Breeding v. State

| Tex. | Jul 1, 1854

Wheeler, J.

Jurors are subject to objection, either on account of their want of the requisite qualifications of fitness, whereby they are excluded from serving; or on account of some privilege or exemption, whereby their service is excused, but not excluded. Aliens, and persons convicted of some crime which affects their credit and renders them infamous, are of the former class. Infants under twenty-one and aged and infirm persons and those specially exempted from service by statute, are of the latter class. Objections which go to the fitness of the jurors to serve, may be urged by the party to be affected by their finding; but those which are matter of privilege or exemption, merely, can only be urged by the juror himself. The objection to the juror, raised by the plea in abatement, is of the latter class. In requiring the jury list to be composed of persons under the age of sixty years, it was evidently the intention of the Legislature to create a personal exemption in favor of persons above that age, and to constitute those persons, who had attained to that venerable age, a privileged class, who should not be required to serve upon juries, against their will. It surely was not intended to fix that as an age beyond which persons should be deemed incompetent, by reason of age, to perform the office, or discharge the duty of jurors.

By an English statute, (West. 2, 13 Edw. I. c. 38,) men above seventy years old were exempted from jury service. But they were not, on that account, held to be incompetent or unfit to serve as jurors; and the exemption could only be claimed by the persons themselves. (3 Bl. Com. 364.) If they chose to waive, or omitted to urge their privilege, it could not be urged by another, as a matter going to their qualification or competency as jurors. Our statute, in a spirit of greater liberality and deference to age, fixes the period of sixty years, as the period at which the privilege shall attach. But it manifestly intended nothing more, than to create an exemption in favor of a privileged class. It could not have been intended to declare persons incompetent as jurors, on account of age; when the having attained to and beyond that age is not a legal disqualification to fill the highest executive, legislative and judicial offices of the State. We are of opinion that the objection, raised by the plea, did not go to the qualification or competency of the juror, or his fitness to serve; but that it was matter of exemption and privilege only, which it was for the juror himself to urge or not, as he saw proper; that it could not avail the defendant, as an objection to his competency, by plea or otherwise; and, consequently, that the Court did not err in sustaining the demurrer to the plea in abatement. The judgment is therefore affirmed.

Judgment affirmed.