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[351] of King's Bench, there is time allowed, between the arraignment and the trial, for a jury to be impaneled by a writ of enire facias to the sheriff, as in civil causes; and the trial in case of a misdemeanor is had at nisi prius, unless it be of such consequence as to merit a trial at bar, which is always invariably had when the prisoner is tried for any capital offense." But, before commissioners of oyer and terminer and jail delivery, the sheriff, by virtue of a general precept directed to him beforehand, returns to the court a panel of forty-eight jurors, to try all felons that may be called upon their trial at that session; and, therefore, it is there usual to try all felons immediately, or soon after their arraignment. But it is not customary, nor agreeable to the general course of proceedings (unless by consent of parties, or where the defendant is actually in jail), to try persons indicted of smaller misdemeanors at the same court in which they have pleaded not guilty, or traversed the indictment. But they usually give security to the court to appear at the next assizes or session, and then and there to try the traverse, giving notice to the prosecutor of the same."

(6) See how the indictments for capital offenses may be tried at nisi prius, ante, p. 309, n. (24). When offenses may be tried at bar, see 1 Chit., Crim. L., 497, 8.-[CHITTY.]

(7) Now, by the stat. 60 Geo. III. & 1 Geo. IV., c. 4, s. 3, if the defendant has been committed to custody, or held to bail, for a misdemeanor (except for non-repair of a highway), twenty days

before the session of the peace, session of oyer and terminer, or session of jail delivery, at which the indictment was found, the defendant shall plead, and the trial shall take place at such session, unless a writ of certiorari be awarded. And by section 5, where a defendant is indicted for a misdemeanor at any session of the peace, session of oyer and terminer, or session of jail delivery, not having been committed to custody or

or in the right of their wives, to the value of $150, and who are of fair character,
of approved integrity, of sound judgment, and well-informed. These lists are
filed in the office of the county clerk, and the names contained in them are writ-
ten on separate pieces of paper and deposited in a box; and fourteen days before
the holding of a court of oyer and terminer, or court of general sessions, the names
of thirty-six persons (and such additional number as may have been directed by
a circuit judge) are drawn from the box, whose duty it is made by law to serve
as jurors at such courts. The clerk of the county, in the presence of the sheriff'
and certain other public officers, draws the names from the box, and furnishes a
list of such names to the sheriff, whose duty it is to summon the persons named
in such list to attend the court as jurors. The clerk and the sheriff are bound to
furnish a copy of the list of jurors to any person applying therefor.
At the open-
ing of the court, the names of the persons returned as jurors are written on sep-
arate pieces of paper and placed in a box; from which box, when a cause is
moved for trial, or an indictment is brought on to trial, twelve ballots are drawn,
and the persons whose names are found written upon such ballots serve as the
jury.-(2 R. S., 411, § 12, 16, 24, 26, 41, 59, 60, 61.) In the city of New York,
and in several of the other cities of the state, similar proceedings are had for the
obtaining of jurors.-(2 Id., 413, § 22, 23.)

All issues of fact joined upon an indictment must be tried by a jury in the county where the indictment was found, unless, for special causes, the Supreme Court order an indictment removed into that court, to be tried in some other county.(2 R. S., 733, § 1.) The Supreme Court have the power to order a trial at bar, but it is never exercised; at least, during the lapse of near half a century, it is believed not a case has occurred. As to jury process for summoning a jury, it is rendered unnecessary by the mode adopted for obtaining a jury; and as to furnishing a defendant with a copy of the indictment, see ante, p. 322, n. *.

witnesses,

&c.

In cases of high treason, whereby corruption of blood may List of jury, ensue (except treason in counterfeiting the king's coin or seals), copy of inor misprision of such treason, it is enacted by statute 7 W. III., dictment, c. 3, first, that no person shall be tried for any such treason except an attempt to assassinate the king, unless the indictment be found within three years after the offense committed; next, that the prisoner shall have a copy of the indictment (which includes the captionk), but not the names of the witnesses, five days at least before the trial, that is, upon the true construction of the act, before his arraignment; for then is his time to take any exceptions thereto, by way of plea or demurrer; thirdly, that he shall also have a copy of the panel of jurors two days before his trial; and, lastly, that he shall have the same compulsive process to bring in his witnesses for him as was usual to compel their appearance against him. And by statute 7 Ann., c. 21 (which did not take place till after the decease of the late pretender), all persons indicted for high treason or [352] misprision thereof shall have not only a copy of the indictment, but a list of all the witnesses to be produced, and of the jurors impaneled, with their professions and places of abode, delivered to him ten days before the trial, and in the presence of two witnesses, the better to prepare him to make his challenges and defense. But this last act, so far as it affected indictments for the inferior species of high treason, respecting the coin and the * Fost., 229; Append. I. Fost., 230.

held to bail to appear to answer for such
offense twenty days before the session
at which the indictment was found, but
who shall have been committed to cus-
tody or held to bail to appear to answer
for such offense at some subsequent ses-
sion, or shall have received notice of
such indictment having been found,
twenty days before such subsequent ses-
sion, he shall plead at such subsequent
session, and the trial shall take place at
such session, unless a certiorari be award-
ed before the jury be sworn for such tri-
al. But on sufficient cause shown, the
court may allow further time for trial.
Id., s. 7.-[CHITTY.] Where the de-
fendant has neither been in custody nor
on bail, he can not force the prosecutor
on to trial at the same assizes or ses-
sions at which the indictment is found.
9 C. & P., 284. The words of s. 5 be-
ing
"for such offense" where the de-
fendant is first committed and indicted
for a felony, and acquitted, and after-
ward is indicted as for a misdemeanor;
or where he is indicted for a different
misdemeanor from that for which he
has been committed or held to bail; he
is entitled to traverse, though he have
been committed or held to bail 20 days
VOL. IV.-C c

or more. 1 M. & Rob., 503; 3 C. & P.,
222; 9 C. & P.,
437. A defendant ar-
rested during the assizes or sessions at
which the indictment has been found
can not be discharged on bail without
pleading and traversing. 2 M. & Rob.,
291. As to notice of trial after a trav-
erse, see 1 C. & P., 660; 8 C. & P.,
109, 576.

In felonies as well as misdemeanors,
the court has authority to postpone the
trial to a subsequent assizes or sessions,
for sufficient cause shown upon affidavit,
at the instance either of the prosecutor
or the defendant; as the unavoidable
absence of a material witness, the exist-
ence of a prejudice in the jury, &c.
Where the application is made by the
defendant, in a case of felony, the court
will remand him, and detain him in cus-
tody till the next assizes or sessions;
where by the prosecutor, it is in the
discretion of the court to detain the de-
fendant in custody, or admit him to bail,
or discharge him on his own recogni-
zance; but after a bill has been found,
in any case of a serious nature, bail will
not be taken. See 6 C. & P., 652; 7 C.
& P., 497, 782, 799; 8 C. & P., 558; 9
C. & P., 83, 228, 509; 2 M. & Rob., 192.
401

royal seals, is repealed by the statute 6 Geo. III., c. 53, else it had been impossible to have tried those offenses in the same circuit in which they are indicted; for ten clear days, between the finding and the trial of the indictment, will exceed the time usually allotted for any session of oyer and terminer.m And

m Fost., 250.

that the objection was too late after plea pleaded. And all the judges agreed that, if the objection had been taken before plea pleaded, the court might have postponed the trial to give time for a proper delivery of the lists. 2 Mood., C. C., 140; 9 C. & P., 129.]

persons accused of high treason shall be entitled to the benefit of 7 & 8 Will. III., c. 3, and to the provisions of 7 Ann., c 21, except in the case of compassing or imagining the death of the king, or any direct attempt on his life.

(8) By the 6 Geo. IV., c. 50, s. 21 (which act repeals the 7 Ann., c. 21, so far as it relates to giving a list of the jury), when any person is indicted for high treason, or misprision of treason, in any court other than the Court of King's Bench, a list of the petit jury, mentioning the names, profession, and place of By the 39 & 40 Geo. III., c. 93, it is abode of the jurors, shall be given at enacted, that in all cases of high treason, the same time that the copy of the in- in compassing and imagining the death dictment is delivered to the party in- of the king, or in misprision of such dicted, which shall be ten days before treason, where the overt act of such the arraignment, and in the presence of treason shall be alleged in the indicttwo or more credible witnesses; and ment to be the assassination of the king, when any person is indicted for high or a direct attempt against his life or treason or misprision of treason in the person [see, also, 5 & 6 Vict., c. 51, s. Court of King's Bench, a copy of the in- 1], the person accused shall be indicted dictment shall be delivered within the and tried in the same manner in every time, and in the manner aforesaid; but respect, and upon the like evidence, as the list of the petit jury, made out as if he was charged with murder, but the aforesaid, may be delivered to the par- judgment and execution shall remain ty indicted at any time after the arraign- the same as in other cases of high treament, so as the same be delivered ten son. But as to this latter clause, relatdays before the day of trial: Provided ing to judgment and execution, the 57 always, that nothing herein contained Geo. III., c. 6, has since provided that shall any ways extend to any indictment for high treason in compassing and imagining the death of the king, or for misprision of such treason, where the overt act or overt acts of such treason alleged in the indictment shall be assassination or killing of the king, or any In felony, the prisoner is not entitled direct attempt against his life, or any di- to a copy of the indictment; 1 Lev., 68; rect attempt against his person, where- Moore, 666; 1 Show., 131; 4 T. R., by his life may be endangered or his 692; although, if any legal exception bo person may suffer bodily harm; or to taken to its form, the court will, as a fa any indictment of high treason, or to any vor, allow a copy to be taken of the part proceedings thereupon, against any of which it is material to examine. 1 Lev., fender or offenders, who by any act or 68; 1 Sid., 85. And he is, in all cases, acts now in force is and are to be indict- allowed to have the record read over to ed, arraigned, tried, and convicted, by him with sufficient distinctness, or even such like evidence, and in such manner, twice in English, Id.; as is the case at as is used and allowed against offenders the present day, where the prisoner defor counterfeiting his majesty's coin. sires to plead autrefois acquit to an in[Where a bill of indictment for treason dictment for felony. 2 Leach, 711. In was found on the 11th of December, on offenses inferior to felony, on the other the 12th copies of the indictment and hand, it seems that the right of having of the jury panel were delivered to the a copy of the indictment has at all times prisoner; and on the 17th a copy of the been admitted. Cro. Car., 483. And list of witnesses was delivered to him; now, by 60 Geo III. & 1 Geo. IV., c. 4, on the 31st he was arraigned and plead- s. 8, in prosecutions for misdemeanors, ed: it was held by a majority of the instituted by the attorney or solicitorjudges that the delivery of the list of witnesses at a different time from that of the other lists was not a sufficient delivery within the 7 Ann., c. 21; but

general, in any of the courts therein mentioned, the court shall, if required, make order that a copy of the information or indictment shall be delivered,

no person indicted for felony is, or (as the law stands) ever can be, entitled to such copies before the time of his trial.n

When the trial is called on, the jurors are to be sworn as they appear, to the number of twelve, unless they are challenged by the party."

of jury. To

for cause.

Challenges may here be made, either on the part of the king Challenges or on that of the prisoner, and either to the whole array or to the array, or the separate polls, for the very same reasons that they may be to the polls made in civil causes.o For it is here, at least, as necessary as there, that the sheriff or returning officer be totally indifferent,* that where an alien is indicted the jury should be de medietate, or half foreigners, if so many are found in the place" (which does not, indeed, hold in treasons,P aliens being very improper judges of the breach of allegiance, nor yet in the case of Egyptians," under the statute 22 Hen. VIII., c. 10); that on every panel there should be a competent number of hundredors," and that the particular jurors should be omni exceptione majores, not liable to objection either propter honoris respectum, propter defectum, propter affectum, or propter delictum.

Challenges upon any of the foregoing accounts are styled [353 | challenges for cause, which may be without stint in both crim- Peremptory inal and civil trials. But in criminal cases, or at least in capi- without challenges tal ones, there is, in favorem vitæ, allowed to the prisoner an ar- cause. bitrary and capricious species of challenge to a certain number

n 2 Hawk., P. C., 410.
See vol. iii., page 359.

after appearance, to the party prosecuted, or his clerk in court, or attorney, upon application made for the same, free from all expense to the party so applying; provided that such party or his clerk in court, or attorney, shall not have previously received a copy thereof.[CHITTY.]

(9) As to the right of a prisoner to copies of the depositions against him, see 6 & 7 Will. III., c. 114, ante, p. 296, n. (3).

P 2 Hawk., P. C., 420; 2 Hal., P. C., 271.

ed., 533 to 551; ante, vol. iii., p. 357,
notes.-[CHITTY.]

(11) The right of aliens to challenge,
de medietate linguæ, seems to be dis-
puted, and it is said they must demand
the privilege at the time of awarding the
venire. 1 Bla. Rep., 517; Cro. Eliz.,
869; 2 Dyer, 144; 3 Dyer, 357, b.; 1
Keb., 547, acc.; 2 Hale, 272, contra; see
the 47th sect of the stat. 6 Geo. IV., c.
50, ante, vol. iii., p. 357, n.-[CHITTY.]

(12) This is repealed as to Egyptians (10) As to challenges in general, see by stat. 1 Geo. IV., c. 116.—[CHITTY.] 2 Hale, 267 to 276; Hawk., b. 2, c. 43; Bac. Abr., Juries, (E.); Com. Dig., Chal- (13) The right to challenge for want lenge; Burn, Just., Jurors, IV.; Dick. of hundredors is now taken away by the Sess., 183 to 191; 1 Chit., Crim. L., 2d 6 Geo. IV., c. 50, s. 13.—[CHITTY.]

* It is no cause of challenge to the panel or array of jurors in New York, that they were summoned by the sheriff, who is a party or interested in such cause, unless it be shown that the sheriff intentionally omitted to summon some of the jurors drawn by the clerk; nor is it cause of challenge to such panel or array that the clerk who drew the jury is a party in a cause, or is counsel or attorney for, or related to, either party in a cause brought on to trial.-(2 R. S., 420, § 56, 57.) A jury de medietate, that is, a jury of part aliens or strangers, is no longer allowed in New York, neither in the trial of a civil cause nor of an indictment.-(2 R. S., 419, § 53; 734, § 7.)

What num.

14

of jurors, without showing any cause at all, which is called a peremptory challenge; a provision full of that tenderness and humanity to prisoners for which our English laws are justly famous. This is grounded on two reasons. 1. As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike. 2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases. peremptorily to set him aside.

This privilege of peremptory challenges, though granted to the prisoner, is denied to the king by the statute 33 Edw. I., st. 4, which enacts, that the king shall challenge no jurors without assigning a cause certain, to be tried and approved by the court." However, it is held that the king need not assign his cause of challenge till all the panel is gone through, and unless there can not be a full jury without the person so challenged. And then, and not sooner, the king's counsel must show the cause; otherwise the juror shall be sworn.q1

The peremptory challenges of the prisoner must, however, ber of per- have some reasonable boundary, otherwise he might never be challenges. tried. This reasonable boundary is settled by the common law [354] to be the number of thirty-five, that is, one under the number

emptory

of three full juries. For the law judges that five and thirty are fully sufficient to allow the most timorous man to challenge through mere caprice, and that he who peremptorily challenges a greater number, or three full juries, has no intention to be tried at all. And, therefore, it dealt with one who peremptorily challenges above thirty-five, and will not retract his challenge, as with one who stands mute or refuses his trial, bv sentencing q 2 Hawk., P. C., 413; 2 Hal., P. C., 271.

(14) A peremptory challenge is not allowed in the trial of collateral issues. Fost., 42. Nor in any trial for a misdemeanor. 2 Harg., St. Tr., 808, and 4 Harg., St. Tr., 1.-[CHITTY.]

(15) And see a similar provision in 6 Geo. IV., c. 50, s. 29.-[CHITTY.]

(16) And the practice is the same both in trials for misdemeanors and for capital offenses. 3 Harg., St. Tr., 519. Where there is a challenge for cause,

two persons in court, not of the jury, are sworn to try whether the juryman challenged will try the prisoner indifferently. Evidence is then produced to support the challenge; and according to the verdict of the two tryers, the juryman is admitted or rejected. A jury man was thus set aside in O'Coigly's trial for treason, because, upon looking at the prisoners, he had uttered the words, "damned rascals." See O'Coigly's Trial.-[CHRISTIAN.]

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