practice. An exception made to jurors who are to pass
on a trial; to a judge; or to a sheriff.
2. It will be proper here to consider, 1. the several kinds of challenges;
2. by whom they are to be made; 3. the time and manner of making them.
3. - 1. The several kinds of challenges may be divided into those which
are peremptory, and those which are for cause. 1. Peremptory challenges
are those "which are made without assigning any reason, and which the court
must allow. The number of these which the prisoner was allowed at common
law, in all cases of felony, was thirty-five, or one under three full juries.
This is regulated by the local statutes of the different states, and the
number except in capital cases, has been probably reduced.
4. - 2. Challenges for cause are to the array or to the polls. 1. A challenge
to the array is made on account of some defect in making the return to the
venire, and is at once an objection to all the jurors in the panel. It is
either a principal challenge, that is, one founded on some manifest partiality,
or error committed in selecting, depositing, drawing or summoning the jurors,
by not pursuing the directions of the acts of the legislature; or a challenge
5. - 2. A challenge to the polls is objection made separately to each juror
as he is about to be sworn. Challenges to the polls, like those to the array,
are either principal or to the favor.
6. First, principal challenges may be made on various grounds: 1st. propter
defectum, on account of some personal objection, as alienage, infancy, old
age, or the want of those qualifications required by legislative enactment.
2d. Propter affectum, because of some presumed or actual partiality in the
juryman who is made the subject of the objection; on this ground a juror
may be objected to, if he is related to either within the ninth degree,
or is so connected by affinity; this is supposed to bias the juror"s mind,
and is only a presumption of partiality. Coxe, 446; 6 Greenl. 307; 3 Day,
491. A juror who has conscientious scruples in finding a verdict in a capital
case, may be challenged. 1 Bald. 78. Much stronger is the reason for this
challenge, where the juryman has expressed his wishes as to the result of
the trial, or his opinion of the guilt or innocence of the defendant. 4
Harg. St. Tr. 748; Hawk. b. 2, c. 43, s. 28; Bac. Ab. Juries, E 5. And the
smallest degree of interest in the matter to be tried is a decisive objection
against a juror. 1 Bay, 229; 8 S. & R. 444; 2 Tyler, 401. But see 5 Mass.
90. 3d. The third ground of principal challenge to the polls, is propter
delictum, or the legal incompetency of the juror on the ground of infamy.
The court, when satisfied from their own examination, decide as to the principal
challenges to the polls, without any further investigation and there is
no occasion for the appointment of triers. Co. Litt. 157, b; Bac. Ab. Juries,
E 12; 8 Watts. R. 304.
7. - Secondly. Challenges to the poll for favor may be made, when, although
the juror is not so evidently partial that his supposed bias will be sufficient
to authorize. a principal challenge, yet there are reasonable grounds to
suspect that he will act under some undue influence or prejudice. The causes
for such cballenge are manifestly very numerous, and depend, on a variety
of circumstances. The fact to be ascertained is, whether the juryman is
altogether indifferent as he stands unsworn, because, even unconsciously
to himself, be may be swayed to one side. The line whicb separates the causes
for principal challenges, and for challenge to the favor, is not very distinctly
marked. That the juror has acted as godfather to the child of the prosecutor
or defendant, is cause for a principal cballenge; Co. Litt. 157, a; while
the fact that the party and the juryman are fellow servants, and that the
latter has been entertained at the house of the former, is only cause for
challenge to the favor. Co. Litt. 147; Bac. Ab. Juries, E 5. Challenges
to the favor are not decided upon by the court, but are settled by triers.
8. - 2. The challenges may be made by the government, or those who represent
it, or by the defendant, in criminal cases; or they may be made by either
party in civil cases.
9. - 3. As to the time of making the challenge, it is to be observed that
it is a general rule, that no challenge can be made either to the array
or to the polls, until a full jury have made their appearance, because if
that should be the case, the issue will remain pro defectu juratorum; and
on this account, the party who intends to challenge the array, may, under
such a contingency, pray a tales to complete the number, and then object
to the panel. The proper time, of challenging, is between the appearance
and the swearing of the jurors. The order of making challenges is to the
array first, and should not that be supported, then to the polls; challenging
any one juror, waives the right of challenging the array. Co. Litt. 158,
a; Bac. Ab. Juries, E 11. The proper manner of making the challenge, is
to state all the objections against the jurors at one time; and the party
will not be allowed to make a second objection to the same juror, when the
first has been over-ruled. But when a juror has been challenged on one side,
and found indifferent, he may still be challenged on the other. When the
juror has been cliallenged for cause, and been pronounced impartial, he
may still be challenged peremptorily. 6 T. R. 531; 4 Bl. Com. 356; Hawk.
b. 2, c. 46, s. 10.
10. As to the mode of making the challenge, the rule is, that a challenge
to the array must be in writing; but when it is only to a single individual,
the words " I challenge him " are sufficient in a civil case,
or on the part of the defendant, in a criminal case when the challenge is
made for the prosecution, the attorney-general says, We challenge him."
4 Harg. St. Tr. 740 Tr. per Pais, 172; and see Cro. C. 105; 2 Lil. Entr.
472; 10 Wentw. 474; 1 Chit. Cr. Law, 533 to 551.
11. Interest forms the only ground at common law for challenging a judge.
It is no ground of challenge that he has given an opinion in the case before.
4 Bin. 349; 2 Bin. 454. By statute, there are in some states several other
grounds of challenge. See Courts of the U. S., 633 64.
12. The sheriff may be challenged for favor as well as affinity. Co. Litt.
158, a; 10 Serg. &. R. 336-7. And the challenge need not be made to
the court, but only to the prothonotary. Yet the Sheriff cannot be passed
by in the direction of process without cause, as he is the proper officer
to execute writs, except in case of partiality. Yet if process be directed
to the coroner without cause, it is not void. He cannot dispute the authority
of the court, but must execute it at his peril, and the misdirection is
aided by thc statutes of amendment. 11 Serg. & R. 303.
Source: Bouviers Law Dictionary 1856 Edition
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