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The objection that a juror has not the requisite property qualification is lost if not raised when the jury is drawn, even though the facts do not come to the knowledge of the party until afterwards.1

(c) Property Qualifications in Certain Counties. In certain counties of the State the property qualification is below that required in other parts of the State.2

(d) Want of Mental Capacity, &c.-One of the statutory qualifications of jurors is, that they shall be in the possession of their natural faculties, and not infirm or decrepit.3

One who is drunk is not a competent juror, neither is an insane person.5

(e) Other Statutory Disqualifications.-Members of a grand jury or inquest, by which any indictment shall have been found, are disqualified from serving as a juror upon the trial of such indictment if challenged for that cause by the accused; so also persons of any religious denomination, whose opinions are such as to preclude them from finding any defendant guilty of an offence punishable with death, shall not be allowed to serve as jurors upon the trial of an indictment for any offence punishable with death."

3. Propter Affectum.—Which is on account of some supposed bias or partiality, and this may be either a principal challenge, or to the favor. In principal challenges, the cause assigned carries with it prima facie, evident marks of suspicion either of malice or favor, but in the challenge to the favor, the objection is only to some probable circumstance of suspicion, or the like. Among the disqualifications arising under this subject of challenge, may be found the following:

Peo. v. Jewett, 6 Wend., 386.

• Vide ante.

32 R. S., 411, § 4.

• 27 Ga., 287.

State v. Scott, 1 Hawks, 24.

2 R. S., 734, § 8.

.7 2 R. S., 734, § 14; 13 Wend., 351.

3 Black. Com., 363.

' Idem.

(a) Bias in the Juror's Mind on the Question whether or not the Prisoner is Guilty.-The fact that one drawn as a juror, has expressed an opinion upon the guilt of the prisoner, is a sufficient ground of challenge; the prisoner is entitled to a trial by jurors who stand indifferent; 2. e., neutral, free of any bias, with minds uncommitted. It is not needful to exclude a juror, that he should entertain any ill will towards the prisoner.1

A challenge for that the juror has expressed an opinion, is a challenge for principal cause, and triable by the court.2

A juror was challenged for principal cause, and being examined under oath, testified, on his direct examination, that he had formed an opinion and expressed it; and on his cross-examination, that he had no fixed opinion which could not be removed by the evidence. The court overruled the challenge, and the juror was then challenged for favor, and on examination said that his mind was balanced; that he did not know that he had any impression or opinion; that that had been removed by a former trial of the prisoner, when the jury were not able to agree. It was held that it was error to admit him. 1. What he said on challenge to the favor, could not be considered upon the question as to the challenge for principal cause. The finding of the triers cannot cure an error in the decision by the court of the challenge for principal cause. 2. By his statement on the first challenge, he was disqualified. The testimony should be construed with liberality to the defendant.3

Where on a trial for murder, a juror who was drawn, was challenged by the prisoner for principal cause, on the ground that he had formed and expressed an opinion, and such challenge was traversed by the public prosecutor, and it appeared by the testimony of the juror who was called upon as a witness to prove the truth of the challenge, that he thought he had an impression as to the prisoner's guilt or innocence; that he rather thought he had formed an opinion; that he presumed he had expressed it, and thought he retained it; that he had formed an opinion if the newspaper accounts of the transaction, of which he had read only a part, were true, and that so far as he read he gave them cre

1 Peo. v. Vermilyea, 7 Cow., 108.

* Idem; Freeman v. The Peo., 4 Den., 9; 4 Wend., 229; 6 Cow., 555; 14 Serg. & R., 292; 17 Id., 155; 16 N. Y., 501.

• Cancemi v. Peo., 16 N. Y. (2 Smith), 501; 7 Abb. Pr., 271.

dence; that it might or might not require evidence to remove his impression of the prisoner's guilt; that he had not arrived at any definite opinion, and the court overruled the challenge and declared the juror to be competent, it was held on review, that the decision was correct,1 for to sustain a challenge for principal cause, on the ground that the juror has formed and expressed an opinion, it must appear that the opinion was absolute, unconditional, definite and settled; it is not enough that it was a hypothetical condition, indefinite and uncertain. If the opinion belong to the latter class, it is a proper subject for challenge to the favor.2 Where, on the trial of a challenge for favor, the person challenged as a juror testified that he had read part of the statements in the papers at the time of the homicide, and had formed a preconceived idea in regard to the prisoner's guilt or innocence; that he had no bias one way or the other; that his preconceived idea or impression would in no way influence his verdict, but would be governed entirely by the evidence produced on the stand, he was adjudged to be a competent juror.3

On the trial of a challenge for principal cause nothing short of a fixed and settled opinion will disqualify the juror. It is proper to exclude questions tending to show a mere impression or bias. But it is otherwise when the challenge is for favor, on the ground of bias.5

The fact that the juror has heard part of the evidence at the coroner's inquest, read and formed an impression that the prisoner was guilty, but has doubts, and would be guided by the evidence, &c., is not enough to support a challenge for principal cause.6

On a challenge for principal cause, grounded on the juror's having expressed an opinion, it is no answer to the objection that the opinion is not based on any knowledge of facts, but on mere rumors and reports.7

A late writer upon criminal law remarks, that if a man leaps in advance of the law, and settles in his own mind the question of

Slout v. Peo., 4 Park., 71.

2 Idem.

Sanchez v. Peo., 4 Park., 535.

Peo. v. Honeymore, 3 Den. 121; Freeman v. Peo., 4 Den., 9.

Id.

Freeman v. The Peo., 4 Den., 9; Peó. v. Stout, 4 Park., 71; 4 Park., 535. "Peo. v. Mather, 4 Wend., 554.

guilt against the prisoner, whether by reason of what he has read or heard, or by reason of an inner impulse, which condemns before it hears, he is not a fit person to be a juror in the cause; for his mind, which ought to be a blank on which the evidence might write its conclusions, is already pre-occupied.1

A challenge for principal cause is not established by merely showing that the juror had formed an opinion that the prisoner had killed the deceased, which he never expressed; this was not an opinion as to the guilt or innocence of the prisoner; he might have killed the deceased and still have been innocent of any criminal offence.2

(b) Bias which comes from near Relationship.-CHITTY says, if the juror is related to either party within the ninth degree, though it is only by marriage, a principal challenge will be admitted. So, also, if he has acted as godfather to a child to the party, he may be challenged for that reason. Upon this subject, the relationship by affinity is the same as by consanguinity. But affinity ceases with the dissolution by the death of one of the married parties of the marriage by which it was created.

(c) That the Juror has a Pecuniary or other Interest in the Event of the Action.-It has been allowed a good ground of challenge on the part of the prisoner, that the juror hath a claim to the forfeiture which shall be caused by the prisoner's conviction. The members of any association of men combining for the purpose of enforcing or withstanding the execution of a particular law, and binding themselves to contribute money for that purpose, are incompetent to sit as jurors on the trial of an indictment for violating the law.

So, also, if the juror has taken money for his verdict.9

1 Bish. Cr. Pro., 772.

'Lowenberg v. Peo., 27 N. Y., 336.

1 Chit. Cr. Law, 541; 3 Blac. Com., 363, Co. Lit., 157 a.

* Co. Lit., 157 a; Burns' Jus. Jurors, IV, I.

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(d) That the Juror has Passed upon the same Question while Serving in some other Capacity.-If the juror has passed upon the question, though he has only discharged a duty in so doing, still, as his opinion has been once made up, he is not a fit person to hear the evidence and make up a second opinion.1

Our statute provides that no member of the grand jury or inquest, by which any indictment shall be found, shall serve as a petit juror for the trial of such indictment, if he be challenged for that cause by the accused.2

3

(e) Bias from Particular Opinions concerning the Law.If the juror holds the statute to be void, as being unconstitutional, and this opinion is of such a nature that he cannot convict, whatever the evidence may be, he is incompetent. If in general terms the juror does not favor the policy of capital punishment, he is not for this reason incompetent. But if he has such conscientious scruples as will forbid his bringing in a verdict of guilty in such case, or trying it fairly, he must be excluded.

This is sufficient ground to challenge for principal cause."

Upon a challenge for favor, upon the ground of conscientious scruples, the following question was held competent before the triers, viz.: "Have you any conscientious scruples against rendering a verdict of guilty in a case where the punishment is death."7

Where the juror testified that he was opposed to the punishment of death, but said, that if sworn as a juror on a trial for murder and the evidence of guilt was clear he should find the accused guilty, it was held that the challenge was not sustained.R On a challenge for favor, the juror testified before the triers

1 1 Bish. Cr. Pro., 773; 3 Black. Com., 363.

22 R. S., 734, § 8.

Com. v. Austin, 7 Gray, 51.

Com. v. Webster, 5 Cush., 295; 16 Ark. 568; Cal., 140; Peo. v. Wilson,

3 Park., 199; Lowenberg v. Peo., 5 Park., 414.

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1 Bish. Cr. Pro., 779, and cases cited; 3 Park., 199; Peo. v. Damon, 13 Wend., 351.

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