Hinton v. . Hinton
145 S.E. 615
N.C.
1928
Check Treatment
BisosdeN, J.

Is an alien qualified to act as a juror?

The statutory qualifications for jurors are contained in C. S., 2312. Alienage is not a statutory disqualification for jury service in this State, but the common law prevails in this jurisdiction except to the extent it is repealed or modified by statute. C. S., 970. Under the common law an alien was not qualified to serve as a juror. 1 R. C. L., 802; Reich v. State, 53 Ga., 73; People v. Baker, 27 N. W., 539. As far back as 1824 this Court decided in Ex parte Thompson that an alien was not qualified to serve as an attorney at law for the reason that an attorney is an integral part of the administration of justice in our courts. By analogy a juror is equally an integral part of the due administration of the law. The common law theory of a jury was based largely upon the idea of vicinage. Thus, in S. v. Cutshall, 110 N. C., 538, 15 S. E., 261, the Court said: “The jury must also be summoned from the vicinage where the crime is supposed to have been committed; and the accused will thus have the benefit on his trial of his own good character and standing with his neighbors, if these he has preserved, and also of such knowledge as the jury may possess of the witness who may give evidence against him. He will also be able with more certainty to secure the attendance of his own witnesses.” Indeed, this principle has been so far extended as to require that jurors must be residents of the county where the action is instituted, subject, of course, to such statutory modifications as have been prescribed from time to time. S. v. White, 68 N. C, 159; S. v. Upton, 170 N. C., 769, 87 S. E., 328; S. v. Levy, 187 N. C., 581, 122 S. E., 386.

*343 It is clear, therefore, that tbe law not only guarantees tbe right of trial by jury, but also tbe right of trial by a proper jury; that is to say, a jury possessing tbe qualifications contemplated by law.

Alienage continues after tbe declaration of intention and until tbe process of naturalization has been completed. Atkins v, Kron, 43 N. C., 1; Harman v. Ferrall, 64 N. C., 474. Hence it follows that Eblers was not a qualified juror. Tbe defendant bad tbe right to challenge this juror, and be undertook through counsel to exercise this right. Of course, tbe fact that an incompetent juror was permitted to serve would not have vitiated tbe verdict, because a party has tbe right to challenge a juror in order to ascertain bis qualifications. S. v. White, supra. However, tbe trial judge has found as a fact that tbe defendant, in attempting to exercise bis right of challenge was misled by tbe juror, “and bad said juror stated that be was not a citizen of the United States, counsel for tbe defendant would have rejected him as being disqualified.” Under this finding of fact by tbe trial judge counsel was deprived of exercising bis right of challenge through no fault of bis own. Therefore, upon tbe finding of fact, we bold that tbe trial judge ruled correctly in setting aside tbe verdict.

It appears from tbe record that tbe verdict was set aside at a subsequent term of court, but it also appears that tbe motion to set aside tbe verdict was duly made at tbe time it was rendered and that tbe motion was continued by consent. Hence tbe plaintiff cannot complain of this aspect of tbe case.

Affirmed.