Jones, the plaintiff in error, was indicted for the murder of John Ray, tried by a jury, found guilty, and a judgment of death rendered by tbe Court against him on the verdict of the jury. To reverse which judgment this writ of error is prosecuted.
It appears of record by a bill of exceptions, that, at tbe time of impanelling the grand jury that found the bill of indictment, Jones was in prison in the custody of the sheriff on the charge for which he was indicted and convicted; and by order of the Court was in Court at the time the grand jury was being sworn; and that he claimed the right of peremptorily challenging the jurors without showing any cause, which the Court overruled, but permitted him to challenge for cause; that he challenged one Isaac Parker for cause, and Parker was sworn to answer questions touching his qualifications, and after being examined by Jones, was by him accepted; upon which, the attorney prosecuting tbe pleas of the state asked the juror, “if he could in his conscience find any man guilty of an offence, which would subject him to the punishment of death?” To tbe asking of which question Jones objected, but the Court overruled the objection and required the juror to answer; and the juror answering, that “he thought he could not in his conscience find any man guilty of an offence that would subject him to death,” he v/as by the Court for that cause set aside.
It also appears of record by the bill of exceptions, that after the bill of indictment was found, and the defendant had been arraigned and pleaded not guilty, and while the petit jury was being impanelled and sworn, the defendant moved the Court to require tbe attorney prosecuting tbe pleas of tbe state, to first examine tbe jurors and accept or reject them, before the defendant should be called on to make his election; which motion the Court overruled and required the defendant to first make his election, and after he had accepted, the attorney prosecuting the pleas of the state should then be at liberty to make his challenges, if any he had to make: and, under that decision of the Court, James Jones and other jurors wpre set
It further appears of record, that the petit jury was impanelled and sworn on Wednesday, and that before any evidence was heard, the Court remanded the defendantinto the custody of the sheriff, and adjourned until Thursday morning, eight o’clock; but the record is entirely silent as to what was done with the jury.
The first point in this case is,—Did the Circuit Court err in not permitting the defendant to challenge grand jurors peremptorily?
There is no statute or sanctioned practice in this state, authorising a prisoner to peremptorily challenge grand jurors; and it is believed that no such practice exists in England. The common law requires grand jurors to be good and lawful freeholders, and the English statutes require several additional qualification’s; and Chitty in his treatise on criminal law, when speaking of those qualifications of grand jurors, says that a prisoner, who is at the time under a prosecution for an offence about to be submitted to the consideration of a grand jury, may challenge any of the grand jurors, who lacks any of those qualifications required by the common and statute laws. Chitty refers to Hawkins' Pleas of the Crown, where it is said that a challenge to grand jurors is very properly limited to persons who are, at the time, under a prosecution for an offence about to be submitted to a grand jury. By these authorities it is clear, that, in England, these challenges are limited to one certain class of cases, and then only for cause. We are therefore of opinion that the Circuit Court decided correctly.
The next point is,—Did the Court err in permitting the attorney prosecuting to ask the grand juror, “if he could in his conscience find any man guilty of an offence which would subject him to the punishment of death,” and in setting aside the juror for answering that he “thought he could not?”
The plaintiff contends, that our statute does not authorise the asking of such a question, and that it cannot be asked without the aid of a statute. It is correct that, without the aid of a statute, ho question can be asked a juror that tends either to his disgrace or his dishonour; but the authorities all show what is to be understood by that. Many of the cases under that
The next point is,—Did the Court err in permitting the attorney prosecuting to challenge a petit juror after the prisoner-had accepted him?
The only question on this point is, who shall first make his challenge? If this were a new question and we had it to settle, we should say that the state ought first to make her challenges; hut as all the English authorities establish a different-doctrine, and no American cases have been seen by us to authorise a different practice, we are bound for the present to sanction what the Circuit Court has done.
The last point is,—Did the Circuit Court err in adjourning, after the petit jury was sworn, from Wednesday evening until Thursday morning, without putting the jury under the care and charge of the proper and sworn officers of the Court?
If it is a fact, that the Circuit Court did so adjourn without disposing of the jury, by putting them under the charge and care of the proper sworn officers of the Court, it is admitted without controversy to he error; hut it is insisted, that wc are bound to presume that the Court acts correctly in all cases of discretion, unless the contrary appears of record by a bill of exceptions. It is, as a general principle, correct to presume that a Court acts correctly in matters of discretion, unless the contrary appears of record, if the record shows that the Court did act upon the subject. Our statute requires, in cases of appeals and writs of error, that the Circuit Courts shall cause to he certified to us a full and complete transcript of all its proceedings; and this transcript is so certified; and we are bound to believe, that nothing more was done than what is certified tons to have been done. We cannot, by intendment,-supply any material proceeding which is entirely omitted. There are no words in this record by which we can supply, by intendment, that the jury was legally and correctly disposed of by the Court during that adjournment. 2 New York T. R. 373.—8 Johns. Rep. 437.—11 Johns. Rep. 442.—King v. Stone, 6 D. & E. 530. We think this a material and substantive error, and one which cannot he cured by intendment; and therefore the judgment and proceedings of the Circuit Court, subsequent to the plea of the prisoner, and the making up of the issue to the country,must be reversed and set aside, and the cause remanded, with instructions to award a venire de novo, and proceed to trial with the issue, &c.
The judgment is reversed, &c. Cause remanded, &e.
Vide Hudson v. The State, Vol. 1. of these Rep. 317. In a note to that case, a statute of 1828 is referred to, which authoiises certain questions to be asked of the jurors, as to their having formed or expressed any opinion iclative to the guilt or innocence of ibe prisoner. There is a similar statute of 1831. R. C. 1831, p. 197.