptions shall be made, or a case containing exceptions, as the case may require ; which case or exceptions shall be served and settled in the manner prescribed by the rules of court for the settlement of cases and exceptions in other cases. Such motions shall be made in the first instance at special term.* * Rule 31 of 1878; Rule 33 of 1858; Rule 40 of 1871; Rule 40 of 1874, amended; see ante, %% 857, 858 and 859. An action by the people to annul a corporation is triable, of course, and of right, by a jury, as if it was an action specified in section 968 of this act, and without procuring an order, as prescribed in section 970 of this act {New Code, § 1800). An action by the people against the usurper of an office or franchise is triable, of course, and of right by a jury in like manner, as if it was an action specified in section 968 of this act, and with- out procuring an order, as prescribed in section 970 of this act {New Code, § 1950). An action to vacate letters patent is triable, of course, and of right, by a jury, as if it was an action specified iu section 968 of this act, and without procuring an order, as prescribed in section 970 of this act {New Code, § 1958). An issue of fact, joined upon an alternative writ of mandamus, must be tried by a jury as if it was an issue, joined in an action specified in section 968 of this act ; unless a jury trial is waived, or a reference is directed by consent of parties. Where the writ was issued upon the relation of a private person, the relator or the 254 coboner's juet. Coroner's Jury. % 865. "Whenever any coroner shall receive notice that any person has been slain, or has suddenly died, or has been dangerously wounded, or has been found dead under such circumstances as to require an inquisition, it shall be the duty of such coroner to go to the place where such person shall be, and forthwith to summon not less than nine, nor more than fifteen persons, qualified by law to serve as defendant is entitled to a verdict, report, or decision, where he ■would be entitled thereto if the issue was joined in an action, brought by the relator against the defendant, to recover damages for making a false return {New Code, § 3083). In an action brought to annul a void or voidable marriage, a final judgment, annulling the marriage, shall not be rendered by default, for want of an appearance or pleading, or upon the trial of an issue, without proof of the facts upon which the allegation of nullity is founded, and the declaration or confession of either party to the marriage is not alone sufficient as proof; but other satisfactory evidence of the facts must be produced, in such an action, except where it is founded upon an allegation of the physical incapacity of one of the parties thereto; the court must, upon the application of either of the parties, make an order, directing the trial, by a jury, of all the issues of fact; or it may, of its own motion, make an order directing the trial, by a jury, of one or more issues of fact ; for which purpose, the questions to be tried must be prepared and settled, as prescribed in section 970 of this act {New Code, § 1753). The answer of the defendant may be made, without verifying it, notwithstanding the verification of the complaint. If the answer puts in issue the allegation of adultery, the court must, upon the ap- plication of either party, or it may of its own motion, make an order directing the trial, by a jury, of that issue ; for which purpose the questions to be tried must be prepared and settled, as prescribed in section 970 of this act. If the answer does not put in issue the allegation of adultery, or if the defendant makes default in appear- ing or pleading, the plaintiff must nevertheless satisfactorily prove the material allegations of his complaint, before he is entitled to judgment (Neio Code, § 1757). [The sections contained in this note have not yet been adopted,] coroneb's juey. 255 jurors, and not exempt from such service, to appear before Bucli coroner forthwith, at such place as he shall appoint, to make inquisition concerning such death or wounding.* § 866. Any justice of the peace in each of the seTcral towns and cities of this State is hereby authorized and empowered, in case the attendance of a coroner cannot be procured within twelve hours after the discovery of a dead body, upon which an inquest is now by law required to be held, to hold an inquest thereon, in the same manner and with the like force and effect as coroners.f § 867. Hereafter, when, in the city and county of New York, any person shall die from criminal violence, or by a casualty, or suddenly, when in apparent health, or when unattended by a physician, or in prison, or in any suspicious or unusual nianner, the coroner shall subpoena a properly qualiiied physician, who shall view the body of such deceased person externally, or make an autopsy thereon, as maybe required. Should the coroner deem it necessary, he may call a jury to assist him in his investigation, or should any citizen demand that a jury be called, he shall proceed as directed by part four, title seven, article one of the Kevised Statutes (§ 865, ante). Any citizen of this State not over seventy years of age, and being at the time a resi- dent of the county, may be summoned to serve as a juror upon a coroner's inquest ; and any person who shall will- fully neglect or refuse to serve as such juror, when duly summoned, shall, upon conviction, be adjudged guilty of a misdemeanor, and shall be punished by imprisonment in the county prison not e'xceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.:]: § 868. The coroner must summpn the jurors in per- son. It must be done in the same manner as jurors are summoned by a sheriff or other oflBcer, where the selection of the jurors is discretionary with such officer. He should exercise the same care in selecting the jurors as the officer * 3 B. 8. 6 ed. § 1, p. 1039. t 3 fi. 5. 6 ed. § 3, p. 1040. XZB.8.Q ed. §§ 17, 18 and 31, pp. 1041, 1043. 256 COROKER'S JFRT. is required to do in tlie case of jurors in a civil or criminal proceeding in courts of law. Care should be taken not to summon any person related to the deceased ; and if the person who caused the death or wounding is known, or if any suspicion is entertained who he is, no person related to or connected with such person should be summoned ; nor should any one who is known to be prejudiced for or against him be summoned to act as a juror upon the inqui- sition. The same care should be observed in such case to obtain a fair and impartial verdict as upon the trial of the party accused of the offence. Bnt the jurors who are selected and appear are not challengeable by either party.* § 869. "Whenever six or more of the jurors shall appear, they shall be sworn by the coroner, and charged by him to inquire how and in what manner, and when and where, such person came to his death or was wounded (as the case may be), and who such person was, and into all the circumstances attending such death or wounding ; and to make a true inquisition according to the evidence offered to them, or arising from the inspection of the body.f § 870. After the jury have been thus sworn and charged by the coroner, they with the coroner go together to view and examine the body of the deceased or the wounded person. It will not be sufficient that they view the body separately and at different times. And they cannot proceed upon the inquest until they shall have so viewed the body ; and if it be buried, it must be dug up. It is not necessary that the inquest be held where the body is found, but, after the body has been so viewed, the jury may return to some convenient place to hear the testi- mony of witnesses and deliberate upon their verdict.:]: § 871. The coroner swears or affirms the witnesses pro- duced before the jury, and examines them and reduces their testimony to writing.§ * 3 Eale'a Or. L. 59. t 3 i?. & 6 ed. § 5, p. 1040; 3 Hale's Cr. L. 60. See Forms. X R. V. Ferrand, i B. . Ellison, 1 Johns. 141). But the litigant parties do not make the case important within the meaning of the statute (Hartshorne v. Gelston, Col. & Caines, 434). A struck jury will not be ordered to try a question of title to the office of justice of a district court in New York (People ». McGuire, 43 How. Pr. 67). Neither will a struck jury be granted in an action for a libel on a public officer, unless it relate to his official conduct (Thomas v. Crosswell, 4 Johns. 491). The amount in controversy is not alone sufficient for the allow- ance of a struck jury (Wright v. Columbia Ins. Co., 2 Johns. 311). In an action for death by negligence, the defendant is not entitled to a struck jury (Murphy «. Kipp, 1 Duer, 659). A foreign and struck jury will be granted, where it appears that a town has contributed to the expenses of a suit (Stryker v. Turn- bull, Col. & Caines, 457). In general, a struck jury will not be ordered in the city of New York (Nesmith v. Atlantic Insurance Co., 8 Abb. Pr. 423). About summoning talesmen to fill up a struck jury see People V. Tweed (11 Run, 195, and 50 How. Pr. 386). 262 JUEIES IN SUEEOGATES' COURTS. § 885. Where an order for a 'trial by a foreign jury ia made, a certified copy thereof must be delivered to the sheriff of the county from which it is to be drawn ; who must give notice thereof to the clerk of that county ; and also, in the city and county of New York, or the county of Kings, to the commissioner of jurors, at least twenty days before the first day of the term at which the foreign jury is required to attend.* § 886. The clerk, or, in the county of Kings, the commissioner, to whom the notice is given, must draw the names of twenty-four persons in the same manner, and in presence of the same officers, as prescribed by law with respect to ordinary trial jurors; except that notice of the drawing need not be published. A certified list of the names drawn must be dehvered to the sheriff, who must notify each person drawn, and make a return, as in an ordinary case.f Juries m Surrogates' Courts. § 88T. The only cases in which the supreme court is authorized by statute to direct that an issue be made up and tried by a jury at a circuit court on appeals from the decisions of surrogates, are those by which wills have been admitted to probate, or refused to be admitted to record or probate.:|: A stay of proceedings to enable a party to move for a struck jury should only be granted at the trial term or by the justice assigned to hold that part of it, upon whose calendar the cause is placed (Walsh v. Sun Mutual Ins. Co., 2 Rob. 646; S. C, 17 Abb. Pr. 356). Where there appears to have been some irregularity in the pro- ceedings to obtain a struck jury, the court has power to set aside a jury already struck, and order a new jury (People ex rel. Kirtland ». Dillon, SiV. Y. Weekly Big. 89; S. C, 17 J«k, 1). * New Code, § 1070; 3 R. S. 410, § 10 (2 Edm. 427). t NewCode, § 1071 ; ^ R. 8. 410, § 11. X2R.8. p. 66, § 57 ; lb. p. 609, § 98 ; Z R. 8. 5 ed. p. 906, § 21 ; Laws of 1848, p. 295 ; Devin ». Patchen, 26 N. T. 445. No statute confers authority on the supreme court to direct the JURIES IN SUEKOGATES' COURTS. 263 The validity of any actual or alleged devise or will of real estate may be determined by the supreme court in a proper action for that purpose, in which all persons inter- ested, or who claim an interest in the question, may be made parties, and such action may be brought by any heir at law of the actual, or alleged testator or testatrix, or by any devisee under any actual or alleged will, and thereupon, after final judgment in such action, any party may be enjoined from setting up or from impeaching such devise or will, as justice may require. The court may also, in its discretion, during the pendency of any such action, restrain the commencement or prosecution of any other action involving the trial of the same question. Such adjudica- tion, however, shall not determine nor affect the validity of any such will as to any personal property, nor shall this act, or any proceeding taken by virtue thereof, affect or inter- fere with any suit or proceeding in any court of this State relating to the probate of any will. Issues of fact in such actions may be tried by a jury or the court, as the nature of the case may require and the court shall direct.* § 888. Issues of fact, which shall be joined in any sur- rogate's court to be tried by a jury, shall be tried in the coimty court of the county in which said surrogate's court is held.f § 889. The supreme court possesses only the same pow- ers and jurisdiction on appeals from the decisions of surro- gates that the court of chancery had, and the justices of the supreme court possess only the powers and jurisdiction that the chancellor, vice-chancellor and circuit judges had under the State Constitution of 1821 and the laws prior to the judiciary act of 1847. J issue whether a woman was the lawful wife and is the widow of the deceased, to be tried by a jury {lb.). * Laws of 1853, c. 238, § 1, as amended by Laws of 1879, c. 316. f3S.8.Q ed. p. 338, § 12; Laws of 1847, c. 380, § 45. t Laws of 1847, vol. 1, p. 333, § 16; lb. p. 334, § 17; 3 B. S. 5 ed. p. 377, § 1 ; /5. p. 906, § 33, &c. And except in probate cases (3 M. 8. §§ 55, 56 and 57), the appel- 264 JURIES isr sueeogates' couets, § 890. Prior to the adoption of the Revised Statutes of 1830, it was held that the court of chancery had power to award feigned issues in cases affecting the decrees of a surrogate, on the ground that the practice on appeals from such decrees was according to the course of the civil law, by which new allegations and new proofs were allowed to be introduced, in the discretion of the court, in any stage of the proceedings ; and it might call to its aid the verdict of a jury upon disputed questions of fact.* § 891. The same course was pursued und& the Kevised Statutes.f § 892. And the correctness of that practice has been to some extent recognized since the reorganization of the courts under the constitution of 1846, and since the adoption of the Code of Procedure.:]: § 893. In the case of CaujoUe v. Ferrie (9 Ahh. Pr. 393), the court of appeals rejected the additional testimony taken after the appeal to the supreme court, holding that the decree of the surrogate could only be reviewed on the evidence produced before him. § 894. The circuit judge had the power to reverse the decree where his conclusion either on the law or facts differed from that of the surrogate.§ If he reversed the decree upon a question of fact, he was required by the statute to direct feigned issues to be made up to try the question in controversy.] The same rule now prevails in the supreme court, and it is a matter of right, not dis- late court cannot on reversal award an issue of fact to be tried by a jury (Deyin v. Patchen, 26 N. T. 447). In Maine, upon an appeal from a decree of a probate judge, neither party can claim a trial by jury as a matter of right (Brad- street V. Bradstreet, 64 Me. 304). * Vanderhuyden v. Reid, 1 Hoph. 408 ; Van Wyck v. Alley, II. 653 ; Devin v. Patchen, 36 N. T. 441. t Scribner v. Williams, 1 Paige, 550; S. C, 36 K Y. 441. I Clayton v. Wardell, 3 Bradf. 6 ; Caujolle v. Ferrie, 9 Abb. Pr. 893; S. C, 33 iV. T. 90. § Marvin ®. Marvin, 3 Abb. Ct. of App. Dee. 193 ; Robinson v, Raynor, 38 N. T. 494. 1%B. B. p. 66, § 57. JURIES IK SUEEOGATES' COURTS. 265 cretion, that such an issue be tried by a jury, and the court has no authority in reversing a decree on the facts to direct the surrogate to enter & final decree in accordance with its order.* And the appellate court has no authority to direct this trial of such a feigned issue, unless it arrives at a con- clusion on the question of fact adverse to that of the original tribunal.f An appeal, as hereinbefore mentioned, is not heard by a justice of the supreme court sitting at special term, but is heard at a general term of the supreme court, which alone possesses the appellate jurisdiction in such cases. I § 895. The supreme court will not usually disturb the surrogate's decision on a question of fact where the evidence is evenly balanced, and directly controverted, and where the question is one simply of the credibility of witneBses.§ In a doubtful case on the facts, the case may be remitted to the surrogate for further testimony.! § 896. The court of appeals will review questions of fact, in probate cases, and where it is not convinced as to- the validity of the will propounded, it will reverse the decree admitting it to probate, and will send the case to a jury for investigation.^f * Tyler «. Gardiner, 35 N. Y. 596 ; Johnson v. Hicks, 1 Lans. 150;— contra, Pilling v. Pilling, 45 Barb. 86. t Tyler v. Gardiner, 35 iV. Y. 596. t Devin v. Patchen, 26 iV. Y. 447. § Eobinson v. Smith, 13 Ahb. Pr. 359- Lake v. Ranney, 33 Barb. 49. II Matter of Forman, 1 Tuck. 305. IF Howland v. Taylor, 53 iV. Y. 627. The surrogate may, in his discretion, make an order, directing the trial by a jury, at a circuit court to be held within the county, or in the county court of ih4 county, or, in the city and county of New York, in the court of common pleas, of any controverted question of fact, arising in a special proceeding for the disposition of the real property of a decedent, as prescribed in title fifth of this chapter. The order must state, distinctly and plainly, each question of fact to be tried ; and it is the only authority necessary for the trial {Mw Code, § 2547). A trial by (a jury, pursuant to an order made as prescribed in the last section, can be reviewed, in the first instance, only upon a motion 266 sheriff's jurt. Sheriff^ s {or Constables) Jury to Try Title to Personal Property, Taken v/nder Execution or Attachment. % 897. "Where it it specially prescribed by law that a sheriff must, or may, in his discretion, impanel a jury to try the validity of a claim or title to, or of the right of possession of goods or effects, seized by him by virtue of a mandate in an action, interposed by a person not a party to the action, the trial must be conducted in the following manner, except as otherwise specially prescribed by law : 1. The sheriff must from time to time notify as many persons to attend as it is necessary, in order to form a jury of twelve persons, qualified to serve as trial jurors in the county court of the county, or, in the city and county of New York, in the court of common pleas for that city and county, to try the validity of the claim. 2. Upon the trial, witnesses may be examined in behalf of the claimant and of the party at whose instance the property claimed was taken by the sheriff. for a new trial. A new trial may be granted by the surrogate, or the court in which the trial took place, or, if it took place at the circuit court, by the supreme court, in a case where a new trial of specific questions of fact, tried by a jury, pursuant to an order for such a trial, made in an action, would be granted. The verdict of the jury must be certified to the surrogate's court, by the clerk of the court in which the trial took place (New Gode, % 2548). Where the reversal or modification of a decree by the appellate court is founded upon a question of fact,_ the appellate court must, if the appeal was taken from a decree, made upon a petition to admit a will to probate, or to revoke the probate of a will, make an order, directing the trial by a jury of the material questions of fact arising upon the issues between the parties. Such an order must state distinctly and plainly the questions of fant to be tried ; and must direct the trial to take place either in a circuit court, specified in the order, or in the county court of the county of the surrogate, or, in the city and county of New York, in the court of common pleas. After the trial a new trial may be granted, as prescribed in. section 2548 of this act {New Code, § 2588). [The sections contained in this note have not yet been adopted.] SHERIFir'S JURY. 267 3. The sheriff or under-sheriff must preside upon the trial. A witness produced by either party must be sworn by the presiding officer, and examiued orally in the pres- ence of the jury.* § 898. Such inquiry or investigation may be taken by the sheriff whenever he has reason to doubt whether the property belongs to the defendant in an execution or not. And if he would protect himself against an action for a false return, it would be safer for him to summon a jury to try the title to the property before he releases it. If a jury summoned for that purpose find that the title is not in the defendant, the sheriff may then require the plaintiff in the execution to give him adequate indemnity, else he may return the execution unsatisfied. f § 899. The constable may, like the sheriff, call a jury to try the title of any claimant to the property levied on by him and with the like effect. Six jurymen would seem to be sufficient in such case. And he may also, like the sheriff, take a receiptor for the property seized. And he has the same rights in respect thereto as the sheriff in simi- lar cases, except that he must demand the property of the receiptor within the life of the execution, otherwise his lien is gone, and he cannot maintain an action upon such receipt.:]: § 900. If any goods or effects, seized by virtue of a warrant of attachment as the property of the debtor, other than vessels, shall be claimed by or in behalf of any other person as his property, the sheriff shall summon and swear a jury to try the validity of such claim in the same man- ner and with the like effect as in case of seizure under exe- cution.! * See note to next section. t New Code, §§ 108 (as amended in 1879), 109, 1418, 1419, and 1430, for fees of jurors in these proceedings, see § 340, ante. Hofheitner 4.,post).X § 953. If such demand be made to any single officer, he shall nominate eighteen reputable freeholders of the county, and shall issue a summons to the sheriff or any constable of the county, commanding him to cause the persons so nominated to appear before such officer, at a time and place to be specified in the summons, not less than six or more than twelve days from the time of issuing the same.§ § 954. At the time and place so appointed, twelve of the persons so summoned and appearing shall be balloted * 3 iJ. -9. 6 ed. §§ 174 to 178, incl. pp. 166, 167; for fees of jurors in these proceedings, see § 240, ante, t 3 iJ. 14. Oath of jurors on claim of property. Ton and each of you do swear, that you wiU well and truly try the claim of A. B. to the property levied on (or attached) by the sheriff of county, under the exe- cution (or attachment) in favor of C. D., at the suit of E. F., and true inquisition make according to the evidence. So help you God.f 15. Oath of witness on claim of property. Tou do swear, that the evidence you shall give to the jury, touching the claim of A- B. to the property levied on (or attached) by the sherifE of county, under the execution (or attachment) in favor of C. D., against E. F., shall be the truth, the whole truth and nothing but the truth. So help you God.f 16. Inquisition of jury upon claim to property. [Title of Action.] We, whose names are hereto signed, being a jury sum- moned and sworn by the sheriff of county, to try the claim of A. B. to the property levied on (or attached) * See §§ 905, 906, ante. t See §§ 897-901, ante. FOBMS. 305 by the said sheriff of county, under the execution (or~ attachment) in favor of C. J)., against E. F., to wit, one horse, &c., — do upon our oaths say that the title to the said property is (or is not) in the said A. B. "Witness our hands and seals, at &c., &c., &c., &c.* Jurors. Jurors. [l. s.] [l. S.J [l. s.] [l. 8.] [l, s.] [l. s.] G. H., Sheriff of Cowniy. 1 7. Oath of jurors to appraise homestead. You, and each of you, do swear, that you wJll well and truly appraise the homestead of , situate in the town of , in the county of , and that if in your opinion the same is worth more than one thousand dollars, then that you will say whether the same can be conveniently divided or no, and if yea, that you will fairly and honestly set off to the said so much thereof, with the dwell- ing, as shall in your opinion be worth one thousand dollars and no more. So help you ^od.f IS. Appraisal. [Title of Action.'] We, whose names are hereto subscribed, having been summoned and sworn by the sheriff of the county of , to appraise the homestead of in said county, and if in our opinion the same is worth more than one thousand dollars, then that we say whether the same can be conveniently divided or no, and if yea, that we set off to the said so much thereof as shall be worth ($1,000), one thousand dollars and no more ; do upon our oaths say that the said premises are worth not to exceed the sum of one thousand dollars (or exceed the sum of * See §§ 897-901, ante. t See §§ 907, 908. anU. 20 306 FOEMS. one thousand dollars, to wit, the sum of eighteen hundred dollars, and that in our opinion, the same cannot be con- veniently divided), or can be conveniently divided, and that we have set ofE to the said the following de- scribed part thereof, including the dwelling, which in our opinion is worth the sum of one thousand dollars, to wit : — (here describe property). In witness whereof we have set our hands and seals this day of , 18 — .* Jv/rors. [L. S.J [L. S.] A. B., Shsriff. 19. Oath of jurors on writ of inquiry for damages. You and each of you do swear that you will well and truly hear and determine the matter in difEerence between , plaintiff, and , defendant, and true inquisition make according to the evidence. So help you God.f 20. Oath to witness on writ of inquiry for damages. You do swear that the evidence you shall give in the matter and difference between , plaintiff, and , defendant, shall be the truth, the whole truth, and nothing but the truth. So help you God.f 21. Inquisition on writ of inquiry for damages. County of , ss. : Inquisition taken this day of , before me, A. B., sheriff of county, at , by virtue of a writ of inquiry to me directed, and to this inquisition annexed, to inquire of and concern- ing matters in said writ contained, and specified by the oaths of , twelve good and lawful men of said county, who, being summoned and sworn upon their oaths that the plaintiff in the said writ named hath sustained damages by reason of the premises in the writ mentioned * See §§ 907, 908, ante. t See §§ 963-972, ante. POEMS. 807 over and above his costs and charges to dollars. In witness whereof, we, as well as the said sheriff as the said jurors, have set our hands and seals to this inquisition the day and year above written.* A. B., Sheriff, [l. s.J Jurors. Jurors. [l. s.J [l. s.J [l. s.J [l. s.J 22. Oath to jurors on writ of ad quod damnum. You do swear that you will diligently inquire whether the person (or persons) owning the lands or tenements to be viewed by you, and which are mentioned and described in the writ of ad quod dam/num issued by the supreme court of this State to the sheriff of county, will sus- tain any and what injury by reason of the taking of such premises for the use of the people of this State (or of the United States), and will give a true verdict, according to the best of your judgment, without favor or partiality. So help you God.f 23. Inquisition upon a writ of ad quod damnum. State of ISTew York, County of f **' •' Inquisition taken this day of , 18 — , at, &c., before , sheriff of county, under and by virtue of the writ of ad quod damnum, to said sheriff directed and de- livered, and to this inquisition annexed, by the oaths of , qualified jurors of said county, who, being duly summoned and sworn by the said sheriff, say, upon their oaths, that A. B. is the owner in fee of the lands and tenements firstly described in said writ, as follows ; C. D. is the owner in fee of the premises secondly described in said writ, as follows ; and E. F. holds the said last-mentioned premises by lease granted by , on, &c., for the term of years, at an annual rent of dollars. That said A. B. will sustain * See §§ 962-973, ante. \ See §§ 941-946, anU. 308 roEMS. injury and damages to the amount of dollars by being deprived of the said premises so owned by him. That said C. D. will sustain damages to the amount of dol- lars by being deprived of the said premises so owned by him ; and that E. F. will sustain injury and damages to the amount of dollars by being deprived of the said premises so held by him, as aforesaid. And the said jui'ors, upon their oaths aforesaid, do fur- ther say that the people of the State of ISTew York should pay for the said several parcels of lands and tenements the said several sums so assessed as aforesaid, to the said persons to whom the same are assessed as aforesaid respectively. In witness whereof we, the said sheriff, as well as the said jurors, have hereto set their hands and seals, the day and year first above written.* A. B., Sheriff, [l. s.] Jurors. [L. S.J 24. Oath to foreman of coroner's jury on inquest. You do swear that you will well and truly inquire how and in what manner, and when and where, the person lying here (or whose body you have just viewed, as the case may be) came to his death (or was wounded), and who such person was, and into all the circumstances attending such deaih (or wouuding), and by whom the same was pro- duced, and that you will make a true inquisition thereof according to the evidence offered to you, or arising from the investigation of the body. So help you God.f 25. Oath to jurors on coroner's inquest. The same oath which A. B., the foreman of this inquest, hath on his part taken, you and each of you do now take, and shall well and truly observe and keep on your part. So help you God.;]: * See §§ 941-946, ante. t See §§ 865-877, ante. X See note to last form. FOEMS. 309. 26. Oath to witness on coroner's inquest. The evidence you shall give upon the inquest touching the death (or wounding) of (or of the person whose body has been viewed) shall be the truth, the whole truth, and nothing but the truth. So help you God.* 27. Oath to interpreter on coroner's inquest. You shall truly interpret to the witness the oath that shall be administered to him upon this inquest, and shall truly interpret between the coroner, the jury (and the coun- sel) and the witness. So help you God.* 3S. Coroner's inquisition. State of New York, | County of , ) **• " Inquisition taken at, &c., before — — , one of the coroners of said county, upon view of the body of (or person unknown), then and there lying dead (or wounded), upon the oath of E. F., G. H., J. K., &c., good and lawful men of the said county, who being duly sum- moned and sworn to inquire into all the circumstances attending the death (or wounding) of the said (or person unknown), and by whom the same was produced, and in what manner, and when and where the said came to his death (or was wounded), do say upon their oaths aforesaid, that (1) The deceased came to his death — ; (2) And so the said jurors say that the said killing of the deceased by the said was murder (or man- slaughter) in the degree. (3) In witness whereof, as well the said coroner, as the jurors aforesaid, have to this inquisition set their hands and seals on the day of the date therieof.* C. D., Coroner, [l. s.] E. E., Foreman, [l. s.] Jurors. G. H., [l. 8.J oe, and by Eichard Eoe (triers), to this chosen and sworn, is found true. And therefore let the panel aforesaid be quashed . and removed, &c."* 61. Challenge to array for favor. The King against Feai^ois Adams and Thomas Lai^gton. Court of Oyer and Termi- ner and Jail Delivery, in and for the Queens County. And upon this, the said F. A. and T. L., the prisoners at the bar, challenge the array of the said panel, because they say the panel was arrayed by one A. M. M., and not by the high sheriff or sub-sheriff of the Queens County ; and because the panel, by whomsoever arrayed, has been arrayed in a manner more favorable to the prosecutors than the prisoners. And because T. K., Esq., sheriff of said county, did permit said A. M. M. to array said panel, and did return thereon certain persons, and omit to return cer- tain other persons, at the instance of the said A. M. M., and among the rest did return thereon the said A. M. M. him- self. And because the said A. M. M., or the said sheriff or sub-sheriff, at the instance of the said A. M. M., did, in * See § 257, ante. 326 roEMS. arraying said panel, omit the names of certain persons, because he, the said A. M. M., deemed them more likely to acquit than to convict the prisoners, and inserted thereon the names of certain other persons, because he, the said \. M. M., deemed them more likely to convict than to acquit the said prisoners. And because the said A. M. M., or the said sheriff or sub-sheriff, at the instance of the said A. M. M., did, in arraying said panel, dispose the names of certain persons whom he, the said A. M. M., deemed more likely to convict the prisoners, above the names of other persons whom he, the said A. M. M., deemed more likely to acquit the prisoners, to the manifest wrong and injury of the prisoners; and this he, the said F. A. and T. L., are ready to verify. "Wherefore they pray judgment, and that the said panel may be quashed, and so forth, &c.* 62. Challenge to array. [Interested in the event.] And hereupon the said mayor, aldermen, and assistants of the said town of S., in the said county of S., do chal- lenge the array of the panel aforesaid, because they say that the said panel was arrayed and returned by J. B., Esq., who now is, and at the time of the arraying the said panel, and of the return thereof, was sheriff of the said county of S., which J. B. then was, and now is, one of the aldermen of the said town of S., in the said county of S., and concerned in interest in the event of the trial of the said several issues above joined to be tried ; and this they are ready to verify ; wherefore they pray judgment of the panel aforesaid, and that the said panel so as aforesaid, arrayed by the said sheriff for the trial of the said several issues in this cause, may be quashed, (fecf 63. Challenge to array. [Interested in the event— Another Form.] And now here at this day come, as well the said coro- ner and attorney of our said Sovereign Lord the King, who * See note to last Form. t See note to Form No. 60; Orovm Circuit Cmipanimi, p. 105. roKMs. 327 for our said Lord the King prosecutes in this behalf, as the said G. J., &e. (the names of all the defendants), by their attorney aforesaid ; and the jury thereupon impaneled likewise comes, and thereupon they, the said G-. J., &c. (as before), challenge the array of the said panel, because they say that the said panel was arrayed and returned by one H. B., Esq., who now is, and at the time of arraying the said panel, and of the return thereof, was sheriff of the said county palatine of C, which H. B. then was and now is a citizen and freeman of the said city of C, and county of the same city, where the supposed offence mentioned in the said information was committed ; and also for that the said H. B. hath contributed and paid a certain sum of money, to wit, the sum of fifty pounds, towards defraying the expenses of prosecuting and carrying on this cause, and he is con- cerned in interest in the event of the trial of the said sev- eral issues above joined to be tried, and this the said G. J., &c. (as before), are ready to verify, as the court here shall award : whereupon they pray judgment, and that the panel aforesaid may be quashed, &c. (To this challenge the coro- ner and attorney pleaded that the paael ought not to be quashed, alleging that the special jury was struck by a rule of the court of King's Bench ; but it seems he did not bring the rule into court, for which cause, and likewise his having traversed matter not alleged in the plea, or traversable, &c., the defendants demurred specially as follows :) And the said G. J., &c. (aU the defendants), by pro- testation say, that there is no such rule as the said coroner and attorney, in his said plea to the said challenge, hath above alleged ; nevertheless, for answer in this behalf, they say, that the said plea of the said coroner and attorney to the aforesaid challenge, and the matter therein contained, are not sufficient in law to prevent the quashing the said array of the said panel ; and that they to the said plea, in manner and form above pleaded, are under no necessity, nor bound by the law of the land to answer ; and this they are ready to verify ; wherefore they pray judgment, and that the panel aforesaid may be quashed. And for causes of this demurrer in law, the said G. J., &c. (as before), by 328 FOEMS. leave of the court here to them, for this purpose granted, according to the form of the statute in such case made and provided, show to the court here these causes following, to wit, for that the said coroner and attorney hath neither denied, nor sufficiently confessed, and avoided by his said plea, several material facts in the said challenge alleged ; and for that the said coroner and attorney hath traversed matters not traversable, and also other matters not alleged in the said challenge ; and also for that the said coroner and attorney, by his said plea, hath not sufficiently induced the traverse therein inentioned ; and for that the said coroner and attorney hath not produced the said supposed rule here in court, nor verified his said plea by the record thereof ; and for that the said challenge is in various other respects defective, insufficient, and informal, &c. And the said coroner and attorney of our said Lord the King, who prosecutes as aforesaid, for that he sufficient matter in law to prevent the quashing the said array of the said panel hath above alleged, which he is ready to verify, which matter the said G. J., &c. (as before) hath not gain- said, nor to the same in anywise answered, but the said verification do admit, have altogether refused, as before, prays judgment, and that the said jury may be taken, &c.* 64. Sealed rerdict. Doe V. EoB. Yerdict of jury. We, the jurors impaneled in the above-entitled action, find a verdict (for $1,000) in favor of the plaintiff (or, m favor of the defendant, or, if the action is one where the value of property should be assessed, and assess the value * See note to Form No. 61 ; Crown Circuit Companion, p. 105. FORMS. 329 of ihe^property {taken) at tlie sum of $ • {wnd find the sum of $ damages for the detention thereof), or, where the defendant has proven a counter-claim against the plaintiff, in favor of the defendant agaiqst the plaintiff for the sum of $ ), and so say we all. Attach signatures of all the jurors* * See §§ 546, 561, ante. INDEX TO FORMS. PAGE Challenge to Array for favor, No. 61 335 interest in event, No. 63, 63 836 relationship, No. 60 324 Coroner's Inquisition, Noa. 38-46 809-317 Inquisition on writ of ad quod damnum, No. 33 307 of coroner, Nos. 38-46 309-817 one accidentally choked. No. 41 316 drowned. No. 40 316 poisoned. No. 36 313 jumping or falling from cars, No. 45 . . 317 death from delirium tremens, No. 44 317 on body of infant, Nos. 34, 46 311, 317 death from intemperance and want, Nos. 43, 44 317 justifiable homicide. No. 87 313 manslaughter in first degree, No. 31. . . 310 ■ second degree. No. 83. 811 third degree, No. 33. . 311 murder in first degree, No. 39 810 second degree. No. 30 310 death from natural causes. No. 39 816 old age and want, No. 43... 317 by suicide. No. 38 315 with marks of violence. No. 85. . 311 on inquiry for damages on defaults. No. 31 306 in delunatico inquirendo proceedings. No. 58. ... 831 in habitual drunkard proceedings, No. 58 331 on homestead exemption appraisal, No. 18 305 in idiocy proceedings. No. 58 831 on origin of fires. No. 50 318 in case of pregnant female. No. 13 303 as to sanity of prisoner, No. 11 803 on claim of title to property. No. 16 304 Oath to constable on taking charge of justice's jury, No. 51. . 319 coroner's jury, Nos. 34, 35 308 foreman of coroner's jury. No. 34 308 grand jury. No. 53 320 jury on origin of fires. No. 47 318 grand jurors, Nos. 53, 53 320 interpreter on coroner's inquest, No. 37 309 [331] ' 332 INDEX TO POEMS. PAGE Oath to jurors on writ of ad quod damnum, No. 33 307 challenge, No. 8 303 in civil action. No. 1 301 criminal action. No. 3 301 inquiry for damages on defaults, No. 19. . . . 306 de lunatico inquirendo proceedings, No. 56.. . 331 habitual drunkard proceedings, No. 56 381 on homestead exemption appraisal, No. 17 305 in idiocy proceedings. No. 56 331 on insanity of prisoner. No. 7 303 in justice's court, No. 54 330 on origin of fires, Nos. 47, 48 318 sworn in panel collectively. No. 3 301 on pregnancy of female. No. 7 303 in special sessions, No. 55 331 on claim of title to property. No. 14 304 voir dire, No. 6 303 triers. No. 4 303 witness on challenge to juror. No. 9 303 coroner's inquest. No. 36 309 inquiry for damages on defaults, No. 30 . . 306 in de lunatico inquirendo proceedings. No. 57 . 331 habitual drunkard proceedings, No. 57 331 idiocy proceedings, No. 57 331 on insanity of prisoner. No. 10 J 303 origin of fires. No. 49 318 in case of pregnant female, No. 13 303 on claim of title to property. No. 15. 304 before triers, No. 5 303 Sealed Verdict, No. 64 338 Tenire in U. S. Courts, No. 59 333 TABLE OF CASES CITED. Adams «. Olive 48 Ala. 551 443 V. People 47 111. 376 587, 653 Albany Northern R.R. Co. ■». Bonnell,34 N. Y. 34^ 923, 933 Albreeht v. Walker 73 111. 69 368 Alexander v. Jamleson 5 Binney, 233 663 Alfred v. State 2 Swan, 581 360 Allen V. Cook 26 Barb. 374 907 Amherst i>. Hadley 1 Pick. 38-42 613, 703 Amory v. McGregor : . . 15 Johns. 24, 38 573 Anderson v. George 1 Buit. 333 618 V. State 14 Ga. 709 384, 385, 694 Anthony «. Smith 4 Bnsw. 503 635 Armsby v. People .2 S. C. 157 450 Armstead «. Com. 11 Leigh, 657 ... . 353, 365, 374 Artwein «. Com 76 Pa. St. 414 '. ... 345 Atkins V. State 16 Ark. 568 423, 661 Austin V. Ahearne 61 N. Y. 6 573 V. "Wilson 4 Cush. (Mass.) 373 556 Avery's Case 6 Abb. Pr. 146 951 Aylett «. Jewell 3 W. & BI. 1299 634 Babcock v. People 15 Hun, 347 598 Baggett 11. Meux 1 Coll. 140 910 Baker!). Rand 13 Barb. 153 575 !). State 15 Ga. 498 385 Ball V. Pratt 36 Barb. 407 900 Bank of United States s. Davis 2 Hill, 461 821 Barclay a. People 5 Leg, Gaz. 278; 8 Alb. L. J. 104 411 Barney v. State 13 S. & M. 68 509 Batchellor*. Schuyler 3 Hill, 387 900 Baum v.. Tarpenny 3 Hill, 76 847 Baxter v. People 3 Oilman, 386. . . 381, 493, 666 V. Putney 37 How. Pr. 140.. 831,830, 831 Bayley «. Bates 8 Johns. 143 898 BeaU. Finch 11 N. Y. 128 573 Bebee v.. People 5 Hill, 33. 634 Beekman «. Saratoga & S. R. R. Co.. 3 Paige, 75 930 Bell V. Morrison ; 37 Miss. 68 556 Bennetts. Howard 3 Day, 223 582, 613 [333] 334 TABLE OF CASES CITED. SECTION Benson «. Fish 6 Greenl. 141 661 Birchard v. Booth 4 Wis. 67 679 Birkheadj). Brown 5 Hill. 635 572 Birdsong i). State 47 Ala. 68 493 Black 11. State 42 Tex. 377 369 V. White 37 N. Y. S. C. 320 863 Blaine v. Chambers 1 Serg. & R. 169 613 Blake ii. Millspaugh 1 Johns. 316 347, 833 Blakeley v. Sheldon 7 Johns. 32 563, 632, 845 Board ex rel. Fountain v. Board of Supervisors 4 Barb. 64 927 Boardof Excise of Marion «. Tuck.. 3 N.Y. S. C. (T. &C.) 368. 847 Boddington«. Harris 1 Bing. 187 618 Boles «. State 13 S. & M. 398 649 Bonaparte v. Camden & A. R. R. Co. 1 Baldwin C. C. 205 930 Boon«. State 1 Kelley, 631 385 Borst e. Beecker 6 Johns. 333 448 Bowler «. Washington 62 Me. 312 584 Boyer«. Philadelphia & R. R. R. C0..6 N. Y. Week. Dig. 395. . 705 Bradstreet 11. Bradstreet 64 Me. 304 889 Brakefield «. State 1 Suecd (Tenn.), 315 . 361, 690 Brant «. Fowler 7 Cow. 563 669 Breedings. State 11 Tex. 357 404, 515 Brinkleyu. Brinkley 56 N. Y. 192 858 Brisbane v. Macomber 56 Barb. 376 . . 826, 830, 831 834, 835, 836 Bristow V. Com 15 Grat. 634 375 Bronson «. Mann 13 J. R. 460 947 «. People 32 Mich. 34 371 Brotherton v. People 7 N. Y. Week. Dig. 445. . . 725 Brown v. Com 2 Virg. Cas. 516 694 •!). Cook 9 Johns. 361 899 11. Cowdele 13 Johns. 384 843 «. Crashaw 1 Bulstr. 154 ; . . 416 11. La Crosse 21 Wis. 51 700 •». State 52 Ala. 345 436 Browning 11. State 33 Miss. 47 587, 649 Brunson v. Graham 3 Yeates, 166 .' 583 Buchannan v. State 34 Ga. 383 336 Buckner v. Jewell 14 Nat. Bank. Reg. 386. . . 819 Bulkleyv. Marks 15 Abb. Pr. 454 569 BuUard 11. Spoor 2 Cow. 430 832 Buna 11. Crowl 10 Johns. 239 841 Burdine?). Grand 37 Ala. N. S. 478 431 Burnham v. Hatfield 5 Blackf . (Ind.) 21 758 Burns v. Hoyt 3 Johns. 255 633 Burrell v. Acker 33 Wend. 606 899 Burroughs?). State 33 Ga. 403.. 701 Burr's Trial Vol. 1, pp. 367-416. . 373,409 Burtine v. State 18 Ga. 534 654 Bush 11. Prosser 11 N. Y. 356 656 Busick «. State 190hio,198 690 Cancemi^. People 16 N. Y. 501 331 Canjolle v. Fen-ie 9 Abb. Pr. 393; 33N.Y.494 892 Cannan v. Newell 1 Den. 36 821 TABLE OF CASES CITED. 335 8B0TI0N Carnal b. People 1 Park. Cr. 372 251, 327 Carpenter v. People 64 N. Y. 483 94, 282, 495 Carr ii. Carr 52 N. Y. 251-256. . . . 372, 573 Carrisi). Comm'rs., &c., ofWaterloo.2 Hill, 444 923 Chase v. People 40 HI. 352 700 Cheek D. State..., 35 Ind. 492 452, 668 Cherry D. State .6 Fla. 679 725 V. 5 Neb. 412 354 Chicago, &c. R. R. Co. ■». Buttolf.. .66 111. 347 409 Clare's Case 8 Gratt. 606 419 Clarks ®. Bates 15 Ark. 452 556 Clayton v. Wardell 2 Bradf. 6 893 Clum V. Smith 5 Hill, 560 623 Cochran v. State 7 Humph. 544 687 Cody V. State 3 How. (Miss.) 27 690 Cogan 1). Ebden 1 Burr. 383 566 Cohron v. State 20 Ga. 732 655 Coit u. Robinson 9 B. R. 289 819 Coker V. State 20 Ark. 53 607 Cole 1). Berry 6 Cow. 584 194 Coleman?). Moody 4 H. &M. 1 671 Collins V. Hasbrouck 56 N. Y. 157 575 Commissioners of HighwavB, &c. v. Judges, &c " 7 Wend. 264 923 Commonwealth ii. Abbott 13 Mete. 120 430 11. Austin 7 Gray, 51 343, 430 V. Beale Phila. 1854 674, 689 «. Buzzell. 16 Pick. 153. . . . 341, 409, 427 11. Clurey 2 Virg. Cas. 20 507 V. Drew 4 Mass. 891 683 V. Eagan 4 Gray (Mass.) 18 429, 433 V. Edgerly 10 Allen, 263 661 «. Flanagan 7 Watts & Serg. 415. . 372, 694 695, 696 V. Frazier 3 Brewst. 490 465 ». Gallagher 4 Penn. L. J. 512-520. 690, 703 ■!>. Gee 6 Cush. 177 341, 406, 407 V. Gross 1 Ashm. 281 373 •». Hayden 4 Gray, 18 404 V. Heath 1 Rob. 735 827 «. Hill 4 Allen, 591 344 V. 11 Cush. 137 758 0. Hughes 5 Rand. 655 694 i). Jolliffe 7 Watts, 585 477 i>. Jones 1 Leigh, 598 ; 13 East, 331.. 441 690 B.Knapp 9Pick.496 .. 340,483 V. 10 Pick. 477 438 V. Lennox 3 Brewst. 349 873 V. Lesher 17 Serg. & R. 155 417 e. Lippan 6 Serg. & R. 395 387 V. McPadden 11 Hams, 13 416, 438, 437 V. Mead 12 Gray, 167 758 ■». Moore 1 Gratt. 396 910 V. O'Neill 6 Gray (Mass.) 343 433 V. Porter 1 Gray (Mass.) 433 343 336 TABLE OP CASES CITED. SECTION Commonwealth v. Roby 12 Pick. 496.588, 639, 634, 671 ». Rogers 7 Mete. 500 466, 483 V. Sargent Thatch. Crim. Gas. 116.. . . 723 ». Sherry (Penn. MSS.) 409 V. Thrasher 11 Gray, 55 334, 438 «. Twombly 10 Pick. 480 439 «. Walters 6 Dana, 290 725 V. Work 4 Crumrine, 493 372 Conway ». Clinton 1 Utah T. 215 489 Cook V. Green 11 Price, 736 610 V. Newman ' 8 How. 523 907 Cook's Case 4 Harg. St. Tr. 740; 13 How. St. Tr. 311 476 Cooley V. State 38 Tex. 636 246, 451 Cooper V. Bissell 16 Johns. 146 203 V. State ..16 Ohio, 328 377 Cornelius!). State 7Eng. (Ark.) 782 652 Coster 4). Merset 3 Brod. & Bing. 273.. 616, 638 Costly®. State 19 Ga. 614 336 Cottle V. Cottle 6 Greenl. 140 613 Cowperthwaite o. Jones 2 Dallas, 55 681 Crabtree v. State. 3 Sneed (Tenn.), 302 679 Craig V. Elliott 4 Bibb, 273 701 Cramer v. City of Burlington 42 Iowa, 315 413 Crane v. Deygert 4 Wend. 675 279, 280 Crawford d. State 3 Yerg. 60 634, 685, 687 Creek i>. State 24 Ind. 151 647,674 Crippin v. State 8 Mich. 117 : 426 Crocker «. State 1 Meigs, 137 758 Dalrymple v. Williams 63 N. Y. 361 .... 565, 566, 575 Dana v. Fielder 12 N. Y. 40 573 V. Tucker 4 Johns. 487 681 Davis D. Bangor & P. R. R. Co 60 Me. 303 930 ■». People 19111. 74 515, 674 V. State 35 Ind. 496 669 V. 15 Ohio. 72 650 - — V. Walker 60 111. 453 395 Davison i>. Associates of Jersey Co. 71 N. Y. 333 863 Dawson ii.People 35 N. Y. 405. . . . 494, 768, 764 Dayharsh «. Enos 5 N. Y. 531 367 Deacon ». Shreve 2 Zab. N. J. 176 634 Dempsey v. People 47 111. 333 591 Dennison ». Collins 1 Cow. Ill 669 i: Hyde 6 Conn. 508 556 Dent V. Hundred, &c 3 Salk. 645 690, 692 V. People ■ IN. Y.S. 0.{T.&G.) 656.. 451 Devin ». Patchen 36 N. Y. 445. ..887, 889, 890, 894 Dew V. McDevitt 17 Am. L. Reg. N. S. 631 . 309 Dickerson ii. Watson ... 48 Barb. 413 571 Diveny v. Elmira 51 N. Y. 506 86, 351, 414 Dobbins v. State 14 Ohio St. 493 650 Dolan V. People 5 Hun. 493 284 i>. 64 N. Y. 485. .94, 383, 499, 500 501, 503 Donahue «. Henry 4 E. D. Smith, 163 845 TABLE OF CASES CITED. 337 SEOTIOK Donnell v. Jones etal..: 13 Ala. N. S. 490 556 Donston i). State 6 Humph. 275 596 Dooleys). State 28 Ind. 239 681, 683 Doughty v. Brill 36 Barb. 493 949 Dorlon v. Lewis 9 How. 1 626 Douglass «. Blackman 14 Barb. 381 ... . 838, 840, 847 D. Tousey... 2 Wend. 352 633 DoxB. Dey 3 Wend. 356 573 Doyle V. State 17 Ohio, 222 508 Drake «. Barrymore 14 Johns. 166 559 ' J). State 51 Ala. 30 451 Driskill v. State 7 Ind. 338 419 Drnmmond v. Lessie 5 Blackf. 453. . ." 611 Dubois et al. v. Weaver 25 N. Y. 123 570 Dull «. People 4 Den. 91 452, 464 Dunning v. Hurlbut 2 Chip. 45 701 Durfee «. Eveland 8 Barb. 46 838, 844 Durrell v. Mosher 8 Johns. 445 336 East Saginaw & 8. C. R. R. Co. v. Benham 12 Am. Railway Rep. 356 ; 28 Mich. 459 930 Eastwood V. People ... 3 Park. Cr. 25. . . 599, 646, 658 Edwards ». Beach 3 Day (Conn.) 457 556 Eiseman v. Swan 6Bosw. 669 573 Eppes V. State 19 Ga. 102 607, 612, 654 Epp's Case 5 Gratt. 681 365 Evans M. State 7 Ind. 271 651 Parrington v. Morgan 20 Wend. 208 918 Fenwipk v. Parker 3 Code R. 254 447 Ferris D. People 35 N. Y. 125 260 Pink ». Hall 8 Johns. 437 840 Fisher «. Hepburn 48 N. Y. 41 206 Fitch V. Commr's of Highways, &c.. 22 Wend. 132 949 Fleets. Hollenkemp 13 B. Monr. (Ky.) 219.... 556 11. Youngs 7 Wend. 300 949 Fletcher ». State 6 Humph. 249 399, 429 Poote V. Silsby 1 Blatchf.445 ; 14 How.281. 812 Forman, Matter of 1 Tuck. 205 895 Fox V. Smith 3 Cow. 23, 632 ■?ranchiera9 v. Henriques 6 Abb. Pr. N. S. 251 575 Frazier v. State 23 Ohio St. 551 318 Freeman I). People 4 Den. 9, 31-35. .251, 301, 313 325, 327, 351, 366, 451, 463 470, 471 French ». Smith 4 "Vt. 363 624 Friery v. People 2 Abb. Ct. of App. Dec. 230. 87 352, 489 V. SKeyes, 434 260 Fry V. Bennett 1 Abb. Pr. 289 556 Furoe. Reynolds 20 Barb. 275 848 Gage B. Com'l Nat. Bank of Chicago. 86 111. 371 863 Gale J). N. Y. C. & H. R. R 8 N. Y. Week. Dig. 245 ; 13 Hun. 1... 581, 587, 660 22 338 TABLE OF CASES CITED. sEcnow Galvin». State 6 Cold. (Tenn.) 383... 683, 688 Gardiner v. People 6 Park. Cr. 155, 193 . . 233, 235, 275 ■». 3 Scam. 88 380 Gardner «. Turner 9 Johns. 363 385 Gates V. People 14 111. 483 379, 382 George v. State 39 Hiss. 570 699 Giberton v. Fleischel 5 Duer, 653 863 Gilbert ii. Beach 16 N. Y. 608 571 Glann v. Younglove 37 Barb. 480 573 Grable v. Margrave 4 111. 373 556 Granger v. State 5 Yerg. 459 464 Grant ». McDonough 7 La. Ann. 447 556 Graves v. Short Cro. Eliz. 616 617 Gcrajv. People 36 111. 344 379 ®. R 1 Ola. Pin. 437 390 Greason v. Kettletas 17 N. Y. 491 862 Green v. Bliss 13 How. 438 561, 632, 630 «. Telfair 11 How. 268 567 Greenfield v. People 7 N. Y. Week. Dig. 345; 6 Abb. New Gas. 1; 13 Hun, 343.. 318, 333, 333, 328, 348 Greeuley®. State 60 Ind. 141 419, 574 Grey's Case 3 Harg. St. Tr. 519 ; 9 How. St. Tr. 127 476 Griffin ii. State 15 Ga. 476 385 Grinnell v. Phillips 1 Mass. 541 681 Grisson v. State 4 Tex. Ct. of App. 374 642 Griswold v: Dexter 62 Barb. 648 573 Grivens ». State 6 Tex. 344 699 Gross ». State 2 Carter (Ind.) 329 419 Hackley v. Hastie 3 Johns. 353 663 Hair v. Little 38 Ala. N. S. 336 556 Hale 11. Cove 1 Strange, 643 679 Hall ». State 51 Ala. 9 333 V. Stryker 27 N. Y. 603; 900 Hall's Case 6 Leigh, 615 604 Hancock v. Salmon 8 Barb. 564 838 Hanks D. State 31 Tex. 536 690 Hard v. Shipman 6 Barb. 630 848 Hardenburg v. Crary 15 How. 307 367 Hare v. State 4 How. 194 649 Hartshorne v. Gelston Col. & Caines, 434 884 Hartwright v. Badham 11 Price, 383 610 Harvey v. Rickett 15 Johns. 87 680 Hathaway v. Helmer 35 Barb. 29 315, 443 Hawkins v. Riley 17 B. Monr. (Ky.) 101.... 556 Hay V. Cohoes Co 3 Barb. 42 556 Hearn v. City of Greensburgh 51 Ind. 119 413 Heath «. Com 1 Rob. 735. . 326, 353, 367, 401, 690 Heffron v. Gallupe 55 Me. 563 584 Hegeman v. Cantrell 40 N. Y. S. C. 381 576 Hendrick v. Com 5 Leigh, 708. .. . 443. 467, 486 TABLE OP OASES CITED. 339 SECTION Henlon ®. Leanard 7 Johns. 300 845 Henries «. People 1 Park. Cr. 579 475 Herdgins v. State 2 Kelley, 173 385 Herndon v. Bradshaw 4 Bibb, 45 701 Hewlett V. Wood 62 N. Y. 75 857 Hickox V. Cleveland 8 Ohio, 543. 930 Hill, ex parte 3 Cow. 355 656 D. N. O. B. R. Co 11 La. Ann. 292 556 1). People 16 Mich. 351 700 Hilliard v. Nichols SRoot, 176 614, 618 Hines u. State 8 Humph. 597 640 Hix '0. Drury 5 Pick. 396 663 Hofheimer v. Campbell 59 N. Y. 269 898 Hogshead v. State 6 Humph. 59 676 Holt V. People 13 Mich. 224 389, 390 Hoobach v. State 43 Tex. 242 451 Hooker ». State 4 Ohio, 350 481 Hoppock, Matter of 2 Benedict, 478 819 Horton 11. Horton 3 Cow. 589. 645 How V. Brundage 1 N. Y. S. C. (T. & C.) 429. 283 Howerton ®. State 1 Meigs, 263 360, 694 Howland «. GifEord 1 Pick. 43 703 v. Taylor 53 N. Y. 637 896 e. Willetts 9 N. Y. 170 625 Howzer v. Com IP. F. Smith, 333 401 Hudson V. State ' 1 Blackf. (Ind.) 319 399 V. 9 Yerg. 408 582, 585 Huntley ». Bacon 15Conn.267 556 Hurlev v. State 6 Ohio, 399 650 Huydekoper v. Cotton 8 Watts, 56 758 Imlayt). Rogers 2 Halst. 847 758 Irick V. Black 3 Green N. J. 105 307 Irvine v. Kearn 14 Serg. & R. 393 373 Jackson v. Dickinson 15 J. R. 309 566 V. State 11 Tex. 361 509 V. Warford 7 Wend. 62 618 Jainagin v. State 10 Yerg. 539 640 James v. State 45 Miss. 573 506 V. 55 Miss. 57 681, 641 Jeffries v. Randall 14 Mass. 305 613 Jesse V. State 30 Ga. 156 404, 515 Jessup V. Eldridge Coxe, 401 661 Jewett ». Com 10 Harris, 94 477 Jim V. State 15 Ga. 535 694 V. 4 Humph. 289 686 John?). State 16 Ga. 200 336, 385 V. 8Ired. 330 637 Johnson «. Hicks 1 Lans. 150 894 V. State .83 Ark. 309 658 Jones V. Brooklyn Life Ins. Co 61 N. Y. 79 573 V. People 3 Col. T. 351 349, 486 V. State 3 Blackf. 475 419 i>. 13 Tex. 168 675 Jordan ®. Meredith 3 Yeates, 318 703 340 TABLE OF CASES CITED. BEOTION Joseph ». Bodwell 38 La. Ann. 383 ; 36 Am. Rep 103 859 Josephine v. State 39 Miss. 613 410 Jumpertz «. People 31 III. 375 587, 653, 658 Kassing v. Griffith et al 86 111. 365 863 Keegan s. Kavanagh 63 Mo. 330 409 Keener v. State 18 Ga. 194 690, 701 Kelley v. People 55 N. Y. 565 449 Kennedy v. Com 3 Virg. Cas. 510 694 11. Seamans 60 Ga. 613 877 t). Williams 3 Nott & McCord, 79 703 King 11. Havens 35 Wend. 430 570 V. Mayor 36 N. T. 186 931 V. Root 4 Wend. 13 556 II. State 5 How. (Miss.) 730 441 Knight V. Preeport 13 Mass. 318 583, 613 Kroer ii. People 78 111. 394 368 Krom V. Schoonmaker 3 Barb. 647 556 Labar ii. Koplin 4 N. Y. 547 637 Lake ». Ranney ; . . .33 Barb. 49 895 Lamb ii. State 36 Wis. 434 451 Lane «. Crary et al 19 Barb. 537 947, 949 11. Scoville 16 Kans. 402 436 Lansing v. Montgomery 3 Johns. 383 559 Lavin v. People 69 111. 303 409 Lawson, Matter of 2 Nat. Bank. Keg. 396 819 Leach «. People 53 111. 311 381 Lee V. State 45 Miss. 114 357, 395 11. Schadsey 3 Keyes, 543; 3 lb. 333. . . 621 Levells ii. State 33 Ark. 585 563 Lewin's Case 3 Lewens C. C. 135 875 Lewis 11. Pew Anth. K P. 103. 350 11. Lewis .11 N. Y. 327 916 11. State 9S. &M. 115 419 Lindsley v. Bushnell 15 Conn. 335 556 V. People 6 Park. Cr. 233 451, 456 Lisle 11. State 6 Mo. 436 701 Lithgow V. Com 3 Va. Cas. 297 493 Livingston ». Columbia Ins. Co Col. & Caines, 339 884 V. Plainer 1 Cow. 175...- 570 Lockwood 11. Bull 1 Cow. 322 559 Lohman v. People 1 N. Y. (Comst.) 379. 409, 916 Lonsdale ii. Brown 4 Wash. C. C. R. 148 663 Lord Grey's Case 3 Harg. St. Tr. 519 476 Lowenberg v. People 5 Park. Cr. 414; 37 N. Y. 336 ... . 393, 332, 397, 418 Lowe's Case 4 Greenl. 439 758 Loyd V. State 45 Ga. 57 396 V. 60 Ga. 145 758 Lummis v. Kassen 43 Barb. 375 900 Luster v. State 11 Humph. 169 600 Macfarland's Trial 8 Abb. Pr. (N. S.) 57 346 Mallory ». Wood 6 Duer, 657; 3 Abb. Pr. 369; 14 How. 67 571 TABLE OP CASES CITED. 341 SECTION Manhattan Co. v. Lydig Col. & Caines, 433 884 Manley v. Shaw 1 Car. & M. 361 630 Manning v. Monaghan 33 N. Y. 539 573 Mansell b. R 8 E. & B. 54; Dears. & B. 375 390, 476 Maretzek ». Cauldwell 5 Rob. 660; 3 Abb. Pr. (N. 8.) 407 310, 311 Marsh «. Coppuck 9 0. & P. 480 461 Martin v. Com 3Leigh, 745 634, 655 V. State 35 Ga. 494 595 —^ •». ' 54 111. 335 608 V. 16 Ohio, 364 419 Marvin ». Marvin 3 Abb. Ct. of App. Dec. 193 894 Mason, Matter of .Barb. S. 0. R. 437; 3 Edw. Oh. Pr. 380 913 Mayor v. Blache 3 La. 619 399 i>. State 4 Sneed, 597 360 &c. of N. Y. «. Mason 1 Abb. Pr. 344-353; 4 E. D. Smith, 143 367 McAllister «. State 17 Ala. 434 699 McOann v. State 9 S. & M. 465 607, 649 MoCarter «. Com 11 Leigh, 633 634 McCarty ». State 36 Miss. 399 403 McOlosky V. People 6 Park. Or. 155 378 McCorkle v. Binns 5 Binn. 340 '. . . 701 McCreary v. Com 39 Penn. St. 338 657 McElrath ». State 3 Swan, 378 589 McFaddent). Com 33 Penn. St. (11 Harris) 13 443, 467, 655 McGehee v. Shafer 9 Tex. 30 698 McGowan v. State 9 Yerg. 184 360, 493 McGregg ». State 4 Blackf. 106 354 McGuffleo. State 17 Ga. 497 634, 735 McGuire v. State 37 Miss. 369 487 McKinley v. Smith Hardin, 167 701 McLain v. State 10 Yerg. 341 640 McLean v. State 8 Mo. 158 658 McNall V. McOlure 1 Lans. 33 430 McNamara «. King 7 111. 433 556 McNevins v. People 61 Barb. 308 494, 754 McQuillan «. State 8 S. & M. 587 509 Mechanics & Farmers Bank v. Smith . 19 Johns. 115 330, 399 Mellish 11. Arnold Bunb. 51 679 Merrian v. Harsen 3 Barb. Oh. Pr. 333 910 Merrills v. Tariff M'f 'g Co 10 Conn. 384 556 Meyer ii. State 19 Ark. 156 383 Middletown v. Ames 7 Vt. 166 413 Milburn «. Beach 14 Mo. 104 556 Miley i>. Lebanon Nat. Bank 1 Penn. (Pearson) 541. 313, 701 Miller ». Wild Cat, &c. Co 53 Ind. 51 413 Milligan's Case 6 0. H. Rec. 69 866 Mills i\ Pulver 3 Den. 84 838 Miner u. Burling 83 Barb. 541 917, 919 Mitchell V. Carter 14 Hun, 448 663 V. Milbank 6 T. R. 199 573 342 TABLE OP CASES CITED. SECTION Mitchum v. State 11 Ga. 610 694 Moblev V. State 46 Miss. 501 704 Mofiat 1). Moffat 10 N. Y. 468; 17 Abb. 4. . 862 Monroe ». State 5 Ga. 85 679 Montague v. Com 10 Gratt. 767 404, 407 Morgan, Matter of 7 Paige, 236 913 Mo,ses V. State ; 11 Humph. 332 360 Moss V. Priest 19 Abb. 314; 1 Rob. 633. . 563, 573 Murphy «. Kipp 1 Duer, 659 884 V. Lippe 35N.Y. S. C. 543 573 V. People 2 Cow. 815, 818 b 851 V. State 37 Ala. 147 433 Murray v. State 48 Ala. 675 451 Musick V. People 40 111. 268 497 Ned V. State 33 Miss. 864 607 ». 7 Port. 187 378 Neeley o. People 13 111. 685 379 Neil V. Abel .' 24 "Wend. 185 842 Nelms V. State 13 S. & M. 500 649 Nesmith «. Atlantic Ins. Co 8 Abb. Pr. 423 884 V. Clinton Fire Ins. Co. ........ 8 Abb. Pr. 141 626 Newcomb v. Butterfield 8 Johns. 264 570 New Windsor Turnpike Co. ■». Ellison 1 Johns. 141 884 New York v. Mason 4 B. D. Smith, 142; 1 Abb, Pr. 344 274, 829 Niles V. Brackett 15 Mass. 378 618 Noe V. State 4 How. (Miss.) 330 357 Nolen V. State 3 Head, 530 594 Norfleet v. State 4 Sneed (Tenn.), 340. 870, 493, 690 Norton ». Breitenbach 1 Penn. (Pearson) 467 567 Oakley v. Van Horn 31 Wend. 305 i . . . 847 Gates' Case 10 How. St. Tr. 1079. ... 471 O'Brien 1). People 36 N. Y. 376; 48 Barb. 374 351, 354, 418 O'Connell «. R 11 Cla. & Pin. 155 290 O'Connor D. State 9 Pla. 215 364 Ogle «. State 33 Miss. 383 357, 361 Oliver v. Trustees 5 Cow. 284 645 O'Mara v. Com 75 Pa. St. 424 333 Onions ». Naish. 7 Price, 208 610 Organ «. State 36 Miss. 78 624 O'Shea v. Kirker 8 Abb. Pr. 69 573 Osiander v. Com 3 Leigh, 780 367 Packard v. United States 1 Iowa, 225 624 Parker vl Laney 58 N. Y. 469 578, 857, 861 ». Thornton 3 Ld. Raym. 1410 703 Parks 1). State 4 Ohio (N. S.) 334. . . 690, 701 Parr v. Seames Barnes, 488 679 Partridge v. Norton 9 Hun, 583 571 Patchin ®. Sands 10 Wend. 570 884 TABLE OF CASES CITED. 343 SECTION Peiffer s). Cora 3 Harris, 471 638, 658 Pelham v. Page 1 Eng. (Ark.) 535 676 People «). Acosta 10 Cal. 195 697 V. Aichinson 7 How. Pr. 241 459, 475 ». Albany C. P 6 Wend. 548 197 — r- «. Albany & S. R. R. Co 5 Lans. 25 ; 7 Abb. New Cas. 265; 1 Lans. 308; 55 Barb. 344; 38 How. 238 862 V. Allen 43 N. Y. 28-34. . 329, 398, 510 B. Backus 5 Cal. 275 624 V. Baker 3 Abb. Pr. 47; 3 Park. Cr. 181 221 V. 10 How.' Pr. 567. .'..'. '. '. '. '. 757 «. Bebee 5 Hill, 32 645 V. Bodine 1 Den. 281-809 ; 1 Edm. Sel. Cas. 36 319, 327, 347, 351, 401, 437, 451, 458, 474, 481; 493, 690 V. Buckley 4 Cal. 341 351 V. Cancemi 7 Abb. Pr. 299 235 V. Carnal 1 Park. Cr. 256. . 592, 610, 622 V. Christie 2 Park. Cr. 579; 2 Abb. Pr. 526 400, 403, 409 V. Collins 30 How. Ill 872, 875 «. Colson 49 Cal. 679 271 1). Colt a Hill, 435 223 11. Corning 2 N. Y. 9 547 ■». Cotta 49 Cal. 167 251, 271 ». Cummings 3 Park. Cr. 343 197 ». Cunningham 3 Park. Cr. 531 757 V. Cyphers 5 Park. Cr. 681 737 B.Damon 13 Wend. 351 418, 437, 460, 468 B. Dewick 3 Park. Cr. 230 308 B.Dixon 3Abb.Pr.395 757 2). Doe 1 Mann. Mich. 451... 257, 304, 305 V. Douglass 4 Cow. 26 634, 645 9). Edwards 41 Cal. 640 393 V. Fanner 2 Cal. 257 419 V. Freeman 1 Den. 9 493 V. Puller 2 Park. Cr. 16. .. .278, 816, 354, 366 B. Griffin 38 How. Pr. 477 760 ». Hamilton 39 N. Y. 107 461, 472 B. Harriott 3 Park. Cr. 112 728 «. Harris 4 Den. 153 221 B. Hartung 4 Park. Cr. 256 609 B. Hayes 1 Edm. Sel. Cas. 583 354 •». Henries 1 Park. Cr. 579. . ..451, 456, 459 B. Hettrick 1 Wh. Cr. Cas. 899 830 V. Honeyman 8 Den. 121 331, 854 b: Horton 13 Wend. 8 329, 481 B. Hughes 29 Cal. 357 624 V. Hulbut 4 Den. 133 758 344 TABLE OP CASES CITED. BBOTIOK People V. Jewett 3 Wend. 314; 6 lb. 386. . . 386 494, 496, 498, 510, 730, 754 V. Johnson 3 Wh. Cr. Cas. 361-367. . . 366 409 V. Johnston 46 Cal. 78 358 V. Jones , 1 Edm. Sel. Cas. (Circuit, 1845) 407 V. King , 37 Cal. 507 695 ». Knickerbocker 1 Park. Cr. 303. . 330, 401, 493 V. Lamed 7 N. Y. 445-451 197 ■O.Lee 17 Cal. 76 405 V. Lohman 3 Barb. 316 331 1). Macauley 1 Cal. 379 393 V. Mahoney 18 Cal. 180 391 V. Mallon 3 Lans. 334-339. . 333, 366, 369 V. Masters 3 Park. Cr. 517 459 V. Mather 4 Wend. 339. .. . 391, 304, 309 347, 348, 351, 431, 444 V. McCarty 48 Cal. 557 451 «. McCollister 1 Wh. Or. Cas. 391 314 «. McGuire 43 How. Pr. 67 884 V. McGungill 41 Cal. 439 391, 492 V. Melvin. ....'-. 3 Wh. Cr. Cas. 363 330 V. Michigan Southern R. R. Co . 3 Mich. 496 930 1). Monahan 33 Cal. 68 498 1>. Murphy 45 CaL 137 371 V. Northern R. R. Co 42 N. Y. 317 857 , V. Page 1 Idaho, 114 661 V. Quigg ...59N. Y. 86. 710 V. Ransom 18 John's. 318 645 . • ». Rathbun 31 Wend. 509. . . 304, 307, 353 V. Renfrou 41 Cal. 37 291 - — V. Riley 5 Park. Cr. 401 851 «. Rogers 13 Abb. Pr. (N. S.) 370. . . 197 V. Schuyler 4 N. Y. 183 900 1). Shattuck 6 Abb. New Cas. 33 758 «. Simpson 38 N. Y. 60 916 V. Stewart 7 Cal. 140 421 V. Stokes 53 N. Y. 173 371 ». Stonecifer 6 Cal. 495 493 V. Symonds 23 Cal. 348 653 V. Thayer 1 Park. Cr. 595 453 V. Thompson 41 N. Y. 1 313 V. Tweed 11 Hun, 197; 13 Abb. Pr. (N. S.) 371; 50 How. Pr. 273-386 383, 468 880, 884 V. Van Home 8 Barb. 158 459, 757, 763 V. Vasquez 49 Cal. 560 371 V. Vermilyea 7 Cow. 369 197, 690 V. Walters 18 Abb. Pr. 148. 454 V. Webb 1 Hill, 183 331 v. Webster 14 How. Pr. 345 . . 834, 835,836 J). Williams 6 Cal. 306 394 ». Wilson 3 Park. Cr. 199 306, 435 ». Wintermute 1 Dakota (Bennett), 63 494 TABLE OP CASES CITED. 345 BBOTION People V. Young 31 Cal. 564 758 ex rel. Blake v. Holdridge 4 Lans. 511 63 ex rel. Davids v. Wilson 13 How. 446 915 ex rel. Flint v. Cline 23 Barb. 197 932, 923 ex rel. Kirtland «. Dillon 8 N. Y. "Week. Dig. 89; 17 Hun, 1 884 ex rel. La Torre v. O'Brien 54 Barb. 38 958 ex rel. Lefever v. Board of Su- pervisors 34 N. Y. 368-271 924 ex rel. Livermore v. Hamilton, Jr 89 N. Y. 109; 15 Abb. Pr. 334.... 456, 830, 831, 917 919 ex rel. Ludlum ». Wallace 4N. Y. S. C. (T. &C.) 439. 923 ex rel. Murray o. Justices of Special Session 12 Hun, 533 855 ex rel. Ottman v. Hyndes et dl. . 80 N. Y. 470 948 ex rel. Perkins v. Judges, &c . . 8 Cow. 127 567 ex rel. Tweed ». Liscomb 3 Hun, 760; 60 N. Y. 559. 393 371 ex rel. Van Sickle v. Eldridge. .3 Hun, 541 ; 6 N. Y. S. C. (T. & C.) 30 925, 926 937 ex rel. Walker c. Special Ses- sions 4 Hun, 443 851 Perkins v. Knight 3 N. H. 474 582 V. State 4 Ind. 232 758 Phelps 11. People 6 Hun, 401; 72 N. Y. 335. 371 Philips ». Com 19 Gratt. 485 689 B. Melville 10 Hun, 311 573 Pierce v. Bush 3 Bibb, 347 701 11. State 13N.H.536 407 Pilling ». Pilling 45 Barb. 86 894 Piatt 11. Sherry 7 Wend. 336 898 Poage V. State 3 Ohio St. 329 650, 658 Pollard n. Com 5 Band. 659 367 Poore v. Com 2 Virg. Cas. 474 694, 695 Pope «. State 36 Miss. 122 609, 674 Porter et al. v. Cass 7 How. Pr. 441 836, 915 V. State 3 Carter. 485 647 Pound V. State 43 Ga. 88 593 Powell ». People 5 Hun, 169; 63 N. Y. 88. . 381 Presbury v. Com 9 Dana, 303 436, 690 President of W. W. Turnpike «. People 9 Barb. 161 451, 456 Price V. Warren 1 Hen. & Munf. 385. . 594, 661 Pringle v. Huse 1 Cow. 433-436 361, 385 347, 399 Probst's Case Official Report, 8 409 Prussel V. Knowles 4 How. (Miss.) 90 366 Pugsley 11. Anderson. 3 Wend. 468 947, 948 Pupke, matter of 1 Benedict, 842 813 Purinton v. Humphreys 6 Greenl. 879 594, 661 Quesenbury v. State 3 Stew. & Port. 308 378 Quinn v. State 14 Ind. 589 658 346 TABLE or CASES CITED. BECTIO£f Eawle V. State 8 S. & M. 599 509 Ray 1). State 15 Ga. 232 624, 690 V. 4 Tex. Ct. of App. 450 667 Raymond v. Danbury & N. R. R. Co . 14 Blackf. 133 812 Read ii. Cambridge 134 Mass. 567 ; 36 Am. Rep. 690 589 " Reading's Case 7 How. St. Tr. 265 471 Rex v. Bennett 6 C. & P. 179 875 «. Bowen 3 C. & P. 603 875 V. Brandreth 83 How. St. Tr. 774 246 V. Despard 2 Man. & R. 406 436 «. Dolby 2 B. & C. 104 259 V. Edmunds 4 B. & Aid. 471 326 V. Peirand 3 B. & A. 260 870 ». Frost 9C. &P. 136 475 ■». Hunt 4B. &A. 430 703 V. Marsh 6 Ad. & El. 236 753, 758 •». Martin Law Rep. 1 C. C. 378 582 V. Nicholas 7 C. & P. 538 875 «. Parry 7 C. & P. 836. . . 473, 476, 485 V. Savage 1 Mood. C. C. 51 . . . . 361, 288 ». Sullivan 1 P. & D. 96 703 V. Sutton 8 B. & C. 417; 2 M. & R. 406 289, 436, 699 71. 4 Maule & Sel. 533. . . 593, 661 e. Tremaiue 7 D. & R. 684 703 ». Upon St. Leonards 10 Q. B. 837 758 V. Woolf 1 Chitty, 401 634, 656 Reynolds, matter of 6 Park. Cr. 309 333 «. Champlain Transp't'n Co. . . 9 How. 7 626 V. State 61 Ind. 392 859 V, 1 Kelley, 233 384, 479 Rice «. Buchanan 41 Barb. 148 831 B. State 7 Ind. 333-336 354, 695 Richardson e. Jones 1 Nev. 403 674 Riley's Case 1 C. H. Rec. 33 366 Ritchie v. Holbrook 7 Serg. & R. 458 613 Roach v. Cosine 9 Wend. 330 921 Roberts v. Failis. 1 Cow. 238 680 V. Heim 27 Ala. N. S. 678 556 V. Hughes 7 M. & W. 899 566 V. State 14 Ga. 8 654 Robins v. Gorham 26 Barb. 588-592 821, 834 835, 836, 949 Robinson «. Raynor 28 K. T. 494 894 ». Smith 13 Abb. Pr. 359 895 , Rogers c. Monthrop 13 Wend. 374 841 Romaine v. State 7 Ind. 63 701 Rose v. Smith 4 Cow. 17 669 Rowan v. Lytle 11 Wend. 616 916 Rowe v. State 11 Humph. 491. . 587, 607, 673 Roy V. State 3 Kans. 405 864 Rulofi V. People 18 N. Y. (4 E. D. S.) 179. 599 659 Ruloff's Case 11 Abb. Pr. (N. S.) 287. . , 225 Russell, matter of 1 Barb. 8; Ch. R. 38 909 TABLE OP CASES CITED. SiV SECTIOK Eussell ®. People.. 44 111. 508 653 Ryan «. Harrow. 27 Iowa, 494 669 Sackett v. Spencer 39 Barb. 180 571 Sam V. State 13 Sm, & M. 189 363 V. 1 Swann (Tenn.), 61 590 Samuels v. Bryant 14 Abb. Pr. N. S. 443 898 Sanches ». People 33 N. Y. 147 336 Sargent v. Dunnison 5 Cow. 106 566 Schonton v. Kilmer 8 How. 537 907 Scranton v. Stewart 53 Ind. 68 385 Scribner v. "Williams 1 Paige, 550 ; 36 N. Y. 441 . 891 Seacore v. Burling 1 How. Pr. 175 440 Sealey «. State 1 Kelley, 313 479 Sefridge's Trial (Pamph.) 9 409 Sellers v. People 3 Scam. 414 380, 690 «. State 53 Ala. 368 389 Shappener v. Second Ave. R. R. Co . 55 Barb. 497 625 SheafE v. Gray 3 Yeates, 373 663 Sheldon v. Perkins 33 Vt. 550 634 Sherman ». Dutch 16 111. 383 556 Shields v. N. 8. Bank 3 Hun, 477; 5 N. Y. S. C. (T. & C.) 588... 303, 223 383 Shobe V. Bell 1 Randolph, 39 681 Shomo V. Zeigler 10 Phila. Rep. 611 597 Shove v. Raynor 3 Den. 78 847 Simms v. State 60 Ga. 145 758 Smith «. Cheetham 3 Caines, 57 680 V. Eames 3 Scam. 78 380, 381 i>. Floyd 18 Barb. 522 311, 312 Snell v. Lonckes 12 Barb. 385 858 Sparks ». "Wakeley 7 N. Y. Week. Dig. 80 597 Spinely ii. De Willott 7 East, 108 616 Sproucea. Com 2 Virg. Cas. 375 367 Stanton v. State 13 Ark. (8 Eng.) 317. . . 607 Starkweather •». Seeley 45 Barb. 166 916 State V. Anderson. 2 Bailey, 565 658 V. 5 Harrington, 493 373 •». 4 Nev. 265 609 V. Andrews 39 Conn. 100 595, 605 V. Arthur 3 Dev. 317. 477 «. Ayer 3Foster (N. H.) 301. . 604, 694 ». Babcook 1 Conn. 401 634, 647, 658 «. Baker 30 Mo. 238 758 ■». 63 N. C. 376 607 V. Baldy 17 Iowa, 39 669 V. Barton 19 Mo. (4 Bennett) 337 634 V. Benton .2.Dev. & Bat. 196. .. . 355, 399 408, 479, 493 V. Bone 7 Jones, 131 355 ■». Bonwell 2 Harrington, 539 373, 399 656 ». Brannon 45 Mo. 339 647 V. Brewer 8 Mo. 373 758 348 TABLE OF CASES CITED. SECTION State 9. Brooks 9 Ala. 10 509 V. Brougton 9 Ired. 96 758 V. Brown 15 Kans. 400 333 ■». Bryant 10 Yerg. 537 509 D. Bullard 16 N. H. 189 669 V. Burnside 87 Mo. 343 359, 690 V. Calhoun 1 Dev. & Bat. 374 735 V. Cameron 3 Chandler (Wis.) 173 469 •». Carstaphen 3 Hayw. 338 656 ■^ V. Carver 49 Me. 588 509 «. Caulfield 33 La. Ann. 148 363, 674 V. Clark 43 Vt. 639 338 V. Cockman 1 Wins. N. C. No. 3-95... 355 V. Collins 3 Devereaux, 117 735 V. Cox 6 Ired. 440 735 ■ V. Crank 3 Bailey, 66 399 V. Craton 6 Ired. 164 477 V. Creighton 1 Nott. & McC. 356 735 V. Cucuel 3 Vroom (N. J.), 349 604 . 655, 674 V. Darocha 30 La. Ann. 356 259 1}. Davis 39 Mo. 891 359, 694 - — V. Duncan &T 7 Yerg. 371 509 V. Ellington .' .7 Ired. 61 356 ®. Evans 31 La. Ann. 331 643 V. Fassett 16 Conn. 457 758 V. Felton 35 Iowa, 67. ... : 658 V. Fowler 1 Walker, 318 441 V. Fox .......1 Dutch. 566 695 1). Ga. Deois. part 1, 35 634 V. Frank 33 La. Ann. 313 658 11. Freeman 13 N. H. 488 735 V. Gilliek 7 Iowa (Clark), 387. . 498, 690 «. Gut 13 Minn. 341 359 V. Hascall 6 N. H. 353 613, 703 «. Hopkins 1 Bay, 373 690, 693 ■». Howard 17 N. H. 171 . . . . 338, 334, 403 419, 695 V. Huzel 37 La. Ann. 375 333 ■». Igo 21 Mo. (6 Bennett), 459. . 634 v. Jewell 33 Me. (3 Eeding), 583. . . 388 419 «. Johnson 1 Walk. 393 358 1). Kingsbury 58 Me. 339 330 v. Lautenschlager 33 Minn. 514 443 ». Madoil 12 Fla. 151 698 ®. Marshall 8 Ala. 303 404, 515 ». 6 N. H. 353 616 B. McClear 11 Nev. 39 253 ■». McElmurray 3 Strobh. 33 648, 658 V. McKee 1 Bailey, 651 ... . 648, 656, 658 V. McQuaige 5 S. C. (Richardson), 439. . 493 ■». Middleton 5 Porter, 484 504 V. Miller 1 Dev. & Bat. 500 647, 656 V. Morea 3 Ala. 375 488 ». Murphy 33 Iowa, 270 678 TABLE OF CASES CITED, 349 SEOTION State ». Noblett 3 Jones' Law (N. C), 418. 585 V. Nolan 13 La. Ann. 376 419, 436 V OflEutt 4 Blackf. 355 758 11. Ostrander 18 Iowa, 434. . . . 333, 397, 405 V. Oxford 30 Tex. 428 758 V. Parks 31 La. Ann. 351 701 v. Parrant 16 Minn. 178 644 V. Patrick 3 Jones' Law (N. C), 443. 690 701 V. Peter Ga. Decis. part 1, 46 634 V. Plower 1 Walk. 318 358 «. Populus 13 Jja. Ann. 710 643 V. Potter 18 Conn. 166 ... 846, 466, 487 «. Prescott 7 K. H. 390 634, 647 B. Price 10 Rich. Law, 851. . . 483, 485 V. Quarrel 3Bay, 150 700, 703 V. Quinby 51 Me. 395 498, 515 ■». Rand 33 N. H. 316 603 1). Rickey 5 Halstead (N. J.), 83. . . . 503 «. Rose 33 Mo. 560 359 V. Ryan 13 Minn. 370 658 V. Sater 8 Iowa, 430 388 «. Shelledy 8 Iowa, 477 387 ». Slack 1 Bailev, 830 703 V. Smith 3 Ired."403 445, 474 V. Snyder 30 Kans. 306 589, 603 1). Stallmaker 3 Brevard, 1 477 1). Symonds 36 Me. 138 509 11. Thompson 9 Iowa, 188 333, 397 v. Tilghman 11 Ired. 513 583, 607 11. Tinall 10 Rich. Law (S. C), 313. 663 V. Town Wright, 75 419 ®. Upton 30 Mo. 397 674 ». Ward 14 La. Ann. 673 363, 694 V. 39 Vt. 336 419 n. Webster 13 N. H. 491 334 11. Willard. 79 S. C. 660 63 0. Williams 3 Stew. 454 488 «. Wilson 8 Clarke, 407 434 v. Wise 7 Richard, 413 474 V. Wright 53 Me. 338 ; 509 States v. State 38 Ala. 35 419, 433 Staup 11. Com 74 Pa. St. 458. . . 318, 363, 373 Stephens v. Santee 49 N. Y. 35-38 847 Stevens «. People 19 N. Y. 549 658, 659 Stewart v. People 33 Mich. 63 390, 638 11. State 8 Eng. (Ark.), 730 304 V. 50 Miss. 587 451 V. 1 Ohio, 66 404 Stone V. State 4 Humph. 37. . . . 634, 640, 671 Stout V. People 4 Park. Cr. 71 354, 366 Streeter v. Hearsay 11 Johns. 168 447 Stryker v. Turnbull Col. & Caines, 457 884 Sweatman, Matter of 1 Cow. 144, 151, e 851 Taber v. Hutson 5 Ind. 333 556 350 TABLE OF CASES CITED. SBCtnon Talmadge ». Northrup 1 Root, 522 595,661 Tatum V. Preaton 53 Miss. 654 451 Taylor v. Western P. R. R. Co 45 Cal. 33 451 Terry ®. Fellows 31 La. Aim. 375 556 Thomas v. Chapman 45 Barb. 98 633, 634 V. Com 3 Rob. 795 758 ^ v. Crosswell 4 Johns. 491 884 V. People 67 N. Y. 318. . . . 371, 317, 333 334 Thompson v. Mallet 3 Bay, 94 661 1). People 34 ill. 60 381 1). 3 Park. Cr. 467 305 ■». State 34 Ga. 397 694 Thompson's Case 8 Gratt. 638 586, 672, 684' Thorn's Case 4 C. H. Rec. 81 399, 312 Toledo P. & W. R. R. Co. ■». Darst.13 Am. Railway Rep. 448; 61 111. 331 930 Tomer i). Dinsmore 8 Neb. (Brown), 384 699 Tooll V. Com 11 Leigh, 714 437, 634 Tower i). Hewitt 11 Johns. 134 839 Townsend v. Philips 10 Johns. 98 898 Treat v. Barber 7 Conn. 375 556 Trim i). Com 18 Gratt. 983 601 Trubody v. Brain 9 Price, 76 618 Turner v. State 57 6a. 107 758 Tyler «. Gardiner 35 N. Y. 596 894 United States «. Blodgett 35 Ga. 336 403 V. Boyden 1 Lowell's Dec. 366 666 ®. Callender Callender's Trial (pamph.), 19-31 409 V. Coolidge 3 Gallison, 364 665, 813 V. Devlin : 6 Blatch. 71 256, 471 V. Dumplin Island 1 Barb. 34 941, 945 8. Fries 1 Whart. St. Tr. 606. . 690, 691 V. Gilbert et al 2 Sumner, 31 671 1). Hanway U. S. Cirt. Ct. Phila. 1863. 466 «. Hare (pamph.) 409 V. Johns 1 U. C. C. 363 356 ». Marchant 4 Mason, 160 ; 13 Wheat. 480 445, 474 V. McHenry 6 Blatch. 503 337 «. Morris 1 Curtis C. C. 33 437, 468 V. Perez 9 Wheat. 579 813 V. Reid 13 How. 361 634 ■». Reynolds 1 Utah T. 326-319 434 V. Shakkleford 18 How. 588 255, 490 «. Talman 10 Blatchf. 31 776 «. Watson 8 Int. Rev. Rec. 170 813 V. White 5 Cranch C. C. 457 498 ■». Williams l Dill. 485 505 1). Wilson 1 Baldwin, 78-81. . . . 430, 477 Trust Co. V. Harris 3 Bosw. 75 575 Valton V. N. L. F. Life Ins. Co 17 Abb. Pr. 368 61, 450 Van Cleef v. Fleet 15 Johns. 147 898 TABLE OF CASES CITED. 351 SECTION' Vancoct d. State 13 Tex. 469 509 Vanderhuyden «. Reid 1 Hopk. 408 890 Vanderslice v. Newton 4 N. T. 130 556 Vanderwerker v. People 5 Wend. 530 855 Van Wyck v. Alley 1 Hopk. 553 890 Vermilyea, Exparte 6 CoTt. 555 349 i>. Palmer 53 N. Y; 471 857, 858 Vicary v. Farthing. Cro. Eliz. 411 663 Voorheea v. Martin 13 Barb. 508 949 Vulte ». Martin 44 How. Pr. 34 915 "Wade V. State 13 Ga. 35 690, 701 Wager, matter of 6 Paige, 11 909 Wakeman v. Sprague 7 Cow. 730 376 Walker ». Borland 31 Mo. 389 556 Walrath v. State ^ . . .8 Neb. (Brown), 81 659 Walsh V. Sun Mut. Ins. Co: 3 Rob. 646 ; 17 Abb. Pr. 856 884 Walter v. People 33 N. Y. (5 TiflE.) 147 418 454, 460, 463 Ward B. State 1 Humph. 353 438 Warner s. N. Y. C. R. R. Co 53 N. Y. 437 563, 576 «. Robinson 1 Root, 194 680 Watkins v. Weaver 10 Johns. 107 837 ■». Wilcox 6N. Y. S. C. (T. &C.)544. 7.33 Waw-Kon-chaw-nee-Kaw v. U. S. . . 1 Morris, 333 387 Weia ». State 33 Ohio St. 486 677 Wells «. Cox lDaly,515 563 Westley v. State 11 Humph. 503 658 Weston «. People 6 Hun, 140 398 Wheelock v. Lee 7 N. Y. Week. Dig. 338; 5 Abb. New Cas. 73.... 860 861 Whipple «. Walpole 10 N. H. 180 556 Whitney v. State 8 Mo. 165 684 V. Whitman 3 Mass. 405 661 Whittlesey v. Delancv 78 N. Y. 571 859 Wiggin ». Plumer 11 Foster (N. H.), 351 861 Wilcox V. Hoch 63 Barb. 509 571 Wiley 11. State 1 Swan (Tenn.), 356 640 Williams ». Montgomery 60 N. Y. 648 633 V. Smith 6 Cow. 166 413 V. State 3 Kelley, 453. . . . 886, 419, 433 485 ». 83 Miss. 889 419, 431 Willis ». People 83 N. Y. 715 615 Wilson 11. Abrahams 1 Hill, 307 670 V. Barnum 1 Wall. Jr. 347 813 Winslow !). Morrill 68 Me. 363 584 Winsor ». Queen 118 Eng. Com. L. 170 36 Wise V. State 7 Rich. 413 639 Wolf D. Goodhue Fire Ins. Co 43 Barb. 400 573 Wood «. Stoddard 3 Johns. 194 415 Woods -0. Rowan 5 Johns. 133 373 «. State 43 Miss. 364 658 Wormley v. Com 10 Gratt. 658. . . . 365, 477, 478 352 TABLE OF CASES CITED. BEOTIOS Wright «. Columbia Ins. Co. : 3 Johns. 311 884 V. 111. Tel. Co 20 Iowa, 19 634 V. State 18 Ga. 383 386, 897, 695 Wyatt V. Noble 8 Blackf. 507 467 ». State 1 Blackf. 357 647, 656 Yates «. People 38 111. 537 661 Young V. Hubbell 3 Johns. 430 846 INDEX. [TTie ref&rence» are to (he sectiom.'\ Abatement. See Grand Jttkobs ; Plea in Abatement. Accusation, jury of, in France, wtien established an(i abolished, 35 See Fbancb. Admiralty, trial by jury in cases of, 815-817 number of jurors in cases of, 817 See U. S. CoTTRTS. Ad Qnod Damnum proceedings, jurors in, 941-946 inquisition in, 945 See Forms ; Special Proceeding. Affldarits concerning deliberations of jury, 634 imputing improper motives to jury, 610 613, 633-624 of juror to establish verdict, 566 when will not be received, 610-613, 633-634 be received, 634 that he deemed accused innocent, 687, 688 See New Trial; Verdict Agreement, jurors to be discharged when unable to come to, 567 See Verdict. Albany, each ward of, is a town, 93 See Drawing Jurors; Selecting Jurors; Trial JuBOEa. Alien not entitled to jury of part aliens, 308, 337 challenge on ground that juror is an, 486, 448 See Challenges. American Colonies, trial by jury introduced in, 49 See Trial by Jury. Answer to challenge to array need not be verified, 375 Appeal, what decisions cannot be reviewed on, 271, n. from decision pn challenge, 371, 390, 333, 405 in U. S. courts', 813 Appendix. See Forms. Archbishop of Turin, trial of, 41 Arkansas, U. S. jurors in Westn. Dist. in, 793 grand jurors in Westn. Dist. in, 793 Array, what is a challenge to the, 247 challenge to, how made, 257 what are principal challenges to, 258 quashed, in what cases, 259 effect of sustaining principal challenge to, 260, 366 33 [353] 354 INDEX. [The references are Array, irregularity in drawing, not challenge to, 261 challenge to, for favor, what based upon, 363 how tried, 263, 264, 271, 800 duty of triers on challenge to, 364 demurrer to challenge to, 364, 365 challenge to, when too late, 367, 274, 289 what not cause of challenge to, 368, 369 omission to notify juror, ground of challenge to, 369 answer to challenge to, need not be verified, 275 what not ground for principal challenge to, 276-280 not drawing jurors fourteen days before court, ground of challenge to, 281 jurors drawn by de facto officer not ground of challenge to, 383 what cannot be tried on challenge to, 284 partiality in clerk, ground of challenge to, 385 exclusion of certain persons not ground of challenge to, 286 what held in Pennsylvania no ground of challenge to, 387 person challenging, must be prepared to prove cause, 288 who entitled to challenge, 458, 459 of grand jurors, challenge to, 494, 495 what is ground of challenge to, in justices' courts, 837 not ground of challenge to in justices' courts, 829 See Challenge; Justices' ComRTS; Trieks; U. S. Cottbts; Forms. Arrest of trial juror in Kings County for non-attendance, 179, 305, 234 N. Y. County for non-attendance, 142, 143, 205 See Bribe ; Trial Juror. Assize in reign of Henry II., jury first found in its distinct form, 7 Attachment against juror refusing to serve in justice's court, 849 sheriff's jury to try title to property taken on, 900 Attendance of trial juror, how compelled, 115-120 in Kings County, 178- 188 in N. Y. County, 141- 157 Austrian Empire, trial by jury abolished in, 47 Baden, trial by jury in, 46 Ballots must be destroyed when jurors discharged, 65, subd. 3 how disposed of when jurors excused, 66, subd. 3 prepared, 90, 139, 165 for grand jurors, how prepared, 733, 748 when to be destroyed, 743, 744 in justices' courts, how prepared, 830 drawn, 831 See DnAwnsTG Jurors. Bankruptcy proceedings, trial by jury in, 819 Bavaria, trial by jury in, 46 Belgium, trial by jury in, 37 Bias for or against the prisoner, 410 against crime generally, 435 See Challenge ; Opinion. Bill of Kiglits, declaration of, 35 to the sections.] INDEX. 355 Bill of Bights, qualification of jurors under, 25 Bribe to juror to give verdict, 233 punishment of juror for accepting, 333 to officer to evade jury duty, 154, 156 punishment of officer for accepting, 155, 156, 184, 185 Brongrham, Lord, on trial by jury, 26 Buffalo, selecting, drawing, and procuring attendance of jurors in, 189-193 By-standers. See Talesmen. Capital offense, when prisoner on trial for, could not have coun- sel, &c., 23 peremptory challenges on trial for, 451-455, 457- 459, 480, 802 See Pbkemptoby Challbkgbs. Carnegy of Finhaven, verdict before and after trial of, 28 Casting lots by jurors, 679-681, 684 Cause, what is challenge for, 248 See Ohallbnge. Causes of challenge, what are, 253 See Challenge ; Favok ; Pbremptoey Challbnges ; Prin- cipal Catjsb. Challenge that juror was not of vicinage, 6 definition of, 246 in civil cases, who first to, 246 n. criminal cases, who first to, 246 n. classes of, 247-252 for cause, what is, 248 objection may be treated as, 251 n. what are causes of, 253 practice as to, 254 when pecuniary interest not cause of, 270 exception to, how reviewed, 271, 290, 322 objection to qualification must be taken by, 271, 290, 447, 449, 450 when person must avail himself of right to, 389 n. when in discretion of court, 309 n. the shaping of questions on, in discretion of court, 341 that juror was grand juror, 375, 376 said he would not convict prisoner, 383, 428 is citizen and taxpayer, 413 stockholder in similar company, 413 n. for pecuniary interest in result, 412-415 being an infidel, 416 having been convicted of infamous crime, 417 on trial for polygamy, 424 that juror thought offense charged no crime, 427 statute unconstitutional, 430 for being a Freemason, 431 belonging to association formed to enforce law, 432-434 alienage, 436, 448 partiality, when to be made, 438-441 when cannot be withdrawn, 443 is a right to reject not to select, 445, 474 356 INDEX. [^^ references-a/re Challenge by one side after juror found indifEerent by other, 446, 478 on ground of lack of property qualifications, 447, 449, 450 in civil cases in England, 461 n. to array, what is, 347 how made, 257 who entitled to, 458, 459 when too late, 267, 274, 289 demurrer to, 264, 365 answer to, need not be verified, 375 trial of, 263, 264, 271, 800 duty of triers on, 264 irregularity in drawing, no ground of, 361 what not good cause of, 368, 269 omission to notify juror, cause of, 269 not drawing jurors 14 days before court, ground of, 281 jurors drawn by de facto officer, not ground of, 383 what cannot be tried on, 284 lies for partiality in clerk, 285 because certain persons have been excluded, 386 what, in Pennsylvania was held no cause of, 387 person making, must be prepared to prove cause of, 388 for favor, what based upon, 262 of grand jurors, 494, 495 injustices' courts, what is ground of, 827 not ground of, 828 to favor, what is, 249, 338 must specify, 391, 393 of person challenging not available, 391, n. grounds of, 310-316 when not sustained, 317, 318 evidence on, 316, 319-332 in action for libel on opera manager, 310 , not afEected by statute on principal challenge, 324 after principal challenge overruled, 335, 337 grand juror's, 494-510 when to be made, 754, 755 on account of exclusion of some, 496 for belonging to association, 497 having formed opinion, 498 being hostile to party, 498 in justices' courts, 447-450, 837, 838, 833, 833 to officer who notified juror, what not cause of, 370 peremptory, what is a, 352 number of, &c., 451^93 in U. S. courts, 798-803 to poll, what is a, 250, 254 for principal cause, what is, 251, 328 • grounds of, 338-350 to talesmen, when valid, 383 to the sections.] INDEX. 357 Challenge, trial of, 393-298, 306, 333 in U. S. courts, 801 in U. S. courts, 355, 356, 800-805 waiver of, 443-444, 465-467, 489 what is not waiver of, 443 See Array; Coroner's Jury; Db Lttnatico Inquirbn- DO PROCBBDiNGS; Favoe; Geaud Jury; Opinion; Peremptory Challenge; Plea in Abatement; Principal Cause; Talesmen; Trial of Chal- lenge ; Triers ;" United States Courts Chancery, practice in court of, on questions of fact, 33 Charge to grand jurors, 767-774 trial jurors, 553-557 City Court of Brooklyn, how special jury obtained in, 176 Ciyil Cases in England, trial of, 31 who challenges first in, 246, n. where no peremptory challenges in, 461, n. Civil Courts, separation from ecclesiastical, 16 , Clert of Court, duty of, on discharge of juror, 65, subd. 2 punishment of, failing to make return in N. Y. county, 78 duty of, 78 in Kings county, duty of, 84 duty of, on rendition of verdict, 576 receiving list of grand jurors, 733 obtaining struck jury, 880 foreign jury, 885, 886 of grand jury, how selected, 710, 757 duty of, 710, 711, 757 trial jury, duty of, 533 Cockburn, Chief Justice, on trial by jury, 36 Code Napoleon in Prance, when introduced, 35 Commissioner of jurors in N. Y. county, duty and powers of, 73, 78, 133-133, 137, 143-146, 148-151 Kings county, duty and powers of, 158- 173, 175, 176, 180-188 See Ballot ; Drawing Jurors ; Selecting Jxjbobs ; Trial Jurors Communication to jury in justices' court, 841-844 from sheriff, ground for new trial, 589, n., 593 See Challenge; Justices' Court; New Triai; Sheriff's Jury; Verdict Compromise verdict, 547, 548, 683-685, 687, 688 See New Trial ; Verdict Compurgators, who were, 13 Confederation, articles of, did not speak of jury trial, 50 See Trial by Jury Conscientious scruples on capital punishment, 417-435, 460 nuisances, 426 penitentiary punishment, 423 polygamy, 424 See Challenges ; New Trial Conspiracy against juror, punishment for, 806-809 See TJ. S. Courts 358 INDEX. [The references are Constable, duty of, in creditors' proceedings, 958 cases of forcible entry and detainer, 913-915 habitual drunkard proceedings, 963 laying out highways through uninclosed lands, 926, 938 encroachment p r o- ceedings, 947 insolvent debtor's proceedings, 953 justices' court, 831-840 on summoning jurors, 836 when disqualified to act in justices' coui-t, 83^, 835 to have charge of jury in justices' court, 838-840 duty of, in plank road and turnpike cases, 984 proceedings to lay out roads and highways, 923 courts of special sessions, 853-855 jury of, to try title to property, 897-901 how and when to be summoned, 899 number of, 899 See JtrsTiCE's Coukt; Shbkipf's Jury; Special Pko- CBEDiNGS ; Trial by Jtjby Constitutional provision as to indictment by grand jury, 53 right, trial by jury is a, 52 Contempt, when clerk of court in N. Y. county guilty of, 78 See Clbbk of Cotjiit. Coroner, duty and power of, on origin of fires, 965-968 origin, power, &c., of, 19 when justice of the peace to act as, 866 See Coeonbr's Inquest ; Cokonbk's Jury. Coroner's inquest, earliest statute as to taking, 19 none in Scotland, 30 jury, 865-877 number of, 865, 867 how summoned, 865, 867, 868 qualifications of, 865, 867, 868 in N. Y. county, 867 punishment for refusing to serve on, 867 no challenges to, 868 oath to, 869 deceased to be viewed by, 870 where testimony to be taken by, 870 who to swear and examine witnesses before, 871 can ask questions of witnesses, 873 must hear all the evidence, 873, 873 have none present while deliberating, 874 reduce verdict to writing, 875 what inquisition of, to contain, 875 may find several inquisitions, 876 no compensation to, 877 See Forms Corrupting jurors, 332-335, 530 in IT. S. courts, 806-809 See Bribb; Embracery; Misconduct of Juboes; United States Courts Counties, custom of Anglo-Saxons as to, 8 to the sections.] INDEX. 359 County interested, who competent jurors, wbon, 85 court, trial jurors, how drawn for, 193 of Kings county, jury in special proceedings in, 176 Courts, separation of civil from ecclesiastical, 16 of districts, how originally formed, 13 equity may direct questions to be tried by jury, 31 See Names of Cotjkts ttndbb each title. Creditors' Proceedings, against imprisoned debtors, 958-960 jury in, how summoned, 958 punishment for failing to attend in, 958 number of jurors in, 958 oath of jurors in, 958 verdict of jurors in, 958 See Fees ; Forms. Criminal Offenses, act passed allowing counsel to accused in, 33 who challenges first in trials of, 346, n. See Challenges. Damages, when jury to assess, 569 not to assess, 569 n. jury only to find single, 570 how severed, when several defendants, 573, n. when interest allowed as, 573, n. assessment of, on default, 813, n. 969-973 for private property taken for public use, 53 highways through uninclosed lands, 934-939 right of way for railroads, 930 See Defaults ; Special Procebmnqs ; Verdicts. Decision of judge substituted for verdict in civil action in Scot- land, 33 See Fact. Declaration of rights as to trial by jury, 49 Defaults, jury of inquiry on, 969-973 when jury to assess damages on, 970 further application on, 971 new writ of inquiry on, 973 assessment of damages on in U. S. courts, 813, n. See Forms. De Lunatic Inquirendo Proceedings, jurors in, 909-913 number of jurors in, 909 summoning jurors in, 909 duty of sheriflE in, 909 qualifications of jurors in, 909 jury to examine lunatic in, 909 sign inquisition in, 910 See Forms ; Inqitisition ; Special PROOBBDrNGS. Demurrer to challenge to array, 364, 365 See Challenge. Discharge of Jury, when unable to agree, 567 trial to be continued until, 307 in U. S. courts without verdict, 813, n. See U. S. Courts ; Verdict. 360 INDEX. {The references me District Attorney. — See Pbosbcuting Opficeb. District of Columbia, drawing jurors in, 791 discharging U. S. grand jurors in, 791 District Courts of N. Y. Co., how jurors selected for, 143 Drawing Grand Jurors, 737, 738, 746-749 Drawing Trial Jurors, mode of, 94-113 compensation to judges for, 177 for trials of indictments, 323-327 in justices' courts, 831 Kings county, 165-176 N. Y. county, 131-140 courts of special sessions, 853 . and grand jurors in TJ. S. courts, 779, 780, 785, 791, 796 See Grand Jubobs; Indictments; Jus- tices' CouBTS ; Special Pbooebdings ; Teial Jubobs; U. S. Coubts. Duties of Grand Jurors, 706-726 Duties of Trial Jurors, 511-557 See Gband Jubobs ; Teial Jueoes. Ealdor-man, who was, 13 Ecclesiastical Courts, separation of, from civil, 16 Embracery, how punished, 214 See CoBKupTiNG Jubobs Empaneling Jury, 194-207, 230 irregularity in, 197, n. new trial for irregularity in, 702-705 in U. S. courts, 776 See Challenge ; New Tbial; U. S. Couets; Vbedict. Encroachments on Highways, jury in proceedings on, 947-950 See FoBMs; Highway Enceoach- ment Peoobbdings; Spe- cial Peocbedinqs. England, trial of civil causes in, 21 Equity Actions, trial by jury in, 857-864 joined with legal, jury in, 860 See Special Proceedings ; Waiting Jubt. Equity, courts of, may direct questions to be tried by jury, 21 Erskine, Lord, on trial by jury, 26 Evidence of right to exemption, 64 rules of, to guide jury, 549 Examination of juror as to qualification, 894, 899, 400, 401, 403, 406 See Challenge; Qualibication ; Questions. Excusing grand juror, 708, 741 struck juror, 882 trial juror, 74, 75, 83, 404, 514-516 Exemption from service, who may claim, 68 in Kings county, who may claim, 80 N. Y. county, who may claim, 70 U. S. Courts, 776, 800, 805 what is evidence of right to, 64 in Kings county, 81 to tlte sections.] • INDEX. 361' Exemption, what is evidence of right to in N. Y. county, 71 See Challenge; U. S. Cotibts. Extra compensation in.protracted cases, 238 Fact, questions of, to be tried by jury, 31 may be tried by judge, 31, 33 how tried by courts of equity, 31, 857-864 practice in court of chancery relative to questions, 33 tried by jury not to be otherwise re-examined, 65 See Equity ; Special Pkocbbdings ; Tbial by Jury. False certificate, penalty for giving, in Kings county, 187 N. Y. county, 153 Information, penalty for giving, in Kings county, 186 N. Y. county, 158, 154 ' FaTor, what is challenge to, 249, 328 challenge to must specify, 391, 293 challenge to person's own, not available, 391, n. grounds of challenge to, 310-316 challenge to, in action for libel on opera manager, 810 evidence on, 316, 319-333 when not sustained, 317 sustained, 318 not afEected by statute on principal challenge, 324 after principal challenge overruled, 335, 827 array for, what based on, 362 See CHALLBNaB; Forms. Federal Courts, jurors in, 775-819 See U. S. Courts. Fees of coroner's jury, no provision for, 877 grand jurors, 336, 344, 345 in U. S. Courts, 798, 799 jurors in creditors' proceedings, 960 laying out higliways, 939 insolvent debtors' proceedings, 960 justices' courts, 849 plank road and turnpike cases, 936 protracted cases, 338 proceedings to lay out roads and highways, 933 special proceedings, 340 on writ of inquiry, 340 trial jurors, 336-346 See Coronbe's Jury; Special Peocbbdings; Special Sessioks. Felony, peremptory challenge on trial for, 451-454, 456-459, 464, 480, 803 person indicted for, must be present on trial, 339 See Indiotmbkt ; Peremptory Challenge. Feud, when person liable to vengeance of, 10 Feudal Nations, who tried in courts in, 3 Fine of grand jurors, 740 when suspended, 740 officer of national guard, 72 sherifl for neglect of duty, 216-219 trial juror for non-attendance, 115 363 INDEX. \.TJi^ referenees wet Fine of trial jurors in justice's court, 849 Kings county, 179, 305, 313, 336 N. Y. county, 141-143, 305, 313, 336 roads and highway proceedings, 933 See Grand Jubobs ; Shbeifp ; Speoial Peoceedings. Fires, jury to investigate origin of, 965-968 how summoned, 965, 966 inquisition of, 967 what cities have no, 968 See Forms ; Special Procbbdings. Forcible Entry and Detainer, jury in cases of, 913-915 number of jurors in, 913 jurors, how summoned in, 914 oath of jurors in, 914 if jury cannot agree in, 915 See Forms; Special PBOCBBDiNaB. Foreign Jury, how obtained, 885, 886 duty of clerk on obtaining, 885 sheriff on obtaining, 886 Foreman of Grand Jury, duty of, 708-710 how selected, 709, 753 sworn, 709 to administer oaths, 713, 756 may examine witnesses, 717 presents indictments to court, 735, 764 indorses bill, 735 in TJ. S. courts, 788 See Forms; Grand Jurors; U. S. COUBTS. Foreman of Trial Jury, duty of, 533 Formation of Jury for trials of issues, 193-307 Forms. — See Index to Forms, Ante. France, jury of accusation, when established and abolished, 85 Code Napoleon, when introduced in, 35 grand jury abolished in, 35 trial by jury in, 35, 36 verdict, how arrived at, in, 36 General Verdict, what is, 563, 573 effect of, 573 when good, 573, n. may be rendered, 573 jury should not find, 573, n. inconsistent with special, 575 See Special Verdict; Verdict. Geneva, trial by jury in, 39 verdict of jury in, 39 Gild, custom of Anglo-Saxons as to, 8 consisted of ten families, 8 community, Toethings-ealdor, head of, 8 duty and authority of men of, 9 members of, entitled to compensation, 10 bound by pledge, 10 Grand Inquest, how instituted, 17 duty of members of, 17 See Grand Jtteoes ; Grand Jury. to tlie sections.'] INDEX. 363 Grand Jurors cannot be petit jurors on trial of indictment, 828 fees of, 336, 244, 245 challenges to, 494-510 duties of, 706-728 excusing of, 708, 741 how and when sworn, 709 oath of, 709, 719-724 sixteen form quorum, 713 twelve must concur in finding, 714, 758, 763 authorized to examine evidence, 715 •when should find indictment, 716 not find indictment, 716 duty of prosecuting officer to, 717, 759 who may be present with, 718, 760 when none must be present with, 718, 760 may be compelled to testify, 721, 758 secrecy of, on finding indictment, 721, 765 punishment of, for disclosing finding, 732, 765 duties of, while deliberating on finding, 724 statutes, relating to, 737-774 list of, how prepared, 728, 729 number of, to be placed on list, 738, 729 how selected, 730, 731 qualifications of, 730 ballots for, how prepared, 738, 748 number of, how increased, 734-736 drawing of, how conducted, 737, 738, 746-749 number of, to be drawn, 737, 747, 750 how summoned, 739, 746, 750, 761, 763 when fined, 740 amount of fine of, 740 when fine of, may be suspended, 740 court may discharge, 741 having served, for how long exempt, 743 ballots of, when to be destroyed, 743, 744 drawn as petit jurors, efEect of, 745 number of, to be sworn, 753 objection to, when to be made, 754, 755 minutes of, by whom kept, 757 what they cannot be compelled to disclose, 758 affidavits of, when received, 758, n. charges to, 767-774 penalty for intimidating, 806-809 See Challenge: Excusma Gbakd Jttroks; Fink; Foreman; Forms; Grand Jury; Indictment; Oath ; Plea in Abatement. Grand Jurors in U. S. Courts, 777-782, 787-797, 805 ' penalty for corr,upting, 806-809 sending papers, &c., to, 806-809 See U. S. Courts. Grand Jury, constitutional provision as to indictment by, 53 in France' abolished, 35 origin of, 17, 18 in Scotland, none in ordinary cases, 30 clerk of, how selected, 710, 757 duty of clerk of, 710, 711, 757 364 INDEX. [^^« references are Grand Jury, duty of foreman of, 708-710, 735 no one tried unless by indictment by, 737 Greece, trial by jury in kingdom of, 37 Habitual Druubard proceedings, jury in, 961-964 by whom jury demanded in, 961 how jury summoned in, 963, 963 number of jurors in, 963 verdict of jury, how rendered in, 964 See FoKMs; Special Pboobed- INGS. Hesse, trial by jury in, 46 Highway Encroachment Proceedings, jury in, 947-950 number of jurors in, 947- 950 how jury summoned in, 947 oath of jury in, 948 finding of jury in, 949, 950 See PoKMS; Special Pbo- CEBDINGS. Highways through Uninclosed Lands, jury to assess damages for laying out, 924-939 jury, how demanded, 934 drawn, 935, 937 qualifications of jurors, 935 number of jurors, 935 jury, how summoned, 926, 938 oath of jury, 937 See PoBMs; Special Peo- CEBDINGS. Homestead Exemption Law, jury to appraise property under, 907, 908 number of jurors, 908 Hundreds, custom of Anglo-Saxons as to, 8 consisted of ten gilds, 11 Hundreds Court, jurisdiction of, 11 -ealder, who was, 11 Impaneling Jury — See Empai^blins Jubt. Impeaching verdict by affidavits of jurors, 610-613, 622-634 See Affidavits ; New Tbial ; Vbedict. Indictment, by grand jury, constitutional provision as to, 53, 727 what is, 710, n. number of grand jurors to find, 714 when grand jurors may find, 716, 719 should not find, 716 who prepared by, 717 none to be present while grand jury finding, 718 to be found on legal evidence, 730 finding of, to be kept secret, 731, 765 punishment for disclosing finding of, 733, 765 presented to court by foreman, 735, 764 how indorsed when found, 735 not found, 735 to the sections.] INDEX. 365 Indictment, effect of, if not indorsed, 735, n. when not to be opened or inspected, 764 trial of, 230-333 where to take place, 331 See Fine ; Foreman ; Grand .Ittroes; Grand Jtjbt ; Prosecuting Officer ; Trial by Jury. Inquest, when justice may hold coroner's, 866 See Coroner's Inquest ; Coroner's Jury. Inqniry, jury of, into insanity of civil or criminal prisoner, 903, 903, 906 convict after sentence of death, 904-906 , pregnancy of female convict, 905, 906 writ of, on defaults, 970-973 See Forms; Special Proceedings. Inqnisition in Ad Quod Damnum proceeding, 945 of coroner's jury, what to contain, 875 must be in writing, 875 coroner's jury may find more than one, 876 of insanity of civil or criminal prisoner, 904-906 convict after sentence of death, 904-906 in De Lunatico Inquirendo proceedings, 910-913 of origin of fires, 967 pregnancy of female convict, 905, 906 See Coroner's Jury; Forms; Special, Procbedings. Insanity of civil or criminal prisoner, jury to inquire into, 903, 903, 906 convict after sentence of death, 904, 906 See Forms ; Special Proceedings Insolvent Debtor's proceedings, jury in, 951-957 how jury demanded in, 951 summoned, 953 number of jurors, 953, 954 oath of jurors, 954 verdict of jury, 955, 956 no second hearing before jury in, 957 penalty for juror not attending, 959 fees of jurors in, 960 See Fees ; Forms ; Special Proceedings Intimidating Jnror, penalty for, 806-809 intoxication of Jnror in justice's court, 833 ground for new trial, 645, 669-678 See Justice's Court ; Misconduct ; New Trial; Verdict. Ireland, trial by jury in, 34 Issues to be settled for trial by jury, when and how, 864 See Equity Actions ; Special Proceedings. Judge, when questions of fact may be decided by, 31, 33 substituted as trier need not be sworn, 300 See Fact. Jurors. — See Affidavits; Arrest; Attachment; Attendance; Bribe; Casting Lots; Challenge; Corrupting; 366 INDEX. \.T^ referewxs are Countt; Dischakging; Dbawing; Duties; Exami- nation; Excusing; Exemption; Fees; Pike; Fobms; Grand Jurors; Indictment; Intimidating; Jubt; Misconduct; Kew Trial; Number; Oath; Quali- fication; Special Peocbbdings; To-wn; Trial Jubob; II. 8. Courts; Verdict; Withdrawing; Witnesses Jnry of accusation in France, when established and abolished, 35 De Medietate Linguae, what is, 308, n. under Homestead Exemption Law, 907, 908 of inquiry into insanity of civil or criminal prisoner, 903, 903,906 convict after sentence of death, 904- 906 pregnancy of female convict, 905, 906 See Coroner's Jury; Grand Jury; Juroes; Tkialbt Jubt; Verdict. Jury Lists, by whom made up, 57 See Lists. Jnry system, origin, rise and growth of, 1-60 trial. — See Trial by Jury. year, duration of, 73 service in, 73 exemption for serving in, 73 Justice's Court, trial by jury in, 820-849 when to demand jury in, 820 number of jurors summoned in, 831, 823 who jurors summoned by, in, 821 qualifications of jurors in, 831, 826 when constable disqualified to act in, 833, 835 actions between towns in, 824 challenges in, 447-450, 827, 828 when objection to jury to be made in, 839 ballots, how prepared, in, 830 drawn in, 831 juror may be set aside by justice in, 833 intoxication of juror in, 833 talesmen, when summoned in, 834 oath of juror in, 836 constable to have charge of jury in, 838-840 jury in, to be kept together until verdict, 838 communications to jury in, 841-844 jury in, may be sent to reconsider verdict, 845 when case cannot be withdrawn from jury in, 846 verdict to be delivered to justice, 847 punishment of juror refusing to serve in, 849 fees of jurors in, 849 See Constable; Pees; Forms; Special Pbo- CBEDINGS. Justices in Eyre, duties of, 17 Kentucky, U. S. grand jurors in, 794 trial jurors in, 794 See U. S. Courts. Kings County, drawing, &c., trial jurors in, 158-188 evidence of right to exemption in, 81 who entitled to exemption in, 80 to the seeiwna.} INDEX. 367 Kings County, fine and arrest for non-attendance in, 178, 179, 205, 213, 226 Libel, Campbell's bill, when adopted, 22 Fox's bill, when passed, 22 when jury to acquit accused in prosecutions for, 331 jury may determine law and fact in prosecutions for, 231 Life or Limb, no person to be twice put in jeopardy of, 53 List of Grand Jurors, how prepared, 738, 738, 750 in N. Y. city, 729 what to contain, 733, 738 duty of clerk on receiving, 733 Trial Jurors, by whom made, 57, 87, 126, 880 when made, 87-89, 880 in N. Y. city, 126 Kings county, 161-164 by whom made in N. Y. city, 136 Kings county, 161-164 in court of special sessions, 852 U. S. courts, accused to receive, 810 See Grand Jurorb; Special Sbssions; Struck Jury ; Trial Jurors ; U. S. CousTsr Magna Charta, one of the main objects and date of, 4 Marine Court of N. Y., rule in, when order of arrest granted, 210 Marshal, duty of, in U. S. courts, 777, 782-784, 787, 794 Miller, Judge, on trial by jury, 51, m. Minutes of Grand Jury, by whom kept, 757 See Clerk ; Grand Jurors ; Grakd Jury. Misconduct of Jurors, punishment for, 211-219, 226, 233, 235 Mistake in verdict, correction of, 563, 576, n. See New Trial ; Verdict. National Guard, duty of officer of, 73 New Trial, what is a, 577 when and how granted, 577 origin of practice of granting, 578 granting of, in discretion of court, 579 reasons for granting, 579, 583-705 granted in civil and criminal cases, 580 on ground of hearing outside testimony, 583-584, 590- 593, 616 what not ground for granting, 585-5,88, 593, 594, 600, 601, 603-609, 625. 634-637, 641, 645, 647-649, 650-660, 6ft5, 665-667, 670-674, 680-684, 694-696, 698-705. on ground of presence of party, 589 stranger, 589, n., 603 communication from sheriff, 589, n. one juror stating facts to others, 595, 596 juror speaking with persons, 597, 605, 645 swearing jurors improperly, 598 visiting scene of res geatce, 599, 646 368 INDEX. [TTie references a/re New Trial, on ground of outside communication, 609, 619 misconduct of prevailing party, 613, 615, 616, 618, 626, 661 fraud in criminal cases, 614 handing papers not in evidence, 616, 617 661, 663 interference by eitlier party, 626 separation of jurors, 634-660 intoxication of jurors, 645, 669-678 first trial by 11 jurors, 659, 667 reading judge's minutes, 663 illness of juror, 665-667 juror taking notes, 668 casting lots, 679-681, 684 levity, 686, 689 deeming accused innocent, 687, 688 pre-adjudication, 690-695 excitement in community, 696, 697 having been grand juror, 698 relationship, 701 irregularity in impaneling, 702-705 See Intoxication ; Misoondtjct ; Sepaeation ; Vbbdict. New York, by whom jury lists made in, 57 jury for Northern Dis. of, in U. S. courts, 785 See Lists ; U. S. Courts. New York County, drawing, &c., grand jurors in, 737, 738 trial jurors in, 122-157 evidence of right to exemption in, 71 who entitled to exemption in, 70 fine and arrest for non-attendance in, 143, 143, 205, 213, 226 jury year in, 73 who is resident of, under section 68, 69 sheriff's jurors in, 144 See Spbciaij Peoobbdings. North Carolina, U. S. grand jurors in, 795 trial jurors in, 795 See U. S. CoTTETS. Notice to attend, 76, 83 Number of jurors in admiralty cases, 817 ad quod damnum proceedings, 942-944 coroner's inquest. 865, 867 creditors' proceedings, 958 de lunaticp inquirendo proceedings, 909 forcible entry and detainer, 913 habitual drunkard proceedings, 963, 963 highway encroachment proceedings, 947-950 laying out highways through uninclosed lands, 935 inquiry into insanity of prisoner, 904 insolvent debtor's proceedings, 953, 954 justice's court, 821, 833 patent cases, 818 plank-road and turnpike cases, 933 inquiry into pregnancy of female convict, 905 roads and highway proceedings, 923 to tJie sections.] INDEX. 369 Number of jurors in Scotland in ordinary trials, 30 sheriff's jury to try title, 897 special sessions, 853 summary proceedings, 917-919 See Spbciai PBOCBBDmas. Oath of coroner's jury, 869 See Coroner's Jury: Forms. of grand jurors; 709, 719-724 meaning of, 719-734 See Forms ; Graito Jurors. of trial jurors, 533-535 in ad quod damnum proceedings, 944 creditors' proceedings, 958 forcible entry and detainer, 914 habitual drunkard proceedings, 963 highway encroachment proceedings, 948 through uninclosed lands, 937 insolvent debtor's proceedings, 954 justice's court, 836 plank-road and turnpike cases, 937 roads and highways proceedings, 933 summary proceedings, 919 on voir dire, 403 See Forms ; Spbcial Proceedings ; Trial Jurors. of triers, 300, 301 witness before triers, 303 See Triers ; Witness. Officer disqualified as trial juror, 63 to be excused from serving, 66 who notified juror, what not challenge to, 330 See Challenge; Clerk; Sheriff. Opinion of juror on part of facts, 309, n., 395 challenge for preconceived, 321, 333, 324, 363, 867 must be fixed to be ground of challenge, 330, 331, 336, 358, 386, 388, 392 that juror killed the person, 333, 333, 397 formed from testimony on foi-mer trial, 334, 335, 345, 348, 362, 411 conversing with party, 335 what disqualifies and what not, 337, 338 where prior expressions of, disqualify, 339, 340 on credibility of witness, 342 constitutionality of statute, 343 formed from previously convicting prisoner, 344, 348 rumor and newspapers, 345, 346, 348, 369, 373, to disqualify must be formed and expressed, 347, 355, 358, 376, 378 expression of, against pai'ty, 349 formed by attending meeting, in action for libel, 350 that prisoner is guilty, 351, 361, 488 a crime had been committed, 353, 390 formed but not expressed, 353, 358 that is hypothetical, 354, 355, 357, 363, 364, 366, 367 formed and expressed on incomplete statements, 356 34 370 INDEX. l^^ references are Opinion need not be expressed with malice, 357 fixed and would take evidence to remove, 358 formed only on rumors, 359, 360, 363, 365, 378, 381, 883, 385, 391 of prisoner's guilt expressed empkatically, 361, 374, 380, 393 that prisoner's character is bad, 368, 398 unfavorable to prisoner, 369 unexplained change of, 370 formation and expression of, under laws of N. Y., 371 formed without waiting to hear testimony, 373 on the merits of the case, 379, 408 formed from conversations, 383 and expressed, of guilt or innocence of prisoner, 384, 387, 410 partial but not positive, 889 that the crime was committed by some one, 390 to disqualify must be of the whole case, 895-397 Ordinance of congress relating to trial by jury, 51 Origin of grand jury, 17, 18 See GrRAKD JUKT. of practice of granting new trials, 578 See Nkw Trial. and progress of trial by jury, 1-59 See Trial by Jury. Panel, definition of, 254 Papers read on trial, jury may take to room, 635 See New Trial. Patent cases, number of jurors in trial of, 818 trial by jury in, 818 See U. S. Courts. Pecuniary interest in result, 413 See Challenges. Peers or Equals, trial by, 8 See Trial by Jtjet. Peremptory Challenges, definition of, 353, 451-493, 798-803 use of, and practice as to, 451 n. right of, absolute, 451 n. how long continues, 451 n., 468, 469 when to be used, 451 n., 483, 486, 487 number of, punishment death, 451-455, 457-459, 480 less than death, 451-454, 456, 457-459, 464, 480 on second trial, 453 where several on trial, 458, 800 in court of special sessions, 456 civil cases, 461 in England, no, 461 n. what cases there are no, 461 m., 463, 470 waiver of, 465-467 to the aeeiions.] INDEX. 371 Peremptory Challenges, none at common law in misdemeanors, 471 withdrawing, 473, 474 at common law, government has no, 475- 479 right to, after challenge for cause, 481 by whom made, 483 recalling, 485 in U. S. courts, 490, 798-803 when challenge to favor overruled, 493, 493 See Chailbngb ; U. S. Cotjets. Perjury, person swearing falsely to evade jury duty, guilty of, 157 Physicians, punishment of, for giving false certificates, 153, 187 jury of, to inquire into pregnancy of female convict, 905, 906 See Exemption; Special Pbocebdings. Place of Trial, 53 Plank Eoad and Turnpike cases, jurors in, 931-940 how jury applied for, in, 931 drawn in, 983-934 number of jurors in, 933 how jury summoned in, 934, 935 punishment for failing to appear in, 936 fees of jurors in, 936 oath of jurors in, 937 duty of justice in, 938 finding of jury in, 939, 940 certificate of jury in, 940 See Forms; Spbciai. Pkocbbd- INGS. Plea in Abatement, challenge to grand juror, by, 499-510 what is not ground for, 499-503, 505, 506 ground for, 504, 507, 510 See Challbkge ; Gkaot) Jubobs ; Gbano Jttbt. Pledge, what was frank, 10 free, 10 peace, 10 Political Offenses in Prussia, trial of, 45 See Pbttssia. Poll, what is challenge to, 350, 354 See Challbngb. Polling Jury, right of, 637, 631-633 when sealed verdict rendered, 638 where not matter of right, 639 when objection to be made, on, 630, 688 See New Trial; Verdict. Polygamy, challenge on trial for, 434 See Challenge. Portugal, trial by jury in, 38 Practice as to challenges, 254 See Challbngbs. Preadjudication, new trial on ground of, 690 See New Trial ; Verdict. 372 INDEX. [The references are Pregnancy bf female convict, jury of inquiry into, 905, 906 See FoEMS ; Special Pkocbbdinqs. Prejudice against accused, 349, 368 business, 368 See Challenge. Presentments by grand inquest, what they consisted of, 17 See Forbmak; Gband Jukors; Grand Jury. Principal Challenge, causes for, 328-450 statute concerning, has no efEect on challenge to favor, 834 to array, what is, 358 efEect of sustaining, 260, 366 what not ground for, 376-280 See Array; Challenge; Fatob. Principal Cause, what is challenge for, 251, 338 See Challenge. Prisoner, when could not have counsel or witnesses, 23 when first allowed to have counsel and witnesses, 23 Prosecuting Officer, duty and power of, 717-719, 759, 760 Prussia, trial by jury in, 45 of political oSenses in, 45 Public Trial, accused entitled to speedy and, 54 See Trial by Jury. Qualifications of jurors, 60 in reign of Elizabeth, 6 George IV., 20 formerly, in trial for high treason, 25 in inquiry into insanity of convict, 904- 906 justices' courts, 821, 826 Kings county, 79-84 N. Y. county, 68-78 ODJection to, how available, 271, 290, 447, 449, 450 Scotland, 39 courts of special sessions, 853 for struck jury, 880, subd. 1 in summarv proceedings, 919 U. S. courts, 776, 777, 780, 801, 805 See Challenges; Special Peocebdings; U. S. CODBTS. Questions which have been allowed by the courts, 838, 368, 409, 429 of juror's opinion, 394 as to competency, jurors must answer, 899, 400 Quo Warranto, party to, entitled to trial by jury, 859, n. See Trial by Juet. Kecommendation to mercy, when jury should make, 548 See Verdict. Eeere, definition of, 13 See Shekipp. Belationsllip of juror to party, ground of challenge, 813 See Challenge. Rhenish Hesse, trial by jury in, 44 Shine Provinces, trial by jury in, 43 to the sections.] IKDEX. 373 Right of Way for railroads, assessing damages for, 930 constitutional trial by jury, no relation to, 930 Rights, declaration of, as to trial by jury, 49 Roads and Highways, jury in proceedings to lay out, 923, 933 how summoned, 923 duty of constable in, 923 punishment of jurors in, 933 oath of jurors in, 933 number of jurors in, 932 certificate of jurors in, 923 See FoKMs ; Special Pkocbbdings. Russia, trial by jury in, 48 Sardinia, trial by jury in, 40 Scir-diTision, what was comprised within, 13 Scir-gerefa, who was, 13 Scotland, no coroner's inquest in, 30 court of session in, what consisted of, 31 decision of judge for verdict of jury in, 33 no grand jury in ordinary cases in, 80 number of jurors in trials in, 30 origin of jury, &c., in, 37-39 qualifications of jurors in, 39 when trial by jury introduced in, 31 trial by jury in, 37-34 for treason in, 80 verdict, how rendered in, 30 Sealed Verdict, what is, 546, 561 See Vbbdict. Selecting sheriff's jurors in N. T. county, 144 trial jurors, mode of, 87-93 in Kings county, mode of, 158-164 N. Y. county, mode of, 133-130 Separation of jurors after agreeing and before rendering verdic .", 641 in capital cases, 634-639 before case opened, 655 after charge, before verdict, 659 in felonies, 640, 657 misdemeanors, 656 new trial on ground of, 634-66" See New Trial ; Verdict. Settling issues for trial by jury, 864 See Equity Cases. Setting aside juror, 437, 476-479 See Challenge. aside verdict, 571 See New Trial. Shire Court, jurisdiction of, 13 when held, 12 who presided over, 13 Shire reeve, who was, 13 Shires or Counties, custom of Anglo-Saxons as to, 8 Sheriff, who was, 12 may be fined for neglect of duty, 216-219 duty of, when selecting jurors," 901, 906 374 INDEX. [The references a/re Sheriff, duty of in ad quod damnum proceedings, 941-946 creditors' proceedings, 958 de lunatico inquirendo proceedings, 909 insolvent debtor's proceedings, 953 cases of forcible entry and detainer, 913-915 on obtaining foreign jury, 886 to summon grand jurors, 739, 749-753, 761, 763 on origin of fires, 965-968 in plank road and turnpike cases, 934 on obtaining struck jury, 880, 881 in summary proceedings, 917-931 Sheriffs Jury in N. Y. county, how selected, 144 to try title to property, 897-901 how and when to be summoned, 897, 898, 901 number of jurors in, 897 See Forms ; Spbciai Pbocbhdinos. Sickness of juror, new trial oa ground of, 685-667 in U. 8. courts, 813, n. See New Trial ; U. S. Courts ; Verdict. South Carolina, U. S. grand jurors in "Westn. Dis. in, 796 trial jurors in Westn. Dis. in, 796 See TJ. S. Courts. Special Findings, when court may direct, 373 must be in writing, 573 See Verdict. Special Juries in U. S. courts, 784 , See U. S. Courts. Special Proceedings, in city court of Brooklyn, jury in, 176 county court of Kings county, jury in, 176 fees of jurors in, 340 jurors in ad quod damnum proceedings, 941- 946 creditors' proceedings against imprisoned debtor, 958-960 defaults, to assess damages on, 969-973 de lunatico inquirendo proceedings, 909- 913 equity actions, 857-864 fires, to investigate origin of, 965-968 forcible entry and detainer, in cases of, 913- 915 habitual drunkard proceedings, 961-964 highway encroachment proceedings, 947- 950 highways through uninclosed lands, to assess damages for laying out, 934-939 homestead exemption law, to appraise prop- erty under, 907, 908 insanity of convict after sentence of death, to inquire into, 904 person imprisoned under civil or criminal process, to inquire into, 903, 903 insolvent debtor's proceedings, 951-957 plank road and turnpike cases, 931-940 to the seetions.'] INDEX. 375 Special Proceedings ; pregnancy of female convict, to inquire into, 905, 906 railroad uses, to assess damages for right of way for, 930 roads and highways, in proceedings to lay out, 933, 933 sherifi's or constable's, to try title to prop- erty, 897-901 struck jury, 878-886 summary proceedings to dispossess tenant, 916-931 surrogate's court, 887-896 Special Sessions, trial by jury in, 850-856 venire to issue to constable in, 853 summoning jurof s in, 853 number of jurors in, 852 qualifications of jurors in, 853 duty of constable in, 853-855 drawing of jurors in, 853 talesmen in, 854 verdict of jury in, 855, 856 no fees to jurors in, 856 Special Verdict, what is, 562, 573 • should be found by, 573 when may be rendered, 573 by direction of court, 573 when court no right to direct, 573, n. inconsistent with general verdict, 575 See Verdict. Specifications against bankrupt's discharge, trial of, 819, n. See Bankruptcy ; Trial ; U. S. Coubts. State Trials, notable, 34, n. Struck Jury, 878-886 when court will order, 878, 884, n. notice to obtain, 879 manner of obtaining, 880, 883 talesmen for, 383, n., 883, 884, n. trial by, 882 excusing one summoned for, 882 cost of obtaining, by whom paid, 884 when will not be ordered, 884, n. stay of proceedings to obtain, 884, n. setting aside, 884, n. Summary Proceedings, jury in, 916-933 no peremptory challenges in, 461, «., 472 when jury must be demanded in, 916 how jury to be summoned in, 917 qnalifications of jurors in, 917 number of jurors in, 917-919 effect of more jurors than required, 918 oath of jurors in, 919 punishment of jurors in, 919 how long jury to be kept together in, 930 when jury to be discharged in, 921 See Forms. Summary Trials in U. 8. courts, 811 376 INDEX. [^^ references me Summary Trials in U. S. courts, challenges in, 804 See U. S. Courts. Summoning Jurors, 100, 107, 111, 113, 138, 139, 173, 175, 176, 323-227 in justice's courts, 821, 825, 826 courts of special sessions, 852 U. S. courts, 777, 781-787, 790, 793, 794, 801 See Justice's Courts; Special Sessions; Trial Jurors ; U. S. Courts. Superior Courts in England, trials in, 31 Surrogate's Court, trial by jury in, 887-896 on appeals from, 887, 889 issues of fact where tried in, 888 practice in, prior to 1830, 890-893 under revised statutes, 891-893 jury trial a matter of right in, 894 power and duty of appellate court from, 894 when supreme court will not reverse, 895 court of appeals will direct jury trial in, 896 Talesmen, when challenge to, is valid, 383 may be fined and arrested, 305 in justices' courts, 834 courts of special sessions, 854 for struct jury, 883 in summary proceedings, 919 when and how summoned, 303, 303, 333 in U. S. courts, 783, 793, 794 See Challenge; Justices' Courts; Special Sessions; Struck Jury; Summary Proceedings; U. S. Courts. Territories, discharging U. S. grand juries in, 791 See U. S. Courts. Territory northwest of Ohio river, trial by jury in, 51 Test of competency of juror, 337, 373 Throckmorton, trial of Sir Nicholas, 34 Time of service of trial juror in Kings county, 83 N. Y. county, 73 U. S. courts, 780, 801 See Trial Juror ; U. S. Courts. Tithings, what they consisted of, 8 Towns interested, competency of jurors when, 86 jurors, how summoned in actions between, 824 Treason, accused to have copy jury lists on trial for, 810 number of peremptory challenges on trial for, 803 qualifications of jurors in trial for under bill of rights, 35 trial for in Scotland, 30 Trial, accused entitled to speedy and public, 54 TrialJuror, attendance of, how compelled, 74, 115-120 discharge of, when compulsory, 65 discretionary, 74, 75 in Kings county, 82 N. Y. county, 73-75 Trial Jurors, penalty for accepting or giving bribe to, 233 to t?ie aeetions.] INDEX. 377 Trial Jurors, in district courts, 143 mode of drawing, 87-130 in Buffalo, 189-193 for county court, 193 in Kings county, 158-188 N. Y. county, 133-157 duties of, 511-557 evidence of right to exemption as, 64 in Kings county, 81 N. Y. county, 71 exemption from service as, who may claim, 63, 800 who may claim in Kings county, 80 who may claim in N. Y. countv, 70 in U. 8. courts, 776, 800 when must be excused from serving as, 66 may be excused from serving as, 75, 77, 83 proof necessary to be excused from serving as, 75, 76, 83 by whom to be excused, 75, 83 time for which to be excused, 75, 77, 83 to be excused must bring notice, 76 fine for non-attendance as, 115 and arrest for non-attendance as, in Kings county, 178, 179, 305, 313, 336 and arrest for non-attendance as, in N. Y. county, 141-143, 305, 318, 236. qualifications of, 60 in Kings county, 79 N. Y. county, 68, 69 mode of selecting, 87-130 in Buffalo, 189-193 district courts, 143 Kings county, 158-188 N. Y. county, 133-157 time of service of, in Kings county, 83 N. Y. county, 73 towns, 93 Trial Jury, duty of clerk of, 533 foreman of, 533 formation of, 193-307 Trial by Jury, earliest record of a, 7 to whom chiefly ascribed, 15 when and by what purified, 35 in admiralty cases, 815-817 American colonies, 49 articles of confederation did not mention, 50 in Austrian Empire abolished, 47 Baden, 46 bankruptcy proceedings, 819 n, Bavaria, 46 Belgium, 37 Brougham on, 36 378 JNDBX. [2'A« rtfermces art Trial by Jury, Cockburn on, 26 declaration of rights as to, 49 in England, 20-36 equity cases, 857-S64 Erskine on, 26 in Prance, 35 Geneva, 39 Greece, 37 Hesse, 46 Ireland, 84 settling issues for, 864 in justices' courts, 830-849 Miller on, 51 w. motion for new trial after, 864 ordinance of congress of 1787, on, 61 origin and progress of, 1-59 in patent cases, 818 place where it shall be had, 53 in Portugal, 38 preservation of, in controversies over $30, 6S prevalence of, 59 in Prussia, 45 quo warranto proceedings, 859, n. Rhenish Hesse, 44 Ehine provinces, 43 right of, 52, 54, 230 what does not afiect, 930 in Russia, 48 Sardinia, 40 Scotland, 37-34 special sessions, 850-856 individual States, 50 surrogates' courts, 887-896 territory northwest of Ohio river, 61 U. S. courts, 811-819 waiver of, 814, 859, n., 861-863 under William the Conqueror, 16 in Wurtemberg, 46 Trial of Archbishop of Turin, 41 for capital ofEense, 23 of Carnegy of Finlaaven, verdict before, 28 after, 38 challenge, 393-298, 306, 333 in U. S. courts, 801 by eleven jurors in criminal case, 659 of indictments, 320-233 issue, how long continued, 207 by peers or equals, 3 of political ofiences in Prussia, 45 specifications against bankrupt's discharge, 819, n» by struck jury, 882 of Sir Nicholas Throckmorton, 34 Triers, what are, 298 agreement of, 308 no challenge to, 303 decision of, is final, 807 to the seciions.] INDEX. 379 Triers, duty of, 304-305 on challenge to array, 264 when judge acts for, 804, 309 efiEect of decision of judge acting for, 326 judge acting for, need not be sworn, 300 misconduct of, 307 , number of, 298 oath of, 800, 301 witness before, 303 method of selecting, 299 Tnrin, trial of Archbishop of, 41 Unanimity of jurors generally considered essential, 56 in France not necessary, 86 Scotland not necessary, 32 United States Courts, assessment of damages on defaults, in, 812, n. grand jurors in, 777-782, 787-797, 805 foreman of grand jurors in, 788 fees of grand jurors in, 798, 799 number of grand jurors to concur in find- ing, 789 in territories may discharge grand jurors, 791 Dist. of Columbia may discharge grand jurors, 791 power of grand jurors in, 792 grand jurors in Arkansas, 793 Kentucky, 794 North Carolina, 795 South Carolina, 796 Vermont, 797 corrupting grand jurors in, 806-809 trial jurors in, 775-819 challenge to trial jurors in, 800-805 corrupting trial jui-ors in, 806-809 discharging trial jurors in, 812, n. drawing trial jurors in, 779, 780, 785, 791, 796 empaneling trial jurors in, 776 exemptions of, 776, 800 fees of trial jurors in, 798, 799 qualifications of trial jurors in, 776, 777, 780, 801, 805 summoning trial jurors in, 777, 781-787, 790, 793, 794, 801 time of service of trial jurors in, 780, 801 withdrawing trial jurors in, 812, n. in Arkansas, trial jurors in, 793 Kentucky, trial jurors in, 794 New York (Northern Dist.), trial jurors in, 785 North Carolina, trial jurors in, 795 South Carolina, trial jurors in, 796 Vermont, trial jurors in, 786, 797 special juries in, 784 talesmen in, 783, 793, 794 380 INDEX. [T^ references