55 Ala. 1 | Ala. | 1876
This rule cannot be applied to indictments for misdemeanors, or for felonies not capital, except as to talesmen; because tbe regular jurors of tbe week, or term, are not sworn for tbe trial of tbe particular case, but generally — for the trial of all issues which may be submitted to them; and tbe oath is administered before tbe State or tbe defendant has tbe opportunity of interposing a challenge. As to these jurors, tbe right of challenge for cause exists, until, by some positive act, tbe juror is selected by tbe State and tbe defendant. Tbe mere calling of tbe juror to tbe bar, by tbe order of tbe court, and tbe challenge of other jurors called at tbe same time, without tbe acceptance or challenge of tbe •particular juror — mere silence in regard to him — tbe parties not having been required to elect or reject him, is not an absolute waiver of tbe right to challenge, if good cause be sub-quently shown, and it is apparent such cause was not sooner discovered, or was not improperly withheld. Talesmen, when summoned and drawn to supply deficiencies in such juries, are put on tbe State and tbe defendant, for acceptance and rejection, as they are drawn, and are not sworn until after their acceptance; or, if tbe right of peremptory challenge has been exhausted, until an opportunity is afforded, for challenge for cause. Tbe. challenge of talesmen, for existing cause, must precede tbe administration of tbe oath. After tbe ceremony of tbe administration of tbe oath is commenced, tbe right of challenge for existing cause is lost, alike to tbe State and to tbe defendant.
In Stalls v. State (25 Ala. 25), it was held, that the State lost tbe right of challenge for cause, if tbe talesman bad been accepted, though tbe cause of challenge was discovered after acceptance, and interposed before be was sworn. We are not inclined to follow this ruling. If the court is satisfied that tbe cause of challenge was discovered after tbe acceptance of tbe juror, and before be is sworn — that it has not been withheld from mere caprice, or from some improper motive, tbe challenge should not be disallowed. Tbe right of tbe State, and of tbe. defendant, is to a fair trial, by an
The cases of Boggs v. State (45 Ala. 30), and Lyman v. State (lb. 72), are in conflict with the views we have expressed, and are in conflict with the case of State v. Marshall, 8 Ala. 302. The error of the decision, in these cases, lies in the supposition, that there are no causes for the exclusion of jurors, except such as are enumerated as challenges for cause in the statute. The incorrectness of that supposition is shown in the subsequent case of Birdsong v. State (47 Ala. 68), in which it was held, that a grand juror was not a competent petit juror, on the trial of an indictment found by the jury of which he was a member. The true rule, we think, is that expressed in State v. Marshall. And we cannot doubt it is the duty of the court, when it shall appear satisfactorily that any person called as a juror has not the requisite qualifications of integrity, impartiality, or intelligence, at any time before he has been elected by the State and the defendant, to reject him. The State certainly has no interest, and the defendant has no right, to introduce into the jury-box unfit persons. It is the duty of the court to guard against their introduction.
For the errors noticed, the judgment must be reversed, and the cause remanded. The defendant will remain in custody, until discharged by due course of law.