them; and their verdict thereon is decisive. (k) Or, the defendant may, by his counsel, consent to substitute the court for triors. But when such consent has been given it can not afterwards be revoked, and a demand made that the challenge shall be passed upon by triors; especially after the challenge has been passed upon by the court. (7) Upon challenges for favor on account of bias, although evidence that the juror has given credit to written or oral statements as to the prisoner's guilt, is admissible, for the consideration of the triors, the juror should not be set aside unless it is found that he has such a settled opinion that he could not render a verdict upon the evidence alone. (m) If, by the default of jurors, or challenges, a sufficient number can not be had of the original panel, a tales may be awarded, as in civil cases, till the number of twelve be sworn. (n) This whole matter of challenges, however, is now regulated by the Civil Code, and the Code of Criminal Procedure. (6) (k) Cro. Cir. Com., 116, 117. (m) People v. Honeyman, 3 Denio, 121. (2) 21 Wend., 509. (6) CHALLENGES. The Civil Code thus provides: Because officer is a party.]-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. (§ 1178.) In penal actions.]-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 taxes, in a city, town or county which may be benefited by the recovery. (§ 1179.) How tried; exceptions to, and review of decision. ]-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 tried 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 impanelled, an exception to the determination of a challenge must be heard at the same time; and the case must contain the matter necessary to present it, upon the facts, or the law, or both. (§ 1180, as amended by Laws of 1877, eh. 416.) CODE OF CRIMINAL PROCEDURE. Definition and division of challenges.]—A challenge is an objection made to trial jurors, and is of two kinds : 1. To the panel; 2. To an individual juror. (§ 359.) When there are several defendants, they must unite in their challenges.]-When several defendants are tried together they can not sever their challenges, but must join therein. (§ 360.) It has been decided that on a preliminary trial of a question as to the present insanity of a prisoner, the defendant is not entitled to peremptory challenges; but challenges for cause may be made. (6) (0) Freeman v. People, 4 Denio, 9. Challenge to the panel, defined.]—A challenge to the panel is an objection made to all the trial jurors returned, and may be taken as well to the panel returned for the term, as to an additional panel ordered to complete the jury. (§ 361.) Prisoner can waive a challenge to the array after it is allowed. Pierson v. Upon what founded.]-A challenge to the panel can be founded only on a material departure, to the prejudice of the defendant, from the forms prescribed by the Code of Civil Procedure, in respect to the drawing and return of the jury, or on the intentional omission of the sheriff to summon one or more of the jurors drawn. (§ 362.) When and how taken.]-A challenge to the panel must be taken before a juror is sworn, and must be in writing, specifying distinctly the facts constituting the ground of challenge. (§ 363.) A challenge in the alternative is bad. Cox ». People, 19 Hun, 430 If sufficiency of the facts be denied, adverse party may except. Exception, how made and tried.]-If the sufficiency of the facts alleged as a ground of challenge be denied, the adverse party may except to the challenge. The exception need not be in writing, but must be entered upon the minutes of the court; and thereupon the court must proceed to try the sufficiency of the challenge, assuming the facts alleged therein to be true. (§ 364.) Cox v. People, 19 Hun, 430; 80 N. Y., 500. If exception overruled, court may allow denial of challenge. If allowed, may permit challenge to be amended.1-If, on the exception, the court deem the challenge sufficient, it may, if justice require it, permit the party excepting, to withdraw his exception, and to deny the facts alleged in the challenge. If the exception be allowed, the court may, in like manner, permit an amendment of the challenge. (§ 365.) Denial of challenge, how made, and trial thereof.]-If the challenge be denied, the denial may, in like manner, be oral, and must be entered upon the minutes of the court; and the court must proceed to try the question of fact. (§ 366.) Who may be examined on trial of challenge.]-Upon the trial of the challenge, the officers, whether judicial or ministerial, whose irregularity is complained of, as well as any other persons, may be examined to prove or disprove the facts alleged as the ground of the challenge. (§ 367.) If challenge allowed, jury to be discharged. If disallowed, jury to be impaneled.]-If, either upon an exception to the challenge, A juror, to be competent, must not only be indifferent as to the issue he is to determine, but impartial between the parties; and or a denial of the facts, the challenge be allowed, the court must discharge the jury, so far as the trial of the indictment in question is concerned. If the challenge be disallowed, the court must direct the jury to be impanelled. (§ 368.) Defendant to be informed of his right to challenge an individual juror.]-Before a juror is called, the defendant must be informed by the court, or under its direction, that if he intend to challenge an individual juror, he must do so when the juror appears, and before he is sworn. (§ 369.) Kinds of challenge to individual juror.]—A challenge to an individual juror may be taken either by the people or by the defendant, and is either 1. Peremptory, or 2. For cause. (§ 370.) Challenge, when taken.]-A challenge must be taken when the juror appears, and before he is sworn; but the court may, in its discretion, for good cause, set aside a juror at any time before evidence is given in the action. (§ 371.) See People v. Damon, 18 Wend., 351. Peremptory challenge.]-A peremptory challenge is an objection to a juror, for which no reason need be given, but upon which the court must exclude him. (§ 372.) Friery v. People, 2 Keyes, 424. Number of peremptory challenges to which defendant is entitled.]-Peremptory challenges must be taken in number as follows: 1. If the crime charged be punishable with death, thirty; 2. If punishable with imprisonment for life, or for a term of ten years or more, twenty; 3. In all other cases, five. (§ 373.) Definition and kinds of challenge for cause.]-A challenge for cause is an objection to a particular juror, and is either, 1. General, that the juror is disqualified from serving in any case; or 2. Particular, that he is disqualified from serving in the cases on trial. (§ 374.) General causes of challenge.]-General causes of challenge are, 1. A conviction for a felony; 2. A want of any of the qualifications prescribed by the Code of Civil Procedure, to render a person a competent juror. (§ 375.) Sub. 2. General provisions, qualifications of trial juror. Code of Civ. Proc., §§ 1027, 1028. Disqualification of public officers. Ib., § 1029. Qualifications in Kings county. Ib., §§ 1029, 1126. Qualifications in city and county of New York. Ib., §§ 1029, 1079. where triors of a challenge for favor, to a juror, were sworn to find whether the juror was indifferent "upon the issue joined," that quali Particular causes of challenge.]-Particular causes of challenge are of two kinds: 1. For such a bias, as, when the existence of the facts is ascertained, does in judgment of law disqualify the juror, and which is known in this Code as implied bias; 2. For the existence of a state of mind on the part of the juror, in reference to the case, or to either party, which satisfies the court, in the exercise of a sound discretion, that such juror can not try the issue impartially and without prejudice to the substantial rights of the party challenging, and which is known in this Code as actual bias. But the previous expression or formation of an opinion or impression in reference to the guilt or innocence of the defendant, or a present opinion or impression in reference thereto, is not a sufficient ground of challenge for actual bias, to any person otherwise legally qualified, if he declare on oath, that he believes that such opinion or impression will not influence his verdict, and that he can render an impartial verdict according to the evidence, and the court is satisfied, that he does not entertain such a present opinion or impression as would influence his verdict. (§ 376.) Sub. 2. See Thomas v. Peo., 67 N. Y., 218; Peo. v. Mullin, 3 Alb. L. J. Grounds of challenge for implied bias.]—A challenge for implied bias may be taken for all or any of the following causes, and for no other: 1. Consanguinity or affinity within the ninth degree, to the person alleged to be injured by the crime charged, or on whose complaint the prosecution was instituted, or to the defendant; 2. Bearing to him the relation of guardian or ward, attorney or client, or client of the attorney or counsel for the people or defendant, master or servant, or landlord or tenant, or being a member of the family of the defendant, or of the person alleged to be injured by the offense charged, or on whose complaint the prosecution was instituted, or in his employment on wages; 3. Being a party adverse to the defendant in a civil action or having complained against, or been accused by him in a criminal prosecution; 4. Having served on the grand jury which found the indictment, or on a coroner's jury which inquired into the death of a person whose death is the subject of the indictment. 5. Having served on a trial jury, which has tried another person for the crime charged in the indictment; 6. Having been one of a jury formerly sworn to try the same indictment, and whose verdict was set aside or which was discharged without a verdict, after the cause was submitted to it; 7. Having served as a juror, in a civil action brought against the defendant, for the act charged as a crime; 8. If the crime charged be punishable with death, the entertaining of such conscientious opinions as would preclude his finding the defend fication being objected to, the oath was held erroneous. (p) Where a juror is set aside by a peremptory challenge, the party on whose (p) Ibid. ant guilty; in which case he shall neither be permitted nor compelled to serve as a juror. (§ 377.) Sub. 1. See Cole v. Van Keuren, 51 How. Pr., 451. Sub. 8. See Peo. v. Grounds of challenge for actual bias.]—A challenge for actual bias may be taken for the cause mentioned in the second subdivision of section 376, and for no other cause. (§ 378.) Exemption, not a ground of challenge.]-An exemption from service on a jury is not a cause of challenge, but the privilege of the person exempted. (§ 379.) General grounds of exemption. Code of Civ. Proc., §§ 1030, 1031. Id. in In a Causes of challenge, how stated.]—In a challenge for implied bias, one or more of the causes stated in section 377 must be alleged. challenge for actual bias, the cause stated in the second subdivision of section 376 must be alleged. In either case, the challenge may be oral, but must be entered upon the minutes of the court. (§ 380.) See Freeman v. Peo., 4 Denio, 131. Exceptions to challenge and denial thereof.]-The adverse party may except to the challenge, in the same manner as to a challenge to the panel; and the same proceedings must be had thereon, as prescribed in section 364, except that, if the challenge be allowed, the juror must be excluded. The adverse party may also orally deny the facts alleged as the ground of challenge. (§ 381.) Challenge, how tried, if denied.]—If the facts be denied, the challenge must be tried by the court, which must either allow or disallow the same and direct an entry accordingly on the minutes. If the challenge be allowed, the juror must be discharged. (§ 382.) Juror challenged may be examined as a witness.]-Upon the trial of a challenge to an individual juror, the juror challenged may be examined as a witness, to prove or disprove the challenge; and is bound to answer every question pertinent to the inquiry therein. (§383.) Rules of evidence on trial of challenge.]-Other witnesses may also be examined on either side; and the rules of evidence applicable to the trial of other issues govern the admission or exclusion of testimony, on the trial of the challenge. (§ 384.) Challenges, first by the people and then by defendant.]-Challenges to an individual juror must be taken first by the people and then by the defendant. (§ 385, as amended in 1882.) [ 48 ] 753 |