7 Watts 585 | Pa. | 1838
The Court,
At no time since the 33 Ed. 1 could the crown or the commonwealth challenge peremptorily. By that statute it was ordained that “if they who sue for the king will challenge any of those jurors, they shall assign of their challenge a cause certain ; and the truth of the same challenge shall be inquired of according to the custom of the court.” And this enactment, which stood in force here till it was supplied by the act of 1813, had been so construed as not to require the attorney-geueral to show cause of challenge before the panel was exhausted. The act of 1813 simply ordained “ that in any case of felony the commonwealth shall not challenge without cause;” a provision repealed in the act of 1834, now in force. The legislature doubtless supposed that the state had a right of peremptory challenge by the English statute : indeed the practice under it might seem to imply it, as its indulgence was sparingly claimed, and seldom, if ever, in a case where the panel afterwards happened to be exhausted ; so that there was no occasion to look narrowly into the foundation of it; and hence it came to be supposed that the public privilege, whether absolute or qualified, had been taken away. Both the bench and the bar incautiously acted on that supposition in the Commonwealth v. Lesher, 17 Serg. & Rawle 155. It is true the question there was not whether the commonwealth should presently assign a cause of challenge, but whether the cause voluntarily assigned were sufficient; yet had it been supposed that the juror could be set aside without it, the difficulty would have been
Juror set aside.
A full jury was obtained without exhausting the panel, and the prisoner was acquitted in the face of full and overpowering proof.