Objections to grand jurors.

containing the name of Smith in the box was not designed, but owing entirely to neglect.

In commenting on this case, Sutherland, J., who delivered the opinion of the court, observes, that the true rule to be collected from all the cases is, that to entitle the defendant to a new trial, he must show himself to have been prejudiced by the irregularity, and concludes, "Whatever irregularity, therefore, there may have been in this case, it is most evident that it has not affected or prejudiced in any manner the rights of the prisoner, and that he is not, according to the best established principles, entitled to a new trial."

So, if the judge overrule a challenge to a juror, after declar ing he has formed an opinion, as in Blake v. Millspaugh.(1) On certiorari from a justice's court. On the jurors being called, the defendant below objected to one of them, alleging, as a cause of challenge, that the juror had previously expressed his opinion, that the roll so taken by the defendant was unlawful and not authorized by the act, and, at the same time, offered to verify by proof, the truth of the exception; but the justice overruled the objection, and allowed the juror to be sworn, and a verdict was found for the plaintiff. Per Curiam.-" We think the challenge was well taken. That a juror had previously given an opinion on the very question in controversy, was a valid exception to his being sworn to try the cause; the defendant's proceeding to trial on the merits, afterwards, is no waiver of the excep tion, nor does it preclude him from alleging the misdirection of the judge as error."(2)

VI. Objections to grand jurors.

The objection to a grand juror, by reason of par tiality and dislike, or want of the qualification of pro- [*41]

(1) 1 Johns. Rep. 316.

(2) Vide 8 Johns. Rep. 445; 6 Cowen, 565; 4 Wendell, 232, and 1 Burr's Trial, 419.

Objections to grand jurors.

perty, must be taken before indictment found, otherwise it would not avail to quash the proceedings, much less to set aside the verdict.

The former of these objections was overruled, on a motion to quash the indictment, in The People v. Jewett.(1) The defendant, in support of his motion, among other things, showed that Benjamin Wood, one of the grand jurors, had, before the finding of the bill of indictment, in repeated conversations, declared that the defendant was concerned in the abduction of Morgan; aided in carrying him off; was guilty thereof; and ought to be punished therefor. And that in such conversations Wood discovered great malignity of feeling, and bitter hostility against the defen

dant.

Savage, Ch. J., commenting on this part of the case, observes: "As to Wood, the other juror, good cause of challenge existed: There are causes of challenge to grand jurors, and these may be urged by those accused, whether in person, or out on recognizances; and it is even said, that a person wholly disinterested, may, as amicus curiæ, suggest that a grand juror is disqualified. But such suggestion, to be availing, must be made previous to the jury being empanneled and sworn." Again, "I cannot consent, that, after an indictment found, the party charged may urge an objection of this kind, in avoidance of the indictment. The books are silent on the subject of such exception, after indictment found; and, in the absence of authority, I am inclined to say, in consideration of the inconvenience and delay which would unavoidably ensue in the administration of criminal justice, was a challenge to a grand juror permitted to be made, after he was sworn and empanneled, that the objection comes too late."

[*42] *Marcy, J., remarks, "I have had more difficulty in disposing of the objection made to Lacey and Wood. What is urged against Wood particularly, would have been sufficient to exclude him, on a challenge upon the ground of favor; though

Objections to grand jurors.

on the argument it was said to be otherwise, by the counsel for the people. The opinion of Ch. J. Marshall, on the trial of Col. Burr, and of Woodworth, J., in the case of The People v. Barker, are decisive of this question. If the objection to these jurors could have been presented when they were empanneled, and the facts on which it rests properly authenticated, I think it would have been sufficient to exclude them." Again; "though I feel the force of the argument, that the defendant should be allowed the benefit of an exception to a partial grand juror, I cannot turn my view from the consideration of the great delays and embarrassments which would attend the administration of criminal justice, if it was to be obtained in the way now proposed. No authority for adopting this course was shown on the argument, and I have not since been able to find any. It would be a novel proceeding, and there is reason to fear it might be followed with more serious difficulties than are now foreseen."

The latter objection, as to the qualification of property, was disposed of in the case of the same defendant, on a question af terwards brought up on demurrer. He had pleaded to the indictment, that J. W. S., one of the grand jurors, by whom the indictment was found before and at the time when he was empanneled, charged and sworn as a grand juror, had not a freehold of the value of $150; nor was he in possession of lands under a contract for the purchase of the same, and worth $150 in personal property; nor had he made improvements on such lands to the amount of $150, free from all reprizes, debts, or incumbrances, whatsoever. Wherefore he prayed judgment of the indictment, and that the same might be quashed, &c. The opinion of the court was delivered by Sutherland, J., *con- [*43] cluding thus: "I apprehend a verdict, either in a civil or criminal case, would not be set aside, merely on the ground that one or more of the jurors had not the property qualification required by law. It very frequently occurs that such mistakes. are made in the panel; and jurors undoubtedly, sometimes, serve without the requisite legal qualifications. But if the objection is not raised when the jury is drawn, the parties are con

Objections to grand jurors.

cluded, although the fact may not have come to their knowledge until after the trial. I speak of strictly legal and technical ob jections which go to the character of the juror, and show that he labored under prejudices and prepossessions which render him incapable of acting impartially in the case, and that in all human probability, there had not been a fair trial. The objection presented by the plea to the indictment in this case is simply, that one of the grand jurors was not a freeholder, &c. This, in a civil case, would not be a sufficient ground, per se, for setting aside the verdict of a jury, although the law expressly requires that petit jurors shall be freeholders. Much less ought it to prevail against an indictment, for the reasons which have already been stated."(1)

A principal challenge to a grand juror before bill found, and to a petit juror, before he is empanneled, stand upon the same footing; and if, in the latter case, the challenge is good and seasonably interposed, yet overruled, a new trial will be granted.

In The People v. Vermilyea, (2) one Norwood was called as a juror, and challenged for principal cause. He testified he had heard all the evidence given on the former trial, having been present at it; that he had made up his opinion perfectly on the evidence, that the defendants were all guilty. Upon being in

quired of by the district attorney, he stated that he felt no [*44] bias or partiality against any of the *defendants; and add

ed, that he thought he felt competent to give a verdict according to his oath, and the evidence as it should appear. The court decided that the juror stood indifferent, and he was accordingly sworn. An exception was interposed, and with the challenge was returned upon the record for error. Woodworth, J., delivering the opinion of the court, after a review of all the authorities, proceeds: "The remaining question is, was the opinion expressed by Norwood a ground of principal challenge? The court below judged rightly in considering it made for principal

(1) The People v Jewett, 6 Wendell, 386.

Objections to grand jurors.

cause. Such challenges are for causes which, in judgment of law, indicate bias, or which, if found true, are sufficient of themselves, without being submitted to the direction of triers; or for causes which prove evident favor or enmity in the juror. If I have not erred in what I have already said, the law does presume that the expression of an opinion on the merits of a case indicates bias, or that the mind of the juror is decidedly unfavorable to the defendants. It is then a principal cause of challenge. All the authorities I have cited, prove this to be correct. When the law has declared the consequences of a fact, if the fact be established, it becomes the duty of the court to make the application." After a comparison of the illiberal policy of English jurisprudence towards the accused, with the benign practice of our courts, the learned judge concludes: "I have now examined all the questions deemed material in this case. My brethren on the bench concurring in the views I have taken, the consequence is, that a valid principal cause of challenge having been overruled in the court below, a new trial must be granted."