[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 30 The special plea, founded upon the alleged illegal organization of the grand jury, which found the indictment, was overruled by the court, on the ground that it should have been interposed before the plea to the merits.
When it was offered, the plea of not guilty had been entered, and several jurors had been impaneled and sworn.
The prisoner had waived his right to take advantage by plea of the alleged defect, and the refusal of the court to entertain it at that stage of the proceedings was in its discretion, and was not the subject of exception. (2 Hale, 155; 1 Bishop's Cr. Pro., § 440; 1 Colby's Cr. Law, 285; McQuillen State v. (8 Sme. Mar., 587.)
After verdict, motion in arrest of judgment was made on the same ground stated in the special plea, and the particular facts in which the alleged error consisted, were stated to the court.
The court denied the motion, on the ground that this question was not properly before it, and to this ruling the prisoner excepted.
The motion in arrest, and the proceedings upon it, are incorporated in the bill of exceptions.
It does not appear, however, in the record, how the grand jury was organized, or that the fact alleged as error, in respect to its organization, existed.
The only suggestion of such fact is found in the special plea, and in the statement of the counsel for the prisoner on the motion in arrest. *Page 32
The court neither affirmed or denied the fact, but disposed of the motion, without considering it.
On this state of the record, the question in respect to the grand jury is not before us.
A motion in arrest is a proceeding in behalf of a prisoner, after verdict and before sentence, and designed to stay sentence and judgment, for error appearing on the face of the record.
It is grounded upon the same objections which will support a writ of error, and no defect in evidence or improper conduct on the trial can be urged at this stage of the proceedings.
When, however, judgment is once given, the writ of error is the only remedy for error of record. (Cro. Jac., 404; 1 Chitty's Cr. L., 661, 747.)
The decision of the court upon the motion in arrest, if erroneous, is not of itself ground of error, for the same objections can be raised upon the writ as upon motion in arrest, and are not waived by the omission to urge them before judgment. After judgment, the remedy by motion in arrest is gone, and the case is to be determined by the record as though such motion had not been made.
Nor is the decision of the court upon the motion the subject of exception. The statute allowing bills of exception in criminal cases applies only to exceptions taken upon the trial, and no others can be brought into the record. (2 Rev. St., § 29;Freeman v. People, 4 Den., 10; Gardner v. People, 6 Par., 143.)
The prisoner could have raised the question as to the organization of the grand jury by plea interposed at the proper time, or upon the judgment record, where by certiorari, obtained upon allegation in diminution, the fact constituting the alleged error should be made to appear therein. (Cancemi's Case,18 N.Y., 128; People v. McGuire, 2 Park., 148.)
The juror, McDowell, on being called, was asked if he had formed an opinion as to the guilt or innocence of the accused, *Page 33 and he replied that he had not. He was then challenged by the prisoner's counsel for favor, but no ground of challenge, except in general terms for favor was stated.
Upon his examination, the juror testified that he had formed an opinion as to the general character of the prisoner, and on being asked what it was, replied, "Well, as to his character, I have heard something; I am biased."
On the question being repeated, he replied, "My general opinion is that it is bad."
The counsel for the prisoner then asked the court to charge the triers as matter of law, that the witness having stated that he had formed a bad opinion of the prisoner's general character, was incompetent as a juror.
The court refused, and the counsel for the prisoner excepted.
It is the right of a prisoner to be tried by an impartial jury, and the juror must be indifferent both as to the person and the cause to be tried. (People v. Vermilyea, 7 Cow., 108;People v. Freeman, Den., 9.)
The right of challenge is given to him, so that it may be ascertained, if the jurors called are indifferent, and if found not to be so, that they may be excluded.
But the prisoner must be governed in exercising this right by the settled rules of proceeding.
If the objection he makes to a juror, in law implies partiality or bias, he must challenge for principal cause, and in that case, the court determines the sufficiency of the ground of challenge as a question of law, and whether the facts proved support it.
If the challenge is to the polls for favor, the form of the challenge imports that the juror is not in law disqualified; and if the prisoner challenges a juror for favor, although the fact proved on the trial of the challenge should have been ground for challenge for principal cause, yet the determination of the question of competency belongs in such case to the trier, and not to the court. (People v. Bodine, supra; People v. Freeman,supra.)
It was not, therefore, the right of the prisoner in this case *Page 34 to call upon the court to rule, as matter of law, that the juror, upon the fact proved, was incompetent.
The prisoner, by his own act, had remitted the final decision of that question, as one of fact, to the triers.
It seems to be settled that when a juror has formed and expressed an opinion as to the guilt or innocence of the accused, he is in law incompetent.
But we think that the mere statement of a juror that he has formed an opinion that the general character of the prisoner is bad, will not sustain a challenge for principal cause, and that such an opinion, especially where the grounds of it or its strength or general character are not disclosed, does not, perse, disqualify him. (People v. Lohman, 2 Bar., 216; samecase, 1 Com., 379.)
If such a rule was established, it might happen, as was well said by STRONG, J., in the case of People v. Lohman, that notorious criminals could not be tried at all.
The fact stated by the juror was to be considered by the trier, and his competency was to be determined by them upon all the facts, having in view the cardinal rule that a juror should "stand indifferent as he stands unsworn."
There was no error in the proceedings in the General Sessions, and the judgment of the General Term should be reversed and that of the Sessions affirmed.
All the judges concurring, judgment reversed, and judgment of sessions affirmed.