State v. Fuller

| Vt. | Aug 15, 1866

The opinion of the court was delivered by "

BaRRETT, J.

The exceptions in this case are taken by Willey.

We think the county court erred in requiring the respondent to exhaust his peremptory challenges before challenging for cause.

The General Statutes, chapter 120, section 4, is that “ every person * * * shall he permitted peremtorily to challenge six of the jurors, and such further number as he can show good cause for challenging.” If the terms and structure of that section might be regarded as susceptible of the construction given by the county court; yet it seems to us that they do not require it. So far as any member of the present court have knowledge of the practice under that section, the respondent has always been allowed to use his peremptory challenges as he should find occasion, in the process of making up the panel by which he was to be tried. Sometimes it has been done without attempting to challenge for cause; sometimes after such attempt has failed of a successful result, and generally it is exercised as one juryman after another is called, upon such of them, as the respondent sees fit to exercise it, either without making any preliminary inquiry as to cause, or after such inquiry has failed in eliciting cause for challenge. Our late Chief Justice, POLAND, informs us that such has always been the practice in courts with which he was connected, both when at the bar and while on the bench. This practical construction of the statute would certainly operate very strongly to settle the law in this respect. But, at the same time, we understand this to be not only permitted, but to be required by this section of the statute. That provision was designed to secure the right of challenge as it had long existed at common law, limiting the extent of it, but not varying the mode of using it.

In 4 Bl. Com. 353, in assigning the second reason for the allowance of the peremtory challenge, it is said: “ because, upon challenges for cause shown, if the reasons assigned prove insufficient, to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke resentment; to prevent all ill consequences from which the prisoner is still at liberty, if he pleases, peremtorily, to set him aside.”

1 Chit. Cr. Law, 545, it is said: “if a juryman be challenged, for cause, and pronounced impartial, he may afterwards be challenged peremtorily, for otherwise, the very challenge might create in his mind a prejudice against the individual who made the objection.”

Coke on Litt. 158, a. says: “ if a man in case of treason or felony challenge for cause, and he be tried indifferent, yet he may challenge him peremptorily.”

The eases cited from Massachusetts, even if they had been decided under a statute like ours, would not control the court in the decision of this case. So we have no occasion to comment upon them.

In other respects we think the county court committed no error, but, for the ruling as to the challenge of jurors, the verdict is set aside and a new trial granted.