36 Wis. 424 | Wis. | 1874
The right of challenge has always been held essential to the fairness of trial by jury. The common law
The right comes from the common law, with the trial by jury itself. “ It is no American invention. Our fathers brought it to this country more than two centuries ago.” Stow, C. J., in State v. Cameron, 2 Chand., 172. The common' law gave thirty-five peremptory challenges. But the number is now generally regulated by statute.
In this state the number is limited to four in cases not punishable by imprisonment for life; and in those cases, to twenty-four. R. S., ch. 179, secs. 3 and 4.
The practice in the exercise of this right has not been settled by this court. In Schumaker v. State, 5 Wis., 324, the court took occasion to say: “We do not feel called upon to make any suggestions as to the proper practice to be adopted by .the circuit courts in impaneling juries in criminal cases; but obviously all rules of practice must necessarily conform to the requisition of the statute, and be adapted to secure all the rights of the accused.” That is, where there is no statute, the practice must not conflict with or abridge the right as it exists at common law.
We judge by this record that the practice is not altogether uniform, as it ought to be, in the circuit courts; but we under
In this case, the panel of jurors summoned does not appear to have been called; but it does appear that twelve were not called in the cause before any were sworn, and that each juror was called singly, singly questioned for ground of challenge for principal cause or for favor, and, none such appearing, was singly submitted to the parties for peremptory challenge, before another was called, and if not so challenged was at once sworn in the cause; and so on, until the jury was sworn. This was by express ruling of the court below, to which the plaintiff in error excepted.
We cannot but agree with the learned counsel f5r the plaintiff in error, that this mode of impaneling the jury largely impaired the right of peremptory challenge, essential in contemplation of law to the impartiality of the trial. Eor it is, as Blaclcstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose. The mode adopted gave no opportunity for comparison and choice between jurors, and little opportunity for observance of each juror, apparently essential to the exercise of a right so visionary and fanciful.
It does not appear by this record that the court or counsel or prisoner had any means of knowing whether a full jury was present or which of the panel were present, when the plaintiff in error was put to her peremptory challenges. It does not appear that the jury was obtained from the regular panel, without 'tales. Non constat that twelve of the panel were present at airy time.
Sec. 3, ch. 179, relates to offenses not punishable by imprisonment for life. It provides that the accused, “ when the jury is impaneled for his trial,” may “challenge peremptorily four of said jurors.” This very plainly implies that a jury shall be called and in the box, according to the prevailing practice of the circuit courts, before the accused shall be called on to exercise the right of challenge.
It is not to be supposed that, in giving a larger number of challenges to one accused of a crime punishable by the greater punishment which stands with us instead of capital punishment, it could be the purpose of sec. 4 to give them with less advantage of use to the accused, than the less number given for less offenses. The language of sec. 4 is, may “ challenge peremptorily twenty-four of the persons returned as jurors.” This language does not require, but also does not exclude, the .previous calling of the jury. We are to presume that the same practice was intended under both sections. We are to take the sections in pari materia together, to give a uniform
By the common law, twelve must be present, by the statute twelve must be called in the cause, before the accused can be put to his challenges; and this full number of unchallenged and unsworn jurors must be maintained in the box until the parties have exhausted their challenges or accepted the jury. Then the jury should be sworn in the cause.
The rule is different in some of the states, as the authorities cited by the attorney general show; but we do not feel at liberty to abridge or impair so sacred a right, or to change what we understand to have been the general practice amongst us from the beginning, sanctioned by the common law and by our statute.
It follows that the judgment of the court' below must be reversed, and a venire de novo awarded.
By the Court. —It is so ordered.