88 Ala. 220 | Ala. | 1889
An appeal lies to this court directly from the County Court of Hale county, under the provisions of the act approved February 12th, 1879, conferring additional jurisdiction on that tribunal, and regulating the proceedings therein. — -Acts 1878-79, p. 291, sec. 14.
The first exception taken to the rulings of the court is allowing the State to challenge peremptorily the juror May-field. The solicitor had accepted this juror, and the court permitted him, in behalf of the State, to revoke such acceptance. This was done before the defendant had expressed his satisfaction with the juror, and before the impanelling of the jury was completed, or the trial had commenced.
The rule is generally stated to be, that after a juror has been accepted by both parties, and the jury has been impanelled, or the trial has been entered on, by swearing the juror, or otherwise, the right to challenge is waived, unless for cause, where the disqualification was unknown at the time, and could not have been discovered by the exercise of proper diligence on the part of the objector. — Spigener v. The State, 62 Ala. 383; Smith v. The State, 55 Ala. 1; Roberts v. The State, 68 Ala. 515. Until the cause is opened, or put to the jury, which may be considered usually as done when the jury is sworn, it is within the discretion of the court to permit an inadvertent acceptance of a juror to be withdrawn. — 1 Whart. Cr. Pl. & Pr. (8th Ed.), §§ 617, 672; Murray v. The State, 48 Ala. 675. The facts of this case show that the juror had not been accepted by both parties, and the cause had not been put to the jury, when the challenge in question was allowed.
It follows from this view of the law, that the court did not err in its ruling on this subject.
The refusal of the court to grant a new trial on the ground assigned, as our decisions uniformly hold, was discretionary, and is not reviewable by us on appeal.
Judgment affirmed.
