The defendant was indicted in the Court of Common Pleas for keeping a liquor nuisance. When the indictment was called for trial he exhausted his peremptory challenges of jurymen, and then challenged one B., on the ground that B. was a constable of the *Page 267
town of Pawtucket, and therefore not qualified to sit as a juryman. The presiding justice refused to allow the challenge, and ruled that the statutory exemption of constables from jury duty was a personal privilege which B. could claim or waive, but was not a disqualification for which B. could be challenged by the defendant. It was admitted that B. was a constable. To this ruling the defendant excepted.
We are of opinion that a person who is exempted from jury duty by the statute is not thereby disqualified from serving as a juror, his exemption being a personal privilege which he may either claim or waive at his option. This, so far as we know, is the opinion which has always prevailed in this court as a matter of practice, although there is no reported decision. The opinion is however in accordance with the reported decisions of other States. Munroe v. Brigham, 19 Pick. 368; State v. Forshner, 43 N.H. 89; State v. Wright,
Exceptions overruled.