State v. . GreenState v. . Green
- Reporters:
- Before:
- Ashe
(аfter stating the case as above). Wo find no errors in the rulings of his Honor in the matters excepted to by the defendant. The ground of the exceptions to the ruling with regard to thе challenge of the juror Stilly, has been time and again held by this Court not to bo sufficient ground оf challenge. Tn State v. Kilgore, 93 N. C., 533, it *613 was held, that when a juror, challenged by the defendant,’ says he has formеd and .expressed the opinion that the prisoner is guilty, but states further that his mind was fair and unbiased, and that he could hear the evidence and render a verdict without being in any degrеe influenced by what he had heard or said, he was competent to serve as а juryman, and the challenge was properly disallowed. To the same effect is State v. Collins, 70 N. C., 241; State v. Ellington, 7 Ired., 61; State v. Bone, 7 Jones, 121 ; State v Cockerham, 2 Winston, 484.
Two other jurors challenged for like cause as the first, who gave the same respоnse upon the examination, were tendered, the one was peremptorily сhallenged by the prisoner, and the other after the prisoner’s challenges werе exhausted, was sworn and put on the jury. The same principle applies to these as to the first juror challenged.
The last exception was to the ruling of the Court in overruling the challenge of the prisoner to the juror Benjamin Brown. This juror had been passed by the State and was tendered to the prisoner, and upon his voir dire having stated that he had formed and expressed the opinion that the prisoner was not guilty, the prisoner said “tеnder him.” The State immediately moved the Court to allow it then to challenge the juror, whiсh was resisted by the prisoner, who insisted that the challenge of the State came too late after the juror had been passed by the State to the prisoner, but the Cоurt allowed the challenge, after the juror had stated, in response to a question asked him by the Court, that his mind was not so biased but that he could hear the evidence and render a verdict without being in any degree influenced by what he had.heard.
Whether the juror wаs competent, or in other words a proper person to sit on a jury and rendеr an impartial verdict on the issue between the State and prisoner, was a questiоn of fact to be tried by the Court, after the juror was ten-o red, and within his discretion whether hе would allow the *614 -challenge. In the case of State v. Adair, 66 N. C., 298, “ after twelve jurors were tendered and accepted by the prisoner •and sworn, hut before they were enipanneled, the Court was informed that one of the jurors was related by affinity to two of the prisoners, which appeared uрon inquiry to be so, but this fact was not known to the counsel on either side, or to the Court whеn the juror was sworn. The juror was discharged, and the prisoner excepted.” Pearsоn, C. J., speaking for the Court, said: “As the jury was not empaneled •and charged with the case, it was within the discretion of his Honor to allow the State the benefit of a challenge for cause, so as to secure a jury indifferent as between the State and the prisoner.” The same rule of practice has since been maintained in the cаse of State v. Jones, 80 N. C., 415; State v. Boon, 80 N. C., 461, and State v. Cunningham, 72 N. C., 469. We are aware there seems to be an inconsistency in overruling the еxception in the case of the juror Stilly, and that of Brown, for both, in their examination, stаted that they were not so biased but that they could give an impartial verdict after hеaring the evidence, without being influenced b) what they had heard about the case. But thе challenge in these cases was not strictly a challenge for cause, but a challenge to the favor, when the party has no particular cause of challenge, but objects that the juror is not indifferent on account of some, suspicion оf partiality, prejudice, or the like. In such cases, the validity of the objection wаs left at common law to the determination of triers, whose office was to try whethеr the juror was favorable or unfavorable. The method of which proceeding wаs, if the first man called be challenged, two indifferent persons named by the Court constitutеd the triers, and if they try one man and find him indifferent, he shall be sworn; and then lie and the two triers shall try thе next, and when another is found indifferent and sworn, the two triers shall be superceded and the two sworn on the jury shall try the next. 3 Blackstone *615 Com., 363. Their finding was conclusive. But by statute in this State the Court is constituted the trier. The Code, §§405 and 1199. And where the challenge, as in this, is to the favor, its determination is not reviewable. State v. Kilgore, supra.
There is no error.
No error. Affirmed.